2017 (10) TMI 724 - AT - Income Tax

Deemed dividend addition u/s 2(22)(e) - proof of business transaction - Held that - Assessing Officer had accepted the transaction of ₹ 1,20,00,000/- in the hands of B. B. Overseas Pvt. Ltd. as business transaction and therefore not accepting the same transaction in the hands of second party which is assessee is not correct. Therefore we hold that the said transaction of ₹ 1,20,00,000/- was a business transaction and for a business transaction, the addition u/s 2(22)(e) cannot be made as such transactions has been kept out of purview of the section 2(22)(e) vide circular no. 19/2017 dated 12.06.2017. We are in agreement with the arguments of assessee that the said transaction was a business transaction and is therefore out of the purview of section 2(22)(e) of the Act.

Issues Involved:
1. Reopening of the case.
2. Merits of the case regarding the transaction of ?1.20 crores.
3. Charging of interest under sections 234A, 234B, and 234C.
4. Initiation of penalty under section 271(1)(c).

Issue-wise Detailed Analysis:

1. Reopening of the Case:
The assessee did not press the legal grounds related to the reopening of the case, as indicated by the Ld. AR at the outset.

2. Merits of the Case Regarding the Transaction of ?1.20 Crores:
- The assessee purchased land for ?3,94,24,240 in January 2006 and entered into a collaboration agreement with M/s B. B. Overseas Pvt. Ltd. on 25.10.2007 for developing the land into a housing colony. The builder provided a security deposit of ?1.20 crores.
- The authorities below treated the amount received as deemed dividend under section 2(22)(e) of the Act, doubting the genuineness of the collaboration agreement, suggesting it was an afterthought due to the land being affected by the Land Ceiling Act.
- The assessee argued that the collaboration agreement was genuine, supported by documents such as the sale deed and a letter from an advocate indicating the land dispute, which was dismissed as withdrawn.
- The Ld. AR argued that the transaction was a business transaction, supported by the fact that the Assessing Officer in the case of M/s B. B. Overseas Pvt. Ltd. had accepted the transaction as a business transaction during both original and reassessment proceedings.
- The Tribunal found that the assessee was under a bona fide belief that the land was free from disputes at the time of purchase and only became aware of the dispute later, which was resolved before entering the collaboration agreement.
- The Tribunal concluded that the transaction was a business transaction and not an afterthought, supported by the fact that the Assessing Officer in the case of M/s B. B. Overseas Pvt. Ltd. had accepted it as such.
- The Tribunal referred to CBDT Circular No. 19/2017, which states that trade advances in the nature of commercial transactions are not covered under section 2(22)(e).
- The Tribunal held that the transaction was a business transaction and thus, outside the purview of section 2(22)(e). Additionally, the security deposit was refunded, further supporting the business nature of the transaction.

3. Charging of Interest Under Sections 234A, 234B, and 234C:
These grounds were considered consequential and did not require separate adjudication.

4. Initiation of Penalty Under Section 271(1)(c):
This ground was also considered consequential and did not require separate adjudication.

Conclusion:
The appeal was partly allowed, with grounds related to the reopening of the case dismissed as not pressed, and the additions under section 2(22)(e) deleted. The Tribunal found that the transaction was a business transaction and not a deemed dividend, supported by the CBDT Circular and the refund of the security deposit.

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