2018 (2) TMI 182 - AT - Income Tax

Deemed dividend u/s. 2(22)(e) - normal charge of depreciation required to be considered for calculating accumulated profits for the purpose of determination of deemed dividend - Held that - The accumulated profits in the case of the company are to be considered after allowing the normal depreciation. Assessee has furnished such working before the Ld.CIT(A), wherein it resulted in the loss of ₹ 3,35,59,784/-. Considering the above, the opinion that there are no accumulated profits so as to consider the loan as deemed dividend . In view of that, assessee s grounds are allowed and AO is directed not to treat any amount as deemed dividend on the facts of the case. - Decided in favour of assessee.

Summary

Issues Involved:
1. Applicability of Section 2(22)(e) of the Income Tax Act regarding deemed dividend.
2. Determination of 'accumulated profits' for the purpose of deemed dividend.
3. Whether the loan transaction qualifies as deemed dividend under Section 2(22)(e).

Issue-Wise Detailed Analysis:

1. Applicability of Section 2(22)(e) of the Income Tax Act regarding deemed dividend:
The primary issue in this case was whether the loan of ?40,00,000 taken by the assessee’s HUF from Pennar Patterson Securities Limited could be treated as deemed dividend under Section 2(22)(e) of the Income Tax Act. The Tribunal noted that the loan transaction was indeed a loan and not a distribution of assets by the company to its shareholders. The Tribunal restored the issue to the AO to determine afresh in light of the correct provision of law.

2. Determination of 'accumulated profits' for the purpose of deemed dividend:
The CIT(A) had earlier restricted the deemed dividend to the extent of accumulated profits of ?24,73,352 derived by Natco Laboratories Limited during the AY 1994-95. The assessee contended that the accumulated profits should be calculated after allowing depreciation as per Income Tax Rules, not as per the Companies Act. Various case laws were cited, including decisions from the Hon'ble Supreme Court and High Courts, which supported the assessee's contention that accumulated profits should be calculated after considering depreciation as per Income Tax Rules.

3. Whether the loan transaction qualifies as deemed dividend under Section 2(22)(e):
The Tribunal examined whether the provisions of Section 2(22)(e) were applicable. It was noted that the assessee was not a shareholder in Pennar Patterson Securities Limited, nor was Pennar Patterson Securities Limited a shareholder in Natco Laboratories Ltd. The Tribunal referred to the legal principle that only payments received by a shareholder can be considered under Section 2(22)(e). The Tribunal concluded that since the assessee was not a shareholder in Pennar Patterson Securities Limited, the provisions of Section 2(22)(e) were not attracted. Additionally, the Tribunal emphasized that the determination of 'accumulated profits' should be after allowing normal depreciation as per Income Tax Rules, which resulted in a loss of ?3,35,59,784 for Natco Laboratories Ltd. Consequently, there were no accumulated profits to consider the loan as deemed dividend.

Conclusion:
The Tribunal allowed the appeal of the assessee, directing the AO not to treat any amount as deemed dividend on the facts of the case, as the provisions of Section 2(22)(e) were not applicable, and there were no accumulated profits after considering depreciation as per Income Tax Rules. The order was pronounced in the open court on 31st January, 2018.