2018 (12) TMI 627 - AT - Income Tax

Deemed dividend u/s 2(22)(e) - assessee contended that accumulated profit was arising out of sale of its land and therefore it is a capital reserve which cannot be distributed as dividend - commercial exigencies - Held that - It is abundantly clear that even if the company advancing loan has capital reserve, provisions of Section 2(22)(e) can be invoked. - Moreover the AR has not brought out any convincing materials / explanation before us to establish that the advance made by M/s. Tuticorin Power Company Ltd. to M/s. Aben Ventures Pvt. Ltd. was out of commercial exigencies. In this situation we do not find it necessary to interfere in the orders of the Ld. Revenue Authorities. Hence the appeal of the assessee is devoid of merits and the order of the Ld.AO is hereby confirmed on this issue. Addition u/s 68 - Held that - Since the submission of the assessee was not backed with any concrete evidence, the Ld.AO added an amount of ₹ 10,91,34,125/- (Rs.11,65,43,082/- less income offered ₹ 74,08,957/-) as the income of the assessee by invoking the provisions of Section 68 of the Act. 9.1 On appeal, the Ld.CIT(A) also confirmed the order of the Ld.AO because even before her, the assessee had not explained the transaction with sufficient evidence.Even before us, the assessee has not furnished any materials to substantiate his claim. Therefore we do not find any reason to interfere with the orders of the Ld.Revenue Authorities. - Decided against assessee.

Summary

Issues Involved:
1. Deletion of addition towards deemed dividend under Section 2(22)(e) of the Income Tax Act for M/s. Aban Ventures Pvt. Ltd. for the assessment year 2013-14.
2. Sustaining of addition towards deemed dividend under Section 2(22)(e) of the Income Tax Act for Mr. Reji Abraham for the assessment year 2013-14.
3. Sustaining of addition towards cash credit under Section 68 of the Income Tax Act for Mr. Reji Abraham for the assessment year 2014-15.

Issue 1: Deletion of Addition Towards Deemed Dividend for M/s. Aban Ventures Pvt. Ltd.
The Revenue's appeal contested the deletion of an addition of ?1.40 crores towards deemed dividend under Section 2(22)(e) of the Income Tax Act by the Commissioner of Income Tax (Appeals) [CIT(A)]. The assessee, M/s. Aban Ventures Pvt. Ltd., had received loans from related companies, including ?1.40 crores from M/s. Tuticorin Power Company Ltd., which had sufficient capital reserves. The Assessing Officer (AO) invoked Section 2(22)(e), arguing that the reserves were misclassified as capital reserves to avoid tax. However, the CIT(A) deleted the addition, relying on the Delhi High Court decision in CIT Vs. Ankitech Pvt. Ltd. and the Supreme Court decision in Madhur Housing & Development Company, which stated that deemed dividend cannot be taxed if the recipient company does not hold shares in the lending company. The Tribunal upheld the CIT(A)'s decision, finding no reason to interfere.

Issue 2: Sustaining of Addition Towards Deemed Dividend for Mr. Reji Abraham
For the assessment year 2013-14, the AO added ?1.40 crores as deemed dividend under Section 2(22)(e) in Mr. Reji Abraham's case, arguing that M/s. Aban Ventures Pvt. Ltd. was used as a conduit to transfer funds from M/s. Tuticorin Power Company Ltd. The CIT(A) upheld this addition, noting that even capital gains from the sale of land, which are taxable, form part of accumulated profits for deemed dividend purposes. The Tribunal affirmed this view, citing the Supreme Court's decision in CIT Vs. Mukundray K. Shah, which emphasized that accumulated profits, even if capitalized, can be subject to Section 2(22)(e). The Tribunal found the assessee's argument that the funds were advanced due to commercial exigencies unconvincing, and thus upheld the addition.

Issue 3: Sustaining of Addition Towards Cash Credit for Mr. Reji Abraham
For the assessment year 2014-15, the AO added ?10,91,34,125/- as unexplained cash credit under Section 68 of the Income Tax Act. The assessee claimed this amount was received on behalf of former shareholders of M/s. Aban Construction Company Ltd. as compensation from a joint venture dispute settlement. However, the AO found the explanation insufficient and unsupported by evidence. The CIT(A) upheld this addition, and the Tribunal agreed, noting the lack of substantial evidence to support the assessee's claim. Consequently, the Tribunal found no reason to interfere with the CIT(A)'s decision.

Conclusion:
In conclusion, the Tribunal dismissed the appeals from both the Revenue and the assessee. The deletion of the deemed dividend addition for M/s. Aban Ventures Pvt. Ltd. was upheld, while the additions for Mr. Reji Abraham concerning deemed dividend and unexplained cash credit were sustained. The Tribunal's decisions were based on established legal precedents and the lack of convincing evidence from the assessee.