2019 (4) TMI 345 - AT - Income Tax

Addition of deemed dividend U/s 2(22)(e) - amount shown as alleged advance to the assessee in different Companies - HELD THAT - Since in the present case advances have been made admittedly to tide over short term deficiency in the cash credit limits, usage of funds for the purpose of business of the said concern, which admittedly are all interrelated, is established. And since the goodwill of the entire group rests on the proper functioning of all the companies in the group, which in turn affects the business of the all companies in the group also, the impugned advances, we unhesitatingly hold, are for the purpose of business only and not in the nature of loans and advances simpliciter benefiting any substantial or beneficial shareholder only. The impugned advances in the present case amounting to ₹ 69,998/- do not qualify as loans and advances for the purpose of treating them as deemed dividend as per the provisions of section 2(22)(e). Addition of deemed dividend U/s 2(22)(e) for advances given to Swami Devi Dayal Hi-tech Education Academy - charitable trust registered u/s 12AA - HELD THAT - following decision in SH. ROSHAN LAL JINDAL VERSUS THE D.C.I.T. 2017 (9) TMI 1098 - ITAT CHANDIGARH we uphold the order of the CIT(A) deleting the addition made u/s 2(22)(e) on account of advances made to societies registered u/s 12A. Addition on account of provision 40(a)(ia) - brand was registered in the name of M/s Heera Moti Spices Pvt. Ltd. who was charging 4.1% royalty on the total turnover since no TDS was deducted - HELD THAT - We restore the issue back to the A.O. to verify the documents filed by the assessee proving that the taxes have been paid by the recipient of brand charges and thereafter to decide the issue in accordance with law. We may add that the assessee be given due opportunity of hearing in this regard. The ground of appeal allowed for statistical purposes. Addition made on account of a seized document - cash transactions of receipts and payment undertaken by the assessee, which in the absence of any plausible explanation available were surrendered by the assessee to the extent of peak credit but were treated entirely as unexplained and the entire receipts added to the income of the assessee - additional evidences produced during assessment proceedings - HELD THAT - We consider it fit to restore this issue back to the A.O. to adjudicate it afresh after considering and verifying the additional evidences filed by the assessee. We may add that the assessee be given due opportunity of hearing in this regard.

Issues Involved:
1. Reference to Special Auditor under Section 142(2A) of the Income Tax Act.
2. Addition of deemed dividend under Section 2(22)(e) of the Income Tax Act.
3. Addition on account of unexplained cash credit under Section 68.
4. Addition on account of provision under Section 40(a)(ia).
5. Addition on account of unexplained expenditure under Section 69C.
6. Addition on account of sundry creditors.
7. Penalty under Section 271(1)(c).

Issue-wise Detailed Analysis:

1. Reference to Special Auditor under Section 142(2A):
The assessee raised objections regarding the reference to the Special Auditor, arguing that the conditions for such a reference were not fulfilled and that the assessee was not maintaining any personal books of accounts. However, these grounds were not pressed before the Tribunal and were thus dismissed as not pressed.

2. Addition of Deemed Dividend under Section 2(22)(e):
The issue revolved around whether certain advances made by companies in which the assessee had substantial interest could be treated as deemed dividends. The Tribunal concluded that the advances made to tide over short-term financial deficiencies were in the nature of commercial expediency and therefore did not qualify as loans or advances for the purpose of treating them as deemed dividends. The Tribunal relied on judgments from higher courts, including the Hon'ble Supreme Court in S.A. Builders Ltd. vs. CIT, to support its decision. Consequently, the additions made on this account were deleted.

3. Addition on Account of Unexplained Cash Credit under Section 68:
The Special Auditors pointed out discrepancies in the cash receipts and payments recorded by the assessee. The assessee admitted to maintaining a diary for these transactions but could not explain the sources. The Tribunal found that the CIT(A) had accepted substantial evidence provided by the assessee, which explained many of the transactions. However, for transactions not fully substantiated, the Tribunal restored the issue back to the Assessing Officer (AO) for fresh adjudication, giving the assessee an opportunity to provide further evidence.

4. Addition on Account of Provision under Section 40(a)(ia):
The AO had disallowed certain expenses on which TDS was not deducted. The assessee argued that the recipient of the payments had already paid taxes on these amounts and provided a certificate from an accountant under Section 201(1) in Form No. 26A. The Tribunal restored the issue back to the AO to verify these documents and decide the issue in accordance with the law.

5. Addition on Account of Unexplained Expenditure under Section 69C:
The AO had made additions for unexplained expenditure based on discrepancies in cash receipts and payments. The Tribunal found that the CIT(A) had accepted explanations for some of these transactions but had applied a gross profit rate for others. The Tribunal restored the issue back to the AO to verify the additional evidence provided by the assessee and decide accordingly.

6. Addition on Account of Sundry Creditors:
The AO had treated the increase in sundry creditors as unexplained and added it to the assessee's income. The CIT(A) had partly deleted this addition based on evidence provided by the assessee. The Tribunal restored the issue back to the AO for fresh adjudication, following the reasoning of the CIT(A) in a similar case for an earlier assessment year.

7. Penalty under Section 271(1)(c):
The penalty was levied on account of additions made for unexplained cash credits and sundry creditors. Since these issues were restored back to the AO for fresh adjudication, the Tribunal found no basis for the penalty and deleted it.

Conclusion:
The Tribunal's judgment addressed multiple issues related to the assessee's appeals and the Revenue's cross-appeals. The Tribunal provided detailed reasoning for each issue, often restoring matters back to the AO for fresh adjudication based on additional evidence. The overall outcome was a mix of deletions of certain additions and remands for further verification, ensuring that the assessee was given a fair opportunity to substantiate its claims.

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