2021 (5) TMI 630 - AT - Income Tax

Deemed divident addition u/s 2(22)(e) - HELD THAT - Hon ble Calcutta High Court in the case of Pradip Kumar Malhotra 2011 (8) TMI 16 - CALCUTTA HIGH COURT wherein it was held that if such loan or advance is given by the Company to a shareholder as a consequence of any further consideration which is beneficial to the company received from such a shareholder, such advance or loan cannot be said to be deemed dividend within the meaning of section 2(22)(e) of the Act . Explaining further it was observed by Their Lordships that the gratuitous loan or advance given by a company to those classes of shareholders would come within the purview of section 2(22)(e) but not the loans or advances which are given in return to an advantage conferred upon the company by such shareholder . In the present case, the amount of loan in question was given to the assessee by the concerned company on interest and since the said loan was not a gratuitous one and was given in return to an advantage conferred upon the company by the assessee in the form of interest, find merit in the contention of the ld. Counsel for the assessee that the same cannot be treated as deemed dividend within the meaning of section 2(22)(e). Income from house property - deduction on account of interest on Housing Loan - HELD THAT - Assessee has not raised any objection for getting this matter verified by the Assessing Officer, I restore this issue to the file of the Assessing Officer for the limited purpose of verifying the claim of the assessee that deduction on account of interest on Housing Loan was claimed only to the extent of ₹ 1,50,000/- and not ₹ 5,18,115/- as wrongly taken by the ld. CIT(Appeals). If the claim of the assessee is found to be correct on verification, the Assessing Officer shall delete the disallowance as directed to be made by the ld. CIT (Appeals) on this issue. Ground No. 2 of the assessee s appeal is accordingly treated as allowed for statistical purposes. Disallowance of depreciation on motor car and disallowance on motor car maintenance - HELD THAT - As assessee was owner of two cars, one Chevrolet Beat and the other Maruti Van. Since the Maruti Van was being used by the assessee for the purpose of business, depreciation claimed on the said car was allowed by the Assessing Officer. The claim of depreciation made by the assessee on account of Chevrolet Beat car, however, was disallowed by the Assessing Officer. In my opinion, even though the personal use of Chevrolet Beat car by the assessee cannot be ruled out, the claim of the assessee for depreciation on the said car cannot be entirely disallowed and it will be fair and reasonable to restrict the same to one-third for such personal use as the claim of the assessee of having used the said car for business purpose also cannot be outrightly rejected.Therefore, direct the Assessing Officer to restrict the disallowance made on account of depreciation of Chevrolet Beat car to the extent of 1/3rd. Similarly the disallowance made by the Assessing Officer on account of car maintenance for personal use to the extent of 50% is directed to be restricted to one-third. Ground No. 3 of the assessee s appeal is accordingly partly allowed.

Summary

Issues:
1. Condonation of delay in filing the appeal.
2. Addition of deemed dividend under section 2(22)(e) of the Act.
3. Disallowance of interest on housing loan.
4. Disallowance of depreciation on motor car and maintenance expenses.

Condonation of Delay:
The appeal was filed with a delay of 199 days, which the assessee sought to condone. The Tribunal found sufficient cause for the delay and proceeded to dispose of the appeal on merit after condoning the delay.

Addition of Deemed Dividend:
The Assessing Officer added ?7,68,000 to the assessee's income as deemed dividend under section 2(22)(e) of the Act, as the assessee, a 50% shareholder in a company, had taken a loan from it. The CIT(A) sustained an addition of ?5,10,590 as deemed dividend. The Tribunal, relying on a High Court decision, held that since the loan was not gratuitous and was given in return for an advantage conferred upon the company, it could not be treated as deemed dividend. Consequently, the addition was deleted.

Disallowance of Interest on Housing Loan:
The assessee claimed a deduction of ?1,50,000 on housing loan interest under section 24(b) of the Act. However, the CIT(A) disallowed ?3,68,115 as interest on housing loan. The Tribunal directed the matter to be verified by the Assessing Officer to ascertain the correct deduction claimed by the assessee. If the claim is verified, the disallowance made by the CIT(A) will be deleted.

Disallowance of Depreciation and Maintenance Expenses:
The Assessing Officer disallowed depreciation on a Chevrolet Beat car and maintenance expenses on personal use of a car. The Tribunal directed the disallowance on the Chevrolet Beat car's depreciation to be restricted to one-third, considering possible personal use. Similarly, the disallowance on car maintenance for personal use was directed to be restricted to one-third instead of 50%. Consequently, this ground of appeal was partly allowed.

This judgment addresses various issues including the condonation of delay, addition of deemed dividend, disallowance of interest on housing loan, and disallowance of depreciation and maintenance expenses. The Tribunal ruled in favor of the assessee on the deemed dividend issue, directing the deletion of the addition. The matter of interest on housing loan was referred back for verification, and the disallowance of depreciation and maintenance expenses was partially allowed by restricting the disallowances.