2023 (5) TMI 1178 - AT - Income Tax

Deemed dividend u/s 2(22)(e) - Director on company holding substantial shareholding in the assessee company as well another company - CIT-A deleted the addition - HELD THAT - CIT(A) is not correct in deleting the addition in the hands of the assessee, observing that the addition is to be made in the hands of the Director of the Company who is common shareholder of both companiesy when the Hon ble Supreme Court has doubted the decision of the Delhi High Court in the case of Ankitech Pvt. Ltd. 2011 (5) TMI 325 - DELHI HIGH COURT and referred it to the Larger Bench of the Hon ble Supreme Court to re-look into the entire issue. The issue is not fully settled by Hon ble Supreme Court that too when later judgment of the Hon ble Supreme Court has referred the issue to the Larger Bench. Thus the Ld. CIT(A) is not correct in taking a decision with that of the previous judgment of the Hon ble Supreme Court in the case of Madhur Housing And Development Company 2017 (10) TMI 1279 - SUPREME COURT Therefore we hereby set aside the matter back to the file of the Ld. CIT(A) who is to decide the issue - Ground raised by the Revenue are hereby allowed for statistical purposes. Addition - delayed deposit of service tax - as per CIT-A service tax collected by the assessee was deposited before the due date of filing of the return - HELD THAT - This amount was already offered for taxation in the subsequent assessment year i.e. 2012-13. Thus, CIT(A) directed the AO to verify the same and if it is found that the assessee has already offered this amount as income in the subsequent year, the income of that year be reduced by disallowance made u/s 43B. Decided against revenue.

Summary

Issues involved:
The judgment involves issues related to additions made under section 2(22)(e) of the Income Tax Act, 1961 and deletion of addition made under section 43B of the Act.

Additions under section 2(22)(e):
The Revenue filed an appeal against the appellate order deleting additions made under section 2(22)(e) of the Act. The ld.CIT(A) deleted the addition of Rs.38,29,086/- received from M/s. Neesa Leisure Limited and Rs.2,91,27,917/- received from M/s. Neesa Agritech Private Limited. The ld.CIT(A) considered the argument that loans and advances received by the assessee-company from other companies could not be treated as deemed dividend when the assessee was not a shareholder of that company. The Revenue contended that the addition should be made in the hands of the Director of the Company who is a common shareholder of both companies. The Tribunal set aside the matter back to the ld.CIT(A) pending the outcome of the Larger Bench judgment of the Hon'ble Supreme Court.

Deletion of addition under section 43B:
The ld.CIT(A) directed the AO to verify the service tax collected by the assessee, which was deposited before the due date of filing the return. The ld.CIT(A) noted that this amount was already offered for taxation in the subsequent assessment year. The Tribunal found no infirmity in the ld.CIT(A)'s direction and rejected the grounds raised by the Revenue.

In conclusion, the appeal filed by the Revenue was dismissed by the Tribunal on 26th May, 2023 at Ahmedabad.