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2023 (6) TMI 558 - AT - Income TaxBogus LTCG - unexplained credit u/s 68 - share application money received by the assessee company - assessee could not offer any satisfactory explanation regarding the nature and source of this so called share application money - CIT-A deleted the addition - HELD THAT - We find that CIT(Appeals) has given a finding on fact that the assessee has duly filed the requisite evidences and there was no cash deposit before making investment. Hence, no good reason to interfere in the finding of the learned CIT(Appeals) and the same is affirmed. Ground of the Revenue s appeal are dismissed. Disallowance of advances against secured advance against property rights - CIT-A deleted the addition - HELD THAT - AO without examining the fact has added this amount. This amount could not have been added in the first place as it represented the opening balance pertaining to earlier years. This finding of the learned CIT(Appeals) that the amount partly represented the advance of earlier year is not rebutted by the Revenue. Therefore, we do not see any reason to disturb the finding of the learned CIT(Appeals). The same is hereby affirmed. Remaining deletion of addition, CIT(Appeals) has given a finding on fact that in some cases there was an unfinished flat as per sale-deed and purchaser paid extra amount for its finishing and in some cases the amounts in the sale-deed and copy of account tally where the finished flat is being sold. Revenue has not brought any material to rebut this finding of the learned CIT(Appeals). The same is hereby affirmed. Thus, ground no. 3 of the Revenue s appeal is dismissed. Addition being the advance for the purchase of plots - AO made addition on the basis that as per IAS-11 the assessee was required to declare profits on actual sale - HELD THAT - AO ought to have made further efforts to verify whether the payments received by the assessee are genuine. Non response from the customers would not be a definite conclusion that money was not an advance - assessee had discharged the preliminary onus by filing the addresses of the customers. Therefore, in the light of the binding precedence the impugned addition deserves to be deleted. Hence, ground no. 1 of the assessee s appeal is allowed. Deemed dividend u/s 2(22) - Treating loan to a non shareholder as deemed dividend - as contended that loan was a routine loan and the assessee company is not a shareholder - HELD THAT - As relying on Ankitech P. Ltd. 2011 (5) TMI 325 - DELHI HIGH COURT expression 'shareholder being a person who is the beneficial owner of shares' referred to in the first limb of section 2(22) (e) refers to both a registered shareholder and beneficial shareholder. If a person is a registered shareholder but not the beneficial then the provision of section 2(22) (e) will not apply. Similarly, if a person is a beneficial shareholder but not a registered shareholder then also the first limb of the provisions of section 2(22)(e) will not apply. Thus the appeal has to fail on the ground that the assessee cannot be taxed as it is not a shareholder in loan advancing company even on the aforesaid ground, i.e., it was not having 10/20 per cent shareholding therein, non-applicability of section 2(22)(e) of the Act is apparent. Decided in favour of assessee.
Issues Involved:
1. Deletion of addition of Rs. 68,00,000/- as unexplained credit. 2. Deletion of addition of Rs. 1,40,35,000/- and Rs. 36,50,000/- on account of disallowance of advances. 3. Sustaining the addition of Rs. 13,98,000/- as advance for the purchase of plots. 4. Sustaining the addition of Rs. 7,00,000/- as deemed dividend under section 2(22)(e). Issue-wise Detailed Analysis: 1. Deletion of Addition of Rs. 68,00,000/- as Unexplained Credit: The Revenue argued that the CIT(A) erred in deleting the addition of Rs. 68,00,000/- made by the AO, treating the share application money received by the assessee company as unexplained credit under section 68 of the Income-tax Act, 1961. The AO contended that the assessee could not offer any satisfactory explanation regarding the nature and source of this share application money. However, the CIT(A) found that the assessee had duly filed the requisite evidences, including confirmation, bank statement, and ITR of the Managing Director from whom the share capital had been received, and there was no cash deposit before making the investment. The Tribunal affirmed the CIT(A)'s finding, stating that there was no good reason to interfere. Thus, the ground of appeal by the Revenue was dismissed. 2. Deletion of Addition of Rs. 1,40,35,000/- and Rs. 36,50,000/- on Account of Disallowance of Advances: The Revenue contended that the CIT(A) erred in deleting the addition of Rs. 1,40,35,000/- and Rs. 36,50,000/- made by the AO on account of disallowance of advances against secured advance against property rights. The AO had added these amounts based on the application of International Accounting Standard (IAS-11). However, the CIT(A) observed that the AO had misread the facts and failed to examine the specific evidence provided by the assessee. The CIT(A) found that the amount of Rs. 1,40,35,000/- represented the opening balance of earlier years and could not be added in the current year. The Tribunal upheld the CIT(A)'s finding, noting that the Revenue did not rebut the CIT(A)'s findings. Regarding the remaining deletion of Rs. 36,50,000/-, the CIT(A) found that the amounts were either for unfinished flats or matched the amounts in the sale-deeds and accounts. The Tribunal affirmed the CIT(A)'s findings, dismissing the Revenue's ground of appeal. 3. Sustaining the Addition of Rs. 13,98,000/- as Advance for the Purchase of Plots: The assessee argued that the CIT(A) erred in sustaining the addition of Rs. 13,98,000/- as advance for the purchase of plots, contending that the authorities below failed to verify the claim. The Tribunal noted that the AO made the addition based on IAS-11, which was not applicable to the assessee. The Tribunal found that the assessee had discharged the preliminary onus by providing the addresses of the customers and that non-response from customers did not conclusively prove that the money was not an advance. Therefore, the Tribunal directed the deletion of the addition, allowing the assessee's ground of appeal. 4. Sustaining the Addition of Rs. 7,00,000/- as Deemed Dividend Under Section 2(22)(e): The assessee contended that the CIT(A) erred in treating the loan of Rs. 7,00,000/- as deemed dividend under section 2(22)(e), arguing that the assessee company was not a shareholder and the loan was routine. The CIT(A) found that the common shareholder and controlling director held substantial interest in both companies, making the loan fall within the ambit of section 2(22)(e). The Tribunal, however, referred to the Delhi High Court judgment in CIT Vs. Ankitech P. Ltd., which held that the provisions of section 2(22)(e) apply only to registered shareholders. Since the assessee company was not a registered shareholder, the Tribunal directed the deletion of the addition, allowing the assessee's ground of appeal. Conclusion: The Tribunal dismissed the Revenue's appeal and partly allowed the assessee's appeal, directing the deletion of the additions of Rs. 13,98,000/- and Rs. 7,00,000/-. The Tribunal upheld the CIT(A)'s deletion of the additions of Rs. 68,00,000/- and Rs. 1,40,35,000/-, and partly upheld the deletion of Rs. 36,50,000/- while confirming Rs. 13,98,800/-.
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