Isg Overseas (P) Ltd., New Delhi vs Department Of Income Tax

Department by : Sh. Robin Rawal, Sr. D.R. Assessee by : Sh. Ajay Bhagwani, CA

Date of Hearing : 29-01-2015 Date of Order : 30-01-2015 ORDER

PER H.S. SIDHU : JM The Revenue has filed the present appeal against the impugned order dated 03/12/2012 passed by the Ld. Commissioner of Income Tax (Appeals)-XXXIII, New Delhi on the following grounds:-

"1. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs. 10,91,340/- made by the AO u/s. 2(22)(e) of the I.T. Act, 1961.

2. The order of the CIT(A) is erroneous and is not tenable on facts and in law.

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3. The appellant craves leave to add, alter or amend any / all of the grounds of appeal before or during the course of the hearing of the appeal."

2. The facts in brief are that the return declaring NIL income was filed on 28.11.2006. Subsequently, the case of the assessee has been selected for scrutiny. First notice u/s. 143(2) dated 27.11.2007 was sent by Speed Post. Thereafter, notices u/s. 142(1) and u/s. 143(2) were issued on 3.10.2008 and duly served upon the assessee company. In response to statutory notices issued upon the assessee company, Assessee's representatives appeared from time to time and furnished the requisite details. Thereafter, after considering the details, AO has completed the assessment vide his assessment order dated 31.12.2008 u/s. 143(3) of the I.T. Act, 1961 thereby making the additions. Being aggrieved with the aforesaid assessment order, assessee appealed before the Ld. CIT(A), who vide impugned order dated 03.12.2012 has deleted the addition and partly allowed the appeal of the Assessee.

3. Now the Revenue is aggrieved against the impugned order and filed the present appeal before the Tribunal.

4. At the time of hearing Ld. DR relied upon the order of the AO and reiterated the contentions raised by the Revenue in the grounds and requested that addition of Rs. 10,91,340/- made by the AO u/s. 2(22)(e) of the I.T. Act, may be sustained.

5. On the contrary, during the hearing, Ld. Counsel of the assessee relied upon the order of the Ld. First Appellate Authority and also filed a copy of recent Order dated 23.1.2015 of this Bench passed in the case of ACIT vs. ISG Estate (P) Ltd. vide ITA No. 1532/Del/2013 & Ors. (A.Y. 2006-07) and stated that the facts of

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the present case are identical to the case of ACIT vs. ISG Estate (P) Ltd. ITA N. 1532/Del/2013 (A.Y. 2006-07), therefore, issue in question is squarely covered by the aforesaid decision wherein the Tribunal has followed the Hon'ble High Court of Delhi decision in the case of CIT vs. Ankitech Pvt. Ltd. [2011] 11 Taxmann.com 100 (Delhi) order dated 11.5.2011. He requested that Appeal filed by the Revenue may be dismissed.

6. We have heard the both parties and perused and considered the relevant record available with us specially the impugned orders passed by the Revenue Authorities and the copy of the order dated 23.1.2015 of this Bench passed in the case of ACIT vs. ISG Estate (P) Ltd. vide ITA No. 1532/Del/2013 & Ors. (A.Y. 2006-07). We find that Ld. First Appellate Authority has elaborately discussed the issue in dispute by considering the submissions of the Ld. Counsel of the assessee and adjudicated the issue in dispute as under:-

"5.2 The appellant in its written submissions submitted that it is not registered shareholder of Payer Company, and in view of the following case laws, the said amount cannot be taxed in its hand.

i. Commissioner of Income Tax -10, Mumbai vs. Universal Medicare Pvt. Ltd [2010] 324 ITR 263 (Born.)

ii. International Technologies Pvt. Ltd. in ITA No. 61821Mum/2008

iii). Commissioner of Income Tax vs. Ankitech Pvt.

Ltd. [2011] 11 taxmann.com 10Q(Delhi)

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During the appellant proceeding, AR also relied upon the following recent judgment of the jurisdictional High Court:-

i. CIT vs. Navyug Promoters Pvt. Ltd (2011) 16 Taxmann.com 292(Delhi)

ii. CIT vs. Marketing P. Ltd (2011)16 Taxmann.com411 (Delhi)

5.3 I have carefully considered the views of the Assessing Officer as contained in the assessment order and the submission made by the appellant.

The facts of this case are reproduced on para 2 above. The appellant company is not a shareholder in M/s. Sunglow Overseas Pvt. Ltd. who had given the said loan to the appellant. This controversy has received judicial notice and has been settled by the decisions of the jurisdictional High Court in some recent judgment. The Special Bench of ITAT in the case ACIT, Mumbai V. Bhaumik Colour (P.)Ltd [2009] 118 ITD 1 (MUM)(SBLhas held that "the expression"

shareholder being a person who is the beneficial owner of shares "referred to in first limb of section 2(22)(e) refers to both a registered shareholder and beneficial/shareholders. If a person is a registered shareholder but not the beneficial shareholder than the provisions of section 2(22) (e) will not apply. Similarly if a person is a beneficial shareholder but not a registered shareholder than also the first limb of provisions of section 2(22) (e) will not apply".

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The Hon'ble High Court of Bombay in the case of CIT V. Universal Medicare (P) Ltd [2010] 190 Taxmann 144 (Born.) has held that "However, even on the second aspect which has weighed with the Tribunal, we are of the view of that the construction which has been placed on the provision of section 2(22)(e) is correct. Section 2(22)(e) defines the ambit of the expression 'dividend'. All payments by way of dividend have to be taxed in the hands of the recipients of the dividend namely the shareholder. The, effect of section 2(22)( e) is to provide an inclusive definition of the expression 'dividend'. Clause (e) expands the nature of payments which can be classified as a dividend. Clause (e) section 2(22)(e) includes a payment made by company in which the public is not substantially interested by-way an advance or loan to a shareholder or to any concern to which such shareholders is a member or partner, subject to the fulfillment of the requirement which are spelt out in the provision.

Similarly, a payment made by a company on behalf, of for the individual benefit of any such shareholder is treated by clause (e) to be included in the expression 'dividend'. Consequently, the effect of clause (e) of section 2(22)(e) is to broaden the ambit of the expression 'dividend' by including certain payments which the company has made by way of a loan or advance or payments made on behalf of or for the individual benefit of a

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shareholder. The definition does not alter the legal position that dividend has to be taxed in the hands of the shareholder. Consequently in the present case the payment even assuming that it was a dividend, would have to be taxed not in the circumstances, justified in coming to the conclusion that, in any event, the payment could not be taxed in the hands of the assessee. "

The Hon'ble High Court of Delhi in the case of CIT vs. Ankitech (P) Ltd. [2011] lltaxman.com 100 (Delhi) has held as under in-para 25 of the judgment. "Further, it is an admitted case that under normal circumstances, such a loan or advance given to the , shareholders or to a concern, would not qualify as dividend. It has been made so by legal fiction created under section 2(22) (e) of the Act. We have to keep in mind that this legal provision relates to 'dividend'. Thus by a deeming provision, it is the definition of dividend which is enlarged. Legal fiction does not extend to· 'shareholder'. When we keep in mind this aspect, the conclusion would be obvious, viz, loan or advance given under the conditions specified under section 2(22) (e) of the Act would also be treated as dividend. The fiction has, to stop here and is not to be extended further for broadening the concept of shareholders by way legal fiction. It is a common' use that any company is supposed to distribute the profits in the form of dividend to its shareholders/members and such dividend cannot be

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given to non- members. The second category specified under section 2(22)(e) of the Act. Viz, a concern (like the assessee herein), which is given the loan or advance is admittedly not a shareholder/member of the payer company.

Therefore, under no circumstance, it could be treated as shareholder/member receiving dividend. If the intention of the Legislature as to tax such loan or advance as deemed dividend at the hands of deeming shareholder' then the Legislature would have inserted deeming provision in respect of shareholder as well, that has not happened. Most of the arguments of the learned counsels for the revenue would stand answered, once we look into the matter from this perspective ". In pare' no. 28; the Hon'ble High Court has-observed that "Insofar as reliance upon Circular No. 495 dated 22-09-1997 issued by Central Board of Direct Taxes is concerned, we are inclined to 'agree with the observations of the' Mumbai bench decision in Bhaumik Colour (P)Ltd's case (supra) that such observations are not binding on the Courts. Once it is found that such loan or 'advance cannot be treated as deemed dividend at the hands of such concerns which is not a shareholder" and that affording to us is the correct legal position, such a circular ·would be of no avail. "Further, in para no. 30, the Hon'ble High Court has observed that "Before we part with, some comments are to be, necessarily made by us. As pointed out, above, it is not in dispute that the conditions stipulated in 7 ITA NO. 1175/Del/2013

section 2(22)(e) of the Act treating the loan and advance as deemed dividend are established in these cases. Therefore, it would always be open to the revenue to take corrective measure by treating this dividend income at the hands of the shareholders and tax them accordingly. As otherwise, it would amount to escapement of income at the hands of those shareholders."

The Hon'ble Delhi High Court has followed the decision in the case of Ankitech (supra) in the following recent judgment dated 21.11.2011:

1. CIT vs. Navyug Promoters Pvt. Ltd.

(2011) 16 Taxmann.com 292 (Delhi)

2. CIT vs. MCC Marketing Pvt. Ltd. (2011) 16 Taxmann.com 411 (Delhi)

The gist of the above judgment is that deemed dividend u/s 2(22) (e) can be taxed only in the hands of the person who is a shareholder/member of the payer company.

5.4 Respectively following the decisions of the jurisdictional High Court cited supra, it is held that the amount of Rs. 10,91,340/- is not taxable as deemed dividend in the hands of the appellant u/s 2(22)(e) as the appellant is not a shareholder or member of M/s Sunglow Overseas Pvt. ltd. Ground no.3 is therefore allowed and the said addition is deleted."

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6.1 We also find considerable cogency in the contention of the ld.

Counsel of the assessee that the issue raised vide Ground no. 1 in the

Revenue's Appeal is squarely covered by the Order dated 23.1.2015 of

this Bench passed in the case of ACIT vs. ISG Estate (P) Ltd. vide ITA

No. 1532/Del/2013 & Ors. (A.Y. 2006-07) wherein the Tribunal has

adjudicated the matter as under:-

"21. We have heard the both parties and perused the

relevant record available with us specially the impugned order

passed by the Revenue Authorities; Paper Book filed by the

assessee, we find considerable cogency in the contention of

the ld. Counsel of the assessee that the issue raised in ground

no. 3 raised in the Revenue's Appeal is squarely covered by

the Order of the Hon'ble Delhi High Court in the case of CIT

vs. M/s Ankitech Pvt. Ltd. (340 ITR 14) and also reported in

[2011] 11 Taxmann.com 100 (Delhi) vide order dated

11.5.2011 wherein the Hon'ble Court has held as under:-

"According to section 2(22)(e) of the Income Tax Act, 1961, the following conditions are to be satisfied : (i) the payer company must be a closely held company; (ii) it applies to any sum paid by way of loan or advance during the year to the following persons : (a) a shareholder holding at least 10 of the voting power in the payer company; (b) a company in which such share holder has at least 20 per cent of the voting power; (c) a concern (other than company) in which such share holder has at least 20 per cent interest; (iii) the payer

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company has accumulated profits on the date of any such payment and the payment is out of accumulated profits; (iv) the payment of loan or advance is not in the course of ordinary business activities. By a deeming provision it is the definition of dividend which is enlarged. The legal fiction does not extend to "shareholder". The fiction is not to be extended further for broadening the concept of shareholders. Circular No. 495, dated September, 22, 1987, issued by the Central Board of Direct Taxes is not binding on the High Court.

During the assessment proceedings, the Assessing

Officer noticed that the assessee company had received

advances of Rs. 6,32,72,265/- by way of book entry from

a company, JGPL and the share holders having

substantial interest in the assesee company also had 10

per cent of the voting power in JGPL. The Assessing

Officer was of the view that as the two Guptas were

members holding substantial interest in JGPL which had

provided loans and advances to the assessee company

and these very persons had substantial interest in the

assessee company, for the purpose of section 2(22)(e)

of the Act the amount received by the assessee from

JGPL which constituted "advances and loans" would be

treated as deemed dividend within the meaning of

section 2(22)(e) of the Act and added the amount to the

income of the assesssee. The Tribunal deleted the

addition. On Appeal to the High Court: Held, dismissing

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the appeals, that the Tribunal was correct in law in

deleting the addition of Rs. 6,32,72,265/- made by the

Assessing Officer in the hands of the assesee company

under section 2(22)(e)."

22. Keeping in view the aforesaid decision of the Hon'ble

Delhi High Court, we find considerable cogency in the

contention of the Ld. Counsel of the assessee that the issue in

dispute in the present case has been squarely covered in

favor of the assessee by the decision of the Hon'ble Delhi High

Court in CIT vs. Ankitech P Ltd. (Supra). Respectfully following

the precedent as aforesaid, we dismiss this ground of the

appeal raised by the Revenue. In the result, the Appeal filed

by the Revenue stands dismissed."

7. After going through the aforesaid order passed by the Ld. CIT(A)

on the issue in dispute as well as the order relied upon by the Ld. CIT(A)

while deleting the addition in dispute, we are of the view that the Ld. First

Appellate Authority has passed a well reasoned order on the basis of the

precedent relied of case of CIT vs. M/s Ankitech Pvt. Ltd. (340 ITR 14) and

also reported in [2011] 11 Taxmann.com 100 (Delhi) vide order dated

11.5.2011 of the Delhi High Court. There is no need to interfere in the

impugned order, hence, we uphold the same by respectfully following the

Order dated 23.1.2015 of this Bench passed in the case of ACIT vs. ISG

Estate (P) Ltd. vide ITA No. 1532/Del/2013 & Ors. (A.Y. 2006-07) as

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aforesaid, wherein the Tribunal has followed the Hon'ble Delhi High Court

order dated 11.5.2011 in the case of CIT vs. Ankitech Pvt. Ltd. (Supra).

8. In the result, the appeal of the Revenue is dismissed.

Order pronounced in the Open Court on 30/01/2015.

Sd/- Sd/- [J.S. REDDY] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER

Date 30/01/2015 "SRBHATNAGAR"

Copy forwarded to: - 1. Appellant - 2. Respondent - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY By Order,

Assistant Registrar, ITAT, Delhi Benches

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