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Income Tax Appellate Tribunal, AHMEDABAD “SMC” BENCH
Before: Shri Rajpal Yadav & Shri Amarjit Singh
Date of hearing : 03-12-2020 Date of pronouncement : 16-12-2020 आदेश/ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:-
This assessee’s appeal for A.Y. 2012-13, arises from order of the CIT(A)-9, Ahmedabad dated 27-10-2015, in proceedings under section 143(3) of the Income Tax Act, 1961; in short “the Act”.
The assessee has raised following grounds of appeal:- “1. The learned assessing officer has erred in law.
2. That on the facts and in the circumstances of the case and in the law the AO has erred in assessing the income of the appellant at Rs 20,73,000/-, instead of Rs 3,17,460/- returned. As such aggregate estimated additions of Rs 17,55,535/- may please be deleted.
3. The learned assessing officer has erred in making an addition of Rs. 13,21,198/- on account of deemed Dividend as the assessee had taken unsecured loan for business purpose, as he was in need of funds for running the business properly and its sister concern had liquid funds at that Page No 2 M/s. Precimetal Cast Pvt. Ltd. vs. ITO time. It was a prudent business practice on the part of the assesse in borrowing funds from its sister concern at a lower rate of 12% than to borrow funds from outside market at the rate of 18% p.a. or more. The unsecured loan has already been repaid in the current F.Y. 2014-15. The learned assessing officer has erred in interpreting the soul intention of the assesse and the section 2(22)(e) coming in force.
4. The learned assessing officer has erred in making an addition of Rs. 4,23,426/- on account of office expense as Gaurav Securities Pvt. Ltd, has kept the office as a registered office only and it is just a formal office where no working has taken place during the year under consideration. Gaurav Securities Pvt. Ltd. had not utilized the business premises and hence it would not be appropriate to claim the expenses incurred relating to that premise. Hence Gaurav Securities Pvt. Ltd. cannot claim the expenses made by the assesse.
The Assessee had recently changed its address and before it could be intimated to the Office of CIT (Appeal) the order was passed by the learned CIT (Appeal) dismissing the appeal of the assessee.
6. The learned assessing officer has to interpret the law liberally in view of fact and materiality based on various judgments.”
The fact in brief is that assessee has filed return of income on 21st Sep, 2012 declaring total income at Rs.317460/-. The case was selected for scrutiny and notice u/s. 143(2) of the Act was issued on 6th August, 2013. The remaining facts of the case are discussed while adjudicating the two grounds of appeal filed by the assessee as under.
Ground No. 1 (Addition on account of deemed dividend u/s. 2(22)(e) of the Act)
During the course of assessment, the Assessing Officer noticed that assessee company has obtained unsecured loan of Rs. 16,28,000/- during the year from Gaurav Securities Pvt. Ltd. On clarification of the detail filed, the Assessing Officer noticed that Shri Umesh Shayamsundar Bhatiya who was the main shareholder of the assessee company was also holding substantial shareholder in the Gaurav Securities Pvt. Ltd. from whom the assessee has obtained the loan. It was also noticed from the annual account of the assessee company that there was accumulated profit of Rs. 13,21,198/- as on 31st March, 2012. In view of the above facts, the Assessing Officer Page No 3 M/s. Precimetal Cast Pvt. Ltd. vs. ITO observed that section 2(22)(e) of the Act prohibits advancing of loan to the persons/entities having common shareholders with substantial interest in the closely held company having accumulated profit. Therefore, the Assessing Officer has treated the loan amount up to the extent of accumulated profit of Rs. 13,21,198/- as deemed dividend and added to the total income of the assessee u/s. 2(22)(e) of the Act.
5. The assessee has preferred the appeal before the ld. CIT(A). The ld. CIT(A) has dismissed the appeal of the assessee.
During the course of appellate proceedings before us, the ld. counsel contended that since the assessee company was not registered share holder in the company from whom the loan was obtained therefore no addition can be made as deemed dividend in the hands of the assessee company merely because there was a common shareholder in the payee company. The ld. counsel has placed reliance on in the following decisions:- > ACIT vs. Bhaumik Colors P. Ltd. - 118 1TD 1 (Mum)(SB); > CIT vs. Ankitech (P.) Ltd. - 340 ITR 14 (Del); > CIT vs. Mahavir Inducto Pvt Ltd. - Tax Appeal 891 of 2016 (High Court of Gujarat) > ACIT vs. Leela Ship Recylcing Pvt Ltd. - ITA 1658/Ahd/2012 On the other hand, the ld. Departmental Representative has supported the order of the lower authorities.
Heard both the sides and perused the material on record. The Assessing Officer noticed that assessee company has obtained unsecured loan from Gaurav Securities Pvt. Ltd. wherein one of the main shareholders Page No 4 M/s. Precimetal Cast Pvt. Ltd. vs. ITO of the assessee company Shri Umesh Bhatiya was holding substantial shares in Gaurav Securities Pvt. Ltd. Looking to the above facts, the Assessing Officer has made an addition to the extent of Rs. 13,21,198/- being accumulated profit of Gaurav Security Pvt. Ltd. for the reason that section 2(22)(e) prohibits advancing money among entities having common shareholders with substantial interest in the case of closely held company having accumulated profit. After perusal of the judicial pronouncements it is noticed that identical issue on common facts have been adjudicated by the Co-ordinate Bench of the ITAT Ahmedabad in the case of ACIT vs. Leela Ship Recyling Pvt. Ltd. vide dated 12th March, 2020 and by the Jurisdictional High Court in the case of Pr. CIT vs. Mahavir Inducto Pvt. Ltd. dated 12-01-2017. With the assistance of ld. representatives, we have gone through the aforesaid two judicial pronouncements, it is noticed that in the case of ACIT vs. Leela Ship Recycling Pvt. Ltd. supra the Co-ordinate Bench of the ITAT has adjudicated the identical issue on same facts as under:- “4. We have heard the rival contentions, perused the material on record and duly considered facts of the case and the applicable legal position. 5. Learned representatives fairly agree that the issue in appeal is now covered by Hon'ble jurisdictional High Court's judgment in the case of CIT Vs Mahavir Inductomelt Pvt Ltd (TA No. 890 of 2011; judgment dated 13th January 2017) wherein Their Lordships have extensively reproduced from Hon'ble Delhi High Court's judgment in the case of Anitech Pvt Ltd (supra), and concurred with the same. Thus, in a case in which an amount is received from a person other than the shareholder, as is the admitted position in this case, the provisions of Section 2(22)(e) cannot indeed be invoked. The CIT(A) was thus justified in granting the impugned relief in respect of the addition under section 2(22)(e). We, therefore, approve the conclusion arrived at by the learned CIT(A) in this regard, and decline to interfere in the matter on that count.”
We have also through the decision of Hon’ble Gujarat High Court in the case of Pr. CIT vs. Mahavir Inducto Pvt. Ltd. supra wherein the identical issue on same facts was decided in favour of the assessee after following the Page No 5 M/s. Precimetal Cast Pvt. Ltd. vs. ITO decision of Bombay High Court in the case of CIT vs. Impact Containers Pvt. Ltd. and others vide IT Appeal No. 114 of 2012 and the decision of Delhi High Court in the case of CIT vs. Ankitech Pvt. Ltd. Ltd. reported in 340 ITR 14 Delhi. The relevant part of the decision is reproduced as under:-
“50. Identical question came to be considered by the Division Bench of this Court in Tax Appeal No. 253 of 2015. After considering the decision of the Bombay High Court in the case of CIT vs. Impact Containers Private Limited & ors rendered in I TA No. 114 of 2012 and the decision of the Delhi High Court in thecase of CIT vs. Ankitech Pvt Lt d reported in 340 ITR 14 (Del) and on interpreting Section 2(22)(e), in para 4 has observed and h eld as under:
“4.Shri Bhatt, learned Counsel appearing on behalf of the revenue has as such tried to justify the decision of the Delhi Court in the case of Ankitech Pvt. Ltd. (Supra) and has vehemently submitted that the Delhi High Court has not considered the third category i.e. shareholder in the assessee Company holding not less than 10% of the voting power in the Company from whom the loan or advance is taken. However, on considering Section 2(22)(e) of the Act, we are not at all impressed with the aforesaid. If the contention on behalf of the revenue is accepted, in that case, it will be creating the third category / class, which is not permissible. What is provided under Section 2(22) (e) of the Act seems to be that the assessee HC-NIC Page 4 of 5 Created On Sat Aug 12 04:34:00 IST 2017 O/TAXAP/891/2016 JUDGMENT Company must be a shareholder in the Company from whom the loan or advance has been taken and should be holding not less than 10% of the voting power. It does not provide that any shareholder in the assessee- Company who had taken any loan or advance from another Company in which such shareholder is also a shareholder having substantial interest, Section 2(22)(e) of the act may be applicable.
5.1. Considering the aforesaid decision of the Division Bench of this Court and the facts narrated herein above, more particularly,considering the fact that the assessee was not share holder of Mahavir Rolling Mills Pvt Ltd to whom loan was given, it cannot be said that the learned Tribunal has committed any err or in deleting the addition made by the Assessing Officer on deemed dividend.”
In view of the findings as supra Hon’ble Jurisdictional High Court wherein it is held that for the applicability of section 2(22)(e), it is required that the assessee company must be a shareholder in the company from whom the loan or advance has been taken and it does not provide that any shareholder in the assessee company who had taken any loan or advance from another company in which such shareholder is also a shareholder Page No 6 M/s. Precimetal Cast Pvt. Ltd. vs. ITO having substantial interest. Since the facts of the case of the assessee are squarely covered by the aforesaid decisions of Hon’ble High Court and Co- ordinate Bench of the ITAT, the impugned addition is deleted. Accordingly, this ground of the assesse is allowed.
Ground No. 2 (Disallowance out of office expenses) 8. During assessment, the Assessing Officer noticed that assessee has shared common business premises with its associate concern M/s. Gaurav Securities Pvt. Ltd. and in the profit and loss account assessee company has debited substantial expenses related to the office building and its maintenance. The Assessing Officer asked the assessee to show cause why 50% of these expenses should not be disallowed because of sharing of common business premises. The assessee has explained that its associate concern Gaurav Securities Pvt. Ltd. has used this office for limited purpose of showing the office as registered office and no other activities has taken place during the year therefore no disallowance out of expenses should be made. The Assessing Officer did not agree with the submission of the assessee stating that Gaurav Securities Pvt. Ltd. had not debited any rent expenses or any expenses relating to running and maintenance of office therefore 50% of the office expenses to the amount of Rs. 4,23,846/- was disallowed and added to the total income of the assessee.
The assessee has filed appeal before the ld. CIT(A). The ld. CIT(A) has dismissed the appeal of the assessee.
Page No 7 M/s. Precimetal Cast Pvt. Ltd. vs. ITO
During the course of appellate proceedings before us, the ld. counsel contended that M/s. Gaurav Securities Pvt. Ltd. had not carried any business activities at the premises, therefore, there is no question of making disallowance out of office expenses. On the other hand, ld. Departmental Representative has supported the order of lower authorities.
Heard both the sides and perused the material on record. At the time of assessment, the Assessing Officer noticed that assessee company has incurred various expenses amounting to Rs. 8,47,692/- being office expenses, telephone expense, office electrical expenses, municipal taxes, depreciation of furniture and fixture, depreciation of office equipment and depreciation of office building etc. The Assessing Officer was of the view that the associated concern of the assessee M/s. Gaurav Securities Pvt. Ltd. has shared the same address therefore assessee should have shared the expenses with its associated concern. In view of the aforesaid observations, the Assessing Officer has made disallowance of 50% of the expenses being Rs. 4,23,426/-. On perusal of the profit and loss account of M/s. Gaurav Securities Pvt. Ltd as per annexure B placed in the paper book filed by the assessee, it is noticed that during the year under consideration it has shown only indirect income in the form of dividend income and interest income which demonstrate that no major activities was carried out during the year under consideration. The Assessing Officer has also failed to controvert the claim of the assessee with specific finding that its associate concern had not carried out any business activity at the premises. The aforesaid facts demonstrates that no major activities has been carried out in the case of M/s. Gaurav Securities Pvt. Ltd. therefore we consider that disallowance of Page No 8 M/s. Precimetal Cast Pvt. Ltd. vs. ITO expenses to the extent of Rs. 25% of the amount is reasonable in this case. Accordingly, we restrict the disallowance to the extent of Rs. 25% of the expenses i.e. Rs. 2,11,923/-.
In the result, the appeal of the assessee is partly allowed.
Order pronounced in the open court on 16-12-2020 Sd/- Sd/- (RAJPAL YADAV) (AMARJIT SINGH) VICE PRESIDENT ACCOUNTANT MEMBER Ahmedabad : Dated 16/12/2020 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से,
उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद