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Income Tax Appellate Tribunal, “E” Bench, Mumbai
Before: Shri M. Balaganesh & Shri Ravish Sood
O R D E R
PER RAVISH SOOD, JM
1. The present appeal filed by the assessee is directed against the order passed by the CIT(A)-4, Mumbai, dated 12.09.2016, which in turn arises from the order passed by the A.O under Sec. 143(3) of the Income Tax Act, 1961 (for short „Act‟) for A.Y. 2013- 14,dated03.03.2016. The assessee has assailed the impugned order on the following grounds of appeal before us: “1. Whether on the facts and circumstances of the case and as per law, the Ld. CIT(A) has erred in directing to delete the addition made u/s 2(22)(e) of the Income-tax Act, 1961 in respect of the advance of Rs. 1,72,10,898/- received from M/s Gayatri Films & Music Pvt. Ltd. (for the sake of brevity, GFMPL) was perverse, since the findings of fact given in the order of Ld. CIT(A) are inconsistent with the material on record?
2. Whether on the facts and circumstances of the case and as per law, the Ld. CIT(A) has erred in holding that Jyoti Sagar, who is one of the more than 20% beneficial shareholding in the P a g e | ACIT-16(1), Mumbai Vs. M/s Sagar Arts P. Ltd.) assessee company, whereas the „Annual report‟ of the assessee company itself states that Mr. Jyoti Sagar holds 27% of shareholding in the assessee company.
3. Whether on the facts and circumstances of the case and as per law, the Ld. CIT(A) has erred in directing to delete addition made u/s 2(22)(e) of the Income-tax Act, 1961 in respect of the advance of Rs. 1,72,10,898/- received from GFMPL despite the fat that all the conditions stipulated for treating an advance from the company as deemed dividend as laid down in Section 2(22)(e) of the Act has been fulfilled in this case.
4. The appellant prays that the order of CIT(A) on the above grounds be set aside and that of the assessing officer be restored.
5. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary.”
2. Briefly stated, the assessee company which is in the business of production, editing and dubbing of T.V Serials and films had e-filed its return of income for A.Y 2013-14 on 30.09.2013, declaring Nil income. The return of income filed by the assesse was processed as such u/s 143(1) of the Act. Subsequently, the case of the assessee was selected for scrutiny assessment u/s 143(2) of the Act.
3. Observing, that the assessee had during the year received substantial amounts from parties which were covered u/s 2(22)(e) of the Act, the A.O while framing the assessment inter alia made additions towards „deemed dividend‟ in the hands of the assessee, as under:
Sr. No. Particulars Amount
M/s Gayatri Films & Music Pvt. Ltd Rs. 8,50,80,367/-
M/s Sagar Entertainment Ltd. Rs. 2,48,51,759/- Total Rs. 10,99,32,126/-
Aggrieved, the assessee carried the matter in appeal before the CIT(A). It was observed by the CIT(A), that admittedly, the assessee company was not having any shareholding in either of the aforesaid companies viz. (i). M/s Gayatri Films Pvt. Ltd; and (ii). M/s Sagar Entertainment Ltd. It was noticed by him that the amounts received by the assesse company from the said concerns were treated by the A.O as „deemed dividend‟ u/s 2(22)(e) in its hands, for the reason, that as per him one of its shareholder viz. Mr. Jyoti Sagar was having substantial shareholding in both of the aforesaid lender companies. On a perusal of the P a g e | ACIT-16(1), Mumbai Vs. M/s Sagar Arts P. Ltd.) records, it was observed by the CIT(A) that the A.O for the purpose of working out the shareholding of Mr. Jyoti Sagar in the assessee company, had clubbed his individual shareholding with that which was held by him as an executor of the estate of Shri Subhash Sagar (for Mrs. Rekha Sagar & Others). Also, a similar clubbing was carried out by the A.O for arriving at a substantial shareholding of Mr. Jyoti Sagar in the aforesaid two companies viz.(i). M/s Gayatri Films & Music Pvt. Ltd; and (ii). M/s Sagar Entertainment Ltd. Accordingly, the claim of the assessee that neither of its shareholders were having a substantial shareholding in either of the aforesaid companies was rejected by the A.O. Also, the claim of the assessee that till 31.03.2013 it had received a total sum of Rs. 6,64,63,007/- from M/s Gayatri Films & Music Pvt. Ltd (including an amount of Rs. 1,72,10,898/- received during the year viz, A.Y 2013-14) on account of a joint venture with the said company for producing a serial “Saibaba”, did not find favour with the A.O. Accordingly, the A.O declined to accept the claim of the assessee that as the production of the serial was delayed, therefore, it had paid interest on the advance received from the said concern. The CIT(A) after deliberating on the contentions of the assessee was not inclined to subscribe to the view taken by the A.O. Insofar the shareholding pattern of Mr. Jyoti Sagar was concerned, the CIT(A) did find favour with the claim of the assessee that the A.O was not justified in clubbing the shareholdings of Shri. Jyoti Sagar in his individual capacity with his shareholding as an executor of the Estate of Late Subhash Sagar. It was observed by the CIT(A) that inquiries made by the A.O with M/s Gayatri Films & Music Pvt. Ltd., had revealed, that the assessee company was not holding any shares in the said company. Also, it was observed by the CIT(A) that neither of the shareholder of M/s Gayatri Films & Music Pvt. Ltd. having a shareholding of not less than 10% was simultaneously having a shareholding of not less than 20% in the assessee company. On the basis of his aforesaid observations, the CIT(A) concluded that as neither of the shareholders of the aforesaid lender companies were having a substantial shareholding of not less than 20% in the assessee company, therefore, the amount received by the assessee from them could not be treated as „deemed dividend‟ u/s 2(22)(e) of the Act. Also, the CIT(A) observing, that as the amount received from M/s Gayatri Films & Music Pvt. Ltd. was for a commercial purpose i.e for producing of a T.V serial “Saibaba” in joint venture, on which amount interest was paid by the assesse as the production of the serial was subjected to delay, therefore, concluded that the same being an inter-corporate deposit would not fall within the realm of the definition of P a g e | ACIT-16(1), Mumbai Vs. M/s Sagar Arts P. Ltd.) „deemed dividend‟ within the meaning of Sec. 2(22)(e) of the Act. The CIT(A), observed, that a similar view was also taken by him in context of a similar issue under consideration in the assesses own case for A.Y 2012-13. As for the amount of Rs. 2,48,51,759/- received by the assessee from M/s Sagar Entertainment Pvt. Ltd., it was noticed by the CIT(A) that in respect of the said entity also similar facts were involved viz. (i). that, neither of the shareholder of M/s Sagar Entertainment Pvt. Ltd. was having a shareholding of not less than 20% in the assessee company; and (ii). that, the assessee had received the amount from the said company for co- production of a serial. Accordingly, the CIT(A) was of the view that in the absence of substantial shareholding of any of the shareholder of M/s Sagar Entertainment Pvt. Ltd. in the assessee company viz. Sagar Arts Pvt. Ltd, the amount so received could not be treated as „deemed dividend‟ u/s 2(22)(e). Also, taking cognizance of the fact that the amount was received by the assessee from the aforesaid company viz. M/s Sagar Entertainment Pvt. Ltd. for co-producing of a T.V Serial, the CIT(A) being of the view that as the same was to be treated as an inter- corporate deposit, therefore, the provisions of Sec. 2(22)(e) on the said cunt also would not be attracted. On the basis of his aforesaid observations, the CIT(A) vacated the additions made by the A.O u/s 2(22)(e) of the Act.
The revenue being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. We have heard the authorised representatives for both the parties, perused the orders of the lower authorities and the material available on record, and also the judicial pronouncements relied upon by them. At the very outset of the hearing of the appeal, it was submitted by the ld. Authorised representative (for short „A.R‟) for the assessee Shri. K. Gopal, that the issue involved in the present appeal is squarely covered by the order of the Tribunal in the assesses own case for A.Y 2012-13 i.e ACIT-16(1), Mumbai Vs. M/s Sagar Arts Pvt. Ltd (ITA No. 4762/Mum/2016), dated 11.07.2018. (copy placed on record).Before adverting any further, it would be pertinent to point out, that in the present appeal before us the revenue has only assailed the order of the CIT(A) to the extent he had vacated the addition of Rs. 8,50,80,367/- made by the A.O u/s 2(22)(e) in respect of the amount that was received by the assessee from M/s Gayatri Films & Music Pvt. Ltd. Accordingly, we confine ourselves to the issue as had been raised by the revenue in the present appeal before us.
P a g e | ACIT-16(1), Mumbai Vs. M/s Sagar Arts P. Ltd.) 6. Admittedly, as observed by us hereinabove, the assessee company is not a shareholder in M/s Gayatri Films & Music Pvt. Ltd. It is the claim of the revenue, that a shareholder of M/s Gayatri Films & Music Pvt. Ltd viz. Mr.Jyoti Sagar (holding 21.06% shares) was also having substantial shareholding of 26.94% in the assessee company viz. M/s Sagar Arts Pvt. Ltd.. On the basis of the aforesaid facts, it is the claim of the revenue that the amount of Rs. 8,50,80,367/- received by the assessee company from M/s Gayatri Films & Music Pvt. Ltd. was rightly treated as „deemed dividend‟ within the meaning of Sec. 2(22)(e) by the A.O.
We have given a thoughtful consideration to the issue before us and are unable to persuade ourselves to subscribe to the claim of the ld. Departmental representative (for short „D.R‟). Admittedly, as is borne from the records, the assessee company is not a shareholder in M/s Gayatri Films & Music Pvt. Ltd. In fact, the entire issue hinges around the aspect as to whether any shareholder of M/s Gayatri Films & Music Pvt. Ltd. (holding not less than ten percent shares) was simultaneously during the year holding not less than twenty percent of equity shares in the assessee company viz. M/s Sagar Arts Pvt. Ltd., or not. As per the revenue, one common shareholder viz. Mr. Jyoti Sagar who was holding 21.06% shares in M/s Gayatri Films & Music Pvt. Ltd., was simultaneously having a 26.94% shareholding in the assessee company. We have perused the records and are unable to persuade ourselves to subscribe to the manner in which the shareholding of Mr. Jyoti Sagar in the assessee company and M/s Gayatri Films & Music Pvt. Ltd. has been worked out by the A.O. As is discernible from the assessment order, the shareholding pattern of Mr. Jyoti Sagar during the year was as under: Gayatri Films & Music Pvt. Ltd. Sagar Arts Pvt. Ltd. (assessee company) Name Shares % age Name Shares % age Mr. Jyoti Sagar 706 7.06 Mr. Jyoti Sagar 392 12.49 Mr. Jyoti Sagar (of Estate 1400 14 Mr. Jyoti Sagar (of 453 14.45 of Subhash Sagar, holding for Estate of Subhash Rekha Sagar & Others) Sagar, holding for Rekha Sagar & Others)
P a g e | ACIT-16(1), Mumbai Vs. M/s Sagar Arts P. Ltd.) As observed by us hereinabove, the A.O for working out the shareholding of Mr. Jyoti Sagar in the assessee company and M/s Gayatri Films & Music Pvt. Ltd., had clubbed his individual shareholding with that which was held by him as an executor of the estate of Late Shri Subhash Sagar (i.e for Mrs. Rekha Sagar & Others). In our considered view, the shareholding of the estate of Late Shri. Subhash Sagar, being held by Shri/ Jyoti Sagar in a different capacity i.e as an executor of the estate of the deceased, could not have been clubbed for working out his individual shareholding in the assessee company and M/s Gayatri Films & Music Pvt. Ltd. As a matter of fact, the revenue even in the course of the proceedings before us had failed to place on record any irrefutable material which would evidence that the holding of Shri. Jyoti Sagar in M/s Gayatri Films & Music Pvt. Ltd. and the assessee company, was not less than 10% and 20%, respectively. Apart there from, we are in concurrence with the view taken by the CIT(A), that the amount received by the assessee company from M/s Gayatri Films & Music Pvt. Ltd, being in the nature of an inter-corporate deposit could not have been brought within the realm of the definition of „deemed dividend‟ under Sec. 2(22)(e) of the Act. In fact, we find that the Tribunal while disposing off the appeal of the assessee for the immediately preceding year viz. A.Y 2012-13 had deleted the addition which was made by the A.O by treating the amount received by the assessee from M/s Gayatri Films & Music Pvt. Ltd. as „deemed dividend‟ u/s 2(22)(e) of the Act ,for the reason, that, none of the shareholders of the assessee company holding more than 20% of its shareholding were simultaneously holding more than 10% interest in M/s Gayatri Films& Music Pvt. Ltd. The Tribunal while concluding as hereinabove, had observed as under: “8. We notice that the Ld. CIT(A) had rightly pointed out that the appellant company is not a shareholder the lending company and none of the shareholders is having more than 20% equity and simultaneous holding more than 10% interest in the lending company. Therefore, the appellant company M/s Sagar Arts Pvt. Ltd. cannot be held as concern in which any shareholder is having more than 20% of stake. Since, the findings of the Ld. CIT(A) are based on evidence on record and as per the decisions of the Tribunal relied upon, we do not find any infirmity in the said order to interfere with. We therefore uphold the findings of he Ld. CIT(A) in deleting the addition of Rs. 2,51,50,000/-.” As the shareholding pattern of the assesse company and that of M/s Gayatri Films & Music Pvt. Ltd had not witnessed any change during the year under consideration, as in comparison to that of the immediately preceding year viz. A.Y 2012-13, and the facts therein involved also remain the same, therefore, we uphold the view taken by the CIT(A). Resultantly, the order of the CIT(A) deleting the addition of Rs. 8,50,80,367/- as had been assailed by the revenue