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Income Tax Appellate Tribunal, MUMBAI BENCHES “E”, MUMBAI
Before: SHRI G.S. PANNU & SHRI RAM LAL NEGI
Appellant by : Shri Manjunath Karkihalli, DR Respondent by : Shri Hiro Rai, AR Date of Hearing : 10-05-2019 Date of Pronouncement : 24-06-2019 O R D E R PER G.S. PANNU, VICE PRESIDENT:
The captioned appeal filed by the Revenue is directed against an order passed by the CIT(A)-3, Mumbai dated 16.11.2012, which in turn, arises out of an order passed by the Assessing Officer under section 143(3) of the Income Tax Act, 1961 (in short ‘the Act’) dated 30.12.2011.
Grounds of appeal raised by the Revenue reads as under:-
1. "On the facts and in the circumstances of the case and in law, whether the Ld. CIT(A) was justified in deleting the disallowance made by the A.O. on account of deemed dividend u/s.2(22)(e) of the Act amounting to Rs.2,30,33,460/-.
2. On. the facts and in the circumstances of the case and in law, whether the Ld.CIT(A) was justified in holding the amount received by the assessee from Nadiadwala Grandson Entertainment Pvt.Ltd. as business advance despite the fact that the same was categorized term as "loans and advances" in the books of the assessee himself.
3. On the facts and in the circumstances of the case and in law, whether the Ld.CIT(A) was justified in holding the amount received by the assessee from Nadiadwala Grandson Entertainment Pvt. Ltd. as business advance despite the fact that the same was utilized for buying a personal asset namely Bentley car.
4. The appellant prays that the order of the CIT(Appeals) 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."
3. Briefly put, the relevant facts are that assessee individual filed his return of income for Assessment Year 2009-10 on 29.09.2009 declaring total income of Rs.50,25,049/-. In the return of income so filed, he declared income under various heads viz. Income from Salary, House property, Business and Profession and Other sources. In the course of assessment proceedings, the Assessing Officer noted that assessee was a director of Nadiadwala Grandson Entertainment Pvt. Ltd. (hereinafter referred to as “NGEPL”) and was also a shareholder of the said company holding approximately 98% interest in the company. The Assessing Officer noted that assessee had received Rs. 7,79,24,880/- towards loans and advance from NGEPL which was reflected under the head “Loans and Advances” in the Balance Sheet of the assessee's proprietary concern M/s. Nadiadwala Grandson Entertainment (hereinafter referred to as “NGE”). The Assessing Officer further noted that from the total amount of Rs. 7.79 crores received by the assessee from NGEPL, Rs. 2.30 crores was utilized for purchase of Bentley car. The assessee was show caused as to why such loans and advances should not be treated as “Deemed Dividend” within the meaning of section 2(22)(e) of the Act. In response, assessee furnished copies of ledger account of NGE in the account books of NGEPL, ledger account of NGEPL in the account books of NGE, copy of agreement between NGEPL and NGE and asserted that the advance of funds from NGEPL to NGE was purely for the purpose of business i.e. for utilization towards production of the film “Housefull”. It was further submitted by the assessee that loans and advances account got squared up at the end of March, 2011 after the release of the film. The Assessing Officer, observing the direct nexus between funds received from NGEPL and utilized of the same for purchase of Car and held that since NGEPL was having sufficient reserves and surplus, and was also not a company in which public is substantially interested, treated the amount utilized towards payment of Bentley Car as ‘deemed dividend’ u/s 2(22)(e) of the Act. Notably, with respect to the balance amount received from NGEPL, no addition was made.
4. Before the CIT(A), assessee submitted that the transaction between NGEPL and NGE was in the normal course of business, an aspect which has not been negated by the Assessing Officer. It was further submitted that NGEPL had entered into joint venture agreement for production of film vide agreement dated 05.05.2016. Since substantial part of ‘Houseful’ film was shot in London, a company was incorporated in London to carry out film production, who in turn appointed NGE as service agent for carrying out shooting of “Houseful” film in India. Thus, NGE has incurred Rs. 2.83 Crore on behalf of NGEPL for production of film “Houseful” and has received remuneration of Rs. 1.25 crore for production services from NGEPL in Assessment Year 2010-11 upon release of the said film. Therefore, advances by NGEPL to NGE were purely for provision of services. The assessee placed reliance on the decisions of CIT vs. Nagindas M Kapadia 117 ITR 393 (Bom.), CIT vs. Rajkumar 318 ITR 463 (Del), CIT vs. Ambassador Travels Pvt. Ltd. 318 ITR 376 (Del) and CIT vs. Creative Dyeing & Printing Pvt. Ltd. 318 ITR 476 (Del) for proposition that where business nexus between company and shareholder is established, the provisions of section 2(22)(e) of the Act would not be attracted. As an alternate, assessee also explained the utilisation of funds received from NGEPL and pointed out that during the year under consideration no fresh loan was received from NGEPL; the closing balance of the loans and advances decreased as compared to opening balance during the year. Further, assessee had to receive funds from NGEPL which was recovered during the year and from that receipt assessee sourced the purchase of car. Thus, it was assessee’s own money which was utilized for purchase of car and not the loans and advances received from NGEPL.
5. The CIT(A), after a detailed discussion, upheld the plea of the assessee that there was a business connection between NGEPL and NGE; and that the funds utilised by the assessee for purchase of car was out of his own money receivable from NGEPL and therefore, he deleted the addition made by the Assessing Officeru/s 2(22)(e) of the Act.
Before us, the ld. DR merely relied on the reasoning of the Assessing Officer in the assessment order to state that assessee has utilised the loan funds received from NGEPL for purchase of car; apart therefrom, no other argument has been put forth by the ld DR.
On the other hand, ld. Counsel for the assessee, relied on the order of CIT(A) and pointed out that the Assessing Officer in the assessment order has agreed with the contention of the assessee that the transaction between NGEPL and NGE was in the normal course of business. The Assessing Officer proceeded to hold that car purchased by the assessee was out of the funds received from NGEPL due to the reason that immediately after credit of funds of Rs. 5 Crore from NGEPL, assessee purchased car worth Rs. 2.3 Crore. It was explained that before CIT(A), assessee had established that said money was recoverable by the assessee from NGEPL and it was not in the nature of fresh loan taken by the assessee. In fact, at the year end, the opening balance of Rs.2,67,30,047/- reduced to Rs. 2,54,24,880/- as such no new loan was taken during the year. The ld. Counsel further canvassed that section 2(22)(e) of the Act is not applicable to amounts paid in normal course of business.
We have carefully considered the rival submissions. The issue before us is whether purchase of car by the assessee of Rs. 2.3 Crore by utilising funds received from a company can be treated as “deemed dividend” within the meaning of section 2(22)(e) of the Act. Admittedly, the assessee is a shareholder of NGEPL holding 98% shares of the company. During the year under consideration, the assessee received amounts to the extent of Rs.7.79Crore from the said company; that NGEPL was having sufficient reserves and surplus on the date of payment of money to the assessee. Before the Assessing Officer, assessee explained that the amounts were advanced to the assessee in the normal course of business and there was a business nexus between the assessee and NGEPL. The Assessing Officer,in principle, accepted the contention of the assessee that funds were advanced in the normal course of business, however noted that funds to the extent of Rs. 2.30 Crores were utilized by the assessee for purchase of car and accordingly he treated the aforesaid sum as “deemed dividend” u/s 2(22)(e) of the Act. The CIT(A) after careful consideration of the facts and law, has decided the issue in favor of the assessee. The relevant discussion is contained in para 2.3 of his order, which reads as under:
“2.3. I have considered the facts and perused the material on record. It is noticed that the appellant’s proprietary concern NGE was operating in the film production since it’s incorporation in 1990 whereas NGEPL was incorporated in the year 2005. It is seen that certain aspects of film of "Houseful" production being support services were still carried on by NGE for the NGEPL as per the agreement as is evident from the fact that NGE has remuneration of Rs. 1.25 Crore for the production services from NGEPL which have been shown as income for the year ended as on 31/03/2010 the year in which the film was released. It is also noticed that the opening debit balance at Rs. 2.67 Crore which was reduced to Rs. 2.54 Crore during the year end which means that no fresh loans and advances have been taken by the appellant during the year. It is also noticed that the appellant has received Rs. 7.79 Crore during the year as reflected in bank statement as produced by the AO in the body of assessment order. However, it is seen that an amount of Rs. 5 Crore was received by NGEPL from Eros Pictures Pvt. Ltd. for and on behalf of the appellant's proprietorship concern NGE on 22/04/2008. This sum of money was belonged to the Appellant and same was received by NGEPL from Eros Pictures Private Limited on behalf of NGE. Thus the money received by the appellant from NGEPL was appellant's own money received from Eros Pictures Private Limited for the services rendered by NGE to the Eros Pictures Private Limited. It is further seen that out of the money received in the month of May 2008, the appellant has purchased his Bentley Car for an amount of Rs. 2.30 Crores during that period. The said car also being used by NGE in its business and profession on which depreciation has been claimed and allowed also. These facts shows that the transactions entered into between the appellant and NGEPL were commercial transactions having business nexus and on account of business relations, therefore transactions between the proprietorship concern of the appellant and the private limited company was having business nexus between the businesses. This fact has not been denied by the AO in the assessment order. Therefore provisions of section 2 (22) (e) of the Act are not attracted. This view is also supported by decision in the case of DCIT v Gharda Chemical Limited 2011-TIOL-127-ITAT-MUM wherein the CIT (A) deleted the addition, holding that no loans or advances were given to the assessee by its subsidiary. The amount reflected in the accounts is the commercial transactions between the assessee and the subsidiary company. That Hon'ble Tribunal held following the decision in the case of the assessee in the preceding year that the commercial transactions between the two companies could not be brought within the purview of the provisions of Section 2(22) (e). Further the money of the appellant has been routed through NGEPL, hence it cannot be said that the appellant has received advances and loans from NGEPL. It may also be pertinent to note that opening debit balance of the director being the appellant with that company was at Rs. 2.67 Crore was reduced to Rs. 2.54 Crore as such there is no new loan advances taken by the appellant being a director of the end NGEPL, hence the provisions of section 2 (22) (e) of the Act are not attracted. Reliance is placed in the case of Lakshmikuttay Narayanan (2006) 112 TTJ(Cochin) 396 wherein it was held that advance to assessee share holder director having been made in normal course of business transaction between assessee and company, same could not be treated as deemed dividend. In the case of the Appellant also the transactions have been done in normal course of business, hence provisions of section 2 (22) (e) of the Act have no legs to stand. In the light of aforesaid facts and circumstances, the addition of Rs. 2,30,33,450 made by the AO is deleted. This ground of appeal is therefore allowed.” (Underlined for emphasis by us)
9. The CIT(A) has categorically recorded a finding of fact that before purchase of car worth Rs. 2.30 Crore, NGEPL received Rs. 5 Crore from Eros Pictures Pvt. Ltd on behalf of the assessee. The said sum was thus credited in the name of the assessee in the account books of NGEPL. The assessee was having opening debit balance of Rs. 2.67 lacs in the books of NGEPL. Thus, after set-off of opening debit balance against Rs. 5 Crore received on behalf of assessee, there remained a credit balance of Rs. 2.31 Crore which means assessee was to have received said sum from NGEPL. Thereafter, assessee was paid various sums by the NGEPL from which assessee purchased the car in question. Thus, in sum and substance the source of funding of car was assessee’s own money in the form of amount received by NGEPL from Eros Pictures Pvt. Ltd., on behalf of the assessee and later on passed on to the assessee. Pertinently, the findings of the CIT(A) have not been assailed before us on the basis of any credible material or reasoning.
10. In fact, the entire premise of the Assessing Officer is based on his perception that the assessee has utilized the loans and advances received from NGEPL for purchase of car, wherein assessee was a shareholder. As noted by the CIT(A), the funds utilized by the assessee for purchase of car, was in fact his own money which was lying with the NGEPL. An amount can be assessed u/s 2(22)(e) of the Act only in a case wherein funds belonging to the company have been utilized by the shareholder for his own benefit. In the present case, undisputedly, the car was purchased out of assessee’s own money and was not sourced from the funds belonging to the company. Thus, no part of the funds of the company has been used by the assessee- shareholder for the purchase of car. In our view, this very fact is sufficient to hold that provisions of section 2(22)(e) of the Act are not applicable in the instant case, and the order of the CIT(A) is hereby affirmed.
11. Thus, in view of the aforesaid discussion, we hereby uphold the decision of CIT(A) and Revenue fails in its appeal.
In the result, appeal of the Revenue is dismissed.
Order pronounced in the open court on 24th June , 2019