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Income Tax Appellate Tribunal, “D”, BENCH KOLKATA
Before: SHRI S.S. VISWANETHRA RAVI, JM &DR. A.L.SAINI, AM
O R D E R
Per Dr. Arjun Lal Saini, AM:
The captioned appeal filed by the assessee, pertaining to assessment year 2013-14, is directed against the order passed by the ld. Commissioner of Income Tax (Appeals)–10, Kolkata, in Appeal No.48/CIT(A)-10/W-36(2)/2016-17, dated 06.01.2017, which in turn arises out of an order passed by the Assessing Officerunder section 143(3) of the Income Tax Act, 1961, (hereinafter referred to as the ‘Act’), dated 21.03.2016.
The assessee has raised the following grounds of appeal: “1.That, on the facts and circumstances of the case, Ld. Commissioner of lncome Tax (Appeals) erred in confirming the addition of Rs.27,00,000/- made by the Assessing Officer under section 2(22)(e) of the lncome Tax SumitLundia Assessment Year: 2013-14 Act, 1961, although admittedly the Assessee did not receive any sums of money from Starcomplnfotech Pvt. Ltd. by way of Advance and/or Loan. 2.That the Ld. Commissioner of lncome Tax (Appeals) erred in confirming the aforesaid addition of Rs.27,00,000/- under section 2(22)(e) of the Act without properly appreciating the pleadings of the Assessee made before the Assessing Officer as well as before him. 3.That the Ld. Commissioner of lncome Tax (Appeals) erred in confirming the addition of Rs.27,00,000 under section 2(22)(e) of the Act on suspicion alone wrongly relying on the judgment of Win Chadha vs. CIT (lnternational Taxation) in and the judgement of Hon'ble Supreme Court in the cases of SumatiDayal vs. CIT [1995] 80 taxmann.com 89 (SC), CIT v. Durga Prasad More (1971) 82 ITR 540 (SC) the facts of which cases and the law decided therein are distinguishable from the facts of the Assessee's case. 4.That the order passed by Ld. Commissioner of lncome Tax (Appeals) confirming the addition of Rs.27,00,000 is against law and facts of this case.” 3.The brief facts qua the issue are that the Income Tax Return was filed by the assessee on 11.03.2014, declaring total income of Rs.5,88,770/-. Subsequently, the assessee’s case was selected for scrutiny u/s143(2) of the Act. During the relevant previous year, the assessee claimed to have earned income in the form of remuneration, rent and interest etc. The Assessing Officer observed that while examining the source of loan funds received by the assessee, it was noted that the assessee had claimed to have shown interest free loan fund balance amounting to Rs.28,25,000/- from M/s.A-1 Fabrics as on 31/03/2013. On perusal of loan confirmation with respect to loan transactions with M/sA-1 Fabrics, it was noted that loan amount of Rs. 3,75,000/- was received on 11/03/2013 and Rs. 2,50,000/-was paid back on 15/03/2013. Further, Rs.27,00,000/- was received on 28/03/2013 and thus, closing balance as on 31/03/2013 shown at Rs. 28,25,000/-. The AO noted that such a huge loan fund from any party without any interest normally goes against business prudence of lender, therefore a notice u/s. 133(6) of the l.T. Act, 1961 was issued to M/s. A-1 Fabrics asking for various details i.e copy of ledger account, complete set of statement of accounts, evidence of filing of return of income, copy of relevant bank statement mentioning source of funds etc. Although copy of statement of accounts had not been furnished by the party but other details were filed vide letter dated 08/02/2016. Also, it was mentioned in the reply that source of fund was indicated therein(in bank statement). ltwas noted Page | 2 SumitLundia Assessment Year: 2013-14 that the fund was issued to the assessee by M/s, A-1 Fabrics just after receiving the same from M/s. Tomorrow sales Agency Pvt. Ltd. However, nature of payment by M/s Tomorrow Sales Agency Pvt. Ltd, to M/s. A-1 Fabrics is not ascertainable from the reply of the party. ln the meantime, letter was also issued to bank for furnishing the copy of accounts of the Party. From the details available in the bank statement, it was noted that Rs. 27,00,000/- was issued to the assessee on 28/03/2013 just after receiving Rs. 83,00,000/- from M/s Tomorrow Sales Agency Pvt. Ltd. on 26/03/2013. This is worthy to mention that prior to receipt of this amount in the accounts of M/s A-1 Fabrics, balance in the bank account of the party was for Rs.13,463/- only. Further, it was also noted that Rs. 83,00,000/- received from M/s. Tomorrow Sales Agency Pvt. Ltd. was paid to different family members of the assessee only including the assessee as stated above. To know the ultimate source of the fund, further references were made to banks for furnishing the trail of fund and ultimately, it was noted that the fund had been received by the assessee passing through M/s Tomorrow Sales Agency Pvt. Ltd., M/s. AnurabhVanijya Pvt. Ltd,, M/s. Sun lnfosystern and finally from M/s. Starcornplnfotech Private Ltd, the company in which the assessee himself is a director and having beneficial share as on 31/03/2012 at 28.41% which has been increased to 29.34% as on 31/03/2013. The fund had travelled all these layers within three days from its origin to destination. ltwas also noted that in all the stages, hardly any balance was available with the parties and only receipt of this fund enabled them to issue cheques or fund transfer to the next party. Thus, it was found that the assessee, who had received Rs.27,00,000/- from the Company M/s. Starcomplnfotech Private Limited had artificially created various layers to by-pass the provisions of section 2(22)((e) of the l.T.Act,1961, as the assessee was having beneficial shares in the company more than 10% and also the company having accumulated profit of Rs.44,38,109/- as on 31/03/2012 and Rs.64,70,860/- as on 31/03/2013. During the assessment proceedings, the assessing officer asked the assessee to explain loan taken from M/s. A-1 fabrics amounting to Rs.28,25,000/-. The AO also noted that normally, it does not happen that any person advances such huge loan without any benefit. So notice u/s. 133(6) of the l. T. Act, 1961 was issued to Page | 3 SumitLundia Assessment Year: 2013-14 M/s. A-1 fabrics to verify the genuineness of the transaction. Although, complete details had not been filed by the party but relevant bank statement was filed. ltwas noted by AO that the cheque of Rs. 27,00,057/- was issued to the assessee on 28/03/2013 immediately after receipt of Rs.83,00,000/- from some other party i.e. M/s. Tomorrow Sales Agency Pvt. Ltd. The AO observed that the whole fund of Rs.83,00,000/- was transferred to the assessee`s family in various amounts as apparent from the bank statement. On further enquiries conducted by AO, through banking channel, it was noted that the source of fund traced out was as under: Sri SumitLundia-----2. M/s. A-1 Fabrics -------3. M/s. Tomorrow Sales Agency Pvt. Ltd. --------4. M/s. AnurabhVanijya Pvt. Ltd. -------5. M/s. Sun lnfosystem and Finally ----- 6. M/s. Starcomplnfotech Pvt. Ltd. Therefore, it was noted by the AO that the fund which was sourced from M/s. Starcomplnfotech Pvt. Ltd. on 25/03/2013 had got ultimately settled with the assessee on 28/03/2013 after passing through five different parties, mentioned above. Thus, AO noted that the fund of M/s. Starcomplnfotech Pvt. Ltd had been used to advance interest free loan to assessee.On further examination of the details available on record, it was noted by AO that assessee was holding in the company at 28.41% as on 31/03/2012, which has got increased to 29.34% as on 31/03/2013. Therefore, the loan taken by the assessee of Rs.27 Lakhs would be treated as deemed dividend. During the assessment proceedings, the assessee submitted before the AO that he had wrongly concludedthe loan amount received from M/s. A-1 Fabrics as a deemed dividend income u/s. 2(22) of the lncome Tax Act, 1961. The AO did this mainly on the basis of mere surmise and conjectures and on hypothetical basis.The assessee submitted that he was a major shareholder as well as a Director of M/s. Starcomplnfotech Pvt. Limited and looking after the affairs of the company and handling the business of the company and dealing with the parties. We purchased computer and computer peripherals from them and make payments of Rs.1,94,67,240/- apart from other regular payments made in the month against the goods purchased from them. Page | 4 SumitLundia Assessment Year: 2013-14 The assessee submitted that M/s.Starcomplnfotech Pvt. Ltd. had not given any loan/advances to the parties. On the other hand, assessee paid to the Starcomplnfotech Pvt. Limited for the shares allotted by them to assessee. The assessee submitted that all the transactions with the company had been fully disclosed in his books as well as in the books of M/s. Starcomplnfotech Pvt. Ltd. and the same is disclosed in the audited statement of accounts. Therefore, section 2(22) of the lncome Tax Act,1961 is not at all applicable to the said transaction. However, the Assessing Officer rejected the submissions of the assessee and held that the loan fund amounting to Rs.27,00,000/- which was shown in the accounts of the assessee as a loan from M/s. A-1 Fabrics was actually the fund of the company M/s. Starcomplnfotech Pvt. Ltd. and as the accumulated profit of the company was utilized by the beneficial share holder having more than 10% shares, therefore section 2(22)(e) of the I.T.Act,1961,attracted and amount of Rs. 27,00,000/- was added as deemed dividend in view of provisions of section 2(22)(e) of the l.T.Act,1961. 4.Aggrieved by the order of the AO, the assessee filed an appeal before the ld.CIT(A) who has partly allowed the assessee’s appeal. The ld. CIT(A) observed thatthe action of the Ld. AO along with the findings and the reasons recorded by him while making the impugned addition of Rs.27,00,000/-, clearly established that the Ld. AO had examined the matter in detail, and had called for the details of the transaction by examining the source of the funds from the banks, and the end points of the funds. The CIT(A) also observed that the Ld.AO had established the different layers by which the fund had reached the individual-assessee, and the ultimate source of the fund (loan in the hands of the assessee) was from one company in which he had major control and was a Director, namely M/s Starcomp Infotech Pvt. Ltd. The CIT(A) further observed that there was undisputed fact that the assesseewas holding 29.34% share in that Company, therefore, the transaction was certainly not, a normal business transaction, rather it had all the Page | 5 SumitLundia Assessment Year: 2013-14 features of a suspicious transaction. The loan had been advanced to the assessee-individual from M/s A-1 Fabrics without charging a single pie of interest andthat by itself cannot be wished away as a prudent business transaction. This way, the ldCIT(A) confirmed the addition of Rs.27,00,000/-.
5. Not being satisfied with the order of CIT(A), the assessee is in appeal before us. The ld counsel submitted before us that assessee had major control and was a Director, in M/s Starcomp Infotech Pvt. Ltd, and was holding 29.34% share in that Company. The assessee did not take any loan from M/s Starcomp Infotech Pvt. Ltd, in which he was holding 29.34% share, therefore, the provisions of section 2(22)(e) does not apply to the assessee under consideration. The assessee took the loan from M/s A-1 Fabrics and he does not have any shareholding in the said company. This transaction does not have any features of a suspicious transaction. The loan had been advanced to the assessee-individual from M/s A-1 Fabrics without charging of interest, does not mean that it is deemed dividend U/s 2 (22) (e) of the Act. The assessee submitted that M/s.Starcomplnfotech Pvt. Ltd. had not given any loan/advances to the assessee. On the other hand, assessee paid to the Starcomplnfotech Pvt. Limited for the shares allotted by them to assessee. The assessee submitted that all the transactions with the company had been fully disclosed in his books as well as in the books of M/s. Starcomplnfotech Pvt. Ltd. and the same is disclosed in the audited statement of accounts. Therefore, section 2(22) of the lncome Tax Act,1961 is not at all applicable to the said transaction. 6.On the other hand, the Ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer, which we have already noted in our earlier para and is not being repeated for the sake of brevity.
7. Having heard the rival submissions, perused the material available on record, we are of the view that assessee under consideration, did not take the loan from M/s.Starcomplnfotech Pvt. Ltd. The assessee paid to the Starcomplnfotech Pvt. Limited for the shares allotted by them to assessee and he was holding 29.34% share, therefore, the provisions of section 2(22)(e) does not Page | 6 SumitLundia Assessment Year: 2013-14 apply to the assessee under consideration. The assessee took the loan from M/s A-1 Fabrics, and in the said concern the assessee does not have any shareholding therefore, there is no any question of deemed dividend. At this juncture, it is appropriate to mention the provisions of section 2(22) (e) of the Act, which reads as under: “Section 2 (22) “dividend” includes— (e) any payment by a company, not being a company in which the public are substantially interested, of any sum (whether as representing a part of the assets of the company or otherwise made after the 31st day of May, 1987, by way of advance or loan to a shareholder, being a person who is the beneficial owner of shares (not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits) holding not less than ten per cent of the voting power, or to any concern in which such shareholder is a member or a partner and in which he has a substantial interest (hereafter in this clause referred to as the said concern)] or any payment by any such company on behalf, or for the individual benefit, of any such shareholder, to the extent to which the company in either case possesses accumulated profits;” Considering the provisions of section 2(22) (e), as mentioned above, the assessee under consideration is not a “beneficial owner of shares”, in M/s A-1 Fabrics, therefore, in the hands of the assessee, the loan taken from M/s A-1 Fabrics, at Rs.27,00,000/-, is not a deemed dividend. Therefore, the addition made by Assessing Officer and confirmed by ldCIT(A) is not justified and hence we delete the addition.