Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, BANGALORE BENCH “ A ”
Before: SHRI N.V. VASUDEVAN & SHRI JASON P. BOAZ
Appellant By : Shri S. Ananthan, C.A. Respondent By : Shri C.H. Sundar Rao, CIT (D.R) Date of Hearing : 29.12.2014. Date of Pronouncement : 13.2.2015. O R D E R Per Shri Jason P. Boaz, A.M. : This appeal by the assessee is directed against the order of the Commissioner of Income Tax (Appeals)-VI, Bangalore dt.10.9.2013 for Assessment Year 2007-08.
The facts of the case, briefly, are as under :- 2.1 The assessee, an individual engaged in the business of real estate, filed his return of income for Assessment Year 2007-08 on 13.11.2007 declaring total income of Rs.1,82,85,288. The case was taken up for scrutiny and the assessment was completed under Section 143(3) of the Act by order dt.17.11.2009. A search action under Section 132 of the Income Tax Act, 1961 (herein after referred to as 'the Act') was conducted at B.P. Kumar Babu the assessee's premises on 9.10.2009. Subsequent thereto, a notice under Section 153A of the Act dt.1.2.2011 was issued to the assessee, in response to which the assessee vide letter dt.15.7.2011 requested that the return of income filed under Section 139 of the Act on 13.11.2007 be treated as filed in response to the aforesaid notice issued under Section 153A of the Act. The assessment was completed under Section 143(3) r.w.s. 153A of the Act vide order dt.22.11.2011 wherein the income of the assessee was determined at Rs.7,29,72,335 as against returned income of Rs.1,82,85,288 in view of, inter alia, an addition of Rs.5,21,69,348 under Section 2(22)(c) of the Act, which is the subject matter of this appeal. 2.2 Aggrieved by the order of assessment for Assessment Year 2007-08 dt.22.11.2011, the assessee preferred an appeal before the CIT (Appeals) – VI, Bangalore. The learned CIT(A) dismissed the assessee's appeal vide the impugned order dt.10.9.2013.
Aggrieved by the order of the CIT (Appeals) – VI, Bangalore dt.10.9.2013 for Assessment Year 2007-08, the assessee is in appeal before this Tribunal raising the following grounds :- “
1. The order of the learned CIT (Appeals) is bad in law and against the facts of the case.
2. The learned CIT (Appeals) failed to appreciate the fact that the addition made is beyond the scope of Section 153A of the Act. 2.1 The learned CIT (Appeals) failed to appreciate the fact that the addition was not based on any incriminating materials found at the time of search.
3. The learned CIT (Appeals) erred in holding that the appellant has no right to appeal.
4. The learned CIT (Appeals) erred in treating the amount of Rs.5,21,69,348 as deemed dividend under Section 2(22)(e) of the Act.
B.P. Kumar Babu 4.1 The learned CIT (Appeals) failed to appreciate the fact that the inter-corporate loan between the companies was a business advance and will not fall within the purview of the deemed dividend. 4.2 The learned CIT (Appeals) erred in not accepting the additional evidence produced by the appellant. 4.3 The learned CIT (Appeals) failed to appreciate the fact only 7 days was given to the appellant to reply. 4.4 The learned CIT (Appeals) erred in rejecting the additional evidence on surmises and conjectures. 4.5 Without prejudice to ground 4.1, the learned CIT (Appeals) failed to appreciate the fact that inter-corporate deposits are not covered by section 2(22)(e) of the Income Tax Act, 1961.
For the above mentioned grounds and any other grounds that may be mentioned at the time of the hearing, the appellant prays that the appeal be allowed and the addition made by the learned Assessing Officer be deleted.”
The grounds raised
at S.Nos.1 and 5 are general in nature and not being urged before us, are dismissed as infructuous.
5. Ground No.2 : Jurisdiction of the Assessing Officer under Section 153A of the Act. 5.1 It is contended by the assessee that the addition of Rs.5,21,65,348 under Section 2(22)(e) of the Act made by the Assessing Officer is beyond the scope of the provisions of section 153A of the Act. According to the assessee, the original assessment was completed under Section 143(3) of the Act vide order dt.17.11.2009 and therefore the assessment made under Section 143(3) r.w.s. 153A of the Act was not called for. It was further contended by the assessee that as no incriminating documents were found / seized in the course of search action under Section 132 of the Act and the aforesaid addition made under Section 2(22)(e) of the Act was not related to the findings of the search, it was submitted that the addition made was beyond the scope of Section 153A of B.P. Kumar Babu the Act. In support of its contentions, the assessee placed reliance on the decision of the Special Bench of the ITAT, Mumbai in the case of All Cargo Global Logistics Ltd. V DCIT (2012) 23 taxmann.com 103 (Mum) (SB). The learned Departmental Representative supported the order of the learned CIT(A) on this issue. 5.2 We have heard the rival contentions of both the learned Departmental Representative of the assessee and the learned Departmental Representative for revenue and perused and carefully considered the material on record, including the judicial decision placed reliance upon. Both the ld. A.R. and the ld. D.R. fairly agreed that this issue has been considered and decided by the Hon'ble Karnataka High Court in the case of Canara Housing Development Co. reported in 49 taxmann.com 98 and would cover this issue against the assessee. In this judgment, their Lordships have held that once search proceedings have been initiated, the assessing authority can take note of the income declared in the earlier return, any undisclosed income found / unearthed in the course of search and also any other income which is not disclosed in the earlier return of income or which is not unearthed in the course of search, in order to find out what is the “total income” of each year and then pass the order of assessment. Also, on the facts of the case, as pointed out by the learned CIT(A), the details of loans / advances were not directly reflected in the assessee's individual books of accounts and therefore it can be inferred that this issue came to light only pursuant to search action and therefore it is not incorrect to state that this issue came to light/arose on account of the search action under Section 132 of the Act. In this view of the matter, respectfully following the decision of the B.P. Kumar Babu Hon'ble Karnataka High Court in the case of Canara Housing Development Co. (supra), we concur with and uphold the finding of the learned CIT(A) that the Assessing Officer had validly invoked the jurisdiction under Section 153A of the Act. Consequently, Ground No.2 of the assessee's appeal is dismissed.
Ground No.3 : Assessee has no right to appeal. 6.1 As per the details on record, it is seen that in the course of assessment proceedings, the assessee had filed a letter before the Assessing Officer voluntarily offering an amount of Rs.5,21,69,348 towards the payments / advances as deemed dividend. In accordance with the assessee's admission, the Assessing Officer brought this amount of Rs.5,21,69,348 to tax in the assessee's hands under Section 2(22)(e) of the Act. 6.2 Subsequently, even though the assessee had offered this amount of Rs.5,21,69,348 for taxation before the Assessing Officer as deemed dividend, the assessee filed an appeal before the learned CIT(A) on this issue by challenging the Assessing Officer’s action of bringing the deemed dividends to tax in his hands. The learned CIT(A) observing that the assessee was not able to substantiate any business transaction between the two group companies due to which the assessee had to voluntarily admit and agree for the addition, held that after having agreed to the addition due to lack of evidence, the assessee does not have the right to appeal. 6.3 We have heard the rival contention and perused and carefully considered the material on record. From a perusal of the order of assessment for Assessment Year B.P. Kumar Babu 2007-08, we find that the assessee had, in fact, put forth the point that the payments / advances would not fall within the ambit/purview of deemed dividend in his hands. This observation is as per the assessee's letter extracted in para 4.6 of the assessment order. From a perusal of para 4.5 of the assessment order, it would appear that the assessee had made submissions that the payments / advances are in the nature of trade advances. We, however, also find that even though the learned CIT(A) has held that the assessee has no right to appeal, the learned CIT(A) has adjudicated on the substantive addition made under Section 2(22)(e) of the Act. That being so, this ground of appeal
is only academic in nature and therefore, in our opinion, does not require any specific adjudication at this juncture. Consequently, Ground No.3 is treated as dismissed for statistical purposes.
7. Ground No.4 (4.1 to 4.5) : Addition towards Deemed Dividend. 7.1 In this ground, the assessee has assailed the addition made towards deemed dividend under Section 2(22)(e) of the Act, on the grounds that inter-corporate deposits are not covered under Section 2(22)(e) of the Act and being trade advances, will not fall within the purview of deemed dividend. The assessee has also appealed against the rejection of additional evidence presented by the assessee before the learned CIT(A) and also that assessee was allowed very little time by the learned CIT(A). 7.2 The issue in question is the amount of Rs.11,51,00,000 advanced by one group company, Cornerstone Properties Pvt. Ltd. (‘CPPC’) to another group company, Cornerstone Property Investment Pvt. Ltd. (‘CPIPL’) during the year. In the course of assessment B.P. Kumar Babu proceedings, the Assessing Officer examined the shareholding pattern of the two group companies and observed that the assessee is a shareholder in both; holding 40% and 50% shares respectively in the two companies as on 31.3.2007. In this factual matrix, the Assessing Officer concluded that the provisions of section 2(22)(e) of the Act would be attracted. It would appear, from an appreciation of the details on record, that the assessee took the stand that these advances are in the nature of trade advances but the Assessing Officer rejected the stand of the assessee on the grounds that there is nothing on record to prove the commercial expediency of these advances. Though the assessee took the stand that these advances would not fall within the ambit of deemed dividend, subsequently, the assessee agreed to offer the amount for tax as deemed dividend. During the previous year relevant to Assessment Year 2007-08, CPPL had made profits of Rs.5,37,30,037 and after adjusting accumulated losses, the reserves of CPPL stood at R.5,21,67,348. As the advances / losses can be taxed only to the extent of accumulated profits, the Assessing Officer treated the amount of Rs.5,21,69,348 as deemed dividend in the hands of the assessee. 7.3 The assessee challenged this finding of the Assessing Officer before the learned CIT(A). The assessee also filed additional evidence in the form of an MOU between the two group companies to evidence his claim that the advances were in the nature of trade advance. The learned CIT(A), however, disregarded the additional evidence on the ground that the assessee had never mentioned about the existence of the MOU before the Assessing Officer and that this unregistered document between two group companies, B.P. Kumar Babu being self serving, cannot be relied upon. After rejecting the additional evidence, the learned CIT(A) observed that the Assessing Officer has brought on record the fact that no property acquisitions were made out of these advances, for these advances to be characterised as “ trade advances “ and therefore held that the transaction fits into the definition of deemed dividend under Section 2(22)(e) of the Act. 7.4.1 We have heard the rival contentions and perused and carefully considered the material on record. We find from an appreciation of the impugned orders of the authorities below that both the Assessing Officer and the learned CIT(A) have not examined the issue in its totality and on merits before rendering a finding that the provisions of section 2(22)(e) of the Act are applicable to the case on hand. The entire emphasis in the impugned orders has been laid on the voluntary offer made by the assessee before the Assessing Officer during assessment proceedings, even though the assessee had indeed submitted that the advances will not fall within the ambit of deemed dividend. There is no doubt that the voluntary offer made by the assessee is a relevant consideration. However, the duty of the Assessing Officer is to assess the time and correct income and therefore it is imperative for the Assessing Officer to corroborate the additions with material evidence. This is particularly so in respect of deemed dividend, which is not a real income earned but a deemed income, which is invoked on the satisfaction of certain conditions specified in law. It is therefore necessary for the Assessing Officer to render a finding on the applicability of the provisions of section 2(22) (e) of the Act to the assessee, on the given factual matrix of the case.