ITO, NEW DELHI vs. SHRI SANDEEP SABHARWAL, NEW DELHI

2. The facts in brief as culled out from the orders of lower authorities are that during the year under consideration, the assessee was one of the Directors of M/s Overseas Conexion Ltd. I (in short ‘company’) and was having substantial investment in share capital of the company i.e. having more than 10% share capital. The assessee filed its return of income on 31.03.2009 declaring total income of Rs.14,30,997/- under the heads ‘income from salary’ and ‘income from the house property’ etc . The case was selected for scrutiny and notice u/s 143(2) of the Income-tax Act, 1961 (in short ‘Act’) was issued. In the course of scrutiny, the learned Assessing Officer observed from one of the ledger accounts of the assessee namely ‘Sandeep Sabharwal Advance Account’ maintained in the books of the company that the assessee received loans/ advances of Rs.38,60,000/- from the company during the year and said loans /advances received by him were satisfying all the conditions liable for holding such loan/advances as deemed dividend . In response to the show cause notice issued to the assessee as why the loans/ advances received by the assessee might be treated as deemed dividend u/s 2(22)(e) of the Act, the assessee submitted that out of the payments received in Advance Account , an amount of ./2011 Rs.20,40,000/- was received as security deposit against a property leased out to the company. The assessee also submitted an addendum to the lease agreement in respect of the property leased out to the company, showing such security deposit. According to the learned Assessing officer, the assessee further explained that out of loans/advances an amount of Rs.2,27,997/- was received by him as advance salary from the company. The AO did not accept the submission of the assessee. Further, the AO noticed that in schedule ‘G’ to the balance sheet of the company as on 31.03.2007, it was specifically mentioned that loans of Rs.35,13,933/- was given to the Directors of the company and there was no mention of such security amount in the balance sheet of the company. The learned Assessing officer also did not accept the contention of the assessee that amount of Rs. 2,27,997 was advance salary as he was of the view that if the salary was received in advance, then it was also taxable in the hands of the assessee, but , the assessee had not offered such alleged amount of Rs. 2,27,997 in the return of income and also the company had not deducted tax at source on the amount under section 192 of the Act . The Assessing officer observed that the so called security deposit in respect of the property and advance salary were only afterthought of the assessee and accordingly, he held that the payments received by the assessee in ‘Sandeep Sabharwal Advance Account’ were in the nature of loans/ advances received by the assessee and were liable for deemed dividend under section 2(22) of the Act. The relevant para of the order of the AO is reproduced as under:- “To summarize the facts and circumstances of the case against the conditions as laid down in section 2(22) (e) and the case law on the subject, it is clear that the above overdrawals and advances are hit by the mischief of section 2(22)(e) ;- ./2011 (i) The assessee is the beneficial owner of shares of M/s Overseas Connextion Ltd., holding 18% of equity shares issued by the assessee company. (ii) The above company is having accumulated profits amounting to Rs.1,14,55,867/- as on 1-4-2006 and Rs.61,52,890/- as on 31-3-2007 (iii) Lending of money is not the substantial part of the business of M/s Overseas Connextion Ltd. (iv) It is well- settled that it is not the closing balance alone at (lie end of (lie year that becomes taxable as ''deemed divided" in the hands of the recipient. Every overdrawal is separately hit by the provisions of section 2(22(e). Therefore, it is the total of every overdrawal in the account by the recipient of advance/loan that becomes taxable as "deemed dividend" under section 2(22(e), albeit to the extent of the available accumulated profits in the company.

3. Aggrieved, the assessee filed an appeal before the learned Commissioner of Income-tax (Appeals). Before the learned Commissioner of Income-tax (Appeals), the assessee submitted that as per the provision of section 2(22)(e) of the Act only loan/ advance is liable for deemed dividend and not the deposit. The assessee also contended that part of payments received by the assessee in Advance Account , were returned back by him during the same year and therefore , the said provision of section 2(22)(e) of the Act cannot be applied on the whole amount received by him during the year. Further, it was contended that the assessee was involved in regular business activity of the company and therefore was drawing advances for carrying out such activities. It was further contended that in the year under consideration the assessee received an amount of Rs.20,40,000/- as security deposit in installment as per convenience of the said company. The assessee further contended that the said amount being security deposit cannot be assessed as deemed dividend under the provision of section 2(22)(e) of the Act. Further the learned Authorised Representative of the assessee, contended that the ./2011 amount of Rs.2,27,997/- was an advance against salary, was misinterpret by the Assessing Officer as advance salary. He further contended that this amount was not booked as income and the said advance was repayable by the assessee to the company in future. Further, it was contended that at the most what the Assessing officer could do was to take the peak credit in the books of the assessee, which come out to Rs.27,18,692/-. Further, contended that the amount of Rs. 27,18,692/- also should not have been added as the credit balance of Rs.4,52,003/- appearing in other ledger accounts of the assessee, should have been set off from Rs. 27,18,692/-. The learned Commissioner of Income-tax (Appeals) , accepted the submissions of the assessee and observed that amount appearing in ‘Sandeep Sabharwal Advances Account’ were consisting of security deposit and advance against salary and remaining amount in ‘Sandeep Sabharwal Advances Account’ could be set off against due amount lying in other accounts of the assessee. In view of the above findings, the learned Commissioner of Income-tax (Appeals) directed the learned Assessing officer to delete the entire addition made as deemed dividend u/s 2(22)(e) of the Act. Aggrieved, the Revenue is before us.

4. The grounds Nos.1 to 4 of the appeal of the Revenue are in respect of deletion of addition of Rs.38,60,000/- for deemed dividend and therefore all the four grounds are disposed off together

5. At the time of hearing, the learned Senior Departmental Representative (in short ‘Sr. D R’) relied on the order of the learned Assessing Officer and further submitted that in normal circumstances, security deposit against property are not received in installments., Further, he argued that amount of Rs.2,27,997/- was in not the nature of advance against salary or advance salary and but only an advance to the assessee by the company. Further, he argued that had it been ./2011 salary in advance, then it should have been reflected in the return of the assessee and TDS should have been deducted. Further, he submitted that the said amount of so called advance against salary and security deposit against property were not appearing in Audited Annual Statements of the company, hence these explanation are only after thought of the assessee, and therefore , the learned Commissioner of Income-tax (Appeals) was not justified in deleting the addition. On the other hand, the learned Authorised Representative of the assessee submitted a written synopsis , relevant part of which is reproduced as under: “6. Firstly, the AO while making the impugned addition has aggregated the total debit side and after excluding the opening credit balance of Rs.2,99,346.89 has made an addition of Rs.38,60,000/-. It is evident from the copy of Sandeep Sabharwal Advance Account (enclosed at PB 8), that the assessee has also paid certain amounts to the said company, which aggregate to Rs.11,40,000/-. Thus, the advance, though in the nature of a security deposit, was not more than Rs.27,20,000/- at any time during the year. Thus, it is evident that the amount computed by the AO is factually incorrect.

7. Further, out of the net amount of Rs.27,20,000/-, an amount of Rs.20,40,000/- was received by the assessee as security deposit on account of rent, which has already been explained above to be in the nature of a business transaction.

8. The AO has alleged that the amount has been received by the assessee from the company throughout the year, and the submission of the assessee of security deposit is not tenable. However, it is not out of place to mention here that the assessee was a Director of the said company. It was an arrangement between him and the company to deposit the said security in installments, depending on the availability of funds with the company. Therefore, the AO has erred in making the impugned addition without considering the circumstances prevailing in the case of the assessee.

9. The assessee has given the premises at Karol Bagh on rent to M/s Overseas Connextion Ltd. and has received an amount of Rs.20,40,000/-as security deposit against the same. Therefore, it is clear that the security deposit paid by the company is a 7 ITA No.2336/Del./2011 transaction of business nature and cannot be considered under the purview of section 2(22)(e) of the Act. It is also evident from the computation of income of the assessee (enclosed at PB 1), that the assessee has given the said premises on rent to M/s Overseas Connextion Ltd. and has received rent thereon, which has been duly disclosed in the computation. The said company has also deducted TDS while making the payment to the assessee. It is a settled law that the payments made against the business transactions are outside the purview of section 2(22)(e) of the Act. This issue has recently been decided by the co-ordinate Bench of this Hon'ble Tribunal in the case of ACIT Vs. Sh. Ashok Kumar Garg in dated 23.09.2015, wherein the Hon'ble Tribunal has held as under: "5. We heard the rival submission and perused the material on record. On perusal of the copy of ledger account of the assessee with M/s A.K.J. Industries Ltd. extracted in the assessment order, it is clear that there were continuous transactions of receipt and payment of money to the assessee by the said company. There are some debit balance and after some time it was converted into credit balance and finally at the end of accounting year, there was a debit balance of Rs. 53,28,853/-. Out of this, there were entry made on 31st March, 2009 towards TDS payable of Rs. 29,51,460/-. Thus, there are mutual transactions between the said company and the assessee throughout the year. 5 Therefore, in our considered opinion, this account is in the nature of a current account, and moreover, the salary payable is also credited in this account and wherever there are payments in excess of the salary, it was submitted that it was an advance salary received from the company. Therefore, in our considered opinion, these transactions one in ordinary course of business of the said company, cannot be treated as deemed dividend."

10. The issue is also squarely covered by the judgment of coordinate Delhi bench of ITAT in the case of Mr. Percy Peshotan Batlivala Versus Income Tax Officer, [l.T.A .NO.-4487/D EL/2010 Dated -20 July 2012 ITAT Delhi] wherein it was held as under: "In this respect, he took us to page 10 of paper book wherein copy of account of assessee in the books of company was placed. In this respect, he invited our attention to the fact that account is a running account and the debit balance outstanding at some point of time had converted into credit balance and thus it is a running Account and is not in the 8 ITA No.2336/Del./2011 nature of loan. In support of his pleadings, the Ld. AR relied upon the case of CIT Vs Raj Kumar, wherein Hon'ble Delhi High Court had held that the word advance which appears in the company of the word loan could only mean such advance which carries with it an obligation of repayment. Trade advances which are in the nature of money transacted to give effect to commercial transaction would not fall within the ambit of section 2(22)(e) of the Act. Reliance was also placed in the case of Shyama Charan Gupta Vs. 377 ITR 511 wherein the Hon'ble Allahabad High Court has held that advance towards salary which was due to the petitioner and was credited to his account every month could not be treated as deemed dividend. Reliance was also placed on the judgement of Hon'ble Delhi High Court in the case of CIT vs. Sunil Sethi wherein it was held that the advance which had been given by company to assessee who was the director in the said company was neither a loan nor was it for individual benefit of the said assessee and further held such advance was in the nature of imprest and same could not be treated as deemed dividend under the provisions of Section 2(22)(e)of the Act. The Ld. DR on the other hand, relied upon the order of AO and CIT(A). We have heard the rival parties and have gone through the material placed on record. From the facts and circumstances of the case, we have observed that the debit balance in the account of assessee at a given point of time is not in the nature of loan or advance. But, it is a running account wherein the assessee had taken the amount as adjustable against future salaries which were being credited to his account monthly. Therefore, following various judicial pronouncements as relied upon by Ld. AR, we are of the view that advance was not in the nature of loan and hence cannot be treated as deemed dividend u/s 2(22)(e) of the Act. In view of the above, the appeal filed by assessee is allowed."

11. Further reliance is placed on the following judgments: • Ishwar Chand Jindal, New Delhi Versus ACIT, Central Circle -16. New Delhi [ITA No. 2967/Del/2012, Dated - May 29,2015 ITAT Delhi] • Mr. Purushottam Das Mimani Versus Dy. Commissioner of Income Tax, Central Circle-V Kolkata [IT (SS) A Nos. 60 to 62/Kol/2011, IT (SS) A Nos. 73 to 76/Kol/2011 Dated – October 17. 2014 ITAT Kolkata] ./2011  HIGH COURT OF ALLAHABAD Commissioner of Income- tax, Agra v. Atul Engineering Udyog [2014] 51 taxmann.com 569 (Allahabad) Section 2(22) of the Income-tax Act, 1961 - Deemed dividend (Loans and advances to shareholders/Commercial transaction) -Assessment year 2006-07 - Assessee-firm entered into an agreement with its sister concern to supply its generator sets against a floating security deposit by said concern - In turn, sister concern would supply electricity to assessee at concessional rate -Assessing Officer treated security deposit as deemed dividend in hands of assessee - Whether since deposit made by sister concern was a business transaction arising in normal course of business between two concerns and assessee-firm was not a shareholder in said company, said deposit could not be treated as deemed dividend - Held, yes. • IN THE ITAT CHENNAI BENCH 'D' Assistant Commissioner of Income-tax, Central Circle - l{4) v. Madras Madurai Properties (P.) Ltd. [2011] 9 taxmann.com 93 (Chennai - Trib.) Section 2(22) of the Income-tax Act, 1961 - Deemed dividend (Loans/advances - Commercial Transaction) - Assessment years 2002-03, 2005-06 and 2006-07 - Whether where assessee-company having taken a property on lease from its directors, released same to another company in which those directors had substantial interest, security deposits received by assessee from said company in terms of re-lease agreement being an amount received in normal course of its business activity, could not be brought to tax as deemed dividend under section 2(22) (e) - Held, yes [Para 16] 11. Further, the assessee has taken an amount of Rs.2,27,997/- as advance against salary. The said advance against salary has been misinterpreted by the AO as advance salary. The said advance is to be repaid by the assessee to the company in future. Thus, the said transaction was also in the nature of business and not covered under the provisions of section 2(22)(e) of the Act, and the addition made under the said provisions id bad in law and contrary to the facts of the case, and thus, the order passed by the Ld. CIT (Appeals) should be upheld.

12. Further reliance is placed on the following judgments: • HIGH COURT OF DELHI Commissioner of Income- tax v. Ambassador Travels (P.) Ltd. [2008] 173 TAXMAN 407 (DELHI) Section 2(22) of the Income-tax Act, 1961 - ./2011 Deemed dividend -Assessment year 1998-99 - Assessee, engaged in business of travel agency, had entered into certain business transactions with two companies, namely, 'H' Ltd. and 'A' Ltd. - Assessing Officer took a view that because of shareholding pattern, financial transactions entered into between assessee and said companies would fall in category of 'deemed dividend' -Commissioner (Appeals) upheld order of Assessing Officer - On further appeal, Tribunal opined that being a travel agency, assessee had regular business dealings with above two concerns dealing with holiday resorts and tourism industry and, thus, transactions-in-question could not be described as advances or loans forming distinct category of financial transactions -Accordingly, Tribunal concluded that provisions of section 2(22)(e) were not at all applicable - Whether since assessee was involved in booking of resorts for customers of these companies and had entered into normal business transactions with companies as a part of its day-to-day business activities, Tribunal was right in holding that provisions of section 2(22)(e) were not applicable - Held, yes. • HIGH COURT OF DELHI Commissioner of Income-tax v. Arvind Kumar Jain [2012] 18 taxmann.com 132 (Delhi) Section 2(22) of the Income-tax Act, 1961 - Deemed dividend -Whether where assessee holding 50 per cent shares in a company, received certain amount from said company on account of trading transaction between parties, amount so received could not be added to assessee's income as deemed dividend merely because said amount had been reflected as 'unsecured loan' in assessee's books of account - Held, yes.

13. The provisions of section 2(22)(e) of the Act are applicable to only loans or advances given by the company, and in case the money has been advanced by the company for some business transaction, the same cannot be considered for the purpose of the said section.

14. In view of the above, the Ld. CIT (Appeals) was right in deleting the said addition made by the AO, and the order of the Ld. CIT (Appeals) be upheld.”