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of <h1>Advances to shareholder for allowing property to remain mortgaged not deemed dividends under section 2(22)(e), decision reversed</h1> HC held that advances characterized as compensation for permitting a shareholder's property to remain mortgaged to secure a company loan were not deemed ... Deemed dividend under Section 2(22)(e) - No opportunity to the appellant to make submissions - HELD THAT:- Since, assessee permitted his property to be mortgaged to the bank for enabling the company to take the benefit of loan and in spite of request of the assessee, the company is unable to release the property from the mortgage - In such a situation, for retaining the benefit of loan availed from Vijaya Bank if decision is taken to give advance to the assessee such decision is not to give gratuitous advance to its share holder but to protect the business interest of the company - In support of such contention, assessee has relied upon a Division Bench decision of Delhi High Court in the case of Commissioner of Income-tax Vs. Creative Dyeing and Printing P. Ltd., [2009 (9) TMI 43 - DELHI HIGH COURT] - Therefore, find that the authorities below erred in law in treating the advance given by the Company to the assessee by way of compensation to the assessee for keeping his property as mortgage on behalf of the company to reap the benefit of loan as deemed dividend within the meaning of Section 2(22) (e) of the Act - Decided in favour of assessee. Issues Involved:1. Whether the Tribunal was justified in law in upholding the treatment of Rs.20,75,000/- as deemed dividend under Section 2(22)(e) of the Income Tax Act, 1961 without granting an opportunity to the appellant to make submissions on merits.2. Whether the amount of Rs.20,75,000/- received by the appellant from the company can be considered a deemed dividend under Section 2(22)(e) of the Income Tax Act, 1961.3. Whether the appellant was liable for any tax on the said sum of Rs.20,75,000/- under Sections 10(3) and 115-O of the Income Tax Act, 1961.Detailed Analysis:Issue 1: Opportunity to Make Submissions on MeritsThe appellant contended that the Tribunal upheld the treatment of Rs.20,75,000/- as deemed dividend without allowing the appellant to make submissions on merits or considering the documents placed on record. The Tribunal's order dated April 23, 2003, was challenged on these grounds. However, during the appeal, the appellant's counsel chose not to press this point.Issue 2: Interpretation of Section 2(22)(e) of the Income Tax Act, 1961The core issue was whether the amount of Rs.20,75,000/- received by the appellant from the company, due to the appellant's property being mortgaged as security for the company's loan, constituted a deemed dividend under Section 2(22)(e).- Arguments by Appellant's Counsel: The appellant's counsel argued that the payment made by the company was a consequence of the appellant allowing his property to be mortgaged, which benefited the company. Thus, the payment should not be considered a deemed dividend. The counsel relied on the Delhi High Court's decision in Commissioner of Income-tax Vs. Creative Dyeing and Printing P. Ltd., and the Bombay High Court's decision in Commissioner of Income-tax Vs. Nagindas M. Kapadia.- Legal Provisions and Interpretation: Section 2(22)(e) defines 'dividend' to include any payment by a company by way of advance or loan to a shareholder holding not less than ten percent of the voting power, to the extent the company possesses accumulated profits. However, the court interpreted that such advances or loans must be gratuitous and not in return for any advantage conferred upon the company by the shareholder.- Court's Conclusion: The court concluded that the payment made by the company to the appellant was not gratuitous but was a compensation for the appellant allowing his property to be mortgaged, which benefited the company. Therefore, it should not be treated as a deemed dividend. The court found support for this view in the decisions of the Bombay and Delhi High Courts.Issue 3: Tax Liability under Sections 10(3) and 115-OThis point was not pressed by the appellant's counsel during the appeal.Judgment:The court set aside the Tribunal's order and directed the Assessing Officer not to treat the advance of Rs.20,75,000/- as a deemed dividend. The appeal was allowed by answering the core issue in favor of the appellant and against the Revenue. No order as to costs was made.
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