2019 (1) TMI 1765 - AT - Income Tax

ITAT Affirms Deemed Dividend Deletion as Business Decision; Reopening of Assessment Invalidated Due to Opinion Change.

DCIT, Circle-8 (2), Kolkata Versus Shri Sanjay Budhia And (Vice of Versa)

The ITAT upheld the deletion of deemed dividend addition under section 2(22)(e) of the Income Tax Act, 1961, affirming that the advance was a business ... Deemed dividend addition u/s 2(22)(e) - Receipt of advances from banks - HELD THAT:- Assessee had to mortgage all his assets to the bank in order to increase the credit facility of the company and therefore, advance taken by the assessee should not be treated as deemed dividend. For that we rely on the judgment of the jurisdictional Kolkata High Court in the case of Pradip Kumar Malhotra vs. Commissioner of Income Tax [2011 (8) TMI 16 - CALCUTTA HIGH COURT] on similar identical facts has held that “for retaining the benefit of loan availed of from the bank, if decision is taken to give advance to the assessee, such decision was not to give gratuitous advance to its shareholder but to protect the business interest of the company. That is, if such loan or advance is given to such share holder as a consequence of any further consideration which is beneficial to the company received from such a shareholder, in such case, such advance or loan cannot be said to a deemed dividend within the meaning of the Act. Therefore, we do not find any infirmity in the order of ld CIT(A).That being so, we decline to interfere with the order of Id. C.I T.(A) deleting the aforesaid addition. Reopening of assessment u/s 147 - validity of reopening of assessment - HELD THAT:- Reassessment proceedings were initiated by AO after four years without bringing and tangible material on record. The issue on which the reassessment proceedings were initiated by AO was already existed during the original assessment. Loan interest was paid by assessee and the said interest was claimed and during the original assessment the same was disallowed by AO while passing the original assessment under section 143(3) - in the assessee's case under consideration the reassessment proceedings was based on review of the same set of facts/details which were already on record before AO at the time of completion of original assessment under section 143(3) - AO has merely reviewed the same set of documents and concluded that that there was escapement of tax which is not tenable. AO cannot reopen a concluded assessment merely on reviewing the documents which are already filed before the AO during the original assessment. See CIT -vs.- Kelvinator of India [2010 (1) TMI 11 - SUPREME COURT] We quote section 147 1st proviso to conclude that the Revenue has not made out a case of the assessee having not “fully” and “truly” disclosed all particulars at the first instance as per Hindusthan Lever Ltd. vs. R.B. Wadker[2004 (2) TMI 42 - BOMBAY HIGH COURT] - Decided in favour of assessee. Issues:1. Deletion of deemed dividend addition under section 2(22)(e) of the Income Tax Act, 1961.2. Condonation of delay in filing cross objection.3. Validity of reopening of assessment under sections 147/148 of the Act.Deletion of Deemed Dividend Addition:The appeal and cross objection were filed against an order passed by the Ld. Commissioner of Income Tax (Appeals) regarding the addition of deemed dividend under section 2(22)(e) of the Income Tax Act, 1961. The assessing officer concluded that an advance of Rs. 2,00,00,000 given to an individual satisfied the conditions for attracting the provisions of deemed dividend. The assessee contended that the advance was not gratuitous but had a valid consideration in the form of a personal guarantee. The Ld. CIT(A) deleted the addition, citing a similar judgment by the Kolkata High Court. The ITAT upheld the decision, emphasizing that the advance was not a deemed dividend but a business decision to protect the company's interests.Condonation of Delay in Filing Cross Objection:The cross objection filed by the assessee for Assessment Year 2006-07 was initially barred by 157 days. The assessee requested the Bench to condone the delay, which was granted after considering the reasons provided in the petition. The cross objections were admitted for hearing, and the delay was condoned.Validity of Reopening of Assessment:The assessee challenged the validity of the reopening of assessment under sections 147/148 of the Act. The reassessment was initiated without tangible material after four years, which the ITAT deemed as a review of the original order based on a change of opinion. The AO did not pass any order on the objection filed by the assessee during the reassessment proceedings. The ITAT held that the reassessment was not sustainable as it was based on the same set of facts already on record during the original assessment. Citing a Supreme Court judgment, the ITAT concluded that the reassessment proceedings lacked a valid reason to believe there was an escapement of income. As a result, the cross objection filed by the assessee was allowed, and the appeal by the Revenue was dismissed.This detailed analysis of the legal judgment covers the issues related to the deletion of deemed dividend addition, condonation of delay in filing cross objection, and the validity of reopening the assessment under the Income Tax Act.