2022 (4) TMI 1227 - AT - Income Tax

Tribunal Upholds Deemed Dividend Disallowance and Depreciation Denial

Sanjay Subhashchand Gupta Versus Asstt. Commissioner of Income Tax Circle–2, Kalyan

The Tribunal upheld the disallowance under section 2(22)(e) of the Income Tax Act for deemed dividend, as loans received from companies where the ... Additions u/s 2(22)(e) on account of deemed dividend - Accumulated profit - HELD THAT:- As per the provisions of aforesaid section, loan or advance paid by a company shall be considered as deemed dividend on fulfillment of following conditions (i) the company must be a company in which the public is not substantially interested; (ii) such a company has given advance or loan: (iii) such payment has been made to a shareholder: and (iv) such shares hold not less than 10% of the voting power. From the facts available on record, it is evident that both the companies i.e. M/s Rustagi Projects and M/s Yen Pulses Private Limited, were not the companies in which public was substantially interested - the assessee, being shareholder, was holding shares more than 10% (i.e. 95% in M/s Rustagi Projects and 50% in M/s Yen Pulses Private Limited) in both the companies. Both the companies have credited loan to the assessee. Thus, the basic conditions of section 2(22)(e) are satisfied in the present case. Further, such a payment for the purpose of section 2(22)(e) of the Act should be to the extent to which the company possesses accumulated profits. As per the provision of Explanation 2, all the profits of the company up to the date of distribution or payment under section 2(22)(e) of the Act shall be considered as accumulated profits. Thus, the provision of Explanation 2 to section 2(22) of the Act does not distinguish between the profit accumulated in the immediately preceding year and the current year profit, and takes within its ambit all the profits up to the date of payment. Addition made by the Assessing Officer under section 2(22)(e) of the Act. Thus, in view of the above legal position, we do not find any infirmity in the order passed by the learned CIT(A) affirming the addition on account of deemed dividend. As a result, ground no.1 raised in assessee’s appeal is dismissed. Disallowance of depreciation on vehicle - Disallowance @ 20% of depreciation on motor car as being attributable to personal usage of the asset in terms of provisions of section 38(2) - HELD THAT:- We are of the considered opinion that the disallowance of depreciation on vehicle to an extent of 20% was rightly upheld by the learned CIT(A). As a result, ground no.2 raised in assessee’s appeal is dismissed. Issues:1. Disallowance under section 2(22)(e) of the Income Tax Act on account of deemed dividend.2. Disallowance of depreciation on a vehicle.Analysis:1. Issue 1 - Disallowance under section 2(22)(e) of the Income Tax Act on account of deemed dividend:The appellant challenged the disallowance of Rs. 3,62,366 and Rs. 27,615 under section 2(22)(e) of the Act. The Assessing Officer treated the amount as deemed dividend due to loans received from companies where the appellant was a director and shareholder. The appellant argued that there was no profit accumulation in the companies in the relevant years. However, the CIT(A) upheld the addition as deemed dividend considering the provisions of section 2(22)(e) and judicial precedents. The Tribunal found that the basic conditions of the section were met, as the companies were not public, the appellant held more than 10% shares, and loans were given. The Tribunal also clarified that accumulated profits include all profits up to the payment date, not distinguishing between preceding or current year profits. Citing legal precedents, the Tribunal affirmed the CIT(A)'s decision, dismissing the appeal.2. Issue 2 - Disallowance of depreciation on a vehicle:The appellant claimed depreciation on a vehicle, but 20% was disallowed by the Assessing Officer due to lack of a maintained log book for personal usage. The CIT(A) upheld this disallowance, leading to an appeal by the appellant. The Tribunal reviewed the case and agreed with the CIT(A)'s decision, stating that the 20% disallowance was justified under section 38(2) of the Act. Consequently, the appeal on this issue was also dismissed.In conclusion, the Tribunal dismissed the appellant's appeal on both issues, upholding the disallowances under section 2(22)(e) for deemed dividend and the depreciation disallowance on the vehicle. The order was pronounced on 25.04.2022.