Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2018 (3) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (3) TMI 1575 - AT - Income TaxLegality of the addition u/s 153A - deemed dividend addition u/s 2(22)(e) - time limit for issue of notice - incriminating material found during the course of search - Held that:- In the present case, the search took place on 09.09.2010 in Amrapali Group of Cases. The impugned Assessment Year before us is Assessment Year 2007-08. The assessee filed return of income on 22.10.2007. The notice u/s 143(2) of the Act could have been issued to the assessee up to 30.09.2008. No such notice was issued. Therefore, as on the date of search the assessment was completed assessment - if any addition is made in the concluded assessment it has to be made only on the basis of incriminating material found during the course of search. If there is no incriminating material found then assessment u/s 153A was to be passed only on the returned income or earlier assessed income. In the present case, it is apparent that addition has been made on the basis of the same material, which was there prior to the date of search, and no incriminating material was mentioned in the assessment order or produce before us. - Decided in favour of assessee. For deemed dividend addition u/s 2(22)(e) transactions of the loan received by the assessee is also required to be examined from the aspect of the circular where it has been stated that the nature of advances given will determine whether it would be considered as deemed dividend or not. Some of the decisions relied upon by the assessee before the Ld. CIT (A) are also mentioned in the above circular however, the Ld. CIT appeal has not verified whether the facts of the present case are covered by those decisions. In view of above facts, in the interest of Justice, we set aside ground No. 2 of the appeal back to the file of the Ld. AO. for examination of the full facts of the loans given by the lender company to the assessee and its taxability as deemed dividend. The assessee is first directed to produce all the necessary details to show that how the advances received by the assessee does not fall into the definition of deemed dividend. Addition of benefit or perquisite under section 2 (24) (iv) - Held that:- We reject the finding of the Ld. CIT (A) that benefit is to be "received" from the company. We could not find the text of the section that benefit is to be received from the company. It provides rather that the benefit is to be "obtained" from the company. Furthermore, there is no relationship between the amount advanced to the appellant to provide guarantee for raising of the bank loan by the lender company to fund the project and headed you commercial expediency. CIT (A) has applied the reasons given by him while deleting the addition of the deemed dividend also for deleting the above addition with respect to the benefit of deemed - set aside ground of the revenue to the file of the Ld. assessing officer with a direction to the assessee to show before him that how the about transaction of receiving loan from a firm to the assessee free of interest where a company where the assessee is director which is provided huge interest free funds to such firm is not chargeable to tax as income under section 2 (24)(iv) of the act. The Ld. AO may examine the arguments of the assessee and decide the issue afresh
|