GST Helpdesk   Subscription   Demo   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (8) TMI 650 - ITAT HYDERABAD

2015 (8) TMI 650 - ITAT HYDERABAD - TMI - Reopening of assessment - addition made on account of deemed dividend under S.2(22)(e) - Held that:- Reasons recorded by the AO that it had come to the notice during the course of survey operations carried out under S.133A of the Act in the case of M/s.Aster Infrastructure Private Limited on 25.1.2011 that the claim of the assessee of having incurred loss in the proprietary concern of M/s. Aster Indsutry was bogus in as much as the staff services claimed .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nformation had come to the possession of the Assessing Officer as a result of survey carried out on 25.1.2011 in the case of M/s.Aster Private Limited, only after completing the scrutiny assessment in the case of the assessee on 12.11.2009, and since the said assessment was reopened by him on the basis of such information coming to his possession subsequently, we are unable to agree with the contention of the learned counsel for the assessee that the reopening of assessment made by the Assessing .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

siness transactions and dealings between the said two companies was also explained by the assessee by pointing out that M/s. Aster P. Ltd. was supplying towers and antennas, which were regularly purchased by M/s. Aster Infrastructure P. Ltd. for the purpose of its business of providing infrastructure services to telecom operators. M/s. Aster P. Ltd. was also providing related services to M/s. Aster Infrastructure P. Ltd. such as installation of towers and antennas, and their operations and maint .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ide the same by saying that there was no documentary evidence to support and substantiate it.

CIT(A) observation that even if the relevant transactions are in the nature of business transactions, the provisions of S.2(22)(e) are still attracted as rightly contended by assessee, this conclusion drawn by the learned CIT(A) is contrary to the various judicial pronouncements including the judgment of the Hon'ble Delhi High Court cited by him and this position is not disputed by the Learne .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s held that the amount advanced for business transaction between parties, are not such to fall within the definition of ‘deemed dividend’ under S.2(22)(e). This proposition is reiterated in the case of CIT V/s. Alpex Exports Pvt. Ltd. (2014 (4) TMI 237 - DELHI HIGH COURT) wherein it was held that trade advances which are in the nature of money transacted to give effect to commercial transactions would not fall within the ambit of S.2(22)(e). We are of the view that the relevant transactions betw .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

JAGTAP AND SHRI SAKTIJIT DEY, JJ. For The Appellant : Shri S.Rama Rao For The Respondent : Shri Ramakrishna Bandi ORDER Per P.M. Jagtap, Accountant Member : This appeal filed by the assessee is directed against the order of the learned Commissioner of Income-tax(Appeals) II, Hyderabad dated 27.1.2014. 2. The relevant facts of the case giving rise to this appeal are as follows: The assessee is an individual, who is promoter and Director of M/s. Aster Pvt. Ltd.. The return of income for the year u .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the Assessing Officer. Subsequently, a survey action under S.133A was carried out in the case of M/s. Aster Pvt. Ltd. on 25.1.2011. As revealed during the course of survey, the proprietary concern of the assessee, M/s. Aster Industries had actually not provided any staff services to M/s. Aster P. Ltd. In the statement recorded during the course of survey, Shri A.Srinivasa Prasad, CEO of M/s. Aster P. Ltd. and brother of the assessee admitted that there were no such staff services actually provi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

assessee for the year under consideration was reopened by the Assessing Officer and a notice under S.148 was issued by him on 14.3.2011 after recording the reasons. In reply, a letter dated 17.8.20111 was filed by the assessee, stating that the return originally filed on 30.10.2007 may be treated as the one filed in response to the notice under S.148. During the course of reassessment proceedings, the assessee objected to the reopening of the assessment as well as the disallowance proposed to b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

al amount to M/s. Aster Infrastructure P. Ltd. as loans and advances during the year under consideration. He also noticed that the assessee was holding major part of the shares of both these companies and the provisions of S.2(22)(e) of the Act were applicable to the amount of loans and advances given by M/s. Aster P. Ltd. to M/s. Aster Infrastructure P. Ltd. Accordingly the addition was proposed to be made by him on account of the said amounts, treating it as deemed dividend under S.2(22)(e) in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nt of ₹ 5,38,42,692 advanced by M/s.Aster Private Limited to M/s.Aster Infrastructure Private Limited in the hands of M/s.Aster Infrastructure Private Limited under S.2(22)(e) on substantive basis, treating it as deemed dividend and also proposed to add the said amount in the hands of the assessee in her individual capacity, being share-holder of both the companies, on protective basis. 5. The assessee strongly objected to the addition proposed by the Assessing Officer under S.2(22)(e) by .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

147 vide order dated 30.12.2011, the total income of the assessee was determined by the Assessing Officer at ₹ 5,82,92,082. 6. Against the order passed by the Assessing Officer under S.143(3) read with S.147, an appeal was preferred by the assessee before the learned CIT(A) challenging the validity of the assessment as well as disputing inter alia the addition made therein on account of deemed dividend under S.2(22)(e). On the preliminary issue challenging the validity of the reopening of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion of details of computation of income, it was noticed that the assessee claimed loss of ₹ 5,70,7681- from the proprietary business loss of Aster Industries. The said loss was given set off against the income from salary of House Property. c) Meanwhile there was a survey operation uls.133A of the Act in the premises of M/s. Aster Pvt. Lt d . , in which the assessee was a Director on 25.01.2011. During the course of survey it was noticed that The so called M/s. Aster Industries did not do .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

based on the mere assumption that the assessee had not done any business. d) Having admitted the income under scrutiny assessment, reopening of the same amounts to change of opinion. Reliance is placed on: a) Vijaykumar M. Hirakhanwala (HUF) vs. ITO(2006) 287 ITR 443(Bom.) b) Shree Rajasathan Syntex Ltd. vs. ACIT (2005) 93 ITD 78(Jod-Trib) c) Gujarat Power Corporation Ltd. vs. DCIT (2011) 238 CTR 91 e) That the business of M/s.Aster Industries Ltd., very much existed, it provided staff services .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ute entire loss to supply of staff services to M/s.Aster Pvt. Ltd., only. h) It is not correct to reopen the assessment based on the statements without any corroborative evidence. 7. The learned CIT(A) did not find merit in the above submissions made by the assessee, and rejecting the same, he uphold the validity of the assessment made by the Assessing Officer under S.143(3) read with S.147 for the following reasons given in paragraph No.3.2 of the impugned order. 3.2. The information on record .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Finvest Ltd. vs. ACIT 281 ITR 394 (Del), the Hon'ble High Court held that principle of change of opinion is not applicable where the Assessing Officer did not address the issue in original assessment. Hence at the time of issue of notice u/s.148, there was a valid reason for the Assessing Officer. Therefore, notice u/s.148 is valid. It is also pertinent to mention that M/s.Aster Pvt. Ltd. to whom the services were claimed to have been rendered by the assessee, has admitted that no services .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

being a share holder of M/s.Aster Private Limited, the addition on account of deemed dividend under S.2(22)(e), if at all, could have been considered in the hands of the assessee in her individual capacity, being the share holder. Keeping in view this decision of the first appellate authority in the case of M/s.Aster Infrastructure Private Limited, elaborate submissions were made on behalf of the assessee before the learned CIT(A) in support of her case that the addition under S.2(22)(e) on acco .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

connection with erecting cell towers, site maintenance, labour payments, material cost, etc. 'c) As and when one concern is in need of urgent funds, the other concern is accommodating the funds as both the units are in the similar business. There is on-going account with various debits and credits between the two companies involving transfer of funds. Since transactions are business transactions, the same cannot be considered as deemed dividend. Reliance is placed on the decisions of: - S.A. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

The above submissions made by the assessee did not find favour with the learned CIT(A), who confirmed the addition made by the Assessing Officer under S.2(22)(e) to the total income in the hands of the assessee, on substantive basis, for the following reasons given in paragraph No.5.5 of the impugned order. 5.5. The information on record is carefully examined. It is not in dispute that the assessee holds substantial interest in both the firms, namely, M/s.Aster Pvt. Ltd., and M/s.Aster Infrastru .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on 31.03.2007 was 24.6%.' Thus, on account of said loans/advances received by M/s.Aster Infrastructure Pvt. Ltd., the real beneficiary is the major shareholder, namely, Smt.U.Rajani. Though the appellant has been claiming that the transactions between the two companies were in the nature of regular business transactions, except mere claim, there is nothing on record to suggest/ to support the appellant's version. Even the copy of the account in proving of his claim was not furnished. Fur .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hands of shareholder, the appellant. Therefore, the addition of deemed dividend of ₹ 5,60,67,387/- made by the Assessing Officer is confirmed. Therefore, these Grounds of Appeal are dismissed. Aggrieved by the order of the learned CIT(A), assessee has preferred this appeal before the Tribunal. 10. In ground no.1 of her appeal, the assessee has raised a preliminary issue relating to validity of the assessment made by the Assessing Officer under S.143(3) read with S.147,while the common iss .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e for loss of ₹ 5,77,562 incurred in the proprietary concern M/s. Aster Industries having been allowed by the Assessing Officer after examining all the relevant aspects in the scrutiny assessment made originally under S.143(3), the reopening of assessment on this issue was based on mere change of opinion. It is however observed from the reasons recorded by the Assessing Officer that it had come to the notice during the course of survey operations carried out under S.133A of the Act in the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as not only a name lender, but also surrendered additional income in the hands of M/s. Aster P. Ltd. on account of payment claimed to be made to the proprietary concern, thereby accepting it to be bogus. This entire information had come to the possession of the Assessing Officer as a result of survey carried out on 25.1.2011 in the case of M/s.Aster Private Limited, only after completing the scrutiny assessment in the case of the assessee on 12.11.2009, and since the said assessment was reopened .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

o.2 to 4 relating to the addition made by the Assessing Officer and confirmed by the learned CIT(A) on account of amounts allegedly advanced by M/s.Aster Private Limited to M/s.Aster Infrastructure Private Limited, wherein the assessee is a common share-holder, treating the same ass deemed dividend under S.2(22)(e), the learned counsel for the assessee submitted that all the relevant transactions between M/s.Aster Private Limited and M/s.Aster Infrastructure Private Limited were in the nature of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d before the learned CIT(A) (copy placed at pages 168 to 176 of the paper-book) and pointed out that the nature of the transactions between M/s.Aster Private Limited and M/s.Aster Infrastructure Private Limited was clearly explained by the assessee by giving complete analysis. He contended that M/s.Aster Infrastructure Private Limited is an infrastructure service provider to the telecom operators and its operations include installation of towers/antennas on the various sites to be leased to the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eply connected for business purposes, they also extend mutual help to each other by financing for their business needs. 13. The learned counsel for the assessee also invited our attention to the statement giving the entire details of the transactions between M/s.Aster Infrastructure Private Limited and M/s.Aster Private Limited and pointed out that the said transactions reflect regular business transactions involving transfer of funds, payment of service charges, labour payments, material costs, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

te Limited in the books of M/s.Aster Private Limited and pointed out that the nature of transactions as well as their frequency was evident from the statement of account regularly maintained in the books of account. He submitted that even the various judicial pronouncements cited by the assessee in support of her stand that the relevant transactions between M/s.Aster Infrastructure Private Limited and M/s.Aster Private Limited being regular business transactions were outside the purview of S.2(2 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Pvt. Ltd. (343 ITR 353)-Del. (c) CIT V/s. Raj Kumar(318 ITR 462)-Del. (d) Asstt. CIT v. Clough Engineering Ltd. (130 ITD 137)-Del. 14. The learned counsel for the assessee also submitted that there were similar transactions entered into between M/s.Aster Infrastructure Private Limited and M/s.Aster Private Limited even during the earlier years, but no addition was made on account of deemed dividend under S.2(22)(e) in the earlier years, either in the hands of M/s.Aster Infrastructure Private Li .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

aim that the relevant transactions between M/s.Aster Private Limited and M/s.Aster Infrastructure Private Limited are in the nature of business transactions is not supported by any documentary evidence, such as bills, vouchers, etc. and the same, therefore, has not been accepted by the Assessing Officer as well as by the learned CIT(A). He contended that although the regular business transactions are outside the purview of S.2(22)(e), as held in the various judicial pronouncements cited on behal .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

all, such nature is not verified either by the Assessing Officer or by the learned CIT(A) as contended by the Learned Departmental Representative, the addition made by them under S.2(22)(e) cannot be sustained. 17. We have considered the rival submissions and also perused the relevant material on record. It is observed that the nature of the relevant transactions between the M/s. Aster P. Ltd. and M/s. Aster Infrastructure P. Ltd., which are treated as deemed dividend in the hands of the assess .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the question about making this addition on substantive basis in the hands of the assessee arose as a result of the deletion of the same addition made in the hands of M/s. Aster Infrastructure P. Ltd., a detailed note was filed by the assessee explaining the nature of the relevant transactions between the M/s. Aster P. Ltd. and M/s. Aster Infrastructure P. Ltd. in support of her stand that the said transactions represented regular business transactions. A copy of the relevant written submission .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

concerns belonging to the 'Aster Group of Companies'. The company AIPL is primarily engaged in the business of offering sites with' complete passive infrastructure to the various Mobile Communication operators. In the process the company acquires the sites of open land/ terrace and after providing the basic infrastructural facility comprising of the installation of the towers, providing room where equipment is installed etc, the same is provided on lease basis to the said telecom op .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the said towers/ antennas are regularly purchased from ATPL by the appellant in the regular course of its business. Also the company AIPL appellant, providing services to the telecom operators hires on a regular basis the services of ATPL for the purposes of installation of the towers, the other related operational and maintenance services such as diesel generator maintenance, power supply and various such ancillary activities at the leased tower sites. Thus from the above, it is seen that the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ply of material, towers, shelters, antenna, labour, services at the various sites. These payments/receipts are all debited/credited to the site accounts. Also payments in connection with erecting of towers, site maintenance etc involving payment of service charges, labour payments, material cost etc. are incurred between the two companies. Further also the AIPL and ATPL being deeply connected for business purposes are in mutual cooperation for finances for business needs due to commercial busine .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s involving transfer of funds in the form of payment, receipts and also. accommodation entries. Further, as can be seen from the nature of transactions, the business network between the companies and the structure in which the group was progressing, it is dear and evident that the funds advanced are not investment only not to lend money or advance. if that is the fact, the benefit to the beneficial shareholder was never evident and this is proved beyond doubt during and post survey operations. T .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ions between the said two companies and the nature of business transactions and dealings between the said two companies was also explained by the assessee by pointing out that M/s. Aster P. Ltd. was supplying towers and antennas, which were regularly purchased by M/s. Aster Infrastructure P. Ltd. for the purpose of its business of providing infrastructure services to telecom operators. M/s. Aster P. Ltd. was also providing related services to M/s. Aster Infrastructure P. Ltd. such as installatio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

explanation in proper perspective and simply brushed aside the same by saying that there was no documentary evidence to support and substantiate it. 19. As rightly contended by the learned counsel for the assessee, the relevant transactions were duly recorded in the books of account regularly maintained and the nature of the said transactions was verifiable from the relevant ledger account itself. If it is the case of the Revenue that no such verification was done either by the Assessing Office .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ggregating to ₹ 5,60,10,066 and the total credits on account of various transactions aggregating to ₹ 3,11,51,901, the closing balance as on 31st March, 2007 stood at ₹ 4,57,48,296. In the said ledger account, narration was given in respect of each debit and credit entry and a perusal of the same shows that only some of the transactions were in the nature of transfer of funds, while there were other transactions which represented various business transactions between the two co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hese two companies even in the earlier years, but there were no additions made by the Assessing Officer on account of deemed dividend under S.2(22)(e) either in the case of M/s. Aster Infrastructure P. Ltd. or even in the case of the assessee. After having carefully perused the relevant ledger account as well as the explanation offered by the assessee before the learned CIT(A) as well as before us, we are inclined to accept the stand of the assessee that the relevant transactions between M/s. As .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version