Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

M/s. Birendra Chandra Saha Versus Assistant Commissioner of Income Tax, Circle-39, Kolkata

Revision u/s 263 - deemed dividend addition u/s 2(22)(e)- assessee is challenging this finding by contending that the deemed dividend, if any, is taxable in the hands of the person, who is the shareholder of the lender Company and not in the hands of the persons or entities other than the shareholder - Held that:- Here in this case, M/s. Birendra Chandra Saha admittedly is not a shareholder in M/s. Mascot Woodcraft Pvt. Ltd. and the loan was advanced to the assessee-company. The beneficiary shar .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f assessee. - I.T.A. No. 541 /KOL/ 2014 - Dated:- 26-8-2016 - Shri Waseem Ahmed, Accountant Member And Shri K. Narasimha Chary, Judicial Member Shri Soumitra Choudhury, Advocate, for the assessee Shri Niraj Kumar, CIT, D.R. , for the Department ORDER Per Shri K. Narasimha Chary, J. M. This appeal by the assessee is challenging the order dated 25.03.2013 passed by the ld. Commissioner of Income Tax, Kolkata-XIII, Kolkata (hereinafter called as the CIT in short) in respect of the assessment year 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

Assessing Officer assessed the income. Subsequently the ld. CIT by way of an order dated 25.03.2013 enhanced the income and assessed the same at ₹ 1,05,87,423/-. In the process, the ld. CIT added deemed dividend to a tune of ₹ 95,70,953/-, which was the unsecured loan given by M/s. Mascot Woodcraft Pvt. Ltd. Challenging the same, the assessee carried the matter in appeal before the Tribunal on the following grounds:- (1) For that on the facts of the case, the order passed u/s 263 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

g in adding ₹ 95,70,953/- u/s 2(22)(e) as deemed dividned which was duly considered by the AO at the time of assessment, therefore, the direction given by the ld. CIT-XIII, Kolkata is completely arbitrary, unjustified and illegal. (4) For that on the facts of the case, the ld. CIT-XIII, Kolkata was wrong in not considering the fact that the accommodation of ₹ 95,70,953/- as received from the Group Companies purely on banking compulsions and business issues which was duly considered 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

assed, the assessee approached one Shri P.K. Sarkar, FCA on the legal aspects, but since the said Chartered Accountant was not very conversant with the Income Tax Appellate Tribunal, he could not advise the assessee properly. Further, the contention of the assessee is that Smt. Kamala Saha, partner of the assessee-firm, was suffering from Tumor in Uterus and Arthritis and was admitted in Hospital for operation, as such she was unable to work for a considerable long time. However, subsequently sh .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

L/2008 delivered on 24.12.2008. The ld. counsel for the assessee submitted that these two decisions were rendered condoning the delay on identically situated facts. On the other hand, the ld. D.R. submitted that the assessee is a partnership firm and the partners other than the one, who sworn the affidavit could have pursued the matter diligently as such the medical exigency of one partner will not give any benefit to other partner. On this premise, the ld. D.R. prayed not to condone the delay. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lay occurred, is concerned absolutely there is no dispute as to the correctness of this statement. In above cited decision, incompetency of the Chartered Accountant in giving proper advice was considered as sufficient cause. Hon ble Supreme Court in the case of Collector Land Acquisition - vs.- Mst. Katiji & Others reported in 1987 AIR 1353 laid down the following guidelines for evaluating the applications for condonation of such delay:- Guidelines laid down by the Hon ble Supreme Court in 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

e l ife- purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- " Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

at a cause would be decided on merits after hearing the parties. 3. " Every day' s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour' s delay, every second' s delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cutta High Court in the case of Indian Oil Corporation Limited -vs.- CEGAT & Others 2002 (104) ECR 609 laid down the following guidelines:- 11 . Rules of l imitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of l imitation fixes a life span for such legal remedy for the redress of 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

t is for the general welfare that a period be put to litigation). Rules of l imitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approachin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

inst him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would hav .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pen by condoning the delay is that a cause would be decided on merits after hearing the parties. With this view of the matter, we hold that non- condonation of delay would amount to preferring technical consideration, as envisaged the possibility of rendering justice on the merits of the case. Therefore, delay is to be condoned and we condone the same. 8. Now coming to the merits of the case, challenge is only in respect of the addition made by the ld. CIT under section 263 order to a tune 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

Woodcrafts Pvt. Ltd. at 11.67%, whereas Mr. Asim Kumar Saha Mondal was holding 6.57% of shares in Mascot Woodcrafts Pvt. Limited and as such any loan or advance given by M/s. Mascot Woodcraft Pvt. Limited in the hands of the person with shares of 10% or more shall be deemed to be the dividend. On this premises, the ld. CIT proceeded to add ₹ 95,70,953/-. 9. The assessee is challenging this finding by contending that the deemed dividend, if any, is taxable in the hands of the person, who is .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ee placed reliance on the decision of ITAT, Mumbai Bench in the case of ACIT -vs.- Bhaumik Colour (P) Limited reported in (2009) 118 ITD 1 (MUM.)(SB) and the decision of the ITAT, Kolkata Bench in the case of Shiv Transport & Travels -vs.- ITO reported in (2016) 67 taxmann.com 108 (Kolkata-Trib.). In Bhaumik Colour (P) Limited s case, a Coordinate Bench of this Tribunal held that section 2(32) defines the expression person who has a substantial interest in the company in relation to a compan .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

shareholder was considered as dividend. In 1961 Act, the very same two categories of payment were considered as dividend but an additional condition, that payment should be to a shareholder being a person who is the beneficial owner of shares and who has a substantial interest in the company, viz. shareholding which carries not less than 20% of the voting power, was introduced. Therefore, that the expression shareholder being a person who is the beneficial owner of shares referred to in first 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

e and observed in paragraphs no. 15 & 16 as under:- 15. The Special Bench further held as follows:- 34. We are of the view that the provisions of Sec.2(22)(e) does not spell out as to whether the income has to be taxed in the hands of the shareholder or the concern(non-shareholder). The provisions are ambiguous. It is therefore necessary to examine the intention behind enacting the provisions of Sec.2(22)(e) of the Act. 35. The intention behind enacting provisions of section 2(22)(e) are tha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

antial interest or make any payment on behalf of or for the individual benefit of such shareholder. In such an event, by the deeming provisions such payment by the company is treated as dividend. The intention behind the provisions of section 2(22)(e) is to tax dividend in the hands of shareholder. The deeming provisions as it applies to the case of loans or advances by a company to a concern in which it s shareholder has substantial interest, is based on the presumption that the loan or advance .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

son who can control the affairs of the concern can drawn the same from the concern instead of the company directly making payment to the shareholder as dividend. The source of power to control the affairs of the company and the concern is the basis on which these provisions have been made. It is therefore proper to construe those provisions as contemplating a charge to tax in the hands of the shareholder and not in the hands of a non-shareholder viz., concern. A loan or advance received by a con .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ive definition. Such inclusive definition enlarges the meaning of the term Dividend according to its ordinary and natural meaning to include even a loan or advance. Any loan or advance cannot be dividend according to its ordinary and natural meaning. The ordinary and natural meaning of the term dividend would be a share in profits to an investor in the share capital of a limited company. To the extent the meaning of the word Dividend is extended to loans and advances to a shareholder or to a con .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     Latest Happenings     ↓  

Forum: GST on RCM on rent in a unregistered state

Forum: COMPOSITION SCHEME

Forum: Input Tax Credit - Reg

Forum: GST Invoice

Article: Websites of Government Departments need lot of improvement. We are noticing detoriations in them for example, case of website of ITAT.

Highlight: Levy of additions tax u/s 115O on distribution of dividend - shares of its profits declared as distributable among the shareholders is not impressed with the character of the profit from which it reaches the hands of the shareholder - not to be bifurcated as agriculture and non-agriculture dividend - SC

Highlight: Rate of GST on old and scrap buses - 28% or 18% - at such initial tender process initiated by the Respondents-KSRTC, the present petitions filed by the petitioners are premature and misconceived and do not require any interference by this Court at this stage. - HC

Forum: Rent a cab operator

Highlight: In view of amendment made u/s 132A of the Income Tax Act, 1961 by Finance Act of 2017, the 'reason to believe' or 'reason to suspect', as the case may be, shall not be disclosed to any person or any authority or the Appellate Tribunal, SC dismissed the appeal of the assessee

Highlight: Validity of Assessment Order - period of limitation u/s 153 (2A) is applicable even if the entire order was not set aside but matter was remanded back for for limited aspects with directions - HC

News: Note ban was a shake-up, achieved its main objectives

Notification: Amendments in the notification No.5/2017- Integrated Tax (Rate) dated the 28th June, 2017.

Highlight: Levying interest u/s 234C - interest is to be charged on the returned income and not on assessed income.

Highlight: Accrual of income - sale of right to develop and sell incentive FSI under LOI - till the conditions of LOI are fulfilled transfer is not complete and income does not accrue to the assessee

Highlight: TPA - determination of ALP - TP adjustment by applying Bright Line Test (BLT) is not sustainable on protective basis having no statutory mandate.

Highlight: Safeguard Duty - Advance License Scheme - as there is no exemption from safeguard duty leviable under Section 8C, which is imposed on the goods imported from China, the importer has to pay safeguard duty

Highlight: Manufacture - process of cutting of waste plastic container - Such plastic containers before and after cutting are nothing but waste / scrap - Not a manufacturing activity as no new product emerges.

News: NITI Aayog and Govt. of Assam organizes workshop on health sector reforms in Guwahati; launches SATH- Sustainable Action for Transforming Human Capital

Notification: Seeks to amend notification no. 5/2017- central tax(rate) dated 28.06.2017 to give effect to gst council decisions regarding restriction of refund on corduroy fabrics

Notification: Seeks to amend notification no. 2/2017- central tax(rate) dated 28.06.2017 to give effect to gst council decisions regarding gst exemptions

Forum: GSTR 3B Rectification

Notification: seeks to exempt Skimmed milk powder, or concentrated milk

Notification: Seeks to amend notification no. 2/2017- integrated tax(rate) dated 28.06.2017 to give effect to GST council decisions regarding GST exemptions.

Notification: Seeks to amend notification no. 1/2017- central tax(rate) dated 28.06.2017 to give effect to gst council decisions regarding gst rates

Notification: Seeks to amend notification no. 1/2017- integrated tax(rate) dated 28.06.2017 to give effect to gst council decisions regarding gst rates.

News: Notification Issued For GST Actionable Claim On Branded Food Products

Highlight: Classification printed computer stationary/manifold Business Forms - to be classified under Chapter Heading 4820.00 or under Chapter Heading 4901.90 - items like A4 sheets, advertisement and job card to be classified under Chapter 49

Article: RCM Applicability to persons not liable to get registered us 23(1)

Article: Credit of unsold stock [Section 140(3)] - Actual Credit as well as Notional Credit - Part-I - GST Transitional provisions

News: GST Refund - Blockage of Working Capital of Exporters - earlier also there was a normal blockage of funds for a period of 5-6 months at least

News: Clarification about Transition Credit - ₹ 1.27 lakh crore of credit of Central Excise and Service Tax was lying as closing balance as on 30th June, 2017 - claim of credit of ₹ 65,000 crore is not unexpected

Article: 20 Things You must know about E Way Bills in GST Law

Article: MISTAKES IN DRAFTING

Highlight: The Customs and Central Excise Duties Drawback Rules, 2017 and All Industry Rates (AIRs) of Drawback related changes -reg. - Circular

Highlight: The definition of "subsidiary company" or "subsidiary" u/s 2(87) of the Companies Act, 2013 shall come into force w.e.f. 20-9-2017

Highlight: Central Government notified the All Industry Rates of Duty Drawback Schedule w.e.f. 1.10.2017 - Notification

Notification: All Industry Rates of Duty Drawback Schedule w.e.f. 1.10.2017

Circular: Investment by Foreign Portfolio Investors in Corporate Debt Securities Review

Notification: Exemptions on supply of services under UTGST Act

Notification: Rates for supply of services under UTGST Act

Notification: Exemptions on supply of services under IGST Act

Notification: Rates for supply of services under IGST Act

Notification: List of Exempted supply of services under the CGST Act

Notification: Rates for supply of services under CGST Act

Highlight: Acceptance of deposits by companies from its members - conditions relaxed in case of Specified IFSC Public company and a private company - Rule 3 amended

Notification: Rate of exchange of conversion of the foreign currency with effect from 8th September, 2017

News: Tax Payers Advised To Confirm Identities Of Income Tax Search Authorities

Notification: Amendment in Appendix 3 (SCOMET items) to Schedule- 2 of ITC (HS) Classification of Export and Import Items 2012

Notification: The Customs and Central Excise Duties Drawback Rules, 2017

Circular: The Customs and Central Excise Duties Drawback Rules, 2017 and All Industry Rates (AIRs) of Drawback related changes -reg.



|| 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