DCIT, New Delhi V. Sh. Moni Kumar Subba, New Delhi

ITA 3727/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0856 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 08-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHASH VERMA
• Keywords: Deemed dividend

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SMT. BEENA A. PILLAI , JM ITA NO. 3727 /DEL/201 5 : ASSTT. YEAR : 2010 - 11 ITA NO. 3728/DEL/2015 : ASSTT. YEAR : 2011 - 12 DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 29 , NEW DELHI VS SH. MONI KUMAR SUBBA, SUBBA FARM HOUSE, 118, VILLAGE SULTANPUR, MEHRAULI, GURGAON ROAD, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A A SPS1484J ASSESS EE BY : SH. R. S. SINGHVI , CA REVENUE BY : SH. SUBHASH VERMA, SR. DR DATE OF HEARING : 11 .09 .201 8 DATE OF PRONOUNCE MENT : 17 .09 .201 8 ORDER PER N. K. SAINI, AM : THESE APPEALS BY THE DEPART MENT ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DATED 02.03.2015 OF LD. CIT(A) - 25, NEW DELHI. 2. SINCE, THE APPEALS RELATE TO THE SAME ASSESSEE, HAVING COMMON ISSUES, WERE HEARD TOGETHER, SO, THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. AT THE FIRST INSTANCE, WE WILL DEAL WITH THE APPEAL IN ITA NO. 3727/DEL/2015 FOR THE ASSESSMENT YEAR 2010 - 11. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT (A) HAS ERRED IN LAW ON FACTS IN HOLDING THAT NOTIONAL ITA NO S. 3728 & 3728 /DE L/201 5 DLF UTILITIES LTD. 2 INTEREST ON INTEREST FREE SECURITY DEPOSIT RECEIVED BY THE ASSESSEE COULD NOT BE ADDED TO THE ACTUAL RENT RECEIVED / RECEIVABLE BY THE ASSESSEE WHILE COMPUTING A NNUAL VALUE UNDER SECTION 23(1) (B) OF THE INCOME TAX ACT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT (A) HAS ERRED IN LAW AND ON FACTS HAVE NOT CONSIDERING THE FACT THAT THE MCD AUTHORITIES HAVE NOT TAKEN INTO CONSIDERATION THE INTEREST FREE SECURITY DEPOSIT OF RS. 7.27 CRORES OBTAINED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION BECAUSE THE ASSESSEE DID NOT INFORM THE MCD AUTHORITIES ABOUT THE SAID INTEREST FREE DEPOSIT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION OF RS. 70,08,000/ - TO THE ALV OF THE HOUSE PROPERTY SITUATED AT MASJID MOTH, UDAY PARK WITHOUT CONSIDERING THE FACTS THAT THE ADDITION WAS MADE BY THE AO AFTER CONDUCTING ADEQUATE LOCAL ENQUIRIES TO DETERMINE THE FAIR MARK ET RENT OF THE PROPERTY. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION OF RS. 6,60,000 / - TO THE ALV OF THE HOUSE PROPERTY SITUATED AT 87 - A, ADHICHINI, NEW DELHI WITHOUT CONSIDERING THE FACTS THAT THE ADDITION WAS MADE BY THE AO AFTER CONDUCTING ADEQUATE LOCAL ENQUIRIES. 5. THE ORDER OF THE CIT (A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 4. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE ISSUE UNDER CONSIDERATION IS SQUARELY COVERED IN ASSESSEE S FAVOUR IN EARLIER ORDER DATED ITA NO S. 3728 & 3728 /DE L/201 5 DLF UTILITIES LTD. 3 29.06 .2016 OF THE ITAT DELHI BENCH E , NEW DELHI IN ITA NO. 2107/DEL/2014 FOR THE ASSESSMENT YEAR 2009 - 10 IN ASSESSEE S OWN CASE (COPY OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON RECORD). 5. IN HIS RIVAL SUBMISSIONS, THE LD. SR. DR ALTHOUGH SUPPORTED T HE ORDERS OF THE AUTHORITIES BELOW BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOTICED THAT AN IDE NTICAL ISSUE HAVING SIMILAR FACTS WAS A SUBJECT MATTER OF THE ASSESSEE S APPEAL IN ITA NO. 2107/DEL/2014 FOR THE ASSESSMENT YEAR 2009 - 10 WHEREIN VIDE ORDER DATED 29.06.2016, THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 10 WHICH READ AS UNDER: 10. WE HAV E CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND ALSO PERUSED THE DECISIONS OF LOWER AUTHORITIES. ACCORDING TO THE FACTS REC ORDED BY THE LOWER AUTHORITIES THE ASSESSEE HAS RECEIVED A SUM OF RS. 11.23 LACS FROM THE COMPANY IN WHICH HIS MINOR SON HOLDS 67.14% SHAREHOLDING. ACCORDING TO THE PROVISIONS OF SECTION 2 (22) (E) OF THE INCOME TAX ACT DIVIDEND INCLUDES ANY PAYMENT BY A COMPANY, NOT BEING A COMPANY IN WHICH THE PUBLIC ARE SUBSTANTIALLY INTERESTED, OF AN Y SUM (WHETHER AS REPRESENTING A PART OF THE ASSETS OF THE COMPANY OR OTHERWISE) MADE AFTER THE 31ST DAY OF MAY, 1987, BY WAY OF ADVANCE OR LOAN TO A SHAREHOLDER, BEING A PERSON WHO IS THE BENEFICIAL OWNER OF SHARES (NOT BEING S HARES ENTITLED TO A FIXED RATE OF DIVIDEND WHETHER WITH OR WITHOUT A RIGHT TO PARTICIPATE IN PROFITS) HOLDING NOT LESS THAN TEN PER CENT OF THE VOTING POWER. THEREFORE ACCORDING TO THE PROVISIONS OF THE LAW THE ASSESSEE MUST BE THE ITA NO S. 3728 & 3728 /DE L/201 5 DLF UTILITIES LTD. 4 BENEFICIAL OWNER OF THE SHARES OF 10% OR MORE. IN THIS CASE LD AO HAS NOT ESTABLISHED WHETHER THE ASSESSEE IS HOLDING SHARES AS THE BENEFICIAL SHARE HOLDER OF 10% OR MORE. WE DO NOT FIND ANY SUCH FINDING IN THE ASSESSMENT ORDER. MERELY BECAUSE THE SHARES ARE HELD BY THE MINOR SON OF THE ASSESSEE AND THE LOAN IS RECEIVED BY THE ASSESSEE IT CANNOT BE ESTABLISHED THAT ASSESSEE IS THE BENEFICIAL SHAREHOLDER OF 10% OR MORE AND THEREFORE SUCH LOAN AMOUNT IS NOT CHARGEABLE TO TAX IN THE HANDS OF THE ASSESSEE. FURTHE RMORE THE SUBMISSION OF THE ASSESSEE BEFORE THE LOWER AUTHORITIES THAT IT IS IN THE NATURE OF ADVANCE RENT AS WHENEVER THE RENT IS PAYABLE BY THE COMP A NY TO THE ASSESSEE SAME IS DEDUCTIBLE FROM THIS AMOUNT THEREFORE IT PARTAKES THE CH ARACTER OF ADVANCE RENT. THE LD. AO HAS ALSO NOT CATEGORICALLY STATED THAT THIS AMOUNT IS NOT ADVANCE RENT AND NOT ADJUSTED SUBSEQUENTLY AGAINST THE RENT PAYABLE BY THE COMPANY TO THE ASSESSEE. ACCORDING TO US IF IT IS AN ADVANC E RENT THEN IT BECOMES A BUSINESS TRANSACTION AND THE PROVISIONS OF DEEMED DIVIDEND CANNOT APPLY TO SUCH TRANSACTIONS. IN VIEW OF THIS WE REVERSE THE FINDING OF LOWER AUTHORITIES IN CONFIRMING AN ADDITION OF RS. 11.23 LACS ON ACCOUNT OF ADVANCE RENT RECEIVED BY THE ASSESSEE FROM THE SUBA MICROSYSTEMS PRIVATE LIMITED. IN THE RESULT GROUND NO. 2 OF THE APPEAL OF THE ASSESSEE IS ALLOWED. SO, RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER DATED 29.06 .2016 IN ASSE SSEE S OWN CASE, THE ISSUE UNDER CONSIDERATION IS DECIDED IN ASSESSEE S FAVOUR. 7. IN ITA NO. 3728 /DEL/2 015 FOR THE ASSESSMENT YEAR 2011 - 12 , THE ISSUE S INVOLVED ARE SIMILAR HAVING IDENTIC AL FACTS AS WERE IN ITA NO. 3727 /DEL/2 015 FOR THE ASSESSMENT YEAR 20 10 - 11 , THE ONLY ITA NO S. 3728 & 3728 /DE L/201 5 DLF UTILITIES LTD. 5 DIFFERENCE IS IN THE AMOUNT INVOLVED. THEREFORE, OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATIS MUTANDIS. 8 . IN THE RESULT, THE APPEAL S OF THE DEPARTMENT ARE DISMISSED. (ORDER PRON OUNCED IN THE COURT ON 17 /0 9 /2 018) SD/ - SD/ - ( BEENA A. PILLAI ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 17 /09 /2018 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT R EGISTRAR