Income Tax Appellate Tribunal - Ahmedabad
Prakashchandra Shantilal Soni, ... vs Assessee on 11 October, 2013
1 ITA No 809/Ahd/2013
. A.Y. 2009-10
IN THE INCOME TAX APPELLATE TRIBUNAL " B " BENCH, AHMEDABAD
(BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL CHATURVEDI, A.M.)
I.T. A. No. 809/AHD/2013
(Assessment Year: 2009-10)
Shri Prakashchandra Shantilal Vs. A.C.I.T. Circle-10,
Soni(INDL) 209,210, National Ahmedabad
Plaza, Opp. Lal Bunglow, C.G.
Road, Ahmedabad
(Appellant) (Respondent)
PAN: ACNPS 4516 Q
Appellant by : Shri Bandish Soparkar
Respondent by : Shri P.L. Kureel, Sr. D.R.
आदे श)/ORDER
(आदे Date of hearing : 11-10-2013 Date of Pronouncement : 22 -11-2013 PER SHRI ANIL CHATURVEDI,A.M.
1. This appeal is filed by the Assessee against the order of CIT(A)-XVI, Ahmedabad, dated 28.02.2013 for A.Y. 2009-10.
2. The facts as culled out from the order of lower authorities are as under.
3. Assessee is an individual engaged in the business of trading of shares and has income from house property and other sources. Assessee filed his return of income for A.Y. 2009-10 on 23.09.2009 declaring total income 2 ITA No 809/Ahd/2013 . A.Y. 2009-10 of Rs. 2,19,73,470/-. The case was selected for scrutiny and thereafter the assessment was framed u/s. 143(3) vide order dated 13.12.2011 and the total income was determined at Rs. 2,35,98,470/-. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A). CIT(A) vide order dated 28.02.2013 dismissed the appeal of the Assessee. Aggrieved by the aforesaid order of CIT(A), the Assessee is now in appeal before us and has raised the following ground:-
1.The A.O. has erred in law and on facts in making addition of Rs. 16,25,000/- u/s.
2(22)(e) and Hon. CIT(A) has erred in law and on facts in confirming the said addition disregarding the submissions made in the original assessment proceedings and written submissions made before Hon. CIT(A0 when the impugned amount was tax deducted at source and not the loan nor advance to the appellant and has resulted in same amount of income being taxed twice, once as salary income and secondly as deemed dividend.
4. During the course of assessment proceedings, A.O. noticed that Assessee had created a provision of Rs. 16,25,000/- as unpaid expenses for M/s. Suvarnakala Pvt. Ltd. a group concern company, though the Assessee was not having any business transaction with it. The A.O. asked the Assessee to explain the transaction. The Assessee interalia submitted that he had received salary from Suvarnakala Pvt. Ltd. without deduction of TDS of Rs. 16,25,000/-. The Assessee had made a provision for the same and shown it as payable as according to the Assessee, he had received excess amount of Rs. 16,25,000/- which was returned to the employer M/s Suvarnakala Pvt. Ltd. in the next year and the same was not in the nature of loan so as to attract the provisions of section 2(22)(e) of the Act. The submissions of the Assessee was not found acceptable to the A.O. Assessing Officer was of the view that the payment was made by Co. on behalf of individual holding more than 10% shareholding, A.O. noted that the sum advanced by Suvarnakala Pvt. Ltd. cannot be 3 ITA No 809/Ahd/2013 . A.Y. 2009-10 called as salary and any excessive payment can only be termed as advance. Since the amount of Rs. 16,25,000/- was returned to the company in subsequent years, it proved that it was in the nature of advance without any consideration. A.O. also noted that if extra salary was paid to Assessee and no TDS was deducted by the company on the additional amount, it was the responsibility of the Assessee to pay tax due on the amount. He also noticed that in the salary certificate issued by the company, the company had duly deducted TDS and paid to Government account. Thus, according to the A.O. even salary certificate did not include the additional amount paid to Assessee for which the provision was made by the Assessee. He therefore considered the transaction between Assessee and Suvarnakala Pvt. Ltd. to be case of deemed dividend u/s. 2 (22)(e) and accordingly made an addition of Rs. 16,25,000/- as deemed dividend. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A), CIT(A) dismissed the appeal of the Assessee by holding as under:-
4.2 I have carefully considered the facts of the case and the submissions made by the appellant. Before proceeding further, it is considered necessary to briefly reproduce the statutory provisions contained in section 2(22)(e) of the Act on the issue of deemed dividend 2(22) (e) any payment by a company, not being a company in which the public are substantially interested, of any 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 shareholders, being a person who is the beneficial owner of shares (not being shares 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, or to any concern in which such shareholder is a member or a partner and in which he has a substantial interest (hereafter in this clause referred to as the said concern)] or any payment by any such company on behalf, or for the individual benefit, of any such shareholder, to the extent to which the company in either case possesses accumulated profits; A perusal of the above, indicates that u/s. 2(22)(e) deemed dividend includes any amount of money paid by a company to its beneficial shareholders as a loan or advance or an amount individual benefit of such shareholder. Thus, the law is 4 ITA No 809/Ahd/2013 . A.Y. 2009-10 clear that deemed dividend would not only include an amount forwarded as loan or advance but also an amount which has been given for the 'individual benefit' of the shareholder. It is the case of the appellant that the amount of Rs. 16,25,000/- which has travelled from SPL to him is neither an advance nor loan as the same represents salary. The fact however remains that section 2(22)(e) not only covers amounts given as loan or advance but also for the individual benefit of a shareholder by the company in which such shareholder is owning beneficial shares. There is no dispute in this case that the appellant owns beneficial ownership of the company by virtue of possessing 25% shares. The appellant has argued that because of the mistake of the accountant TDS of Rs. 16,25,000/- could not be deducted on perquisites paid to the appellant and hence the said amount is beyond the purview of section 2(22)(e). The fact however remains that by not deducting the TDS on the full amount of salary, which was a statutory and mandatory liability of the SPL, and giving the full salary, SPL has given the amount of Rs. 16,25,000/- to appellant for his 'individual benefit' and thus, provisions of section 2(22)(e) get clearly attracted. The view that the impugned amount falls in the definition of amounts given for individual benefits u/s. 2(22)(e) is supported by the observation of Hon'ble Apex Court in the case of Smt Tarulata Shyam vs CIT (1977) 108 ITR 345 wherein it was observed that to us there appears no justification to depart from the normal rule of construction according to which the intention of legislature is primarily to be gathered from the words used in the statute' In the said case, the court observed views of rowlatt J in case of Cape Brandy Syndicate' that ' in a taxing act one has to look merely at what is clearly said. There is no room for any intendment, there is no equity about the tax, there is no presumption as to a tax. Nothing is to be read in, nothing is to be applied. One can only look fairly at the language used. ' Again in the case of Padma Sundarrao vs State of Tamilnadu (2002) 255 ITR 147 and also in the case of Prakashnath Khanna vs CIT (2004) 266 ITR 1 (SC) Hon'ble Apex Court observed that 'once it is shown that the case of the assessee comes within the latter of the law, he must be taxed, however great the hardship may appear to the judicial mind to be'. It is further seen that in several other judgements as in the cases quoted at 40 ITR 142(SC), 72 ITR 286(SC), 222 ITR 831 (Guj) etc it has been held time and again that once the provisions of a statute are clear, no meanings or intentions are required to be attached therein and that they have be followed in the letter and spirit. It has been held that an interpretation of law is to be attempted only when the statute suffers from any ambiguity. The action of the Id A O in therefore adding the amount of Rs. 16,25,000/- u/s. 2(22)(e) thus becomes a statutorily correct decision and deserves to be sustained.
4.3 There is another equally important aspect of this case which when examined in detail indicates that the arguments of appellant and evidences relied upon are untenable, unsatisfactory and unconvincing.. The appellant has in support of its contentions provided a copy of the resolution of SPL dt 5-4-2008 and a copy of the audited balance sheet and profit & loss account of SPL as at 31-3-2009 and 5 ITA No 809/Ahd/2013 . A.Y. 2009-10 a copy of the computation.of income filed with the return of income for A Y 2009-10 of the appellant and a copy of Form No 16A issued by SPL for A Y 2009-10. Thus, it has been argued that the amounts of salaries and perquisites paid / payable to appellant is governed by the resolution of the company. It has been submitted that the salary of Rs. 80,26,946/- has been offered for taxation as per computation of income for A Y 2009-10. The appellant has submitted that Schedule-7 of the balance sheet of SPL (current liabilities and provisions) shows that an amount of Rs. 35,23,125/- was in respect of TDS payable. Further bifurcation of such TDS payable filed however indicates that an amount of Rs. 17,25,000/- was payable in respect of perquisites payable to the appellant amounting to Rs. 56,07,146/-. It is however seen that there exists serious errors and deficiencies in the arguments of the appellant when compared in the light of evidences filed / relied upon. To begin with in his submission filed on 22-1-2013, the appellant has submitted that the accountant of SPL had committed an error of non deducting TDS of Rs. 16,25,000/-on LIP perquisites valued at Rs. 51,00,480/- and that thereafter both the appellant and the SPL, through journal entries, debited and credited each others accounts by Rs. 16,25,000/-. The submissions when compared with the evidences filed relied upon generate more questions then giving any answers. To begin with as per his Form 16A and the computation of income, the appellant has offered salary income of Rs. 21,00,000/- and perquisites. Contrary to this, the resolution of SPL dated 5-4- 2008 shows that the salary of appellant was increased from Rs. 1,00,000/- p.m. to 1,50,000/- p.m. Now if the salary was 1,50,000/- then gross salary for the year would have been Rs. 18,00,000/- only. There is no explanation as to how and under what circumstances the salary of Rs. 18,00,000/- governed by the resolution became Rs. 21,00.000/-. The again according to appellant, accountant of SPL omitted to deduct TDS of Rs. 16,25,000/- on the LIP perquisites of Rs. 51,00,480/-. If that be so, then what can be the justification for SPL showing in its audited balance sheet TDS payable against appellant of Rs. 17,25,000/- on the LIP perquisites of Rs. 56,07,146/-. Further, it is seen that Form 16A for F Y 2008-09 relevant to A Y 2009-10, issued by SPL shows that TDS of Rs. 26,21,000/- was issued. The said certificate is totally erroneous and faulty since it includes two amounts of Rs. 1,00,000/- and Rs. 16,25,000/- deposited by SPL to government account on 6-4-2009 and 17-4-2009 respectively. As per contemporary law, in Form 16A, the deductor can only include amounts which were deducted by him during a financial year. Both SPL and appellant by their own admission have stated that this TDS was deducted during F Y 2008-09 and hence under the circumstances Form 16A issued by SPL assumes a character of patently irregular and inappropriate piece of evidence. It is further seen that whereas on one hand the appellant says that he has not taken credit of impugned TDS in his return of income, its computation of income shows that the appellant has claimed full credit of Rs. 26,21,000/- while filing his return and in fact has made a claim of refund of Rs. 8,99,100/-. In view of the foregoing discussion, the A O may also consider whether issue appellants claim of credit of said taxes which are based upon and irregular certificate and grant of any Refund and corresponding interests is permissible as per law or not 6 ITA No 809/Ahd/2013 . A.Y. 2009-10 . Without prejudice to the above discussed issue of inaccurate claim of the tax credit by the appellant it is seen that the deficiencies, shortcomings and inaccuracies in the details / evidences filed / relied upon by the appellant shows that the arguments hitherto tendered contesting addition of Rs 16,25,000 on account of applicability of provisions of section 2(22)(e) are far from convincing and cannot be relied upon.
4.4 Consequently, in view of the foregoing discussions in para 4.2 and 4.3, it is held that the action of the A O in making addition of Rs. 16,25,000/- u/s. 2(22)(e) is based upon correct understanding of the facts of the case and the contemporary law and deserves to be sustained The addition made by the Id A O is therefore confirmed and the ground of appeal raised dismissed.
5. Aggrieved by the aforesaid order of CIT(A), the Assessee is now in appeal before us.
6. Before us, the ld. A.R. submitted that the company had paid premium on LIC policies of the Assessee but the accountant of the company by mistake did not deduct the tax from amount of Rs. 51,00,000/-. On realization of the mistake of not deducting the TDS, an entry was passed in the books of accounts showing TDS collectable from the Assessee by the C.O. in its books of accounts. He further submitted that the amount of Rs. 16,25,000/- was not any loan or deposit. He also placed reliance on the decision in the case of CIT vs. Smt. Savithiri Sam (1999) 236 ITR 1003 (Mad). He thus submitted that the amount cannot be considered as loan or advance and therefore the addition made by the A.O. needs to be deleted. The ld. D.R. on the other hand supported the order of A.O. and CIT(A).
7. We have heard the rival submissions and perused the material on record.
We find that CIT(A) by his well reasoned order has upheld the order of A.O. Before us, the ld. A.R. could not controvert the findings of CIT(A), 7 ITA No 809/Ahd/2013 . A.Y. 2009-10 nor could bring any contrary material on record. Further the case was relied by the Assessee by the ld. A.R. are distinguishable on facts and have therefore cannot be applied to the facts of the present case. In view of the aforesaid facts, we find no reason to interfere with the order of CIT(A) and thus this ground of the Assessee is dismissed.
8. In the result, the appeal of the Assessee is dismissed.
Order pronounced in Open Court on 22 - 11 - 2013.
Sd/- Sd/-
(G.C.GUPTA) (ANIL CHATURVEDI)
VICE PRESIDENT ACCOUNTANT MEMBER
Ahmedabad. TRUE COPY
Rajesh.
Copy of the Order forwarded to:-
1. The Appellant.
2. The Respondent.
3. The CIT (Appeals) -
4. The CIT concerned.
5. The DR., ITAT, Ahmedabad.
6. Guard File.
By ORDER
Deputy/Asstt.Registrar
ITAT,Ahmedabad