By TIOL News Service

ERNAKULAM, FEB 19, 2014: THE issue before the Bench is - Whether when the company had no income from its main business of money lending but had earned interest and dividend by investing in shares, the loan advanced to its MD is to be construed as deemed dividend in the hands of the MD. And the answer goes against the assessee.

Facts of the case

The assessee is an individual. In respect of AY 2003-2004, proceedings were initiated by issuing notice u/s 148. The assessee did not file any return of income. Hence, notice was issued to the assessee u/s 144. A reply was sent stating that the assessee expired on 26.5.2008 and he was represented by legal heir, who was his wife, that he had filed a return of income on 25.8.2003, which was to be treated as return for the purpose of Section 148. Thereafter, a notice u/s 143(2) was issued to the assessee. The Department had re-opened the assessment for the AY 2003-2004, observing that M/s. Thottakkad Estates (P) Ltd., Mannar, had advanced a loan to Sri. K.C. Oommen, its MD which was deemed dividend in the hands of the said K.C. Oommen u/s 2(22)(e). It was observed that the deemed dividend escaped assessment and hence the assessment was required to be re-opened.

The assessee objected to the same by contending that from 1996-1997 onwards, Thottakkad Estates (P) Ltd., was providing loans to Mannar Chit Fund, a proprietary concern of the assessee, and the returns along with relevant accounts were being filed by both the company as well as late Sri. K.C. Oommen showing the particulars of loan and other details. It was also contended that the amounts in question were advanced to M/s. Mannar Trust Fund as part of the money lending business of Thottakkad Estates (P) Ltd. In fact, Thottakkad Estates Limited had sold their property and they had not shown any income from agricultural operations. The AO found that the MD of the Company was the only person to whom the company advanced money and the company was fully engaged in activities like investment in shares and debentures and money lending was not its regular activity. In the said circumstances, the aforesaid amount was considered as deemed dividend and was treated as the income of the assessee. On appeal, the CIT(A) confirmed the order passed by AO. On further appeal before the Tribunal, the Tribunal also concurred with the said view.

Held that,

++ the matter is covered by the judgment of the SC in Asst. C.I.T. v. Rajesh Jhaveri Stock Broker (P) Ltd. (2007-TIOL-95-SC-IT). Insofar as the original assessment is not completed, it cannot be stated that an opinion was formed earlier to attract any limitation. Therefore, the short question to be considered in the above appeal is whether the alleged loans given by the company M/s. Thottek kad Estates (P) Ltd., to Sri. K.C. Oommen or the the proprietary concern of M/s. Mannar Trust Fund, is a deemed dividend. However, the argument of the counsel for the appellant is that the amount advanced is excluded as per the provision contained u/s 2(22)(e)(ii). The question is whether the company was dealing in lending of money or dealing in the business of lending of money and whether such business amounts to a substantial part of the business of the company. The counsel for the appellant placed reliance on the judgment of the SC in The CIT, Nagpur v. M/s. Sutlej Cotton Mills Supply Agency Ltd. (2002-TIOL-546-SC-IT). Reference is made to paragraph 10 to contend that it is not necessary to constitute trade that there should be a series of transactions, both of purchase and of sale. A single transaction of purchase and sales outside the assessee's line of business may constitute as adventure in the nature of trade. Even if the activity is not repeated or continued, nevertheless it constitutes a transaction which is an adventure in the nature of trade. On this basis, it is contended that even if the company had given loan only to one person during the relevant time, it amounts to a substantial business of the company;

++ we do not think that the facts involved in the above judgment of the SC has any application to the facts on hand. This is an instance where the only beneficiary of the loan was the Managing Director. It is not in dispute that after 1996, the company has not shown any income from agricultural operations. There is no material to indicate that it has any income from money lending business also. There is a clear finding by the assessing officer as well as the appellate authorities that the company basically invest in shares and debentures and earns income by way of interest and dividend. Therefore, when the assessing officer forms an opinion based on the materials on record that the company was fully engaged in activities like investing in shares and debentures and earns income by way of interest and dividend, in the absence of any other materials, a different finding is not possible. It is also not disputed that during the relevant time, the company had not given any loan to any other person other than the Managing Director. Certain materials had been produced to indicate that subsequent to the assessment year, certain loans were given to other persons. Such persons were all employees who were connected with the company. Since the Tribunal and the first appellate authority have considered the entire facts of the case and confirmed the order of the assessing officer, we do not think that any question of law arises for consideration in this case as there is no material to indicate that the appellant is entitled for the benefit of exclusion as stated in Section 2(22)(e)(ii). Under these circumstances, we do not think that the questions of law narrated by the appellant arise for consideration in this appeal. In the result, the appeal is dismissed.

(See 2014-TIOL-206-HC-KERALA-IT)