Section 2(22)(e)

Tax queries 754 views 3 replies

Dear All,

If a loan is given by a private limited company to its 100% subsidiary which is also a private limited company and also the directors of both the companies are same, then whether section 2(22)(e) of income tax appicable? The loan is given at market rate of interest.

Thnks in advance

Chetan

Replies (3)

Section 2(22)(e) is applicable only to companies in which public are not substantially interested Wherin the payment has been made:
1) either to the person specified therein, or
2) to any concern in which such person have substantial interest, or
3) to any other person for direct or indirect benefit of such person.

 

i.e. to companies which are commonly known as closely held companies.
Section 2(18) of the Act defines a “Company in which public are substantially interested”.
Section 2(22)(e) does not apply to
 - listed companies,
 - government companies,
 - section 25 companies,
 - companies having no share capital and declared by Board,
 - mutual benefit finance companies declared by Central Government to be a Nidhi or Mutual Benefit society,
 - companies in which one or more co-operative societies hold at least 50% voting shares throughout the year, etc.

 

For applicability it is necessary to satisfy the conditions viz:

1) wher the payment is made to any concern -
(a) a person is a shareholder holding not less then 10% of shares having voting rights of the lending company,
                 AND
(b) such shareholder also has substantial interest (holding not less then 20% shares with voting rights) in the recepient company.

 

In the above case it clear that Private Company "A" is holding 100% shares of Private Company "B", hence there is no shareholder who may be a shareholder of Private Company "A" but such person is definatly not a shareholder with substantial interest in Private Company "B".

Therefore this case would not be covered by the provisions of u/s 2(22)(e).

 closely held co. is a co. in which public are not public are substatially interested(that is it is not  widely held co.)

widelly held co.=

1.co which is not a pvt company and whose equity shares on the last day of relevant py were listed on a stock exchange

2.it is a co. which is not a pvt co. and 50% or more equity shares througout  the relevant py are held by

        1. govt2. corp establised by state or central act3.co. listed on a stock xchange or 100% subsidiary of such co.

3.co. regd under sec 25 of co. act 1956

4.co. owned by govt / rbi

5. co. in which 40% or more shares are held by the govt. or rbi. or corp. owned by rbi

6. mutual benefit fin. co.(nidhi benefit sociecty)

7.co. in which atleast 50% shares  are held throughout relevant by by one r more  cooperative society

 

 

a pvt ltd co. is a co. in which pulic are not substatially interested

 

therefore 2(22)e shud apply

 I think Sec 2(22)e shall not apply.


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