EXPAT ENGINEERING INDIA LIMITED,BENGALURU vs. ACIT, CIRCLE-2(1)(2), BENGALURU

This appeal at the instance of the assessee is directed against CIT(A)’s order dated 15.11.2021 passed u/s 250 of the I.T.Act. The relevant assessment year is 2016-2017.

There is a delay of 138 days in filing this appeal before the Tribunal. The assessee has filed a petition for condonation of delay and also an affidavit of the Director of the assessee- company, stating therein the reason for belated filing of this appeal.

We have perused the reasons stated for late filing of this appeal and we are of the view that there is sufficient cause and no latches can be attributed to the assessee. Hence, we

The Appellant submits that each of the above grounds are mutually exclusive and without prejudice to one another.

The brief facts of the case are as follows: The assessee is a company. For the assessment year 2016-2017, the return of income was filed on 18.10.2016 declaring total income of Rs.4,28,98,340. The assessment was selected for scrutiny and notice u/s 143(2) of the I.T.Act was issued on 20.09.2017. During the course of scrutiny

Aggrieved, the assessee filed appeal before the first appellate authority. The CIT(A) relying on the judgment of the Hon’ble Madras High Court in the case of CIT v. Chennai Properties & Investment Ltd. reported in (1999) 239 ITR 435 (Mad.) and the order of the Delhi Bench of the Tribunal in the case of New Modern Bazaar v. ITO in (order dated 08.04.2021) decided the issue against the assessee and dismissed the appeal.

Aggrieved, the assessee has filed the present appeal before the Tribunal. The assessee has filed a paper book comprising of 85 pages enclosing therein the audited financials, the copy of the ITR and the computation of income, copy of the submissions filed before the CIT(A), copy of the rectification filed before the A.O. and the case laws relied on. The learned AR reiterated the submissions made before the Income Tax Authorities.

The learned Departmental Representative, on the other hand, submitted that the issue in question is squarely covered in favour of the Revenue by the order of the Bangalore

We have heard rival submissions and perused the material on record. The Bangalore Bench of the Tribunal in assessee’s own case had categorically held after relying various judicial pronouncements that interest u/s 201(1A) of the I.T.Act cannot be claimed as a deduction. The relevant finding of the Bangalore Bench of the Tribunal in assessee’s own case, reads as follows:-

At the outset it has to be mentioned that the question whether interest paid u/s.201(1A) of the Act, is an allowable business expenditure has to be examined within the parameters of Sec.37(1) of the Act and not on the basis of the prohibition contained in Sec.40a(ii) of the Act. Sec.37(1) of the Act provides that expenditure which is not capital or personal in nature laid out or expended wholly and exclusively for the purpose of business shall be allowed in computing the income chargeable under the head “profits and gains of business or profession”. Sec.40(ii) provides that any sum paid on account of any rate or tax levied on the profits and gains of any business or profession or assessed at a proportion of, or otherwise on the basis of any such profits or gains, shall not be deducted in computing the income chargeable under the head “profits and gains of business or profession”. Both these sections operate in different fields, the former is an enabling provision while the latter is a disabling provision.

The question directly arose for consideration before the Hon’ble Supreme Court in the case of Bharat Commerce and Industries Ltd. v. CIT [1998] 230 ITR 733 and the question that was considered by the Hon’ble Supreme Court in that case was whether payments required to be made by way of income-tax 'under the Income-tax Act are not deductible as expenditure and the further amounts which a person may be required to pay by a reason of failure to comply with the provisions requiring the payments of the tax are also amounts which cannot be regarded as deductible expenditure under Section 37 of the Act. The exact question considered by the Hon’ble Court was:- "Whether on the facts and in the circumstances of the case the claim for deduction of interest levied under Section 139 to the extent of Rs. 11,470/- and interest levied under Section 215 to the extent of Rs. 1,04,339/- was rightly rejected as not allowable under Section 37 of the Income-Tax Act, 1961 for the assessment year 1972-73?"

The Hon’ble Court held as follows: “It cannot be said, in the present case, that the payment of interest is in any way an expense incurred wholly or exclusively for the purpose of assessee's business. Nor is it a payment made for the purpose of preserving and protecting the assessee's business as in the case of Birla Cotton Mills (supra). Apart from section 37, the assessee has also present into service Section 36(1) (iii) which permits deduction in respect of the amount of interest paid in respect of capital borrowed for the purposes of the assessee's business or profession. For the reasons set out earlier, the claim for deduction under section 36(1)(iii) is also . M/s.Expat Engineering India Limited. misconceived just as the assessee's claim under section 37 is misconceived. In the premises, the question raised has to be answered in favour of the revenue and against the assessee. The appeals are, therefore, dismissed with costs.”

Therefore it is clear that the basis why tax or interest is not allowed as deduction u/s.37(1) of the Act is on the reasoning that it cannot be regarded as an expense incurred wholly or exclusively for the purpose of Assessee’s business. Therefore the allowability of interest on taxes paid should not be looked out from the definition of tax as given in Sec.2(43) of the Act. The submissions made by the learned counsel for the Assessee are based on a misconception that the definition of interest u/s.2(43) of the Act is relevant and that the disallowance in question has to be judged in the parameters of Sec.40(a)(iib) of the Act. We shall now deal with the various submissions made by the learned counsel for the Assessee.

In the case of HarshadShantilalMehta vs Custodian, (1998) 231 ITR 871 (SC) the Supreme Court was concerned with the interpretation of Sec.11 of The Special Court (Trail of Offenders Relating Transactions in Securities) Act, 1992, (hereinafter referred to as the Special Act) which reads thus:- "11. Discharge of liabilities - (1) Notwithstanding anything contained in the Code and any other law for the time being in force, the Special Court may make such order as it may deem fit directing the Custodian for the disposal of the property under attachment. (2) The following liabilities shall be paid or discharged in full, as far as may be, in the order as under :- (a) all revenues, taxes, cesses and rates due from the persons notified by the Custodian under sub-section (2) of Sec.3 to the Central Government or any State Government or any local authority (b) all amounts due from the person so notified by the Custodian to any bank of financial institution or mutual fund; and (c) any other liability as may be specified by the Special Court from time to time."

The Hon’ble Supreme Court framed the following questions for consideration:- (1) What is meant by revenues, taxes, cesses and rates due?

While answering Question No.5, the Court held:- “One other connected question remains: whether "taxes" under Section 11(2)(a) would include interest or penalty as well? We are concerned in the present case with penalty and interest under the Income Tax Act. Tax, penalty and interest are different concepts under the Income Tax Act. The definition of "tax" under Section 2(43) does not include penalty or interest. Similarly, under Section 157, it is provided that when any tax, interest, penalty, fine or any other sum is payable in consequence of any order passed under this Act, the Assessing Officer shall serve upon the assessee a notice of demand as prescribed. Provisions for imposition of penalty and interest are distinct from the provisions for imposition of tax. Learned Special Court judge, after examining various authorities in paragraphs 61 to 70 of his judgment, has come to the conclusion that neither penalty nor interest can be considered as tax under Section 11(2)(a). We agree with the reasoning and conclusion drawn by the Special Court in this connection.”

As can be seen from the issue involved in the aforesaid case, it was a case where the Hon’ble Court had to decide whether interest liability is also liability within the meaning of Sec.11(2)(a) of the Special Act. The aforesaid decision rendered in a different context cannot be extended to the provisions of Sec.37(1) of the Act and hence the aforesaid decision is not of any relevance to the issue in this appeal. In assessee’s case the issue under consideration is the allowability of interest u/s.201(1A) as deduction u/s.37(1) of the Act and therefore the decision of the Hon’ble Supreme Court can be applied.

The next case referred is Arthur Anderson & Co vs ACIT (2010) 324 ITR 240 (Bombay). The issue considered in that case was with regard validity of initiation of reassessment proceedings u/s.147 of the Act. The . M/s.Expat Engineering India Limited. Court found that material on the record before the Court showed that in the statement of total income the assessee had disclosed an interest income of Rs.50.14 lacs as income from other sources. In the note appended to the statement of computation, under the heading 'interest income' the assessee stated that this represented interest received under Section 244-A of the Income Tax Act, 1961 net of interest paid under Section 220, based on the ratio of certain judgments. The Court held that it cannot be stated that there was a failure on the part of the assessee to fully and truly disclose all the material facts relating to the assessment. Incidentally, they also observed as follows:- “9. Apart from the fact that there has been no failure on the part of the assessee to make a full and true disclosure of all material facts, it will be necessary to advert to the decision of the Supreme Court in Harshad Shantilal Mehta v. Custodian the Supreme Court, in the course of its judgment observed that under the Income Tax Act, 1961 the definition of tax under Section 2(43) does not include penalty or interest and that the concepts of tax, penalty and interest are different concepts under the Act. Justice Sujata Manohar speaking for a Bench of three Learned Judges of the Supreme Court observed thus : "We are concerned in the present case with penalty and interest under the Income-tax Act. Tax, penalty and interest are different concepts under the Income-tax Act. The definition of "tax" under section 2(43) does not include penalty or interest. Similarly, under section 156, it is 2 (1998) 231 ITR 871. provided that when any tax, interest, penalty, fine or any of other sum is payable in consequence of any order passed under this Act, the Assessing Officer shall serve upon the assessee a notice of demand as prescribed. The provisions for imposition of penalty and interest are distinct from the provisions for imposition of tax."

The decision of the Supreme Court was delivered in an appeal which arose out of the Special Court (Trial of Offences Relating to Transaction in Securities) Act, 1992. The interpretation which has been placed on the provisions of Section 2(43) and the observations of the Supreme Court noted earlier, however, bind this Court as regards the ground on which the reopening of the assessment has been sought in this case.”

It can thus be seen that the aforesaid observations were in a different context of full and fair disclosure of material facts and the ratio cannot be extended to the allowability of deduction u/s.37(1) of the Act.

In the case of CIT vs Oryx Finance & Investment (P) Ltd (2017) 83 taxmann.com 194 (Bombay) it was held that for the purpose of penalty u/s.221 “tax in arrears” would not include interest payable u/s.220(2) and not applicable to allowing interest paid u/s. 201(1A) of the Act as deduction u/s.37(1) of the Act.

The case of Maganbhai Hansrajbhai Patel vs ACIT [2012] 26 taxmann.com 226 (Gujarat) is again a case on interpretation of Sec.2(43) of the Act, which we have already distinguished in the earlier part of this order.

The learned counsel for the Assessee has also placed reliance on the following decisions, viz., Director of Income Tax vs Italian Thai Development Co. Ltd (2012) 17 taxmann.com 172 (Delhi Trib) & (2014) 45 taxmann.com 61 (Delhi HC), wherein the disallowance u/s.40(a)(ii) was deleted on the basis that the gross amount including the tax is to be allowed. The next case quoted in DCIT vs Karan Johar (2011) 11 taxmann.com 268 (Mumbai) was also a case of allowability u/s.40(ii) of the Act. We have in the earlier part of this order already held that the question whether interest paid u/s.201(1A) of the Act is an allowable business expenditure has to be examined within the parameters of Sec.37(1) of the Act and not on the basis of the prohibition contained in Sec.40a(ii) of the Act. Sec.37(1) of the Act provides that expenditure which is not capital or personal in nature laid out or expended wholly and exclusively for the purpose of business shall be allowed in computing the income chargeable under the head “profits and gains of business or profession”. Sec.40(ii) provides that any sum paid on account of any rate or tax levied on the profits and gains of any business or profession or assessed at a proportion of, or otherwise on the basis of any such profits or gains, shall not be deducted in computing the income chargeable under the head “profits and gains of business or profession”. Both these sections operate in different fields, the former is an enabling provision while the latter is a disabling provision. Therefore these decisions do not help the plea raised by the Assessee in this appeal.

The ld AR has quoted the following two decisions stating that there exists differentiation between the term ‘Tax’ used in 40(a)(ii) and ‘Other Contractual obligations’ parity of the same equally applies to differentiate the term ‘tax’ and expression ‘interest’ and to state that all the payments made to Government account would not partake the character of levy of taxes. We will first look at under what context these decisions have been rendered.

In Kerala State Beverages Manufacturing & Marketing Corporation Ltd. Vs ACIT [2022] 134 taxmann.com 11 (SC), the decision is rendered by the Hon’ble supreme Court in the context of allowability of Gallonage fee, licence fee and shop rental (kist) incurred towards retail trading of foreign liquor and therefore in a completely different context that cannot be equated to assessee’s case.

In Krishna Bhagya Jala Nigam Ltd vs ACIT [2022] 134 taxmann.com 101 (Bangalore - Trib.) it was held that guarantee commission was paid in consideration for State Government agreeing to suffer a detriment in event of assessee not repaying loan guarantee commission was not in nature of a 'levy' on a State Government . M/s.Expat Engineering India Limited. undertaking by State Government and it was purely a contractual payment and did not fall within purview of section 40(a)(iib).

We have in the earlier part of this order already held that the question whether interest paid u/s.201(1A) of the Act is an allowable business expenditure has to be examined within the parameters of Sec.37(1) of the Act and not on the basis of the prohibition contained in Sec.40a(ii) of the Act. Sec.37(1) of the Act provides that expenditure which is not capital or personal in nature laid out or expended wholly and exclusively for the purpose of business shall be allowed in computing the income chargeable under the head “profits and gains of business or profession”. Sec.40(ii) provides that any sum paid on account of any rate or tax levied on the profits and gains of any business or profession or assessed at a proportion of, or otherwise on the basis of any such profits or gains, shall not be deducted in computing the income chargeable under the head “profits and gains of business or profession”. Both these sections operate in different fields, the former is an enabling provision while the latter is a disabling provision. Therefore these decisions do not help the plea raised by the Assessee in this appeal.

The ld AR also submitted that any sum paid referred in section 40(a)(ii) must be viewed from the perspective of only assessee whose payer and not from the payee perspective. The tax payment made on the profits earned by the assessee must not be enlarged to include even assessees vendor perspective. When TDS itself is not disallowed in the payees hands interest so paid u/s. 201(1A) cannot be disallowed u/s.40(a)(ia). In our considered view, this contention of the ld AR is completely out of context, as we have already held that Sec.40(a)(ii) is not relevant to the present issue before us at all.

The ld AR relied on the following judgments to substantiate the claim that the interest u/s.201(1A) is compensatory in nature. The Hon’ble Supreme Court CIT vs Eli Lilly & Co. (India) (P.) Ltd [2009] 312 ITR 225 (SC) was rendered in the context of period up to which interest u/s.201(1A) is to be calculated and in that regard held that interest under section 201(1A) is a compensatory measure for withholding the tax which ought to have gone to the exchequer. The decision of Hon’ble Karnataka High Court in CIT TDS vs Bharat Hotels Ltd [2015] 64 taxmann.com 325 (Karnataka) was also rendered in the context of period interest calculation u/s.201(1A) and in that perspective held that “Interest, herein, being compensatory in nature, cannot be, thus, charged for the period beyond the date when such tax has already been deposited by the recipient”. The decision in the case of CIT vs Oriental Insurance Company Ltd., [2009] 183Taxman186 (Karnataka), the decision of the Tribunal holding that the interest u/s.201(1A) is penal in nature and cannot be levied was reversed by the Hon’ble Karnataka High Court to hold that levy of interest u/s.201(1A) cannot be construed as penalty and has to be paid for failure on the part of the assessee to deduct tax at source.

In all these judgments, the issue under consideration was the mode of computation of interest u/s.201(1A) and in that context, courts have held that it is compensatory in nature. In none of these decisions the issue of allowability of interest delayed payment of TDS as business expenditure arose and hence have no nexus to the assessee’s case.

The ld AR relied on the following decisions to submit that compensatory payment should be allowed as a business expenditure u/s.37(1). (i) P. Venganna Setty (2021) 133 taxmann.com 368 (Bang Trib) (ii) Mandya National Paper Mills Ltd (1985) 20 Taxmann 231 (Karnataka) (iii) Lachmandas Mathuradas (2002) 122 Taxmann 828 (SC) 34. The circumstance in which the interest u/s.201(1A) is held to be compensatory is discussed in the above paras and therefore the submission of allowability of interest u/s.201(1A) on that basis is not tenable. Besides the above, the law laid down by the Hon’ble Supreme Court in the case of Bharat Commerce (supra) in the context of allowability of interest as deduction u/s.37(1) of the Act, will be applicable in the present case.

The ld AR submitted that the words used in 40(a)(ii) ‘tax levied on the profits’ does not refer to interest paid on the TDS and that the when the language is clear and unambiguous literal interpretation of the words must be made. In this regard the ld AR relied on the decision Exide Industries Ltd., (2020) 116 Taxmann.com 378 (SC). Further it was submitted that legislative casus omissus cannot be supplied by judicial interpretative process and relied on the following decisions in this context:- (i) Ajmera Housing Corpn (2010) 193 Taxman 193 (SC) (ii) Velliappa Textiles Ltd (2003) 132 taxman 165 (SC) (iii) Babita Lila (2016) 73 taxmann.com 32 (SC) 36. In our considered view this contention of the ld AR is completely out of context as we have already held that Sec.40(a)(ii) is not relevant to the present issue before us at all. Moreover, the levy of interest on delayed payment of TDS u/s.201(1A) though held to compensatory in nature, the allowability of the same cannot be decided simply based on that. The levy of 201(1A) is a levy for delay in the remittance of tax that is deducted and not paid into the government account and is levied towards the use of funds belonging to the exchequer. The interest u/s.201(1A) can be equated to the levy of interest u/s.234. Interest u/s.234 is a levy on delay in the payment of income tax and the TDS is nothing but the income tax paid on behalf of the payee and therefore the interest on the same u/s.201(1A) is also in the nature of interest levied on the income tax. On that count also interest on delayed payment of TDS cannot be claimed as a deduction.

The ld AR quoted several decisions with regard to the allowability of cess which is not a settled position that cess is not an allowable . M/s.Expat Engineering India Limited. deduction and hence we are not going into the submissions made in this regard.

The next contention of the ld AR is that the ‘tax’ used in 40(a)(ii) is to be considered as the tax on the total income of the assessee himself. In our considered view this contention of the ld AR is completely out of context as we have already held that Sec.40(a)(ii) is not relevant to the present issue before us at all. Besides the above, the decision of the Madras High Court in the case of Chennai Properties (supra) settles the issue.

The ld AR submitted the decision of the Madras High Court in the case of Standard Polygraph Machines (2002) 124 Taxman 669 (Madras) stating that the same judge who authored the decision of Chennai Properties (supra) had in 2002 authored this decision where it was held that the TDS amount on paid on account of contractual obligation will not take colour of tax and hence to be treated as expenditure. This submission of ld AR is a complete misunderstanding of the facts of the case where the TDS is paid by the assessee as part of a contractual obligation over and above the contractual amount and therefore was treated as a business expenditure. This is interpreted out of context by the ld AR to state that TDS is not a tax but an obligation which in our view is illogical.

The ld AR submitted the below decisions of Tribunal where interest on delayed payment of TDS is allowed as a deduction. However following the Doctrine of Stare Decisis, we are bound by the decision of Hon’ble High Court and therefore the below decisions cannot be followed in assessee’s case (i) Resolve salvage & Fire India (P) Ltd (2022) 139 taxmann.com 196 (Mum.Trib) (ii) STUP Consultants Pvt Ltd (ITA No5827/Mum/2012 dt 11.12.2018 (iii) Narayani Ispat (P) Ltd (ITA 212/Kol/2014 dt 30.08.2017 (iv) Sai Food Products (ITA 1887/Kol/2016 dt 06.04.2018 (v) IDS Next Business Solutions (P) Ltd (ITA 510/Bang/2018 dt 15.06.2018 (vi) Rungta Mines Ltd (ITA 1531/Kol/217 dt 05.10.2018 41. Though there is a decision of the coordinate bench of the Tribunal, we have followed the decision of the Hon’ble High Court following the rule of judicial discipline as has been held in the case of CIT v. Godavari Devi Saraf (113 ITR 589) where the Hon’ble Bombay High Court has held that - “Until contrary decision is given by any other competent High Court, which is binding on a Tribunal in the State of Bombay, it has to proceed on the footing that the law declared by the High Court, though of another State, is the final law of the land.”

The ld AR also made a submission drawing the comparison of the provisions of section 40(a)(ii) and section 179 to state that when terms are clearly defined by the Parliament, enlarging the scope of the section by importing the provisions from other parts of the Act is incorrect. In this . M/s.Expat Engineering India Limited. regard the ld AR relied on the decision in the case of HCL Technologies Ltd (2018) 93 taxmann.com 33 (SC). The ld AR failed to note the key distinction between these two sections. Section 179 is a provision for recovery from the directors of a private company and in that context the legislature has defined the word ‘tax due’ . As we have already held that Section 40(a)(ii) is not applicable to the present case at all, we are of the view that the contentions raised in this regard are untenable.”

However, we noticed that the A.O. had made an addition of Rs.93,54,851 by stating that the said amount is the interest paid u/s 201(1A) of the I.T.Act (claimed as deduction u/s 37 of the I.T.Act). According to the learned AR, the assessee had only claimed deduction u/s 37(1) of the I.T.Act of Rs.11.32,835, on account of belated monthly remittance of statutory liabilities like professional- tax, VAT, service-tax, TDS, etc. According to the learned AR, the disallowance can be limited to the TDS amounting to Rs.7,04,571. In this context, the learned AR had submitted that the assessee has filed a rectification application before the A.O. and the same is pending (refer page pages 72 and 73 of the paper book submitted by the assessee). The above contention of the learned AR needs to be examined by the A.O. For the limited purpose of examining the figures for disallowance, the issue is restored to the files of the A.O. The A.O. is directed to . M/s.Expat Engineering India Limited. examine the correct figure of interest paid u/s 201(1A) of the I.T.Act that is claimed as a deduction. The A.O. shall take a decision in accordance with law after affording a reasonable opportunity of hearing to the assessee. It is ordered accordingly.

In the result, the appeal filed by the assessee is partly allowed for statistical purposes.