M/S ARIF & COMPANY,CHENNAI vs. THE ACIT CENTRAL CIRCLE-11(3) , CHENNAI

आदेश / O R D E R

PER MANJUNATHA. G, AM: This appeal filed by the assessee is directed against the order of the

Commissioner of Income Tax (Appeals)-19, Chennai, dated 22.02.2022

and pertains to assessment year 2007-08.

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engaged in the business of running hotel under the name and style of ‘Hotel

President’. The assessee’s firm had its origin to 1975 with the incorporation

of partnership firm M/s.Ariff & Co., on 18.12.1974 with ‘5’ partners

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consisting of Shri R.Ariff, Smt.A.Meherunneesa, Smt.A. Hameeda Banu,

Shri A.Sheik Allauddin & Shri A. Asan Mohammad. The partnership firm

was reconstituted in the year 1986 with very same ‘5’ partners but change

in profit & loss sharing ratio. The partnership firm has been once again

reconstituted in the year 1992 with change in capital contribution.

However, there is no change in number of partners’ and their profit & loss

sharing ratio. The main business activity of the assessee’s firm is carrying

on business of lodging housekeepers, restaurant keepers, bar keepers,

caterers under the name and style of ‘Hotel President’.

declaring total loss of Rs.1,04,85,554/-. The case was taken up for scrutiny

and the during the course of assessment proceedings, the AO observed that

the firm has paid interest on capital to Smt.A. Hameeda Banu, partner,

amounting to Rs.1,26,16,872/-. The AO further noted that the firm had

also borrowed a sum of Rs.19 Crs. from Punjab National Bank, on which, it

has paid interest amounting to Rs.1,86,90,859/-. The AO called upon the

assessee to file necessary evidences, including justification for payment of

interest to partners’ capital account and interest on loan borrowed from the

Bank. In response, the assessee submitted that ‘4’ partners namely Shri

R.Ariff, Smt. A. Meharunnisa Begum, Shri A.Sheikh Alaudeen & Shri A.Asan

Mohammed were expressed their willingness to retire from the partnership

firm, because, all were migrated out of India. Shri A.Aboobucker, who was

actively managed the Hotel and created royalty wanted to continue the

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business of running hotel, has negotiated with the outgoing partners and

accordingly, reached to a settlement. As per the settlement among the

partners, the assets of the firm have been re-valued and the value of each

partner’s share in the assets of the partnership firm, has been credited to

the capital account of the partners. Later, the firm was reconstituted with

induction of Smt. A. Hameeda Banu, wife of continuing partner, Shri

A.Aboobucker, vide reconstituted Partnership Deed dated 31.03.2006, and

the retiring partners are Shri R.Ariff, Smt. A. Meharunnisa Begum, Shri

A.Sheikh Alaudeen & Shri A.Asan Mohammed. The capital and current

account of outgoing/retired partners becomes debt of the partnership firm

and to settle the accounts of outgoing partners, firm has taken loan from

incoming partner, Smt. A. Hameeda Banu, and also borrowed loan from

Punjab National Bank. Therefore, the assessee submitted that interest paid

on capital account of partner and loan borrowed from Punjab National Bank,

is nothing but interest paid on capital borrowed for the purpose of business,

and allowable as deduction u/s.36(1)(iii) of the Act.

assessee and according to the AO, the assets of the partnership firm, has

been revalued to artificially increase the credit balance of outgoing

partners. Further, although, the assessee claims to have reconstituted

Partnership Deed to induct Smt. A. Hameeda Banu as new partner and

retirement of ‘4’ partners, no such evidence, including any deed of

reconstitution, has been filed. Further the settlement among the parties is

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nothing but a family settlement to share the family asset but not settlement

of capital account of retiring partners. Therefore, the AO opined that

interest paid on capital account of incoming partner and loan borrowed from

Punjab National Bank, cannot be considered as loan borrowed for the

purpose of business of the assessee, and thus, rejected arguments of the

assessee and disallowed interest paid to partner Smt. A. Hameeda Banu

and interest paid on loan borrowed from Punjab National Bank. The

relevant findings of the AO are as under:

2.1 It is observed from the capital account of Smt Hameeda Banu, Partner that the firm has paid her an interest of Rs.1,2.6,16,872/- on her capital during the relevant accounting period. As per the provisions of the Statute, if all the conditions are satisfied i.e. if the principal raised can be proved to have been borrowed for the purpose of business of the firm, the same can be allowed u/s.36(1)(iii). As seen from the facts of the case, the said partner has infused capital during the accounting period 2005-06 specifically for the purpose of repaying the credit balances in the accounts of ex- partners of the firm. On a perusal of the accounts, it is understood that the assets of the assessee firm have been revalued during the accounting period 2005-06 and the surplus generated has been allocated to the so-called ex-partners namely Shri R.Ariff, Smt. A. Meharunnisa Begum, Shri A.Asan Mohammed and Shri A.Sheikh Alaudeen (it is to be noted that any deed or any other document in support of the claim that these partners have ceased to be the partners of the firm has not been produced till date). In the absence of any deed to this effect and in the absence of any valid reason as to what was the requirement of revaluing the assets of the assessee firm, it could not be understood why the assets were revalued and these four persons were credited with sums. It could be presumed that this might be a understanding of the assessee firm entered into amongst the parents and brothers who are the partners, which has been channelized through the records of the assessee firm. If at all there is an agreement amongst the partners, these amounts should have been paid out of the income earned by the partner Smt. Hameeda Banu or Shri Aboobucker out of their personal funds, but not from the funds of the assessee firm. To overcome this liability, ultimately the partner Smt. Hameeda Banu has raised this capital which was never utilized for the purpose of running of the business of the assessee firm, but for the purpose of repayment of the credits of the assessee firm, which has been artificially created which was otherwise not existing. While arriving at these opinions, the oral submissions made by the assessee’s counsel as well as the written submissions vide their letter submitted on 9.12.2009 have also been taken into consideration. In view of this, in the light of provisions of Section 36, it was opined that the interest paid by the firm to Smt Hameeda Banu on the capital raised by her, is not allowable. In view of this, a notice was issued to show cause as to why the interest paid by the firm to Smt. Hamida Banu on her capital shall not be disallowed as the said money has not been utilized wholly and exclusively for the purpose of business.

2.2 It was further observed that the assessee firm has raised a loan of Rs.1p crores during the relevant accounting period from Punjab National Bank on which the firm has

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incurred an expenditure in the nature of interest amounting to Rs.1,86,90,859/-. This money has also been utilized for the purpose of clearing the credit balance of the four persons referred to above who are claimed to be erstwhile partners.

2.3 For the reasons discussed at length in the prior paragraphs, it was opined that these credit balances were artificially created and were never a burden of the assessee firm as such. Hence, it was opined that interest paid to Punjab National bank by the assessee firm is not an allowable expenditure for the reason that the funds raised from Punjab National bank vis-a-vis interest paid on this loan cannot be proved to have been utilized for the purpose of the business of the assessee firm. While arriving at these opinions, the oral submissions made by the assessee's counsel as well as the written submissions vide their letter submitted on 9.12.2009 have also been taken into consideration. In view of this, a letter was issued to the assessee requesting him to show cause why the interest paid to the Punjab National Bank shall not be disallowed. The assessee's Authorized Representative has submitted his reply in writing on 21.12.2009 and 23.12.2009 wherein, it was submitted by the AR that the revaluation of the properties was an arrangement between the family members, who were also partners in the course of the exit from the firm is entirely their decision. In other words, it is the prerogative of the owners of the property to fix values for the properties owned by them and it is not questionable by outsiders. The AR arguments may be correct to some extent that an owner can fix the value of the property. But in the instant case the same is being questioned for the reason it has got some implications of taxation. It is necessary to notice that there is no specific document even as on date to say that the four people referred to above have ceased to be partners. It is also not possible to examine those people as they are all relocated and are out of the country. There is no basis evidence or proper evaluation as to how the asset has been revalued. There is no reasoning why the surplus emanating out of revaluation of the assets has been allocated only to the so called outgoing partners but not to the remaining partner. In these circumstances, the revaluation of the asset and allocation of the surplus to some of the partners is arbitrary, not in accordance with the sound principles of accountancy and also is not correct. In view of these reasons, the liability created on the firm in the nature of money payable to four of the partners refer to above is artificial and not correct. In view of this, interest paid on the capital inducted by the new partner Smt. Hameeda Banu which is utilized for the purpose of repayment of these credit balances cannot be said to have been incurred wholly and exclusively for the purpose of business entitling for the deduction u/s.37 of the Income Tax Act, 1961. I am also of the opinion that the expenditure incurred in this regard is more of capital in nature for the reason that said expenditure is non-recurring and of enduring benefit in the nature of almost eliminating the partners who are coming in the way of smooth functioning of the assessee firm. In view of all these reasons, the expenditure incurred by the assessee firm towards interest of Rs.1,26,16,872/- paid to partner on her capital is disallowed as an expenditure claimed u/s.36 or the Income Tax Act, 1961.

2.4 As has been discussed at length in the prior paragraph, the liability of the assessee firm in the nature of credit of so called ex-partners is not well grounded rather is not correct. In view of this and on account of detailed reasoning given in the prior paragraphs, the interest paid by the firm out of the loans raised from the Punjab National bank cannot be said to have been incurred wholly and exclusively for the purpose business. In view of this reason, the expenditure in the nature of interest amounting Rs.1,86,90,859/- paid to Punjab National Bank by the assessee firm is not allowed under 37 0f the IT Act. 1961.

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With these remarks income and the taxes thereon are computed as under:

Income as returned Rs. (-) 1,04,85,554 Add: (1) Disallowance of interest paid to Rs. 1,26,16,872 partner Smt. Hameeda Banu as discussed above (2) Disallowance of interest paid to Rs. 1,86,90,859 Punjab National bank (3) Income on account of Closing Rs. 4,55,333 Stock as discussed above Taxable income Rs. 2,12,77,510 Tax on total income Rs. 63,38,253 Surcharge Rs. 6,38,325 Rs. 70,21,578 Educational Cess Rs. 1,40,430 Rs. 71,62,008 Less: TDS Rs. 4,86,650 Rs. 66,75,358 Add: Interest u/s.234 B Rs. 22,02,849 Balance Taxable Rs. 88,78,207

appeal before the Ld.CIT(A). Before the Ld.CIT(A), the assessee has

reiterated its arguments made before the AO and submitted that the

partnership firm has been reconstituted in the year 2006 and out of ‘5’

partners, ‘4’ partners have been retired from the firm and one new partner

has been inducted into the partnership firm. Incoming partner, Smt.A.

Hameeda Banu, infused fresh capital into the partnership firm to settle

outstanding credit balance in retiring partner’s accounts. The firm had also

borrowed loan from Punjab National Bank to settle credit balance in

partner’s capital account. Since, the retiring partners credit balance in

capital account becomes debt of the firm and loan has been borrowed from

bank for the purpose of discharging the debt of the firm, interest paid on

said loan is in the nature of interest paid on loan borrowed for the purpose

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of business of the assessee, and thus, same needs to be allowed as

deduction.

and also taken note of relevant facts opined that interest paid on partners’

capital account and also interest paid on loan borrowed from Punjab

National Bank, cannot be considered as loan borrowed for the purpose of

business of the assessee, because, out of the borrowed funds, the assessee

has discharged the liability of outgoing partners and same has been arised

due to revaluation of the assets. The Ld.CIT(A) further observed that while

going through the Partnership Deed, it can be seen that the Partnership

Deed is silent about payment of consideration to erstwhile partners as well

as mode of repayment, etc. The valuation of assets was made at the choice

of the partners. In other words, it may be termed as the family settlement.

Therefore, he opined that interest paid on capital account of partners and

loan borrowed from Bank, cannot be treated as interest paid on loan for

the purpose of business of the assessee, and thus, rejected arguments of

the assessee and sustained additions made towards disallowance of interest

u/s.36(1)(iii) of the Act. The relevant findings of the Ld.CIT(A) are as

under:

9.1 The order passed by the AO, grounds raised by the appellant, written submissions submitted by the appellant and the remand report submitted by the AO have been examined. 9.2 While going through the facts of the case, it is evident that the appellant firm has paid huge sum to the erstwhile partners of the firm. As per the partnership deed dated 31.01.2006, Smt. A. Hameeda Banu, wife of the other partner Shri A.

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Aboobucker was inducted into the partnership firm. The partners who were retired are Shri R. Ariff, A. Meharunnisa Begum, A. Sheikh Alaudeen and A. Asan Mohammed. The retired partners are nobody other' than the father mother and brothers of the main partner Shri Aboobucker. From 01.02.2006 onwards as per the new partnership deed, Shri Aboobucker and his wife were only the partners of the firm. Shri Aboobucker is the managing partner and his wife is the working partner.

9.3 It may be appreciated that the erstwhile partners were paid a substantial amount to relinquish their partnership. The amount was paid as per the revaluation of the firm's asset.

9.4 While going through the partnership deed, it can be seen that the partnership deed is silent about the payment of consideration to the erstwhile partners as well as the mode of repayment etc. The valuation of asset was made at the choice of the partners. In other words, it may be termed as the family settlement. Now the issue is whether the interest paid by the firm for the amount inducted by the new partner as well as the amount borrowed from the bank for payment to the earlier partners (family members) can be claimed as an expenditure as per the provisions of Sec.36(1)(iii) of the Act.

9.5 The appellant firm has borrowed a sum of Rs.19 crores from Punjab National Bank and thereby incurred expenditure to the extent of Rs.1,86,90,859/- by way of interest and the same has been claimed as expenditure.

9.6 It can be seen from the records that the amount inducted by the new partner as well as the amount borrowed were utilized only for the purpose of payment to the earlier partners. The amount was paid to the earlier partners just by way of a family settlement rather than the business settlement. The borrowed capital was never utilized for the purpose of running the current business. In other words, the borrowed capital was utilized for payment of artificial liability.

9.7 In this background, I am of the view that the borrowed capital was utilized by the firm only to settle the family dispute among the father, mother and brother rather than the business settlement. Even otherwise it can be termed the capital inducted/borrowed is more in the nature of capital by way of eliminating the erstwhile partners.

9.8 In view of this, the action of the AO in disallowing the interest paid under the two count is hereby sustained and the grounds raised by the appellant are dismissed.

in confirming the disallowance of interest paid to partners, Smt.A. Hameeda

Banu, without assigning proper reasons and justification. The Ld.Counsel

for the assessee further submitted that provisions of Sec.37(1) of the Act

and provisions of Sec.40(b) of the Act, were not taken into account while

confirming the disallowance in computation of taxable income. The

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Ld.Counsel for the assessee further submitted that the AO and the

Ld.CIT(A) never disputed the fact that assessee has borrowed funds for the

purpose of settlement of outgoing partners’ capital account. In fact, the

assessee has filed all evidences to prove that loan has been borrowed for

the purpose of repayment of ex-partners’ capital account. However, the

AO took different stand and observed that payment made to outgoing

partners’ is nothing but a family settlement and cannot be considered as

settlement of debt of partnership firm, without appreciating the fact that

any credit balance in outgoing partners’ capital and current account become

debt of the partnership firm and discharge of said debt by the firm is for

the purpose of business of the assessee. The Ld.Counsel for the assessee

further submitted that the AO and the Ld.CIT(A) erred in rejecting

arguments of the assessee without appreciating the fact that the

revaluation of asset was carried out in accordance with the values fixed by

the approved valuer. The firm is liable to pay the amount to the credit of

those partners who retired from the firm. Therefore, he submitted that any

loan borrowed by the firm for the purpose of settlement of outgoing

partners’ capital account, is for the purpose of business of the assessee,

because, unless, the firm discharged debt of outgoing partners’, it cannot

continue the business. Therefore, he submitted that the AO and the

Ld.CIT(A) were erred in rejecting the arguments of the assessee and

disallowed interest u/s.36(1)(iii) of the Act. In this regard, he relied upon

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the decision of the Hon’ble Supreme Court in the case of Narayanappa v.

Bhaskara Krishnappa (supra)

Ld.CIT(A), submitted that the assessee could not file any evidences to

prove that the asset is belongs to the partnership firm. On the other hand,

the AO brought out clear facts to the effect that it is a personal asset of

partners. Further, settlement among the family members cannot be

considered as settlement of partnership firm assets. Since, the assessee

could not file any evidences to prove that their assets belong to partnership

firm and it is the part of the business of the assessee, any settlement to

partners towards settlement of family property, cannot be considered as

settlement of firm debt. He further submitted that the assessee has

borrowed funds from Bank and partners. However, utilized the borrowed

funds for the purpose of settlement of family debt. Therefore, the AO has

rightly invoked provisions of Sec.36(1)(iii) of the Act, and disallowed

interest paid on borrowed capital. The Ld.CIT(A) After appreciating

relevant facts has rightly confirmed the additions made by the AO and their

orders should be upheld.

record and gone through orders of the authorities below. The facts borne

out from the record clearly indicate that Shri R.Ariff along with his wife and

three children entered into a partnership firm namely M/s.Ariff & Co. by

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way of partnership deed dated 18.12.1974. The main objects of the

partnership firm were carrying on business of lodging house keepers and

hotels. The firm was carrying on business of hotels in the name of ‘Hotel

President’. The said Partnership Deed was reconstituted on 23.01.1986

with change in profit and loss sharing ratio. The firm was once again

reconstituted on 01.04.1992 with change in capital contribution and profit

and loss sharing ratio. The firm was carrying on business of running hotel

called ‘Hotel President’. In the meantime, Shri R.Ariff, Smt. A. Meharunnisa

Begum, migrated to USA leaving the hotel management completely in the

hands of Shri A.Aboobucker. Later, Shri A.Sheikh Alaudeen & Shri A.Asan

Mohammed wanted to retire from the partnership firm, because, both were

migrated to USA. Therefore, a negotiation was entered into among the

partners and accordingly, the partnership firm was reconstituted on

31.01.2006 with retirement of ‘4’ partners, Shri R.Ariff, Smt. A.

Meharunnisa Begum, Shri A.Sheikh Alaudeen & Shri A.Asan Mohammed

and induction of new partner, Smt.A. Hameeda Banu, wife of continuing

partner. Before reconstitution of the partnership firm, the assets and

liabilities of the firm has been revalued and credited to the capital account

of partners. On reconstitution of the partnership firm on 31.01.2006, the

capital account of outgoing / retiring partners has been treated as debt of

the partnership firm. To settle outgoing partners’ capital account, the firm

has borrowed loan from Punjab National Bank and paid interest. The firm

had also taken capital contribution from incoming partner, Smt.A. Hameeda

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Banu and paid interest as per the clauses of the Partnership Deed which is

in accordance with provisions of Sec.40(b) of the Act.

whether interest paid by the assessee / partnership firm to the capital

account of partners and loan borrowed from Punjab National Bank, is

allowable as deduction u/s.36(1)(iii) of the Act or not? Admittedly,

incoming partner, Smt.A. Hameeda Banu, has infused fresh capital to settle

the capital account of retiring partners. Unless, the retiring partners’ capital

accounts are settled, the business of the assessee cannot be smoothly

continued. Therefore, in our considered view, interest paid on capital

account of partners partakes the nature of funds borrowed for the purpose

of business of the assessee and consequently, interest paid on said capital

account needs to be allowed as deduction u/s.36(1)(iii) of the Act. In so

far as interest paid on loan borrowed from Punjab National Bank, the AO

has not disputed that the assessee’s firm has borrowed Rs.19 Crs. loan

from Punjab National Bank. The said loan has been borrowed for the

purpose of business of the assessee’s firm, because, the firm was carrying

on the business of running hotel called the ‘Hotel President’ which was

owned by the partnership firm which is evident from the financial statement

of the assessee for earlier years where the property is in the name of

partnership firm and the assessee has claimed depreciation on building.

Further, the loan from Punjab National Bank has been borrowed to settle

the capital account of retiring partners. As we have already stated in our

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earlier part of this order, unless the firm settle the outgoing partners’

capital account, which is nothing but a debt of the firm business cannot be

run smoothly, because, the entire business of the assessee is running a

hotel. Therefore, in our considered view, any loan borrowed for the purpose

of settling outgoing partners’ capital account which has been treated as

debt in the books of accounts of the firm assumes the character of loan

borrowed for the purpose of business of the assessee, and consequently,

interest paid on borrowed capital account is allowable deduction

u/s.36(1)(iii) of the Act.

light of revaluation of assets and settlement of outgoing partners’ capital

account. The sole basis for the AO to disallow interest paid on partners’

capital account and loan borrowed from Punjab National Bank is on the

ground that payment to outgoing partners is nothing but family settlement.

In our considered view, the AO and the Ld.CIT(A) were completely erred in

coming to the conclusion that reconstitution of partnership firm to retire

partners and settle their account cannot be considered as family

settlement, because, asset was brought into the books of accounts of the

partnership firm. Further, the firm has developed the property and

exploited the property for the purpose of running its business. The firm

has claimed depreciation on building, on which, the hotel was constructed

and managed. Therefore, in our considered view, when the asset was

owned by the partnership firm, any settlement out of assets belong to the

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firm to the outgoing partners, cannot be considered as settlement of family

property, just because, the partners were family members. Therefore, it is

very clear that retired partners taking a portion of value of firm’s assets

and thus, just because, the asset has been revalued before reconstitution

of partnership firm, cannot be a reason for the AO to treat the settlement

of firm properties among partners as settlement of family property.

Hon’ble Supreme Court in the case of Narayanappa v. Bhaskara

Krishnappa, where it has been clearly held that –

"What is meant by the share of a partner is his proportion of the partnership assets after they have been all realized and converted into money, and all the partnership debts and liabilities have been paid and discharged. This it is, and this only, which on the death of a partner passes to his representatives, or to a legatee of his share, and which on his bankruptcy passes to his trustee".

The Hon’ble Supreme Court further held that –

“After the dissolution of the partnership or with his retirement from partnership of the value of his share in the net partnership assets as on the date of dissolution or retirement after a deduction of liabilities and prior charges",

shall be paid to the retiring partner.

that the share of partner in partnership assets means his proportion share

in the assets of the firm is net of liabilities. Therefore, when the outgoing

partners are taking out their share in the assets of the firm, the Fair Market

Value of the assets needs to be ascertained. In the present case, the

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assessee has revalued the assets to ascertain the Fair Market Value of the

assets of the firm before settlement of retiring partner’s shares in the

proportionate assets of the firm. Therefore, we are of the considered view

that the AO and the Ld.CIT(A) erred in holding that settlement to partners

is a family settlement and the same cannot be considered as settlement of

firm assets.

circumstances of the case, we are of the considered view that there is no

dispute with regard to the fact that the sole business of the partnership

firm is running hotel and said business was owned by the partnership firm.

On retirement, the outgoing partners has been paid their proportionate

share in the assets of the partnership firm. The firm has borrowed loan

from Punjab National Bank and raised fresh capital from incoming partner

to settle the debt/capital account of retiring/outgoing partners. The

settlement of capital account of outgoing partners becomes debt of

partnership firm and discharge of said debt out of borrowed funds assumes

the character of loans/funds borrowed for the purpose of business of the

assessee. Since, the loan borrowed from the Bank and capital raised from

incoming partner is for the purpose of business of the assessee, any interest

paid on said loan and capital account is nothing but interest paid on loan

borrowed for the purpose of business of the assessee and allowable

u/s.36(1)(iii) of the Act. The AO and the Ld.CIT(A) without appreciating the

relevant facts simply disallowed interest paid on partners’ capital account

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and interest paid on loan from Bank. Therefore, we direct the AO to delete the additions made towards disallowance of interest u/s.36(1)(iii) of the Act.

Order pronounced on the 15th day of December, 2023, in Chennai.

Sd/- Sd/- (मनोमोहन दास) (मंजूनाथा.जी) (MANJUNATHA.G) (MANOMOHAN DAS) लेखा सद�/ACCOUNTANT MEMBER �ाियक सद�/JUDICIAL MEMBER चे�ई/Chennai, �दनांक/Dated: 15th December, 2023. TLN आदेश क� �ितिलिप अ�ेिषत/Copy to: 1. अपीलाथ�/Appellant 3. आयकर आयु�/CIT 5. गाड� फाईल/GF 2. ��यथ�/Respondent 4.िवभागीय �ितिनिध/DR