CIT vs. MINDA INVESTMENT LTD

IN THE HIGH COURT OF DELHI AT NEW DELHI . . . ITA 599/2012 . . . CIT ..... Appellant . Through Mr. Sanjeev Sabharwal, sr. standing counsel with Ms. Gayatri Verma, Adv. . . . versus . . . MINDA INVESTMENT LTD ..... Respondent . Through . . . CORAM: . HON'BLE MR. JUSTICE S. RAVINDRA BHAT . HON'BLE MR. JUSTICE R.V.EASWAR . . . O R D E R . 16.10.2012 . . . The Revenue is aggrieved by the order of the Income Tax Appellate Tribunal (?ITAT?, for short) dated 03.01.2012 in ITA No.2536/Del/2011. Question of law sought to be urged by it is whether the Tribunal fell into error deleting the sum of `6,81,247/- disallowed by the Assessing Officer, as part of the interest rates at borrowed capital by virtue of Section 40A(2)(a)/(b). . 2. The assessee borrowed funds from financial institutions and paid interest at 9% per annum on loan. The assessee charged 6% from the joint venture for advancing the borrowed capital to it as loan. On being queried the assessee made detailed submissions that the decision to charge lesser interest was essentially a business one and it was entitled to the entire deduction of the interest. The Assessing Officer however was not satisfied and disallowed the claim. The assessee appealed to the Commissioner of Income Tax (Appeals) who confirmed the addition. . 3. The ITAT on appeal by the assessee, accepted the contentions placing reliance upon the decision of the Supreme Court in CIT Vs. S.A. Builders (2007) 288 ITR 1. . 4. The Revenue submits that the ITAT?s approach is erroneous since the claim for business deduction cannot be accepted on the provisions of the statute i.e. Section 40A(2)(a)/(b) as the case may be. . ?5. We have duly considered the rival contentions and gone through the record carefully. In our opinion, Learned First Appellate Authority was not justified in observing that loan was given by the assessee without any business exigencies. Learned CIT(Appeals) has observed that explanation given by the assessee that it will get return in future is not tenable. Learned First Appellate Authority has not assigned any reason why it is not tenable. The assessee is a 50% shareholder of the joint venture exploring the business possibility and made the investment in the joint venture. In such situation, even if it has charged a lower rate of interest, the interest expenses cannot be disallowed in view of the decision of Hon?ble Supreme Court in the case of S.A.Builders (supra). Apart from the above, we find that loan was given in foreign currency to an Indonesian company. Assessing Officer ought to have . compared the libor rates prevalent in the international market at that point of time. The assessee has demonstrated that such rate was in between 4% to 5%. It has charged the rate in between 6.5% to 7%. Thus, in such situation, even on this count also, no disallowance can be made. Taking into consideration all these aspects, we allow the ground raised by the assessee and delete the disallowance.? . . . 5. This Court is of the opinion that having regard to the assessee?s position as a participant in the joint venture the fact that it borrowed some amounts at higher rate of interest and advanced them to the joint venture at a lesser rate was in furtherance of its business, the decision of the Tribunal needs no interference. As a result this Court feels that no substantial question of law arises. . 6. The ITAT on the other question of disallowance in Section 14A remitted the matter for reconsideration in view of the decision in Maxopp Investment Ltd. vs. CIT (2012) 247 CTR 162. Since that was done at the behest of the assessee this Court does not disturb the said direction of the Tribunal. The appeal is consequently dismissed on the above terms. . . . . . S. RAVINDRA BHAT, J . . . . . . . R.V.EASWAR, J . OCTOBER 16, 2012 . vld . . . $ 4 .