AKT INVESTMENTS PVT. LTD.,DELHI vs. ITO, WARD- 1(1), NEW DELHI

Although a number of grounds have been raised by the assessee, however, these all relate to the order of the CIT(A) in confirming the addition of Rs.30 lakhs made by the AO u/s 36(1)(iii) of the IT act.

During the course of assessment proceedings, the AO noted that the assessee company has claimed expenditure of Rs.31,92,450/- under the head ‘Finance cost’ in the Profit & Loss Account. The AO, therefore, asked the assessee to explain as to why the interest expenses should not be disallowed to the extent of interest free loans and advances given. It was explained by the assessee that it has not given any interest free loan during the year and, therefore, no disallowance is called for. However, the AO rejected the explanation given by the assessee. From the perusal of details of loans taken and interest thereon furnished by the assessee in the course of the assessment proceedings, he noticed that opening balance of loan from M/s DJ Group Holdings Pvt. Ltd. is Rs.2,81,43,836/- on which interest of Rs.30 lakhs has been claimed. Similarly, opening balance of loan given is Rs.62,31,705/- on which interest at different rate has been received. The AO, therefore, held that a sum of Rs.2,19,12,131/- has been used for investment in shares, etc. which is not yielding any income. Since the assessee company, according to the AO, could not establish the nexus of the opening balance of interest bearing loans taken and failed to prove the genuineness of the claim of interest expenses for business purpose, the AO

In appeal, the ld.CIT(A) upheld the action of the AO by observing as under:- “7.1 I have carefully considered the assessment order and written submissions filed by the Ld. AR. During the course of the appellate proceedings, Ld. AR has stated that the appellant is in the business of finance & investment, the interest paid is exclusively for earning interest income. Ld AR has stated that the interest income has been included in total taxable income. The Ld. AR has explained that the opening balance of unsecured loan of Rs. 2,81,43,838/- taken by the appellant is to earn interest income and during the last year end, part of the loan was returned, which was Rs. 1,75,00.000/- redeployed on 13/05/2015. Ld. AR has stated that the details of loan taken and loan given as well as the interest earned and interest paid is given vide submission dated 04/10/2018 as per paper book page no 9 to 11. Ld.AR has stated that the AO was not justified in making an addition of Rs. 30,00,000/- as the investment has been made in equity shares out of owned capital & reserves. Ld, AR has clarified that the appellant has not taken bank loan during the year. At the time of investment there was only vehicle loan and unsecured loan from other parties. Ld. AR has stated that the appellant has earned interest income of Rs. 30,27,571/- against the interest expenses of Rs. 31,92,450/-. I have carefully considered the facts of the appellant company.-The share ’capital of the appellant company is Rs. 5,05,10,000/- as on 31,03.2016. There is hardly any activity in the appellant company. The appellant company has disclosed loss of Rs. 10,88,271/- in its return of income for AY 2016-17. There is no justification for the appellant company to take huge loans which does not fetch any income. With huge share capital of Rs 5,05.10,000/-, the appellant company has shown loss of Rs 10,88,271/- for AY 2016-17. The assessment order reveals that the appellant company is not doing any genuine business activity. Considering the facts of the case, I am of the view that the payment of interest of Rs. 30,00,000/- is not for the purpose of any genuine business activity. Accordingly, the disallowance of interest of Rs. 30,00,000/- u/s 36(1)(iii) is upheld. Ground No. 2 & 3 are decided against the appellant.”

Aggrieved with such order of the CIT(A), the assessee is in appeal before the Tribunal.

The ld. Counsel for the assessee, at the outset, submitted that the own capital and free reserves of the assessee company is Rs.5.05 crores whereas the investment in shares is Rs.4.70 crores. Further, no borrowed funds were utilized for investment in shares. He submitted that the company was formed in the year 1995 and in no other years it is held that no genuine business activity has been carried out. He submitted that the opening balance of unsecured loan of Rs.2,81,43,836/- taken by the assessee is to earn interest income since the assessee is in the business of finance and investment. The interest paid on loan is exclusively for earning interest income from further financing. During the last year, part of the loan was returned which was Rs.1,75,00,000/- re-deployed on 30th May, 2015. He submitted that the assessee has not taken any bank loan during the year. At the time of investment, there was only vehicle loan and unsecured loan from other parties. However, the assessee has earned interest income of Rs.30,27,571/- against the interest expenses of Rs.31,92,450/-. The interest receipts were shown as business income. Further, the assessee has borrowed funds @ 12% per annum and charged interest @ 12.5% and 27%. For a part of the year some funds have remained unutilized. Therefore, it is not proper to disallow the interest expenditure of Rs.30 lakhs paid to DJ Group. He also relied on the decision of Hon’ble Delhi High Court in the case of CIT vs. EKL Appliances Ltd., reported in 355 ITR 41 and the decision of the Hon’ble Supreme Court in the case of CIT vs. Balchand & Company, reported in 65 ITR 381, apart from various other decisions. 4

The ld. DR, on the other hand, heavily relied on the order of the CIT(A). He submitted that since the CIT(A) has given proper justification for sustaining the addition of Rs.30 lakhs, therefore, the same should be upheld and the grounds raised by the assessee should be dismissed.

I have considered the rival arguments made by both the sides, perused the orders of the AO and the CIT(A) and the paper book filed on behalf of the assessee. I have also considered the various decisions cited before me. I find, the AO, in the instant case, made addition of Rs.30 lakhs on the ground that the assessee has taken loan from DJ Group on which interest of Rs.30 lakhs has been paid. According to the AO, the difference between the closing balance of Rs.2,81,43,836/- and opening balance of Rs.62,31,705/- amounting to Rs.2,19,12,131/- has been used for investment in shares which has not yielded any income. Since the assessee could not prove the genuineness of the claim of interest expenses for business purpose, the AO disallowed the interest of Rs.30 lakhs paid to the DJ Group Holdings Pvt. Ltd. I find, the ld.CIT(A) upheld the action of the AO, the reasons for which have already been reproduced in the preceding paragraphs. It is the submission of the ld. Counsel that the assessee is in the business of finance and investment and the interest paid is exclusively for earning interest income. Further interest has been included in the taxable income and no such disallowance has been made in the past.

I find some force in the above arguments of the ld. Counsel for the assessee. I find the name of the assessee is AKT Investments Pvt. Ltd., and is engaged in the business of finance and investment. It is not known how the AO has mentioned that the assessee is engaged in the business of providing IT support services to clients. Further, the submission of the ld. Counsel that it has earned interest income of Rs.30,27,571/- and offered such interest receipts as business income could not be controverted by the ld. DR. Further the submission of the ld. Counsel that it has borrowed funds @ 12% interest per annum and has charged interest @ 12.5% and 27% also could not be controverted by the ld. DR. The submission before the CIT(A) that the assessee is in the business of finance and investment and the interest paid is exclusively for earning interest income also could not be controverted by the ld. DR.

I find, the Hon’ble Delhi High Court in the case of CIT vs. EKL Appliances Ltd. (supra) while dismissing the appeal filed by the Revenue has observed as under:- “Held, dismissing the appeal, that the financial health of the assessee never be a criterion to judge the allowability of an expense; there was no authority for that. So long as the expenditure or payment had been demonstrated to have been incurred or laid out for the purposes of business, it was no concern of the Transfer Pricing Officer to disallow it on any extraneous reasoning. As provided in the OECD guidelines, he was expected to examine the international transaction as he actually found them and then make suitable adjustment but a wholesale disallowance of the expenditure, particularly on the grounds which had been given by the Transfer Pricing Officer was not contemplated or authorised. Even on the merits the disallowance of the entire brand fee/royalty payment was not warranted. The assessee had furnished copious material and valid reasons as to why it was suffering losses continuously. Full justification supported 6

Since, the assessee, in the instant case, is in the business of finance and investment and the interest paid is exclusively for earning interest income and such interest income has been included in the total taxable income and further considering the fact that own capital and free reserves of Rs.5.05 crores is much more than the total investment in shares of Rs.4.71 crores, therefore, respectfully following the decision of Hon’ble Delhi High Court in the case of EKL Appliances Ltd., cited (supra), I hold that no disallowance of interest in the instant case is called for. I, therefore, set aside the order of the CIT(A) and direct the AO to delete the addition. The ground raised by the assessee is accordingly allowed.