SUNANDA CONSTRUCTIONS,PUNE vs. DCIT, CENTRAL CIRCLE 2(2), PUNE, PUNE

Analysis of information collected/received. It is seen from the details, document so gathered during the search/survey enquiry that, the assessee has claimed to have paid interest of Ps.15,83,502/- to Kailaswasi Sunanda G.KeleMahila Nagari Sahakari Patsanstha Maryadit. During the course of post search/survey proceedings, the above Patsanstha was asked to produce the ledger details of loan and interest in r/o Prithvi Builders. The said Patsanstha has provided the copy of ledger extract wherein it was noted that the account of statements were proper computerized in English language where the only interest portion was mentioned in hand written. Thus, it proved that no interest charged by the Patsanshta and the handwritten noting is nothing but manipulation. Further, the assessee Firm also could not furnish any supportive documents which could prove that it has actually paid interest to the above Patsanstha. Thus, it proved that the assessee has booked bogus interest expense to the extent of Rs.15,83,502 pertaining to A.Y. 2013-14.

Enquiries made by the AO as sequel to information collected/received: On verifying from the records as well as database, it is found that the assessee has filed its return of income for A.Y 2013-14 on 31/07/2013 wherein income is disclosed of Rs.2,59,310/-. On perusal of the return of income it is seen that the assessee has claimed huge expenses on interest. No regular assessment is made in the assessees' case. Thus going through the evidences collected during the search/survey proceedings, it appears that the assessee has claimed bogus interest expense to the extent of Rs.15,83,502/- in its return of income filed for AY 2013-14 which required to be taxed. 5. Finding of the AO: On analyzing the evidences collected during the course of search/survey enquiry it shows that the assessee has claimed bogus interest expenses to the extent of Rs.15,83,502/-. Therefore, an amount of Rs.15,83,502/- leading to income which has escaped of equivalent amount and not been brought to tax. Thus, in view of the discussion made above, there is reason to believe that income of Rs.15,83,502/- chargeable to tax has escaped assessment for AY 2013-14.

Basis of forming reason to believe and details of escapement of income. In view of the facts and findings as discussed in pera-2, 3, 4 and 5 above, I have reason to believe that the assessee has understated its income to the extent of Rs.15,83,502/- chargeable to tax which has escaped assessment within the meaning of section 147 of the I. T Act. I am therefore satisfied that it is a fit case for initiating proceedings u/s. 147 vide Explanation 2(b) and as such, the said proceedings are initiated. Therefore, to assess this income and also to assess any other income which may come to the notice during the proceedings subsequently, proceedings u/s. 147 of the Act are hereby initiated by way of issue of notice u/s. 148 of the Act.

Applicability of the provisions of section 147/ 151 to the facts of the case. In this case a return of income was filed for the year under consideration but no scrutiny assessment u/s. 143(3) of the Act was made. Accordingly, in this case, the only requirement to initiate proceeding u/s. 147 is reason to believe which has been recorded above (refer paragraph 2,3,4,5,6,). It is pertinent to mention here that in this case the assessee has filed return of income for the year under consideration but no assessment as stipulated u/s 2(40) of the Act was made and the return of income was only processed u/s 143(1) of the Act. In view of the above, provisions of clause(b) of explanation 2 to section 147 are applicable to facts of this case and the assessment year under consideration is deemed to be a case where income chargeable to tax has escaped assessment. In this case four years have lapsed from the end of the assessment year under consideration. Hence, necessary sanction to issue notice u/s 148 has been obtained separately from the Pr. Commissioner of Income Tax as per the provisions of section 151 of the Act. This is for your kind information.”

Before the Ld. CIT(A) it was submitted that the case was reopened on account of wrong claim made by the assessee of interest expenses. However, no such addition was made on this count and the disallowance was u/s 40(a)(ia), therefore, in view of the decision of Hon’ble Bombay High Court in the case of CIT vs. Jet Airways (I) Ltd. (2011) 331 ITR 236 (Bom), the addition made by the Assessing Officer has to be deleted and the re-assessment proceedings be quashed. It was further contended that since the interest expenditure has been capitalized through closing stock, therefore, in absence of claim of expenses, disallowance is unwarranted, even if no tax was deducted u/s 194A. It was also contended that since the assessee has paid interest to the Patsansthas, which are in the nature of credit cooperative societies, therefore, the assessee is not required to deduct any tax since the payer is exempt from TDS on interest payable to the credit cooperative societies. The assessee also relied on various decisions to this proposition.

The Ld. Counsel for the assessee at the very outset submitted that the Assessing Officer has not made any addition in respect of the issue for which the reasons were recorded u/s 147 of the Act but has made some other addition. He submitted that a perusal of reasons recorded shows that the reopening was made on account of bogus claim of interest expenses. However, instead of making any addition on account of the same, the Assessing Officer had made disallowance u/s 40(a)(ia) for non deduction of tax. Therefore, in view of the decision of Hon’ble Bombay High Court in the case of Jet Airways India Ltd. (supra), the re- assessment proceedings should be quashed.

Referring to the decision of the Ld. CIT(A) he submitted that the Ld. CIT(A) has wrongly distinguished the decision in the case of Jet Airways India Ltd. (supra) and held that the case was opened on the reason of prima facie non allowability of interest expenditure. The Assessing Officer during the course of 148 proceedings examined the allowability of interest expenditure and found that they were not allowable u/s 40(a)(ia) because the assessee has not deducted TDS as per provisions of section 194A. He accordingly held that the ratio laid down by the Hon’ble Bombay High Court in the case of CIT Vs. Jet Airways (I) Ltd. (supra) is applicable to the facts of the present case. He submitted that the above reasoning given by the Ld. CIT(A) is not correct.

Referring to the decision of Delhi Bench of the Tribunal in the case of J.S.P. Constructions vs. ACIT vide order dated 01.03.2021 for assessment year 2012-13, copy of which is placed at pages 138 to 145 of the paper book, he submitted that in that case initially the disallowance was proposed u/s 40A(2)(b) while issuing notice u/s 148 but in the assessment order the addition was made u/s 40A(3) and the Tribunal deleted the disallowance.

The Ld. Counsel for the assessee in his next plank of argument submitted that the assessee is not liable to deduct tax since the interest has been paid to the Patsansthas which are in the nature of credit cooperative societies. For the above proposition, he relied on the decision of the Pune Bench of the Tribunal in the case of ITO vs. Pramod Bhaichand Raisoni vide & 1398/PUN/2017 order dated 24.02.2022 for assessment years 2011-12 and 2012-13, copies of which are placed at pages from 151 to 160 of the paper book. He submitted that the Ld. CIT(A) while deciding the issue against the assessee on this issue has distinguished this decision of the Coordinate Bench of the Tribunal on the ground that the Ld. DR at the time of argument could not point out any contrary decision against the decision of Hon’ble Madras High Court in the case of SBI Staff Co- operative Society Ltd. vs. ITO (1998) 234 ITR 104 (Mad) and Syndicate Bank Employees Co-Op. Thrift and Credit Society vs. ITO (2006) 287 ITR 40 (Mad) and he has relied on some other decisions. He submitted that when there is no decision of jurisdictional Hon’ble High Court on an issue and there are conflicting decisions of different Hon’ble High Courts, then in that case the view which is in favour of the assessee has to be adopted. For the above proposition he relied on the decision of Hon’ble Supreme Court in the case of CIT Vs. Vegetable Products Ltd. (1973) 88 ITR 192 (SC).

The Ld. Counsel for the assessee in his third plank of argument submitted that the assessee has debited the interest but such interest has been capitalized and the assessee has not claimed any interest expenditure during this year, therefore, no addition could have been made on such expenditure and at the best the work-in- progress could have been reduced.

The Ld. Counsel for the assessee in yet another plank of his argument submitted that if there was any default for non deduction of tax, the Assessing Officer could have levied interest u/s 201(1A) but no disallowance could have been made for the impugned assessment year. He accordingly submitted that the order of the Ld. CIT(A) being not in accordance with law should be set aside and the grounds raised by the assessee be allowed.

The Ld. DR on the other hand heavily relied on the order of the Ld. CIT(A). He submitted that the reopening of assessment was made on account of wrong claim of interest expenditure. The Assessing Officer in the order passed u/s 143(3) r.w.s. 147 has disallowed the interest expenditure on account of non deduction of TDS on such interest, therefore, the decision of Hon’ble Bombay High Court in the case of CIT vs. Jet Airways (I) Ltd. (supra) is not applicable to the facts of the present case.

So far as the various other planks of arguments made by the Ld. Counsel for the assessee are concerned, he submitted that the Ld. CIT(A) has elaborately discussed on these issues and has given his reasonings, therefore, in absence of any distinguishable features brought on record by the Ld. Counsel for the assessee, the order of Ld. CIT(A) should be upheld and the grounds raised by the assessee be dismissed.

We have heard the rival arguments made by both the sides, perused the orders of the Assessing Officer and the Ld. CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the Assessing Officer on the basis of information obtained that the assessee has claimed bogus interest expenditure to the extent of Rs.15,83,502/-, reopened the assessment by recording reasons which have already been reproduced in the preceding paragraphs. A perusal of the assessment order shows that no such disallowance has been made by the Assessing Officer in the body of the order on account of bogus interest expenditure but the Assessing Officer has made addition on account of non deduction of TDS on payment of interest. In other words, there is no claim of any bogus expenditure by the assessee nor any addition was made by the Assessing Officer on this count. Thus, no addition has been made by the Assessing Officer in the assessment order on the basis of which the case was reopened but the addition has been made on some other account i.e. on account of non deduction of TDS.

We find Hon’ble Bombay High Court in the case of CIT vs. Jet Airways (I) Ltd. (supra) has held that after insertion of Explanation 3 to section 147 by the Finance (No.2) Act, 2009, with effect from 1-4-1989, section 147 has an effect that Assessing Officer has to assess or reassess income (such income) which escaped assessment and which was basis of formation of belief and if he does so, he can also assess or reassess any other income which has escaped assessment and which comes to his notice during course of proceedings. The Hon’ble High Court further held that if after issuing a notice under section 148, he accepts the contention of assessee and holds that income, for which he had initially formed a reason to believe that it had escaped assessment, has, as a matter of fact, not escaped assessment, it is not open to him to independently assess some other income; if he intends to do so, a fresh notice under section 148 would be necessary.

In that case the following substantial question of law was before the Hon’ble High Court: "Where upon the issuance of a notice under section 148 of the Income-tax Act, 1961 read with section 147, the Assessing Officer does not assess or, as the case may be reassess the income which he has reason to believe had escaped assessment and which formed the basis of a notice under section 148, is it open to the Assessing Officer to assess or reassess independently any other income, which does not form the subject-matter of the notice?”

We find the Hon’ble High Court in the decision held as under (relevant observations only): “16. Explanation 3 lifts the embargo, which was inserted by judicial interpretation, on the making of an assessment or reassessment on grounds other than those on the basis of which a notice was issued under section 148 setting out the reasons for the belief that income had escaped assessment. Those judicial decisions had held that when the assessment was sought to be reopened on the ground that income had escaped assessment on a certain issue, the Assessing Officer could not make an assessment or reassessment on another issue which came to his notice during the proceedings. This interpretation will no longer hold the field after the insertion of Explanation 3 by the Finance Act (No. 2) of 2009. However, Explanation 3 does not and cannot override the necessity of fulfilling the conditions set out in the substantive part of section 147. An Explanation to a statutory provision is intended to explain its contents and cannot be construed to override it or render the substance and core nugatory. Section 147 has this effect that the Assessing Officer has to assess or reassess the income (such “income") which escaped assessment and which was the basis of the formation of belief and if he does so, he can also assess or reassess any other income which has escaped assessment and which, comes to his notice during the course of the proceedings. However, if after issuing a notice under section 148, he accepted the contention of the assessee and holds that the income which he has initially formed a reason to believe had escaped assessment, has as a matter of fact not escaped assessment, it is not open to him independently to assess some other income. If he intends to do so, a fresh notice under section 148 would be necessary, the legality of which would be tested in the event of a challenge by the assessee 17. We have approached the issue of interpretation that has arisen for decision in these appeals, both as a matter of first principle, based on the language used in section 147(1) and on the basis of the precedent on the subject. We agree with the submission which has been urged on behalf of the assessee that section 147(1) as it stands postulates that upon the formation of a reason to believe that income chargeable to tax has escaped assessment for any assessment year, the Assessing Officer may assess of reassess such income "and also" any other income chargeable to tax which comes to his notice subsequently during the proceedings as having escaped assessment. The words "and also" are used in a cumulative and conjunctive sense. To read these words as being in the alternative would be to rewrite the language used by Parliament. Our view has been supported by the background which led to the insertion of Explanation 3 to section 147. Parliament regarded as being aware of the interpretation that was placed on the words "and also" by the Rajasthan High Court in Shri Ram Singh's case (supra). Parliament has not taken away the basis of that decision. While it is open to Parliament, having regard to the plenitude of its legislative powers to do so, the provisions of section 147(1) as they stood after the amendment of 1-4-1989 continue to hold the field. 18. In that view of the matter and for the reasons that we have indicated, we do not regard the decision of the Tribunal in the present case as being in error. The question of law shall, accordingly, stand answered against the revenue and in favour of the assessee. The appeal is, accordingly, dismissed. There shall be no order as to costs.”

Since in the instant case also admittedly no addition has been made by the Assessing Officer on account of which the case was reopened but the addition has been made on some other issue, therefore, respectfully following the decision of Hon’ble Bombay High Court in the case of ACIT vs. Jet Airways (I) Ltd. (supra), we hold that the addition made by the Assessing Officer on account of non deduction of TDS from payment of such interest income is not in accordance with law. We, therefore, set aside the order of the Ld. CIT(A) and direct the Assessing Officer to delete the addition. Since the assessee succeeds on this legal ground, the various other grounds raised by the assessee become academic in nature and therefore, are not being adjudicated.

After hearing both sides, we find the grounds raised by the assessee in the instant case are identical to the grounds raised in . We have already decided the grounds raised by the assessee and allowed the appeal of the assessee. Following similar reasonings, we allow the grounds raised by the assessee in ITA No.783/PUN/2025.

In the result, both the appeals filed by the assessee are allowed.