MUTHOOT AGRI DEVELOPMENT & HOSPITALITIES PRIVATE LIMITED,MUMBAI vs. DCIT 15(2)(2), MUMBAI

O R D E R

PER AMARJIT SINGH, JM:

2. The assessee has raised the following grounds of appeal: - “1. The learned Commissioner of Income Tax (Appeals)-24. Mumbai has erred in confirming the addition / disallowance made by the Dy. Commissioner of income Tax 15(2)(2) of interest on loans taken from director wholly and exclusively for the purpose of business activities amounting to Rs.60,23,999/- and also disallowance of interest paid oil TDS amounting to Rs.12,380/-.

2. The learned Commissioner of Income Tax (Appeals) has failed to consider the decision of the I Ion. Delhi High Court that in the ease of Commissioner of Income Tax Vs Dhoomketu Builders and Development Pvt. Ltd reported in (2014) 368 ITR 680 (Delhi) wherein it has been that in the case of real estate company, the business can be said to have been commenced on acquisition of land, since alter acquisition of such land the assessee was in a position to do business as the business has been set up. The ratio above decisions has been relied on and followed by Hon. Delhi B' Bench of ITAT in for assessment year 2009-10 in case of Dy. CIT, Circle 10(1) New Delhi vs DLF homes Panchkula Pvt Ltd, New Delhi. Further. Hyderabad A Bench of Hon. ITAT. in this case also it was held that it; the case of Hyderabad Metro Rail Ltd. Hyderabad vs DCIT Circle 2(2).

2 A.Y. 2014-15 Hyderabad, the expenditure incurred for purchase of land can he allowed deduction as business expenditure since the assessee has on such an acquisition commenced business activities.

3. The learned Commissioner of Income Tax (Appeals) has also erred in dismissing the appeal on the ground that the appeal relating to the AY 2012-13 on same grounds was dismissed by him without considering the facts of the case.

4. For the above and other grounds that may be adduced at the time of hearing the appeal may be allowed to the extent prayed for in the grounds of appeal.”

3. The brief facts of the case are that the assessee filed its return of income on 27.09.2014 declaring total loss to the tune of Rs.(-)60,89,580/-. The return was processed u/s 143(1) of the Act. Thereafter, the case was selected for scrutiny. Notices u/s 143(2) & 142(1) of the Act were issued and served upon the assessee. The assessee company was engaged in the business of Activities related to agriculture, sericulture, horticulture, aquaculture. The assessee took the loan from the Director in sum of Rs.48,98,014/- and paid the interest in sum of Rs.29,62,917/- and also took the inter Corporate Deposits in sum of Rs.6,30,00,000/- and paid the interest in sum of Rs.30,61,082/-. The total interest was paid in sum of Rs.60,23,999/-. The said interest was disallowed and the AO raised the addition in sum of Rs.60,23,999/-. The interest on TDS claimed in sum of Rs.12,380/- which was also disallowed and added to the income of the assessee. The total income of the assessee was assessed to the tune of Rs. (-)53,201/-. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who dismissed the appeal of the assessee, therefore, the assessee has filed the present appeal before us. ISSUE NO. 1 4. Under this issue the assessee has challenged the disallowance of interest paid against loan received from the director as well as inter corporate deposit. The total interest was paid in sum of Rs.60,23,999/-.At the very outset, we find that issue has been decided in favour of the assessee in the assessee’s own case by the order of Hon’ble ITAT for the A.Y. 2012-13 in dated 29.07.2019. However, on the other hand, the Ld. Representative of the Department has refuted the said contention. The copy of order dated 29.07.2019 in ITA. No.2249/M/2018 relevant to the A.Y. 2012-13 is on the file in which the relevant finding is hereby mentioned below.:- “5. We have heard the rival submissions and perused the relevant materials on record. In the instant case, the assessee-company was incorporated for the purpose of carrying on real estate activities as per its main objects in the „Memorandum of Association‟. This is the second year of operation. We find that the assessee purchased land in the first year of operation for an amount of Rs.4,94,38,159/-, which was financed out of unsecured loan obtained from the directors amounting to Rs.5,35,20,000/- outstanding as at 31.03.2011. The assessee paid interest on the above loan @ 10% and the borrowing has been effected for the purpose of its business. In the case of Tetron Commercial Ltd. (supra), the assessee company purchased some immovable properties, being land and flat, for undertaking of business of real estate. According to the „Memorandum of Association‟, one of the main objects of the company was to carry on business in real estate. The assessee claimed deduction u/s 36(1)(iii) as interest on borrowed capital which was disallowed by the AO. The Tribunal rejected the claim on the basis that the business in real estate had not commenced and that it was the capital expense that was shown as advance against the immovable property. In appeal by the assessee, the Hon‟ble High Court held that : “In the instant case, according to the Memorandum of Association, one of the main objects of the company was to carry on the business in real estate. That had commenced on the acquisition of the land or the flat. It was not necessary to show that it was intended for sale or otherwise. The fact remained that by 1994, the house constructed on the land and the flat were sold and shown in the return for the relevant year. That was shown as profit from business. It was not necessary to prove how it was dealt with at the stage of assessment. In CIT v. Associated Fibre & Rubber Industries (P.) Ltd. [1999] 236 ITR 471/102 Taxman 700 (SC), it was held that where the machinery acquired through borrowed capital had not been actually used in the business at the time when the assessment was made, even then the same were to be treated as business assets having been purchased for the purpose of the business only. Therefore, the interest paid on the amount borrowed for the purchase of such machinery is an amount deductible, once the other ingredients are fulfilled. It is shown in the balance sheet under the capital and asset heading as an asset but not a stock-in-trade. The description in the books of account would be immaterial. If it is a stock-in-trade, in that event, the amount invested would be a revenue expenditure and not a capital expenditure. The amount borrowed may be utilized for the purpose of acquisition of stock in- trade or for the purpose of acquisition of capital assets. So long the money is utilized for business purposes, the interest is allowable as deduction. It is well- settled that business expenditure is not confined to expenses incurred on revenue account. Capital expenditure may not be allowed as a deduction under section 37 because the section specifically bars any deduction of expenditure of capital nature. But section 36 is differently worded. There is no bar in section 36(1)(iii) to allowance of interest paid in respect of capital borrowed, which has been utilized for purchase of capital assets.” In the case of Dhoomketu Builders & Development (P.) Ltd. (supra), it is held that “acts of applying for participation in tender, borrowing of fund on interest from holding company and deposit of borrowed monies on same day as earnest money clearly establish that business had been set up by assessee in relevant year”. In Core Health Care Ltd. (supra), it is held that section 36(1)(iii) is attracted when the assessee borrows the capital for the purpose of his business and it does not matter whether the capital is borrowed in order to acquire a revenue asset or a capital asset, because all that the section requires is that the assessee must borrow the capital for the purpose of the business. It is further clarified therein that this dichotomy between the borrowing of the loan and actual application thereof in the purchase of a capital asset, seems to proceed on the basis that a mere transaction of borrowing does not, by itself, bring any new asset of an enduring nature into existence, and that it is the transaction of investment of the borrowed capital for the purchase of a new asset which brings that asset into existence; the transaction of borrowing is not the same as the transaction of investment and if this dichotomy is kept in mind, it becomes clear that the transaction of borrowing attracts the provisions of section 36(1)(iii) of the Act. As mentioned earlier the assessee filed before the AO the confirmation of loan from the directors in response to the written query dated 29.09.2014 issued by the AO u/s 142(1) of the Act. The assessee company had effected purchase of land in the first year of operation i.e. from 07.05.2010 to 31.03.2011 for an amount of Rs.4,94,38,159/-, which was financed out of unsecured loan obtained from the directors amounting to Rs.5,35,20,000/- outstanding as at 31.03.2011. The interest was paid on the above loan @ 10%. The borrowing had been effected for the purpose of business activities of the company. The assessee has rightly claimed u/s 36(1)(iii) interest paid on the above loan during the impugned assessment year of Rs.52,88,800/-. The above claim of the assessee is supported by the ratio laid down in the decisions mentioned above. In view of the above, we delete the addition of Rs.52,88,800/- made by the AO.”

5. The facts are not distinguishable at this stage. The issue has duly been covered by the assessee’s own case for the A.Y. 2012-13 in dated 29.07.2019, therefore, by honoring the decision of the Hon’ble ITAT, we set aside the finding of the CIT(A) on this issue and allowed the claim of the assessee. ISSUE NO. 2

“1. At the instance of the assessee, the following question of law is referred for the opinion of this court under section 256(1) of the Income-tax Act, 1961 "Whether, on the facts and in the circumstances of the case, the claim for deduction levied under section 220(2) of Rs. 6,03,168 interest levied under section 215 of Rs. 1,38,506 and interest levied under section 201(1A) of Rs. 66,590 was rightly rejected as not allowable under section 37 of the Income-tax Act, 1961, for assessment year 1976-77 ?"