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Income Tax Appellate Tribunal, ‘B’ BENCH: CHENNAI
Before: SHRI N.R.S. GANESAN & SHRI RAMIT KOCHAR
: अपीलाथ+ क. ओर से/ Appellant by Mr. J.Prabhakar, FCA : Mr. A.Sundararajan, Addl.CIT ,-यथ+ क. ओर से /Respondent by : 12.12.2019 सुनवाई क. तार"ख/Date of Hearing : 04.03.2020 घोषणा क. तार"ख /Date of Pronouncement आदेश / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER:
This appeal filed by assessee is directed against appellate order dated 30.01.2019 passed by learned Commissioner of Income Tax (Appeals)-Puducherry, (hereinafter called “the CIT(A)”), in for assessment year (ay) 2015-16, the appellate proceedings before learned CIT(A) had arisen from assessment order dated 13.12.2017 passed by learned Assessing Officer (hereinafter :- 2 -: called “the AO”) u/s.143(3) of the Income-tax Act, 1961 (hereinafter called “the Act”).
2. The grounds of appeal raised by assessee in memo of appeal filed with the Income-Tax Appellate Tribunal, Chennai (hereinafter called “the Tribunal”) read as under:-
“1. The Learned Commissioner of Income Tax (Appeals) is not justified in confirming the disallowance of Rs.62,21,334/- allegedly as-interest on amounts borrowed for acquisition of assets when the alleged assets are stock in trade of the appellant,
The Learned Commissioner of Income Tax (Appeals) has no basis to conclude construction of flats in different areas form distinct projects to apply "percentage of completion" method,
3. The Learned Commissioner of Income Tax (Appeals) is not justified in disallowing interest paid on amounts borrowed exclusively for business purpose with skewed reference to lack of own funds and utilisation thereunder.
4. The Learned Commissioner of Income Tax (Appeals) is not justified in holding projects as a fixed asset to apply section 36 (i) (iii) thereon when constructed buildings are sold as a stock in trade of the assessee.
The Learned Commissioner of Income Tax (Appeals) is not justified in ignoring the cash flows explained vide para nos 9 to 13 of written submission filed during appellate proceedings, to allege absence of funds from non interest bearing sources.
The Learned Commissioner of Income Tax (Appeals) is not justified in holding that no proof is available for rental income in respect of completed flats without verifying the income statement disclosing rental income thereon.
7. The Learned Commissioner of Income Tax (Appeals) is not justified in rejecting the explanation for notional income of Rs.44,89,250/- and ignoring the letter dated 5/10/2018 canvassing deletion of income therefrom against income assessed.
The Assessing Officer is not justified in invoking the proviso to section 36 (i) (iii) on interest payments made in the normal course of business of construction of buildings and treating the said buildings as fixed assets which is opposed to facts on record.
9. In any event the order of CIT (A) is devoid of merits, bereft of facts and made without due regard to the facts and circumstances of the case at the law applicable thereto.
10. For these grounds and for such other grounds that may be adduced at the time of hearing, it is prayed that the order of the Commissioner of Income Tax (Appeals) be modified accordingly”.
The assessee is engaged in business of construction of building. The assessee had claimed interest expenses of Rs. 62,21,334/- as deduction :- 3 -: while computing income for the year under consideration u/s.36(1)(iii) of the 1961 Act. The AO observed that assessee has obtained interest bearing loans from banks and other parties, and the assessee had paid interests during the year. The AO observed that assessee had five real estate projects, which were still not completed and were not put to use till the end of the previous year, the details of which are as under:
Project Investment as on Investment as on Investment as on 31.03.2013 31.03.2014 31.03.2015 Nataraja Residency 12,00,000 58,00,000 1,16,93,200 Easwar Residency 20,00,000 60,00,000 92,54,000 Kannan Residency 20,00,000 49,67,000 61,77,000 Dakshanya Residency 20,00,000 72,49,000 51,79,000 Annamalai Tower 0 0 1,03,60,932 Total 72,00,000 2,40,16,000 4,26,64,132
The AO observed that since these real estate projects undertaken by assessee are still not complete and assets are not put to use, the assessee is not entitled for deduction u/s 36(1)(iii) of the 1961 Act. The AO observed that the assessee has shown these projects as ‘stock in trade’ in its Balance Sheet as on 31.03.2015. The AO also observed that assessee does not have its own sufficient funds to make investments in ‘stock in trade’ and interest bearing loans were obtained from banks and other parties, which were utilized to invest in the above mentioned projects.
The AO observed that these are ongoing projects and construction is not yet completed till the end of previous year relevant to impugned ay:2015-
The assessee was asked to explain the same by AO as to why these interest expenses be not disallowed , for which, show cause notice was issued by AO to the assessee. The assessee in reply submitted that these :- 4 -: five projects are ongoing projects and are yet to be completed. The details submitted to that effect by the assessee is as under:
(a) Sri Annamalai Tower only ground floor completed (other 4 floors yet to be completed).
(b) Nataraja Residency – 15 Units (14 completed).
(c) Easwar Residency – 9 Units (8 completed (sold earlier 1 + 3 units this year) – (Rental income admitted for admitted for 4 units).
(d) Kannan Residency – 9 units (3 sold in earlier years) – 6 units rental income admitted.
5. The assessee also agreed with disallowance of the interest as under:
(i) SBI Loan (CC) – 1,53,35,044 – 1,50,85,581 = 2,49,463 34570 (ii) Partly loans 33,52,902 5,78,673 ------------- ------------ 36,02,365 6,13,243 ------------- ------------ The assessee is agreeable for the disallowance of the above interest.
6. The AO observed that assessee did not have his own funds to invest in the projects and the assessee has borrowed interest bearing funds from Banks to invest in these projects. The AO also observed that these interest bearing funds were used for ongoing projects, some of the units in the projects are yet to be completed. However, the AO also observed that the assessee is not following Percentage Completion Method to offer income to tax while on the other hand expenditure has been claimed till the last date of the financial year. The AO also observed that notional income of Rs. 44,89,250/- was offered to tax by assessee. It was also observed by AO that there is a direct co-relation between borrowing interest bearing funds and the projects which are ongoing. The AO disallowed interest expenses to the tune of Rs.62,21,334/- u/s.36(1)(iii) of :- 5 -: the 1961 Act, vide assessment order dated 13.12.2017 passed by AO u/s 143(3) of the 1961 Act.
Aggrieved by an assessment order dated 13.12.2017 passed by AO u/s 143(3) of the 1961 Act, the assessee filed first appeal with Ld.CIT(A), who was pleased to dismiss appeal filed by assessee vide appellate order dated 30.01.2019 , by holding as under:
“5. Adjudication:
5.1 The appellant had claimed Rs.62,21,334/- as interest expenses under section 36(l)(iii) of the IT Act. As per above section, any amount of the interest paid, in respect of capital borrowed for acquisition of an asset for extension of existing business or profession whether capitalized in the books of accounts or not for any period beginning from the date on which the capital was borrowed from acquisition of the asset till the date on which such asset was first put to use, shall not be allowed as deduction.
5.2 It has been found by the AO that the loan outstanding in the case of appellant was Rs.4,28,12,344/- as on 31/3/2015. The appellant had paid Rs.62,21,334/- as interest for the outstanding loan. Appellant undertook 5 projects since the FY 2012-13 and AO noted that none of the projects were completed and put to use. It was noted by the AO that the AR of the appellant had given in writing that these projects were ongoing. The appellant had made an investment of Rs.4,26,54,132/- in the above projects. It was found that appellant had no substantial capital other than the above loans. It was noted that the appellant has used the borrowed funds for the extension of the existing business and therefore the interest claim was disallowed under section 36(l)(iii).
5.3 In appeal, the AR of the appellant argued that the "AO has no basis to treat the construction business of the appellant as a truncated independent project by artificial dissemination of data and alleging 'put to use' theory for claim of interest expenses...". The AR argued that the entire substantial portion of loan portfolio represents borrowings from group concerns such as HUFs and relatives, which have been advanced to the assessee way back in the past. The AR gave certain examples to show that the amounts have come from relatives, for which no cash flow has been given.
5.4 I have examined the submissions in detail. The appellant has not been able to prove that it had substantial own funds by clearly showing the fund-flow to the projects. Even otherwise, the own funds were disproportionately small as compared to the borrowed loan deployed in the business expansion. Appellant's claim that some units were completed is not with any evidence and the appellant is not following the percentage completion method to claim the benefit of capitalization for each project. As detailed in page 4 of the assessment order, the appellant had not given any proof regarding the completion and also there was no proportionate rental income offered.
5.5 AO has rightly rejected the claim of Rs.44,89,250/- as notional income offered by the appellant to explain the source of own funds. Subsequent withdrawal of such a disclosure for taxation has no relevance on the issue at hand.
5.6 Interest paid on capital borrowed for setting up a new unit in same line of business, before it is put to use, is to be treated as capital expenditure as held in 'the case of CIT vs. Vardhman Polytex Ltd. (P&H) 299 ITR 152. Interest on capital borrowed for the purpose of acquisition of assets of the new unit is to be allowed as revenue expenditure only when :- 6 -: such assets is put to use and starts yielding income and not for any period prior to it following the proviso to Section 36(1)(iii). 5.7 Proceedings initiated under 27IB were procedural and the same can be adjudicated separately if an appeal is filed independently. Accordingly, all grounds raised in appeal are disposed off. The addition made in the assessment order is confirmed.
8. Aggrieved by an appellate order dated 30.01.2019 passed by learned CIT(A), the assessee has filed an appeal with tribunal and Ld.Counsel for the assessee submitted that assessee has claimed interest expenses which was paid to banks and other parties, and the interest bearing borrowings were used for the purpose of ongoing projects as the assessee is engaged in the business of construction as a real estate business and the assessee is holding inventory of flats being developed as a real estate project which is shown as stock-in-trade in its books of accounts and interest expenses are debited to P&L A/c which are claimed as deduction while computing income of the assessee.
The Ld. DR, on the other hand, relied upon orders of the authorities below and it was submitted that assessee is following project completion method, although the assessee is required to follow percentage completion method.
We have considered rival contentions and perused the material on record. We have observed that assessee is engaged in business of construction of building as a real estate business. The assessee is undertaking five projects during the year under consideration. The projects are for construction of flats which are at various stage of :- 7 -: completion and are held as inventory for sale purposes and hence these ‘ongoing projects’ are on revenue field and are current assets held by assessee . The assessee has borrowed interest bearing loans from banks and other parties, on which interest expenses has been incurred to the tune of Rs. 62,21,334/- which was charged to Profit and Loss Account and deduction was claimed by assessee while computing income chargeable to tax, which claim of the assessee was disallowed by authorities below. We have also observed from the financial statements placed on record by assessee that the assessee has declared an income of Rs. 17.15 lacs from sale of flats and an profit of Rs. 11.57 lacs from sale of UDS. The assessee has also recognized rental income from flats. The assessee has also declared an income of Rs.44.89 lacs from labour work income. In our considered view, when assessee is engaged in real estate business and is constructing flats which are meant for the purpose of sale/renting purposes as a business, the interest expenses incurred on borrowings are towards revenue field and was correctly charged to Profit and Loss Account as time cost and claimed as deduction while computing income of the assessee. The assessee in the instant case in not building a capital asset rather assessee is doing a real estate activity of constructing flat for further sales /renting etc. as business activity and these ongoing projects are at different stages of completion. In our considered view, the assessee has rightly claimed interest expenses as deduction while computing income of the impugned assessment year. In any case, these interest expenses are tax neutral and even if it is added/capitalized to the :- 8 -: inventory being unsold stock under construction as contemplated by Revenue , then also the same is to be allowed as expenses in subsequent years when Revenue is recognized from such unsold inventory. Thus, keeping in view over all facts and circumstances of the case, we allow appeal of the assessee. We order accordingly.
In the result, the appeal filed by assessee in 2015-16 is allowed.
Order pronounced on the 04th day of March, 2020 in Chennai. (एन.आर.एस. गणेशन) (र"मत कोचर) (N.R.S. GANESAN) (RAMIT KOCHAR) "या"यक सद"य/JUDICIAL MEMBER लेखा सद"य/ACCOUNTANT MEMBER चे"नई/Chennai, 2दनांक/Dated: 04th March, 2020. TLN