Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, ‘A’ BENCH, BENGALURU
Before: SHRI B.R. BASKARAN & SHRI PAVAN KUMAR GADALE
Appellant by : Shri S.Venkataraman, CA. Respondent by : Ms.Swapna Das, JCIT(DR) Date of hearing: 08/05/2019 Date of pronouncement: 27/06/2019 O R D E R
Per SHRI PAVAN KUMAR GADALE, JM :
The assessee has filed appeals against the order of the CIT(A), Bengaluru-2, Bengaluru, passed u/s 143(3) r.w.s. 147 and 250 of the Income-tax Act,1961 ['the Act' for short]. Since all the three appeals are similar and identical and interconnected, they were heard together and common consolidated order is passed. to 982/Bang/2016 Page 2 of 13 2. For the sake of convenience, we shall take up the appeal 2005- 06. The assessee has raised the following grounds of appeal: 1. “CIT (A) erred in law and on the facts of the case in upholding the reopening of the assessment made on 28.03.2012 and in sustaining the addition of Rs. 1,70,59,717/- towards interest on borrowed funds alleged to have been diverted for non- business purposes.
2. She failed to appreciate that the appellant had disclosed fully and truly all material facts necessary for assessment and that therefore reopening the assessment beyond the period of 4 years is not valid in law thereby ignoring the proviso to Sec. 143 of the Act.
3. She failed to appreciate that the borrowed funds had been utilized only for business purposes and that they were not diverted for non- business purposes. 4. She also failed to appreciate that the Topaz Investments Pvt Ltd to which the advance was made, was neither the sister concern nor a company in which none of the directors of the appellant company were in anyway interested. 5. She also failed to appreciate that the appellant was holding non-interest bearing funds of Rs. 174. 67 crores as against the advance of Rs. 32 Crores and that the borrowed funds had not been diverted for non- business- purposes. 6. She erred in ignoring the decision of Supreme court in SA builders Vs. CIT 288 ITR and Hero Cycles Limited Vs. CIT (128 DTR 2015). 7. The appellant submits that in any case the addition made is excessive and unreasonable. 8. The appellant therefore prays that the assessment made u/s. 147 may be annulled and the addition of Rs. 1,70,59,717/- be deleted.” to 982/Bang/2016 Page 3 of 13 3. Brief facts of the case are that the assessee is engaged in the business of construction and development of apartments and filed the Return of income for the assessment year 2005-06 on 31/10/2005 disclosing total income of Rs.5,65,26,005/-. The case was selected for scrutiny and the assessment order u/s 143(3) was passed on 28/12/2007 with total income of Rs.6,80,38,667/-. AO, having received information from the Investigation Wing in the case of Sanjay Ghodawat Group of cases of Kolhapur and consequently survey was carried out at Embassy Group of cases at Bengaluru including M/s.Dynasty Developers Pvt. Ltd. AO found that the assessee-company has advanced a sum of Rs.32 crores to M/s.Topaz Investments Pvt. Ltd., without charging interest, whereas the assessee has availed loans amounting to Rs.58,10,90,707/- and interest of Rs.3,09,78,885/- was paid. Therefore, AO has issued notice u/s 148 with approval of the CIT. AO also referred to reasons recorded at pages 2 and 3 of the order. AO was of the opinion that the assessee has not disclosed fully and truly all material facts in the assessment proceedings. Therefore, initiated re- assessment proceedings. The assessee-company has objected re-assessment proceedings and notice by letter dated 10/4/2012 as it was issued beyond time limit of 4 years. The to 982/Bang/2016 Page 4 of 13 assessee mentioned that the Return of income filed on 31/10/2015 may be treated as deemed compliance to notice u/s 148. Subsequently the notice u/s 142(1) was issued to the assessee to show-cause why not disallowance of proportionate interest, and the assessee filed detailed submissions vide letter dated 11/2/2013. The assessee has challenged the re-opening of assessment as referred at page 5 of the assessment order. Whereas AO gave findings on the validity of notice as it is well-within prescribed time limit. Finally, AO has confirmed validity of re-assessment proceedings and made addition of proportionate interest disallowance of Rs.1,70,59,917/- and assessed the total income of Rs.8,50,98,384/- and passed order under Section 143(3) r.w.s. 147 of the Act Dt.28.2.2019.
Aggrieved by the order, the assessee has filed an appeal with the CIT(A) whereas the CIT(A) having considered grounds of appeal, submissions and the information filed in the case of appellate proceedings and the findings of the Assessing Officer in reassessment has upheld the validity of assessment u/s 148 whereas in respect of proportionate disallowance of interest on advances learned CIT (Appeals) has granted partial relief and partly, allowed the appeal.
5. Aggrieved by the order, the assessee has filed an appeal with the Tribunal. Learned AR argued on two disputed issues. First on the validity of issue of notice u/s 148 and re- assessment proceedings and second being disallowance of proportionate interest on advances. Learned AR submitted that notice was issued beyond period of 4 years and there is no failure on the part of the assessee to disclose fully and truly all material information. Learned AR emphasized that the assessee has submitted audited balance-sheet and tax audit report along with computation of Income. In the scrutiny proceedings, of the original assessment the then A.O has not raised any question on this issue. Learned AR explained the primary facts supported with provisions of law and submitted paper book and judicial decisions in support of the claim of the assessee. Whereas in respect of disallowance of proportionate interest, the learned AR substantiated with ledger account copies of party to whom advances are given and also the assessee firm has surplus funds to give advances and is disclosed in the financial statements. The contention of the learned AR that loan was repaid to the assessee and relied on the submissions. Contra, learned DR supported the order of the CIT(A) and emphasized the to 982/Bang/2016 Page 6 of 13 assessee has not filed details in the assessment proceedings and only on investigation, in search case of third party the material has been unearthed. Hence issue of notice under Section 148 of the Act is valid and in respect of disallowance u/s 36(1)(iii), the learned Departmental Representative submitted that the assessee has neither produced details in the assessment proceedings or before the appellate proceedings. But filed the information in the course of hearing before the Tribunal and the said information has to be verified and examined by the assessing authorities and prayed for dismissal of the assessee’s appeal.
We heard the rival submissions and perused the material on record. The ld. AR’s first line of argument is on the validity of assessment u/s 148 of the Act. The contention of the assessee that notice was issued beyond the period of 4 years from the end of relevant assessment year and further the assessee has disclosed fully and truly all material facts and merely on the basis of survey report re-assessment proceedings cannot be initiated without tangible material and the AO has reopened the assessment based on suspicion and not with reason to believe income escaping assessment and AO has disallowed proportionate interest on borrowed funds to 982/Bang/2016 Page 7 of 13 on the concept that the assessee has not charged interest on advances to M/s.Topaz Investments Pvt. Ltd., Where the loans were utilized for other projects of the assessee. We found that the learned DR has vehemently supported the orders of the lower authorities and contended that there was failure on the part of the assessee to disclose fully and truly all material facts. We found strength in the submissions of the ld. D.R. as the Explanation 1 to Sec. 147 of the Act states that mere production of account books or other evidence does not amount to disclosure. Hence, we are of the view that the assessee cannot take shelter under proviso to Sec. 147 of the Act. We note that reasons are recorded by the AO and the reopening of assessment is based on information of Investigation Wing, Kolkata. Therefore, considering overall facts, reasons recorded and submissions and legal position, we are of the opinion that the CIT(A) has dealt on the validity of re-assessment proceedings and confirmed the reassessment, which we are not inclined to interfere. Accordingly, we uphold the re-assessment u/s 148 of the Act and dismiss this ground of appeal of the assessee.
7. On the second disputed issue where AO based on information from search and seizure u/s 132 of the Act in the case of Sanjay Ghodawat Group and consequential survey to 982/Bang/2016 Page 8 of 13 u/s. 133A of the Act, found that the assessee has advanced Rs.32 crores to M/s.Topaz Investments Pvt. Ltd., without any interest whereas the assessee has availed loan from institutions of Rs.58,10,90,707/-and paid interest. On perusal of material filed before us, we found that the assessee has advanced Rs.30 crores on 29/3/2005, and Rs.2 crores on 31/3/2005. The contention of the revenue is that the assessee has not disclosed interest on advances. Further, the assessee has availed secured loans of Rs.281326972 and also unsecured loans and paying interest. Learned AR’s contention that borrowed funds were utilized for the purpose of other projects which is wholly and exclusively for the purpose of business and advances to M/s.Topaz Investments Pvt. Ltd. are out of funds obtained from group entities. We found, under the provisions of section 36(1)(iii) and interest on borrowed funds which are used for the purpose of business has to be allowed, where loans or capital borrowed are utilized for the purpose of business only and the interest on loan is a liability to be discharged by the assessee. Therefore the onus lies on the assessee to explain that the loans obtained are utilized in the business projects. Similarly, when advances are made to its sister concerns and such sister concerns are using funds for business or in similar business. The assessee has to to 982/Bang/2016 Page 9 of 13 support with proof of usage of borrowed fund. The learned AR, demonstrated with the account statement of M/s.Topaz Investments Pvt. Ltd., where advances provided in the financial year 2004-05 and Bank statement were filed reflecting the amounts, which were utilized for making advances to M/s.Topaz Investments Pvt. Ltd., from the group entities. The learned AR further supported that the assessee has non-interest-bearing funds and were used for the purpose of granting loans. The learned AR referred to voluminous material on surplus funds and relied on the decision of the Hon’ble Supreme Court in the case of CIT vs. Reliance Industries Ltd., in Civil Appeal No.10 of 2019 etSLP(Civil) No.37/2019 dated 02/01/2019 where the revenue has raised the following question of law:
1. Whether the High Court is correct in holding that interest amount being interest referable to funds given to subsidiaries is allowable as deduction under section 36(1)(iii) of the Income Tax Act 1961 (for short ‘the Act’) when the interest would not have been payable to banks, if funds were not provided to subsidiaries; The first question was answered at page 3 of the order as under: “Insofar as the first question is concerned, the issue raises a pure question of fact. The High Court has noted the finding of the Tribunal that the interest free funds available to the assessee were sufficient to meet its investment. Hence, it could be presumed that the to 982/Bang/2016 Page 10 of 13 investments were made from the interest free funds available with the assessee. The Tribunal has also followed its own order for Assessment year 2002-03.” The learned AR further relied on plethora of judicial decisions to substantiate that the assessee company is having interest- free funds and therefore no interest disallowance is warranted. We are of the considered opinion that the ld. A.R. has submitted the information for the first time, as envisaged by learned DR, no such particulars were filed in the course of assessment or appellate proceedings. Therefore, we are of the substantive view that the matter has to be examined by the AO and also the details submitted in the course of hearing with ratio of decision of the Hon’ble Supreme Court in the case of Reliance Industries Ltd. (supra) as discussed above and direct the Assessing Officer to pass the order on merits. The assessee shall be provided with adequate opportunity of hearing and shall co-operate in submitting information.
In the result, the assessee’s appeal ( ) is partly allowed for statistical purposes.
The assessee has filed appeal for the assessment year 2006-07 where the assessee has raised similar grounds as in earlier assessment year viz., to 982/Bang/2016 Page 11 of 13 2005-06. Since we have decided the issues as discussed above. Similar decision shall apply in the present case. We uphold the validity of re-assessment proceedings u/s 148 of the Act and restore the disputed issue in respect of disallowance of proportionate interest to the file of the AO with same direction.
In the result, the assessee’s appeal (ITA No.981/Bang/2016) is partly allowed for statistical purposes.
ITA No.982/Bang/2016: A. Y. 2007-08 - The assessee has raised similar grounds on validity of re-assessment and disallowance of proportionate interest on loans and other grounds pertaining to prior period income. We have dealt on the issue of validity of re-assessment proceedings and proportionate disallowance of interest in our decision for assessment year 2005-06. Similar ratio shall apply. Accordingly, we confirm the validity of re-assessment and restore disputed issue of disallowance of proportionate interest, to the file of the AO as dealt in the earlier year.
The ground of appeal raised by the assessee in this particular assessment year 2007-08 being grounds of appeal to 982/Bang/2016 Page 12 of 13 on prior period income. The assessee in the course of hearing, submitted details of prior period income which has to be verified. The learned AR’s contention that income was already offered in the assessment year 2005-06 but such facts were never explained in the course of hearing proceedings and the ld. A.R. has filed particulars at page 61 of the paper book which requires to be examined and verified and we remit the matter to the file of Assessing Officer for verification and pass speaking order. This ground of appeal is allowed for statistical purposes.
In the result, the assessee’s appeal (ITA No.981/Bang/2016) is partly allowed for statistical purposes. In 981 & 982/Bang/2016 are partly allowed for statistical purpose.