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Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, J.M vk;dj vihy la-@ITA No. 43/JP/2016
IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh HkkxpUn] ys[kk lnL; ,o Jh dqy Hkkjr] U;kf;d lnL; ds le{k BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, J.M vk;dj vihy la-@ITA No. 43/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2012-13. cuke Smt. Roshani Begum, Tara The ACIT, Circle Vs. Nagar(Churu), Jhunjhunu Jhunjhunu. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. ABMPB8966D vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : shri G.M. Mehta (C.A.) jktLo dh vksj ls@ Revenue by : Shri R.A. Verma (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 23.03.2017 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 06/04/2017.
vkns'k@ ORDER PER SHRI KUL BHARAT, JM.
The appeal by the Assessee is directed against the order of ld. CIT (A)-
3, Jaipur dated 26.11.2005 pertaining to assessment year 2012-13. The
assessee has raised the following grounds of appeal :-
(1) “Ld. CIT(A) has erred in law in applying provisions of section 145(3) of IT Act for sustaining disallowance/additions whereas these provisions were not applied by ld. AO himself in order u/s 143(3) of IT Act for the reason that no defect or unvouched nature of expenses were found by him when produced with books of accounts audited u/ 44AB of IT Act; (2) Ld. CIT(A) was not justified in sustaining addition of Rs. 11,76,075/- calculated @ 12.91% on Rs. 91,09,804/-, as per formula adopted by ld.AO himself, treating the same as diversion of interest bearing loan to interest free advances for non-business purposes.
2 ITA No. 43/JP/2016 Smt. Roshani Begum, Tara Nagar.
(3) Ld. CIT(A) has acted against the facts of the case in sustaining followings disallowances/additions: (i) Rs. 8,34,939/- under section 14A of IT Act when the assessee has earned nil exempt income. (ii) Rs. 2,00,000/- out of room rent discount ignoring the better results compared to earlier year.”
Briefly stated the facts are that the case of the assessee was picked up
for scrutiny assessment and the assessment under section 143(3) of the IT
Act, 1961 (hereinafter referred to as the Act), was framed vide order dated
13/Jan/2015. The assessing officer while framing the assessment disallowed
interest expenditure of Rs. 32,77,827/- and added same to the income of the
assessee. The Assessing Officer further made disallowance u/s 14A and of
Rs. 8,34,939/- and also made addition on account of disallowance of room
rent discount/ expenses of Rs. 2 lakhs. Aggrieved by this, the assessee
preferred an appeal before ld. CIT(A) who after considering the submissions
partly allowed the appeal. While partly allowing the appeal the ld. CIT(A),
sustained the addition of Rs. 11,76,075/- out of addition of Rs. 32,77,827/-
made on account of disallowance of interest expenditure and sustained to
other additions made by invoking the provision of 14A of the Act and
disallowance of room rent and discount expenditure. Aggrieved by this order
the assessee is in further appeal before us.
Apropos to ground no. 1, ld. Counsel for the Assessee at the time of
hearing submitted that he does not wish to press ground no 1. The ld.
Departmental Representatives has no objection after considering the
3 ITA No. 43/JP/2016 Smt. Roshani Begum, Tara Nagar.
statement for the ld. Counsel for the assessee, we hereby dismissed the
ground no. 1 as not pressed.
Ground no. 2 is against sustaining of addition of Rs. 11,76,075/- made
on account of disallowance of interest expenditure. The ld. Counsel for the
assessee reiterated the submissions as made in the written submissions. Ld.
Counsel submitted that interest free advances were more or less of the same
amount of the interest free funds available with the assessee. He Submitted
that assessment in respect of assessment year 2008-09, 2009-10 were
completed u/s 143(3) in which considering the availability of interest free
funds, no disallowance was made. He further submitted investment in
agricultural land and other assets being brought forward, balance of earlier
years are business assets and therefore, these cannot be categorized as
interest free advances as is done by the Assessing Officer and there is no
nexus between interest baring loans and interest free advances hence no
disallowance could be made. Reliance is placed on the judgment of the
Hon’ble Supreme Court rendered in the case of Hero Cycle Pvt. Ltd. vs. CIT
(2015) 379 ITR 347(SC).Ld. Counsel for the assessee drew our attention to
written submissions at page 3 to demonstrate the availability of funds. The
ld. Departmental Representative opposed the submissions and submitted that
the ld. CIT(A) as well as Assessing Officer has brought out the fact that the
assessee ha made interest free advances out of interest bearing funds.
4 ITA No. 43/JP/2016 Smt. Roshani Begum, Tara Nagar.
4.1 We have heard the rival contentions and perused the material available
on record and gone through the order of the authorities below. The ld CIT(A)
has given finding in para 5.3 as under:-
“5.3 I have carefully considered the findings of the AO as also argument of
the ld. AR of the appellant. The assessee has interest free funds in the shape of his
own capital of Rs. 20401466/- and interest free loans of Rs. 19585861/- totaling to
Rs. 39987327/- which are available to him to make interest free advances/
investments. The AO at page 3 of his order has tabulate funds of Rs. 5569673/-,
which were advanced by the assessee to his sister concerns/ relatives on which no
interest was charged. The balance amount of Rs. 16709404/- (Rs. 55696731 -
39987327) was out of interest bearning funds. Since, the interest in shares of Rs.
75996000/- is dealt with separately in ground no. 2 where sec. 14A is applied, the
balance amount of Rs. 9109804/- being interest free advances to sister
concerns/relatives is made out of interest bearing funds. Therefore the provision of
sec. 36(i)(iii) are applicable on such advances of Rs. 9109804/-/
The Ao held the sum of Rs. 25389829/- as invested in non business asset/
advances as out of borrowed funds. Against this, I hold Rs. 9109804/- as made as
interest free advances out of interest bearing funds on which 12.91% as applied by
the AO is upheld. So the addition of Rs. 1176075/- is upheld as against AO’s
addition of Rs. 3277827/-. The appellant gets resultant relief.
However, the Assessing Officer has made addition of Rs. 32,77,827/- on
account of disallowance of interest. The contention of the ld. Counsel for the
assessee is that the, assessee was having sufficient interest free funds for
5 ITA No. 43/JP/2016 Smt. Roshani Begum, Tara Nagar.
making such advances and the such advances have been made prior to the
assessment year 2010-11. The assessment under appeal is 2012-13. Under
these facts, we hereby set aside the order of the ld. CIT(A) and restore this
issue to the file of the Assessing Officer for decision afresh, after verifying the
claim of the assessee that these advances were made in earlier years out of
the interest free funds available. This ground of the assessee’s appeal is
allowed for statistical purposes.
Ground no. 3 of the assessee’s appeal reads as under:-
“(3) Ld. CIT(A) has acted against the facts of the case in sustaining following disallowances/additions: (i) Rs. 8,34,939/- under section 14A of IT Act when the assessee has earned nil exempt income. (ii) Rs. 2,00,000/- out of room rent discount ignoring the better results compared to earlier years.”
5.1 Apropos to Ground No. 3(i), the ld. Counsel for the assessee reiterated
the submissions as made in the written submissions. He submitted that there
no exempt income has been earned as no dividend has been received on the
shares of M/s Metro Colonizers Ltd. In support of this contention ld. Counsel
for the assessee has relied upon the judgment of the Hon’ble Punjab and
Haryan High Court rendered in the case of CIT vs Lakhani Marketing
Industries (2014) 272 CTR (P & H) 265.
6 ITA No. 43/JP/2016 Smt. Roshani Begum, Tara Nagar.
5.2 On the contrary, the ld. Departmental Representative opposed the
submissions. He supported the assessment order.
5.3 We have heard the rival contentions, perused the material available on
record and gone through the order of the authorities below. As per section
14A, the Assessing Officer is empowered to make disallowance in accordance
with the method prescribed therein. If there is expenditure incurred by the
assessee in relation to income which does not form part of the total income
under this Act. So, the first requirement is that the expenditure should relate
to the exempt income. Since no exempt income has been disclosed in the
written of income. Therefore, in view of the judgment of the Hon’ble Punjab
and Haryana High Court rendered in the case of CIT vs. Lakhani Marketing
Industries (supra). The Assessing Officer was not justified in making the
disallowance by invoking the provision of the section 14A of the Act. This
view is further supported by the judgment of the Hon’ble Delhi High Court in
the case of CIT vs. Holcim India Pvt. Ltd. (2014) 272 CTR (del) 282.We
therefore, direct the AO to delete the disallowance. Ground no. 3(i) of the
assessee’s appeal is allowed.
5.4 Apropos to Ground no. 3(ii), the ld. Counsel for the assessee reiterated
the submission as made in the written brief. He submitted that the assessee
was charging fixed rates for room rent. However as per the prevailing
practice in this line of business, in case of group booking or regular booking
7 ITA No. 43/JP/2016 Smt. Roshani Begum, Tara Nagar.
by certain groups of companies, it has to allow discount on room rent, such
discount as per the established business practice. The Assessing Officer in
the unjustified manner, made ad hoc basis disallowance of Rs. 2 lakhs same
has been confirmed by the ld. CIT(A). However, the ld. CIT(A) confirmed
this, on the basis that the assessee failed to produced books/vouchers and
therefore 15% of the expenses is justifiable.
Since both authorities below have made on the basis of the ad hoc
disallowances, therefore under the facts of the present case we hereby direct
the AO to delete the addition. This ground of the assessee’s appeal is
allowed.
In the result, this appeal of the assessee in ITA No. 43/JP/2016 is
partly allowed for statistical purposes.
Order pronounced in the open court on Thursday, the day of 6th April 2017.
Sd/- Sd/- ¼ HkkxpUn ½ ( dqy Hkkjr) ( BHAGCHAND) ( KUL BHARAT ) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Jaipur Dated:- 06 /04/2017. Pooja/ आदेश की प्रतिलिपि अग्रेषित@ब्वचल वf जीम वतकमत वितूंतकमक जवरू
The Appellant- Smt. Roshani Begum, Tara Nagar(Churu). 2. The Respondent- ACIT, Circle Jhunjhunu Jhunjhunu.
8 ITA No. 43/JP/2016 Smt. Roshani Begum, Tara Nagar.
The CIT(A). 4. The CIT, 5. The DR, ITAT, Jaipur 6. Guard File (ITA No. 43/JP/2016)
vkns'kkuqlkj@ By order,
सहायक पंजीकार@ Aेेपेजंदज. त्महपेजतंत