HORIZON INFRASTRUCTURE LTD,MUMBAI vs. ACIT-CC 38, (PRESENTLY DCIT CC 6(3), MUMBAI

The assessee has filed the present appeal against the order dated 12.06.2017 passed by the Commissioner of Income Tax (Appeals)-54, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2011- 12.

The assessee has raised the following grounds of appeal: - “1 On the facts and in the circumstances of the case and in law, the Ld. Commissioner of Income Tax-(Appeals)(CIT(A) has erred in upholding the views of the AO by confirming the disallowance in respect of interest paid amounting to Rs.4,00,55,791/- 2. on the facts and in the circusmtances of the case and in law, the Ld. CIT-(A) has erred in directing the AO to compute the disallowance u/s 14A r.w.r 8D of the I.T. Act, in respect of shares/investment in mutual funds, which have yielded dividends.”

At the very outset, the Ld. AR appearing on behalf of the assessee submitted that the identical ground has already been decided by the Co- ordinate Bench of Hon’ble ITAT in for the A.Y.2010-11 dated 15.11.2017 in assessee’s own case. The operative portion of the order of the Coordinate Bench is contained in para no. 10 to 13 which is reproduced below:- “10. We have carefully considered the rival submissions. Ostensibly, as the aforesaid discussion reveals, the controversy before us revolves around the application of Sec. 36(1)(iii) of the Act, which permits deduction on account of interest expenditure while computing business income. Sec. 36(1)(iii) of the Act allows deduction in computing „business income‟ of the amount of interest paid in respect of capital borrowed “for the purposes of the business”. In fact, the rationale of Sec. 36(1)(iii) of the Act is provided by the presence of the expression “for the purposes of the business”. In terms of the prescription of Sec. 36(1)(iii) of the Act, the amount of interest paid in respect of capital borrowed is to be allowed as a deduction so long as the corresponding capital is borrowed for the purposes of business. In the present case, and as has been noted by the Assessing Officer also, assessee‟s stated business is of infrastructure development. It has been canvassed by the assessee before us, on the basis of the loan sanction letter of the bank, that the impugned loan of Rs. 200 crores was raised by the assessee for the purpose of meeting the cost of “initial development work of various infrastructure projects”. To this extent, there is no dispute that the raising of the loan is for the purposes of assessee furnished by the assessee before the income tax authorities and as well as before us, assessee was proposing to develop an industrial cluster at Navi Mumbai spread over 300 to 500 acres and in order to achieve this objective, it identified the aforesaid two concerns who would acquire the lands and act as land aggregators. Insofar as the transaction with Mahakaleshwar is concerned, it was explained that subsequently the said concern became assessee‟s subsidiary and the relevant loan raised from the bank was also transferred to the said entity, as it carried on the project further. With regard to Shri Bhakti, it was explained that the land offered by it was not found suitable and ultimately, the money was received back and redeployed in the project thereafter. The case made out by the Revenue is 3 A.Y. 2011-12 that in the instant year, the amounts were advanced to the two concerns @ 11.50% whereas assessee raised the loan @ 13.50%, and thus there is no commercial expediency in the transaction. Notably, the absence of commercial expediency has been found only with respect to portion of interest short-recovered from the two concerns, since the disallowance is limited to the difference between the interest paid to the bank and the amount charged from the two concerns.

Insofar as the objection of the Revenue that the rate of interest charged from the two concerns was not adequate to cover the cost of funds is concerned, the same, in our view, is not conclusive to say that there was no commercial expediency. The fact that the two concerns indeed acted in terms of the agreement with the assessee to act as land aggregators is not disputed. In order to appreciate as to whether the transaction falls within the expression “for the purposes of the business”, a slightly wider and flexible approach is required, as has been emphasised by the Hon'ble Supreme Court in the case of Madhav Prasad Jatia vs. CIT, AIR 1979 SC 1291 as well as in Commissioner of Income Tax vs. Malayalam Plantations Ltd., 53 ITR 140 (SC). In the case of Madhav Prasad Jatia (supra) the borrowed amount was donated to college with a view to commemorate the memory of assessee‟s deceased husband, and it was held that the interest on such borrowed fund was not allowable as it could not be said to be advanced for commercial expediency; so however, what was emphasised by the Hon'ble Supreme Court was that the expression “for the purpose of business” was much wider than the expression “for the purpose of earning income, profits or gains”. The said view has been further reiterated and confirmed by the Hon'ble Supreme Court in the case of Malayalam Plantations Ltd. (supra) as well as S.A. Builders Ltd. (supra). Considered in this light, in our view, the factum of the assessee having recovered only 11.50% rate of interest from the two concerns, as against 13.50% charged to it by the bank, is of no consequence to determine the commercial expediency so long as it can be demonstrated that the funds were otherwise advanced to the two concerns in furtherance of its business purpose. At this stage, we may also refer to another important aspect which is emerging from the record that the impugned loan from the bank was secured against the personal guarantee of the Directors as well as the collateral security of non-agricultural land of approximately 100 acres owned by Mahakaleshwar. We are pointing out the said fact only to emphasise that Mahakaleshwar was not a complete stranger to the transaction of raising of loan by the assessee from the bank and its utilisation. In fact, Mahakaleshwar became assessee‟s subsidiary subsequently and since it has been canvassed that the project has thereafter been undertaken under the aegis of the said concern, the liability for the loan from the bank also stood transferred to the said concern subsequently. All this goes to show that both at the time of raising of the loan as well as at the time of advancing of monies to Mahakaleshwar, assessee was acting as a prudent businessman with the purpose of furthering its stated business of infrastructure development. No doubt, with respect to Shri Bhakti, the purpose of land procurement was not achieved as it was not found suitable, but as explained, the amount has been received back and 4 A.Y. 2011-12 thereafter utilised in the business of infrastructure development. Therefore, on an overall consideration of facts, it is quite clear that there is a nexus between the interest expenditure and the business purpose of the assessee, namely, business of infrastructure development and once it is so established, the reasonableness or otherwise of the quantum of return or profits cannot be a factor to decide its commercial expediency. In this context, we may reproduce hereinafter the following observation of the Hon'ble Supreme Court in the case of S.A. Builders Ltd. (supra) :- “We agree with the view taken by the Delhi High Court in CIT vs. Dalmia Cement (Bharat) Ltd. (2002) 254 ITR 377 that once it is established that there was nexus between the expenditure and the purpose of the business (which need not necessarily be the business of the assessee itself), the Revenue cannot justifiably claim to put itself in the arm-chair of the businessman or in the position of the board of directors and assume the role to decide how much is reasonable expenditure having regard to the circumstances of the case. No businessman can be compelled to maximize its profit. The income tax authorities must put themselves in the shoes of the assessee and see how a prudent businessman would act. The authorities must not look at the matter from their own view point but that of a prudent businessman. As already stated above, we have to see the transfer of the borrowed funds to a sister concern from the point of view of commercial expediency and not from the point of view whether the amount was advanced for earning profits.”

In fact, the entire case of the Revenue in the instant case is driven by the fact that the assessee has charged lower rate of interest than the rate at which it has paid for the borrowed funds. This precise argument has been repelled by the Hon'ble Bombay High Court in the case of Bombay Samachar Ltd. (supra) wherein reliance was placed on the following observations in its earlier judgment in the case of Calico Dyeing & Printing Works vs. CIT, 34 ITR 265 (Bom.) :- “Where the assessee claims deduction of interest paid on capital borrowed under section 10(2)(iii) of the Income-tax Act, all that the assessee has to show is that the capital which was borrowed was used for the purposes of the business of the assessee in the relevant year of account. It does not matter whether the capital is borrowed in order to acquire a revenue asset or a capital asset. If the capital is used in the year of account and the use is for the purpose of the business of the assessee, it is immaterial whether the user of the capital actually yielded profit or not and it is not open to the department to reject the claim of the assessee in respect of the interest paid on that capital merely because the use of the capital is unremunerative.” [underlined for emphasis by us] To the similar effect is the ratio of the judgment of the Hon'ble Supreme Court in the case of Walchand & Co. Pvt. Ltd. (supra).

Considering the ratio of the aforesaid judicial pronouncements, it has to be inferred that since the advances given by the assessee to the two concerns were for the purpose of business of land aggregation for its infrastructure development project in Navi Mumbai, and thus a part of

After having heard the counsel for the parties, we find that identical ground involved in the present case has already been decided by the coordinate bench of ITAT Mumbai in assessee’s own case. Therefore respectfully following the decision of the coordinate bench and in order to maintain judicial discipline and judicial consistency which is applicable mutatis mutandis in the case of the assessee. We allow this ground of appeal.

Ld. AR appearing on behalf of the assessee submitted that assessee has not earned any exempt income during the year under consideration, therefore, it was argued that the disallowance made by AO be set aside.

On the other hand, the Ld. DR submitted that this ground raised by the assessee is not maintainable as Ld. CIT(A) had already directed the AO to recomputed the disallowance u/s 14A r.w.r. 8D of the Act.

We have heard the counsels for both the parties and we have also perused the material placed on record and orders passed by the revenue authorities.

After having gone through the facts of the present case as well as order passed by Ld. CIT(A), we find that Ld. CIT(A) had directed the AO to re-compute the disallowance u/s 14A r.w.r. 8D of the Act after considering the investment, which have yielded the exempt income during the year. We are of the view that the directions given by Ld. CIT( A) are well founded and judicious. Therefore, we see no reasons to interfere into the same. However, we modify the said direction and direct the AO to also consider the specific contentions of the assessee that they have not earned any exempt during the year under consideration. With these modifications, we partly allowed this ground raised by the assessee.