M/S. NITISHREE INFRASTRUCTURE LTD.,NEW DELHI vs. DCIT, NEW DELHI

O R D E R PER PRASHANT MAHARISHI, A. M.

3. The assessee has raised the following grounds of appeal: “1. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not deleting the disallowance of Rs.61,40,312/- fully as made by Ld. AO u/s 36(l)(iii) and has further erred in holding that while computing the quantum of interest to be disallowed, the loan advanced to M/s Shourya Promoters (P) Ltd. to the extent of Rs.2,61,08,650/- (given in FY 2007-08) only will have to be considered and proportionate disallowance to be made in the hands of appellant company on the grounds that the appellant has given interest free loan to the group company.

2. That in any case and in any view of the matter, action of Ld. CIT(A) in not deleting the disallowance of Rs.61,40,312/- fully as made by Ld. AO u/s 36(1 )(iii) is bad in law and against the facts and circumstances of the case.

3. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not deleting the disallowance of Rs.20,16,615/- as made by Ld. AO u/s 14A and has further erred in directing the AO to re-compute the disallowance u/s 14A r.w.r. 8D(2)(ii) and (iii) by way of enhancement by adding an amount of Rs.3,45,00,000/- to the supposed invested amount and that too by recording incorrect facts and findings and without giving opportunity of hearing.

4. That in any case and in any view of the matter, action of Ld. CIT(A) in not deleting the disallowance of Rs.20,16,615/- as made by Ld. AO u/s 14A and further in enhancing the disallowance in this regard is bad in law and against the facts and 5. That in any case and any view of the matter, action of Ld. CIT(A) in not deleting the various disallowances made in the impugned assessment order and enhancing the disallowance u/s 14A r.w.r. 8D(2)(ii) and (iii) is contrary to law and facts, void ab initio, beyond jurisdiction, and without giving adequate opportunity of hearing, by recording incorrect facts and findings and the same is not sustainable on various legal and factual grounds.

Nitishree Infrastructure Ltd Vs. DCIT (Assessment Year: 2010-11) 6. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not reversing the action of Ld. AO in charging interest u/s 234B of the Income Tax Act, 1961. 7. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other is an appeal.”

4. Brief facts of the case is that the assessee is a company who filed its return of income on 14.10.2010 of Rs. 321160/-. The assessment u/s 143(3) of the Act was passed on 12.03.2013 at Rs. 8478087/-. The ld AO disallowed a sum of Rs. 6140312/- out of interest expenditure and also disallowed Rs. 2016615/- u/s 14A of the Act. The assessee aggrieved, preferred appeal before the ld CIT(A) who partly confirmed the disallowance on investment of Rs. 6140312/- out of interest expenditure and while confirming the disallowance u/s 14A he directed the ld AO to calculate the disallowance of interest of Rs. 2.60 crores instead of Rs. 11.14 crores. However, he confirmed the disallowance of Rs. 2016165/- u/s 14A of the Act. Now we first take up the appeal of the assessee.

5. The first ground of appeal is against the confirmation of the disallowance of Rs. 61.40 lacs u/s u/s 36(1)(iii) of the Act.

6. The brief facts of the case shows that the assessee had invested of Rs. 16.83 crores as on 31.03.2010 and the assessee has claimed finance charges as deduction of Rs. 67668135/-. The ld AO therefore, asked the assessee for working out the disallowance u/s 14A of the Act read with Rule 8D. The assessee submitted that it has invested Rs. 11.14 crores as share application money in another group company M/s. Shourya Towers Pvt. Ltd. which is loans and advances. Therefore, the ld AO found that the assessee has obtained loans of Rs. 122.78 crores on which interest deduction of Rs. 67668153/- has been claimed. The assessee has not charged any interest of loan of Rs. 11.14 cores given to Sourya Promoters Pvt. Ltd therefore, the ld AO asked the assessee that why proportionate disallowance should not be made. The assessee did not file any reply and therefore, the ld AO disallowed interest proportionately as Page | 3 Nitishree Infrastructure Ltd Vs. DCIT (Assessment Year: 2010-11) on the basis to loan given to loan obtained of Rs. 6140312/- u/s 36(1)(iii) of the Act. The assessee preferred an appeal before the ld CIT(A), who noted that the wrong classification by the assessee of the loan amount as share capital cannot be accepted. He directed the ld AO to disallow the interest on only Rs. 2.61 crores out of Rs. 11.14 crores. He reduced the sum of Rs. 3.45 crores as investment in other firm. He further directed that Rs. 10.81 crores advanced by the assessee in earlier years and he considered same given out of interest free funds available with the assessee. He further held that as the ld AR has stated that the advance of Rs. 26108650/- is only out of over draft account with bank, hence, he directed to work out disallowance on it only. Therefore, now assessee is contesting the interest disallowance on the above sum of Rs. 26108650/- only.

7. The ld AR submitted before us as under:- a. He submitted that interest cannot be disallowed on advances given in Assessment Year 2008-09 and where there is no finding that the above loan has been given out of interest bearing funds. He submitted that interest disallowance has not been made in the hands of the assessee for AY 2008-09 and 2009-10 which are prior to the impugned assessment year and Assessment Year 2011-12 which the subsequent assessment year all despite assessment framed u/s 143(3) of the Act. b. He further stated that it is established that the assessee has given the above sum out of overdraft account of the assessee. The over draft account has also the deposits out of business and therefore, it cannot be said that the assessee has given interest bearing funds to the other party. He further stated that assessee, has given advance on basis of „Memorandum of understanding‟ between the assessee and the borrower which is placed at page No. 38 and 40 of the Paper Book. He therefore, submitted with the above funds the borrower was supposed to purchase various land as mentioned in Page | 4 Nitishree Infrastructure Ltd Vs. DCIT (Assessment Year: 2010-11) MOU dated 15.05.2006. On above land was to be developed and the assessee was to get the developed portion of the real estate for sale. He therefore, submitted that there is commercial consideration for not charging interest on the above loans. In view of this he submitted that disallowance confirmed by the ld CIT(A) deserved to be deleted.

8. The ld DR vehemently contested that when the assessee has given above loan amount out of overdraft loan amount interest disallowance has rightly been confirmed by the ld CIT(A). He supported the order of the lower authorities.

9. We have carefully considered the rival contentions and also perused the orders of the lower authorities. Admittedly in this case the ld CIT(A) has held that out of Rs. 11.14 crores the loan given by the assessee out of overdraft account is only Rs. 2.61 crores which can be considered as sourced out of loan funds available in earlier years. The ld CIT(A) has held that out of Rs. 11.14 cores for advance given by the assessee a sum of Rs. 10.82 crores out of interest free funds. Further it was noted by the ld CIT(A) that in that year only car loans were borrowed by the assessee and those funds were used for buying the cars. In view of this, he stated that on Rs. 10.82 crores there is no interest expenditure attributable hence, he deleted the interest disallowance on the above sum. We do not find any reason to disturb the finding of the ld CIT(A) which is reasonable and logical.

of the revenue is dismissed.

11. Now coming to the appeal of the assessee wherein, the ld CIT(A) has confirmed the disallowance of interest on advance of Rs. 2.61 crores contention of the assessee that there are business consideration in giving loan to the above company. It was stated by the assessee that the assessee purchased lands in the name of various associated enterprises company due to stringent land ceiling provisions. The assessee entered into an MOU with the borrower and provided funds to the company for Page | 5 Nitishree Infrastructure Ltd Vs. DCIT (Assessment Year: 2010-11) purchase of land. It was stated by the ld AR that the beneficial ownership of as such land was with the assessee company, whereas the borrower was only legal owner. It is further stated that the amount of Rs. 11.14 cores was given not in the Assessment Year 2010-11 but in earlier years. It is stated that Rs. 8.53 crores was given in Assessment Year 2006-07, Rs. 2.60 crores in Assessment Year 2007-08. Therefore, that sum were given not in this year but in earlier years. It was further stated that no disallowance has been made in Assessment Year 2008-09 and 2009-10, but only in Assessment Year 2010-11. Hon'ble Delhi High Court in CIT Vs. Givo Ltd in order dated 27th July 2017 in ITA No. 941/2010 has held that the if in the past assessment years the interest expenditure has been allowed, it is not open to the AO to disallow the said expenditure in the impugned assessment year. It is further held that it would not be equitable to permit the revenue to take the difference stand in respect to the expenditure which was subject matter of the previous year‟s assessment. Therefore, interest disallowance deleted by the coordinate bench was upheld. In the present case, the ld CIT(A) has stated that interest on earlier loan was paid on car loans. However on examination of the balance sheet as at , for 31.03.2009 we find that the assessee has debited the financial expenses of Rs. 7.70 crores and where there was no disallowance was made u/s 36(1)(iii) on account of interest expenditure. Assessment order passed u/s 143(3) of the Act was placed before us, which confirmed above fact. In view of this, respectfully following the decision of the Hon'ble Delhi High Court, we direct the ld AO to delete the interest expenditure on advance of Rs. 2.61 crores given to M/s. Saurya Promoters Pvt Ltd. Accordingly, ground No. 1 and 2 of the appeal of the assessee is allowed.

12. Ground NO. 3 is with respect to the disallowance u/s 14A made by the AO applying the provisions of Rule 8D of Rs. 2016665/-. The ld CIT(A) noted that as the assessee has invested the sum of Rs. 3.45 crores in some