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Income Tax Appellate Tribunal, “D”, BENCH KOLKATA
Before: SHRI S. S. GODARA, JM &DR. A.L.SAINI, AM
आदेश / O R D E R
Per Dr. A. L. Saini: The captioned appeal filed by the assessee, pertaining to assessment year 2011-12, is directed against the order passed by ld. Commissioner of Income Tax (Appeals)-10, Kolkata dated 15.12.2015.
Grievances raised by the assessee are as follows:
“1. On the facts and circumstances of the case, the Ld. CIT(A) is not justified in confirming the income from House Property at Rs. 76,230/-.
2. On the facts and in the circumstances of the case the Ld. CIT(A) is not justified in confirming the interest u/s 37 of the IT Act, 1961 amounting to Rs. 8,61,866/- on capital withdrawn Rs. 1,04,69,180/- from the proprietorship concern “Dinesh Enterprises”.
On the facts and circumstances of the case the Ld. CIT(A) is not justified in confirming a sum of Rs. 26,90,085/- on account of interest on interest free advances loan given Rs. 2,29,38,533/-.
Shri Jaidev Prasad Agarwal Assessment Year: 2011-12 4. Other grounds, if any may be argued before or at time of hearing of this appeal.” 3. Ground No. 1 raised by the assessee relates to income from house property to the tune of Rs. 76,230/-.
The brief facts qua the issue are that it was observed by the ld AO that the assessee was owner of two Flats jointly with his wife in AY 2010-11. But, considering the fact that one of the flat has to be treated as self-occupied and rental income from another flat has to be offered for taxation, therefore, the assessee was requested to explain the flat under self-occupation and rental income of another flat. In the course of assessment proceedings, it was claimed by the assessee that the flat at Hungerford Street was self-occupied and another flat at Shakespeare Sarani had to be considered for taxation. The departmental Inspector reported the monthly rent of the said flat at Shakespeare Sarani for the sum of Rs. 16,500/- per month. AO has taken Rs. 1,98,000/- as the annual rent of the flat. On similar basis, the annual value for the AY 2011-12 is taken at enhanced rate by 10% which is Rs. 2,17,800/-. Considering 50% share and standard deduction of 30% the house property income from this flat was taken at Rs. 76,230/- andhence, Rs. 76,230/- was added to House Property Income of the assessee.
Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before the Ld. CIT(A), who has confirmed the addition made by the Assessing officer observing the following:
“This ground relates to the addition of Rs. 76,230/- under the head of House Property income. The AO has recorded cogent reasons that it was found that the appellant is the owner of two flats, and that therefore necessarily one of them has to be a let out property. These flats were jointly owned by the appellant and his spouse. Accordingly, after verification by the Inspector of Income Tax, the AO calculated the annual ‘lettable value’ at Rs. 2,17,800/- enhancing the value as found out in the immediatepreceding year by an inflationary amount of 10%. Thereafter he apportioned the appellant’s share and the allowable deductions, and added as amount of Rs. 76,230/- to the returned income. During appeal, the appellant has stated that the flat remained vacant partially for some part of the year. This appears to be neither convincing in theory, nor is backed by evidence. The flat is located in a popular and busy residential area of Page | 2
Shri Jaidev Prasad Agarwal Assessment Year: 2011-12 Kolkata, namely Shakespeare Sarani. After perusal of the details relating to this addition, I find that the AO has correctly calculated the income from House Property, and the same does not warrant any interference. Accordingly, the addition made by the AO stands confirmed.” 6. Aggrieved by the order of the Ld. CIT(A), the assessee is in further appeal before us.
We have heard both the parties and perused the material available on record, we note that the assessee along with his wife jointly had a flat at 24A Shakespeare Sarani, Kolkata. The said flat consists of two bed rooms with single entrance. Inspite of assessee’s best effort, he could find a tenant who is willing to share the flat with existent tenant. Because of single entrance, the two bed rooms can not be given on rent basis. Somehow, the assessee has given 50% share of flat at Rs.4000 per month, therefore, we direct the AO to consider Rs.4000/- per month rent of said property and balance is directed to be deleted.
Under these circumstances, we delete the addition of Rs.76,230/-
Ground No. 2 relates to interest u/s 37 of the Income Tax Act amounting to Rs. 8,61,866/- on capital withdrawn of Rs. 1,04,69,180/- from the proprietorship concern “Dinesh Enterprises”.
The brief facts qua the issue are thatShri Dinesh Agarwal has withdrawn Rs. 1,04,69,180/- from the proprietorship concern M/s. Dinesh Enterprise.M/s. Dinesh Enterprise has debited Rs.83,33,814/- as interest in its profit and loss account. The interest debited was paid an unsecured loan of Rs.10,12,31,770/-. However, interest on Rs. 1,04,69,180/- is not for business purpose, but incurred for drawings of Shri Dinesh Agarwal. The interest on this amount is Rs. [(8333814 X 10469180)/10123770] which is Rs. 8,61,866/-. Hence, Rs. 8,61,866/- is disallowed u/s 37 of the Income Tax Act, 1961. Assessee did not submit any explanation on thisissue therefore, AO made disallowance of Rs. 8,61,866/-.
Aggrieved by the order of the AO, the assessee carried the matter in appeal the before the Ld. CIT(A) who has confirmed the addition made by the Assessing Officer observing the following: Page | 3
Shri Jaidev Prasad Agarwal Assessment Year: 2011-12 “This ground relates to the AO’s action in disallowing an amount of Rs. 8,61,866/- on account of withdrawals by one Shri Dinesh Agarwal from M/s. Dinesh Enterprises, which is a proprietary concern of the appellant. The AO found that there was a withdrawal of Rs. 1,04,69,180/- from the proprietary concern, whereas the said concern had made interest payments of Rs. 83,33,814/- on account of unsecured loans. The AO has given a clear finding that the withdrawal was by way of drawing, and not for any specified business purposes. The AO accordingly disallowed the interest on this amount is Rs. [(8333814 X 10469180)/10123770] or Rs. 8,61,866/-. This amount was disallowed by the AO u/s 37 of the Income Tax Act, 1961.
During appeal, it has been pleaded that the withdrawal from the proprietary concern were utilized in making payment to various loan creditors taken in the personal a/c of the proprietor. That by itself does not establish the business exigency in the matter. Therefore, I do not wish to interfere with the addition made by the AO and this amount stands confirmed.”
Aggrieved by the order of the Ld. CIT(A), the assessee is in appeal before us.
We have heard both the parties and perused the material available on record, we note that the learned counsel for the hasassessee submitted before us the following reconciliation:
“1. Copy of assessee’s capital account is at page no 4 of 2nd Paper Book. Summary thereof is as follows: Opening debit balance 74,52,241.88 Repaid during the year (including year’s profit Rs. 11,91,300.48) 45,41,308.48 Recd. during the year – Actual profit Rs. 62,21,827/- Transferred TDS to personal capital A/c Rs. 13,36,420/- 75,58,247.00 Debit balance on 31.03.2011 1,04,69,180.40 2. Actual amount of Rs. 62,21,827/- withdrawn during the year were utilized as follows: (pages nos. 24 to 26 of IIND PAPER BOOK) i. EMI paid on purchase of flats Rs. 8,91,113/- ii. Paid interest on loan taken Rs. 8,86,621/- iii. Interest baring loans repaid Rs. 31,40,000/- iv. Returned back to Dinesh Enterprise on next date Rs. 4,75,000/- v. To Rawalwasid& Sons Exim P. Ltd. in which Rs. 1,00,000/- assessee is director vi. To Partnership Firm Rs. 1,00,000/- Page | 4
Shri Jaidev Prasad Agarwal Assessment Year: 2011-12 vii. To loan given on interest Rs. 4,00,000/- viii. LIC Payment Rs. 18,827/- Rs. 60,11,561/- 3. Thus AO is wrong in holding that assessee withdrawn Rs. 1,04,69,69,180/- which is balance on 31.03.2016 from Dinesh Enterprise as actual withdrawal during the year is only Rs. 62,21,827/-. Out of Rs. 475000/- was returned on next date. From summary in preceding paragraph it can be seen that only EMI payments to Reliance Home Finance and LIC payments only can be treated for personal use not relating to business. All other items are for his business of giving and taking interest free loans. AO has even charged notional interest (1) on TDS transferred and from firm to personal a/c or opening balance and loans utilized for repayment of old loans.”
13.We direct the AO to verify the above reconciliation of the assessee with documentary evidence, and adjudicate the issue in accordance with law. Statistical purposes, this ground of the assessee is treated to be allowed.
Ground No. 3 raised by the assessee relates to addition of Rs. 26,90,085/- on account of interest on interest free advances loan given Rs. 2,29,38,533/-.
The brief facts qua the issue are that the assessing officer made addition observing the followings: “Assessee has debited Rs.33,96,219/- in its P/L A/c. It has taken Rs.3,50,45,264/- on interest. It has given interest free advance of Rs. 2,29,38,533/-. Thus, proportional interest for interest free advance = Rs. [(41,09,881/3,50,45,264) X 2,29,38,555] = Rs. 26,90,085/-. Thus, Rs. 26,90,085/- is to be disallowed for expense not incidental for business purpose. Assessee was asked the same vide order sheet noting dated 03.02.2014 but assessee did not submit anything further on the matter. Hence Rs. 26,90,085/- is added to the business income.”
Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before the Ld. CIT(A) who has confirmed the addition made by the Assessing Officer observing: “The ground is related to the addition made by the AO of Rs. 26,90,085/- on account of ‘Interest free Advance’. The AO found that the appellant had debited an amount of Rs. 33,96,219/- in its P/L A/c. Simultaneously, the appellant had also taken an amount of Rs. 3,50,45,264/- on interest. The appellant had also given interest free advance of Rs. 2,29,38,533/-. Accordingly, the AO calculated the interest for interest free advance at Rs. 26,90,085/- and disallowed these expenses as not meant for business purposes. The Appellant’s reasoning as recorded above is that he was a director in the companies where the loans were advanced as interest free amounts, and that he Page | 5
Shri Jaidev Prasad Agarwal Assessment Year: 2011-12 did so, so that they would make profit. This explanation appears without any support and logic. After duly examining the facts and circumstances, I find that the AO was justified in making such additions on the proportionate interest amounts. Therefore, I confirm the action of the AO and this ground taken by the appellant is dismissed.”
Aggrieved by the order of the Ld. CIT(A), the assessee is in further appeal before us.
We have heard both the parties and perused the material available on record, we note that the learned counsel for the has assessee submitted before us the following reconciliation:
AO has added Rs. 26,90,085/- of notional interest wrongly on account of Rs. 2,29,38,533/- as interest free loan (page 8A of IInd Paper Book) for following reasons without calling assessee to explain item-wise: i. Rawalwasis& Sons Exim Ltd. Rs. 83,66,191/- This is rather credit balance to assessee’s a/c In CO’s book and hence question of charging Interest does not arise. This is a current a/c prior to the firm was converted into this Co. ii. Rawalwasia Oil & General Mills Rs. 31,58,975/- iii. Rawalwasia Trading Co. Rs. 33,55,334/- iv. Ram Kumar Promod Kumar Rs. 10,27,203/- Rs. 75,41,512/- In these three firms assessee is a partner and has earned Rs. 229137/- as share of profit and remuneration. v. Sashi Agarwal Rs. 40,00,000/- vi. Sashi Agarwal Rs. 17,50,000/- There was a opening debit balance of these parties Rs. 50,000/- and Rs. 10,00,000/- was received back in case of serial no. (v) and Rs. 20,00,000/- was opening balance and Rs. 2,50,000/- was received back in case of party of S. No. (vi) old brought forward balance how interest can be charged this year. Like-wise Rs. 3,06,422/- of Kalas Silver Pvt. Ltd. Rs. 57475.94 of Jaidev Pd. Agarwal (HUF), Pranav Agarwal are all opening balance. A similar balance addition was made in asst. year 2010-11 and Hon’ble Members of “SMC Bench sent back the issue to AO’s file to verify this aspect with reference cash flow. Copy of order in dtd. 12.04.2017 is enclosed and kind attention is drawn to paragraph 6 on internal page 22 of said order (Pages 20 to 23 in IInd Paper Book).”
We direct the AO to verify the above reconciliation of the assessee with documentary evidence, and adjudicate the issue in accordance with law. Statistical purposes, this ground of the assessee is treated to be allowed.
Shri Jaidev Prasad Agarwal Assessment Year: 2011-12 20. In the result, the appeal filed by the assessee is partly allowed.
Order is pronounced in the open court on 01.03.2019