No AI summary yet for this case.
Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI C.M.GARG & SHRI O.P. MEENA
M/s. Narenda Industries vs ACIT,Khandwa I.T.A.No. 644/Ind/2015 Page 1 of 10
आयकर अपील�य अ�धकरण ,इ�दौर �यायपीठ ,इ�दौर IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE �ी सी. एम. गग�, �या�यक सद�य तथा �ी ओ.पी.मीना ,लेखा सद�य के सम� BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER
आ.अ.सं /.I.T.A. No.644/Ind/2015 �नधा�रण वष� / Assessment Year:2010-11 M/s. Narendra vs. ACIT Khandwa Industries, Bahadarpur Road, Burhanpur अपीलाथ� / अपीलाथ� /Appellant अपीलाथ� / अपीलाथ� / ��यथ� / ��यथ� /Respondent ��यथ� / ��यथ� / �था.ले.सं./PAN: AAAFN7193D अपीलाथ� क� ओर से/ अपीलाथ� क� ओर से/Appellant by अपीलाथ� क� ओर से/ अपीलाथ� क� ओर से/ Shri S.N. Agarwal,& Shri Pankaj Mogra CA ��यथ� क� ओर से/ ��यथ� क� ओर से/Respondent by ��यथ� क� ओर से/ ��यथ� क� ओर से/ Shri Mohd. Javed, D.R. सुनवाई क� तारीख/ सुनवाई क� तारीख/Date of hearing सुनवाई क� तारीख/ सुनवाई क� तारीख/ 22.02.2017 उ�ोषणा क� तारीख/ उ�ोषणा क� तारीख/ उ�ोषणा क� तारीख/ उ�ोषणा क� तारीख/ 28.02.2017 Date of pronouncement आदेश / आदेश /O R D E R आदेश / आदेश / PER O.P. MEENA, ACCOUTANT MEMEBR. This appeal by the assessee is directed against the order of learned Commissioner of Income tax (Appeals)-II, Indore [in short CIT (A)] dated 30.04.2015 for the Assessment Year 2010-11 on following grounds:
M/s. Narenda Industries vs ACIT,Khandwa I.T.A.No. 644/Ind/2015 Page 2 of 10 1. The Ld. CIT (A) has erred in confirming the addition of Rs.11,60,840/- on account of interest payments on the ground that the borrowed funds have been diverted for non business purposes. 1.1. It was proved before the lower authorities that the assessee had sufficient capital and interest-free funds. No nexus has been proved; by the Ld. AO, that borrowed funds have been utilized for interest free advances. 1.2. The Ld. CIT (A) did not consider the cases cited before him. 2. The addition of Rs. 11,60,840/- may please be deleted or in the alternative restricted to reasonable figure. 3. The Ld. CIT(A) has erred in maintaining the addition of Rs.86,346/- being the undervaluation of stock. The same may be deleted or in the alternative the AO may be directed to reduce the income in the subsequent year. 1. Ground no. 1 and 2 relate to confirmation of disallowance of interest of Rs. 11,60,840/- hence, these are being considered together.
1.1. Succinctly, facts as culled out from the orders of lower
authorities are that the assessee derives income from trading of
soya oil. F.P., tuar, Mustard and cottonseeds. The assessee has filed
return of income on 30.09.2010 declaring total income of
Rs.93,73,320/-. The AO found that the assessee has advanced
interest bearing funds to some of persons from which either no
interest is charged or the same is charged at lesser rate whereas the
M/s. Narenda Industries vs ACIT,Khandwa I.T.A.No. 644/Ind/2015 Page 3 of 10 assessee has paid interest @ 12% on loan taken. The AO therefore,
worked out disallowance of interest as detailed below:
Name of the Perio Amount Interest Disallowance of concern d in charged interest @ 12% days 1.Balgavind 365 1,00,00,000 Nil 1,20,000 Ji Agrawal 2.Raghunath 5 25,00,000 Nil 1,25,000 & co. mont- hs 3.Raghunath 365 76,32,000 Nil 9,15,840 & Co. days Total interest disallowed 11,60,840/-
1.1.1. In view of above, the AO disallowed the interest of Rs.
11,60,840/- by observing that the assessee has diverted interest
bearing funds for advancing the same without interest or on lesser
side.
1.2. Being, aggrieved the assessee filed an appeal before the ld. CIT
(A). However, ld. CIT(A) confirmed the action of the AO by observing
that the assessee has failed to controvert the finding of the AO. The
contention of the assessee that it had sufficient interest-free funds
available out of which interest-free funds advances were given was
not found acceptable.
1.3. Being, aggrieved the assessee filed this appeal before the
Tribunal. The Ld. A.R. submitted that the observation of the AO is
M/s. Narenda Industries vs ACIT,Khandwa I.T.A.No. 644/Ind/2015 Page 4 of 10 not correct on the facts of the case. The Ld. A.R. submitted a table
demonstrating that the assessee has substantial interest-free funds
of Rs. 34,42,80,122/- (consisting of partners capital of Rs.
11,10,75,722/- and loans & deposit from relatives of Rs.
5,46,41,437/-) as against the interest bearing funds of Rs.
10,74,96,222/-. The Ld. A.R. has filed a table depicting the details
of funds utilization of interest-free funds and interest bearing
funds, which is supported by the copy of balance sheet appearing at
page No 18 to 19 of Paper Book. According to which funds of Rs.
42,87,94,274/- have been utilized for business purpose in fixed
assets, loan and advances, sundry debtors, cash and bank
balances, etc. From the above facts and data, the Ld. A.R.
contended that the assessee has not diverted its interest bearing
funds for non-business purposes. Therefore, there was no question
of diversion of interest bearing funds by the assessee. Thus, the
disallowance as made by the AO is totally wrong. The Ld. A.R.
further submitted that above facts of the case shows that advances
to above persons as mentioned in assessment order from whom
interest was not charged was given out of interest-free funds
available with it.
M/s. Narenda Industries vs ACIT,Khandwa I.T.A.No. 644/Ind/2015 Page 5 of 10 1.3.1. The Ld. A.R. relying on the decision of Hon`ble Supreme
Court in the case of S.A. Builders vs. CIT (2007) 288 ITR 1(SC)
contended that the onus on the revenue to show that interest
bearing fund alone were invested in investment on which no income
was earned. The Ld. A.R. further relied on the decision of Hon`ble
Supreme Court in the case Munjal Sales Corporation vs. CIT (2008)
298 ITR 298 (SC) wherein it was held that where assessee had
sufficient profits in the current year then interest free advances can
be considered flowing from such profits.
1.3.2. The Ld. A.R. also place reliance on the judgement of
Hon`ble Bombay High Court in the case of CIT vs. Reliance
Utilities & Power Ltd. (2009) 313 ITR 340(Bom) wherein it was held
that if there are fund available both interest free and interest
bearing, then a presumption would arise that investment were out
of interest free funds generated or available with the assessee. If the
interest-free funds were sufficient to meet the investment no
disallowance of interest paid on borrowed funds would be
necessary. Once such presumption is established claim of interest
was allowable.
M/s. Narenda Industries vs ACIT,Khandwa I.T.A.No. 644/Ind/2015 Page 6 of 10 1.3.3. The Ld. A.R. also placed reliance on the judgement of
Hon`ble Supreme Court in the case of S. A. Builders vs. CIT (2007)
(288 ITR 1) (SC) wherein it was held that where the assessee has
made investment out of mixed funds for the commercial expediency
then no disallowance could be made under section 36 (1) (iii) of the
Act.
1.3.4. The Ld. A.R. further placed reliance on following
judgement in the case of CIT vs. Hero Cycles Ltd. (2010) 323 ITR
518 (P&H) wherein it was held that no disallowance out of interest
payment is permissible if AO does not establish nexus between the
expenditure incurred and income generated. The Ld. A.R. submitted
that in the present case the AO has failed to establish that the
assessee had diverted interest bearing funds for non business
purposes or advanced the same without interest. When the
assessee has utilized the interest bearing funds for business
purpose and justified the same , then no disallowance of interest
can be made.
1.3.5. The Ld. A.R. further cited following judicial
pronouncements in support of his contention as follows: Ram
Kishan Oil Mills vs. CIT 56 ITR 186 (MP), Birla Gwalior Pvt. Ltd. vs.
M/s. Narenda Industries vs ACIT,Khandwa I.T.A.No. 644/Ind/2015 Page 7 of 10 CIT 44 ITR 847(MP), D & H Secheron Electrodes Ltd. 142 ITR 529
(MP), Regal Theatre vs. CIT 225 ITR 205(Del), Sarvodya Kela Group
vs. ITO 25 ITJ 409(Indore-Trib), and others as per his written
submissions.
1.4. On the other hand, the Ld. D.R. relying on the orders of lower
authorities submitted that the assessee is not able to substantiate
that interest free advances were given out of interest-free funds
available with the assessee, hence, finding of the AO/Ld. CIT(A) may
be upheld.
1.5. We have heard the rival submissions of both the parties and
have perused the material available on record. We find that the ld.
A.O. has failed to establish that interest free advances to above
stated parties were out of interest bearing funds. It is the
contention of the assessee that it had sufficient non-interest
bearing funds to the tune of Rs.34.42 crores as per balance sheet
as on 31.03.2010 as against interest bearing funds offered at
Rs.10.74 crores. Hence, interest-free funds of Rs. 34.52 crores have
been utilised for giving interest-free advances to aforesaid above
parties on which no interest was charged. Thus interest-free
advance were given out of interest-free funds available with the
M/s. Narenda Industries vs ACIT,Khandwa I.T.A.No. 644/Ind/2015 Page 8 of 10 assessee during the year for which sufficient interest-free funds
were available. Therefore, we are of the view that the Ld. A.O. has
failed to establish that interest free advances to above stated four
parties were out of interest bearing funds. The Ld. A.R. has, also
placed reliance on the judgement of Hon`ble Supreme Court in the
case of S. A. Builders vs. CIT (2007) 288 ITR 1(SC) wherein it was
held that where the assessee has made investment out of mixed
funds for the commercial expediency then no disallowance could be
made under section 36 (1) (iii) of the Act. We find that the AO has
not been able to establish the nexus between interest bearing funds
utilized for non business purpose as held in above quoted decision
of Hon`ble Supreme Court. The ld. A. R. has placed reliance in the
case of CIT vs. Reliance Utilities & Power Ltd. (2009) 313 ITR 340
(Bom)/ 178 Taxman 135 (Bom) wherein it was held that if there was
funds available both, interest-free and overdraft and or/loans
taken, then a presumption would arise that investments would be
out of the interest-free funds generated or available with the
company, if the interest free funds were sufficient to meet the
investments. In the present case, the sufficient interest free funds
were available at the disposal of the assessee. Therefore,
M/s. Narenda Industries vs ACIT,Khandwa I.T.A.No. 644/Ind/2015 Page 9 of 10 presumption would go in favour of the assessee that the interest
free funds were given out of interest free funds available at the
disposal of the assessee as per balance sheet of the assessee. We
further rely on the decision of Hon`ble Punjab & Haryana High
Court in the case of CIT vs. Hero Cycles Ltd. (2010) 323 ITR
518(P&H) wherein it was held that no disallowance out of interest
payment is permissible if AO does not establish nexus between the
expenditure incurred and income generated. Therefore, by applying
the ratio as laid down by the Hon’ble Bombay High Court in in the
case of CIT vs. Reliance Utilities & Power Ltd. (2009) 178 Taxman
135 (Bom) and the decision of CIT vs. Hero Cycles Ltd. (2010) 323
ITR 518 (P&H) and other judgements as cited above, we are of the
considered opinion that no disallowance of interest is warranted in
this case. In view of these facts and circumstances, the
disallowance of interest of Rs. 11,60,840/- made by the AO is
deleted. Accordingly ground no. 1 and 2 of appeal is therefore,
allowed.
Ground No.3 was not pressed, therefore, same is dismissed.
M/s. Narenda Industries vs ACIT,Khandwa I.T.A.No. 644/Ind/2015 Page 10 of 10 3. In the result, the appeal of the assessee stands partly allowed. The order pronounced in the open Court on 28.02.2017.
Sd/- Sd/- (ओ.पी.मीना) (सी.एम.गग�) लेखा सद�य �याियक सद�य (O.P.MEENA) (C. M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER
�दनांक /Dated : 28th February, 2017/opm