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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI C.M. GARG & SHRI O.P. MEENA
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)]
M/s. Chhaganlal Kishanlal & Co. vs. ACIT-Khandwa/ I.T.A. No.646/Ind/2015/A.Y.:10-11 Page 2 of 10
dated 29.05.2015 for the Assessment Year 2011-11 on following
grounds: 1. The Ld. CIT (A) has erred in confirming the addition of Rs.1,98,291/- 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. 1,98,291/- may please be deleted or in the alternative restricted to reasonable figure. 1.0. Ground no. 1 and 2 relates to confirmation of disallowance of interest of Rs. 1,98,291/- hence, these being considered together. 1.1. Succinctly, facts as culled out from the orders of lower
authorities are that the assessee is a firm and derives income from
cottonseeds and all type of grains. The return of income was filed on
30.09.2010 declaring total income of Rs.43, 22, 020/-. During the
course of assessment proceedings, the AO found that the assessee
has advanced interest bearing funds to some of its family members
and group concerns on which either no interest is charged or the
same is charged at lesser rate whereas the assessee has obtained
loan from bank @13.5% and interest charged @12% only or Nil as
detailed below:
M/s. Chhaganlal Kishanlal & Co. vs. ACIT-Khandwa/ I.T.A. No.646/Ind/2015/A.Y.:10-11 Page 3 of 10
Name of the concern Interest Interest Less @13.5 @12%/ interest Nil rate charged 1.Shubham Kela Agency 4,88,219 4,34,630 53,590 2.Sri Ram Kela Agency 3,80,430 3,38,160 42,270 3.Sudha Garg 93,806 Not 93,806 charged 4.Sweta(loan 5 lac for 1- 8,625 Not 8,625 1/2 month) charged Total interest disallowed 1,98,291
1.1.1. In view of above, the AO disallowed the interest of Rs.
1,98,291/- by observing that the assessee has diverted interest
bearing funds for advancing the same without interest or on lesser
rate of interest. 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 AO has given a categorical finding that the assessee has
been paying interest to the banks @13.5% whereas the interest
charged on the funds advanced to family members was @12% or no
interest was charged, which the assessee has failed to controvert,
as can be seen from the written submissions. The contention of the
assessee that the partners having capital of Rs. 1.90 crores is of no
use as the assessee has failed to prove that the advances were
made out of the capital of the partners.
M/s. Chhaganlal Kishanlal & Co. vs. ACIT-Khandwa/ I.T.A. No.646/Ind/2015/A.Y.:10-11 Page 4 of 10
1.3. Being, aggrieved the assessee filed this appeal before the
Tribunal. The Ld. A.R. submitted that the observations of the AO
are not correct, on the facts of the case, as the assessee has
substantial interest-free funds of Rs. 29,48,05,256/-, (consisting of
capital of partners of Rs. 10,04,83,765/-, loan and advances from
friends and relatives and Rs. 12,25,81,177/- from sundry
creditors), as against total interest bearing funds of Rs.
8,19,66,386/- mainly borrowed from bank. Thus, total interest-free
funds and interest bearing funds of Rs. 37,67,71,642/- were
available with the assessee. 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 15 to 21 of Paper Book. According to which
funds of Rs. 36,81,70,385/- 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. The Ld. A.R. further submitted
that above facts of the case shows that advances to all the four
parties as mentioned in assessment order from whom interest was
M/s. Chhaganlal Kishanlal & Co. vs. ACIT-Khandwa/ I.T.A. No.646/Ind/2015/A.Y.:10-11 Page 5 of 10
not charged or charged at the lesser rate were given out of interest-
free funds available with it. 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
M/s. Chhaganlal Kishanlal & Co. vs. ACIT-Khandwa/ I.T.A. No.646/Ind/2015/A.Y.:10-11 Page 6 of 10
necessary. Once such presumption is established claim of interest
was allowable. 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.
M/s. Chhaganlal Kishanlal & Co. vs. ACIT-Khandwa/ I.T.A. No.646/Ind/2015/A.Y.:10-11 Page 7 of 10
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.
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
assessee had sufficient non-interest bearing funds to the tune of
Rs. 29.48 crores as per balance sheet as on 31.03.2010, (consisting
of partner`s capital of Rs.10.04 crores, loan and advance from
friends and relatives of Rs. Rs.7.17 crores and sundry creditors of
Rs. 8.19 crores) as against interest bearing funds of Rs.8.19 Crores.
Further, we find that the ld. A. R. has contended that the assessee
M/s. Chhaganlal Kishanlal & Co. vs. ACIT-Khandwa/ I.T.A. No.646/Ind/2015/A.Y.:10-11 Page 8 of 10
had utilised these funds for giving interest-free advances to above
mentioned four parties on which interest is also charged @12%
from two parties and no interest was charged from two parties
which are relatives of the assessee. Thus interest-free advance were
given out of interest-free funds available with the assessee during
the year for which interest-free funds of Rs.29.48 crores 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
M/s. Chhaganlal Kishanlal & Co. vs. ACIT-Khandwa/ I.T.A. No.646/Ind/2015/A.Y.:10-11 Page 9 of 10
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, 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
M/s. Chhaganlal Kishanlal & Co. vs. ACIT-Khandwa/ I.T.A. No.646/Ind/2015/A.Y.:10-11 Page 10 of 10 Rs.1,98,291/- made by the AO is deleted. Accordingly ground no. 1 and 2 of appeal is therefore, allowed. 2. In the result, the appeal of the assessee stands allowed. 3. 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