DCIT CIR 4(1) CEN RG 4, MUMBAI vs. RASESH B. KANAKIA, MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL “G”, BENCH MUMBAI BEFORE SHRI C. N. PRASAD, JM &DR. A.L.SAINI, AM आयकरअपीऱसं./ITA No.5447/Mumbai/2016 (निर्धारणवषा / Assessment Year: 2012-13) DCIT, Circle-4(1), Cen. Rg.4, Vs. Shri Rasesh B. Kanakia Mumbai 5th Floor, 349 Business R.No.1916, 19th Floor, Air India Point, Western Express Buildings, Nariman Point, Mumbai- Highway, Andheri(E), 400 021. Mumbai- 400 057. स्थायीऱेखासं./ जीआइआरसं./ PAN/GIR No. :AABPK3454 K (Appellant) .. (Respondent) Appellant by :Shri V. Vidhyadhar, DR Respondent by :ShriGovindJaveri, AR सुनवाईकीतारीख/ Date of Hearing : 22/02/2018 घोषणाकीतारीख/Date of Pronouncement : 28/02/2018 आदेश / O R D E R Per Dr. Arjun Lal Saini, AM:

The captioned appeal filed by the Revenue,pertaining to Assessment Year 2012-13, is directed against an order passed by the Commissioner of Income Tax- (Appeals)-52, Mumbai, in Appeal No.CIT(A)-52/IT/AC-CC- 4(1)/13/2015-16, dated 20.06.2016, which in turn arises out of an order passed by the Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the „Act‟), dated 27.02.2015.

Shri Rasesh B. Kanakia ITA No.5447/Mumbai/2016 3.The brief facts apropos this issue are that during the assessment proceedings u/s 143(3) of the Income Tax Act, 1961, the Assessing Officer noted that the assessee claimed interest expenses to the tune of Rs.6,91,88,217/-, out of total interest paid to the tune of Rs.7,53,66,629/-. The assessee has shown the interest income to the tune of Rs.6,91,88,217. The assessee has suomoto disallowed the interest expenses of Rs.61,78,412/- (Rs.7,53,66,629 - Rs.6,91,88,217). The difference of Rs.199 is noticed in the interest expenses disallowed,( Rs.61,78,611 - Rs.61,78,412), as in the assessment order the figure is mentioned at Rs.61,78,611/-, this may be due to rounded off the figures. In the return, the assessee had claimed interest expenses of Rs.7,12,23,326/- u/s 57 of the Act. During the assessment proceedings, the assessee was asked, as to why amount of Rs.7,12,23,326/- should not be added to the taxable income of the assessee under the head “income from other sources”, as the assessee failed to establish the nexus between the interest paid and the interest income received. In response to that, the assessee submitted that there was a difference of Rs.61,78,611/-, which was due to fact that there was no column in the return of income to disallow the notional interest out of the interest paid of Rs.7,53,66,829/-. In the statement of income as well as through his submissions, the assessee submitted that an amount of Rs.61,78,611/- was interest loss not claimed by the assessee out of interest paid of Rs.7,53,66,829/-. The Assessing Officer, having gone through the reply of the assessee, found that theassessee was not entitle to claim deduction u/s 57(iii) of the Act, which reads as under: (iii) “any other expenditure (not being in the nature of capital expenditure) laid out or expended wholly and exclusively for the purpose of making or earning such income”.

During the assessment proceedings, the assessee also submitted that due to voluminous credit/debit entries involved in the working, was not able to make reconciliation and these exercises could not be done on the last day of the previous year as there may be transactions of loan received or loan Page | 2

Shri Rasesh B. Kanakia ITA No.5447/Mumbai/2016 given at the end of year and therefore, there was common hotchpotch of funds received and funds given. The assessee also submitted the statement of the average value of loan given,onwhich interest is received and average value of loans received on which interest is paid. Sinceaverage value of loan given on which interest is received, is more than average value of loans received, on which interest is paid, therefore, no disallowance is warranted. However, the Assessing Officer rejected the contention of the assessee and held that in absence of any direct nexus between the funds used to make interest bearing advances and the funds taken on interest, and in absence of any reasonably acceptable submission from the assessee to prove this nexus, the assessee would not be entitle to get the benefit. The AO noted that the capital of the assessee has been used by him to forward the interest bearing loans to parties whereas the interest bearing loans taken by the assessee have been utilized for other purposes. Therefore, the Assessing Officer held that the assessee has failed to satisfy the conditions mentioned in section 57(iii) of the Act and, therefore, the assessee is not entitled to claim the deduction u/s 57(iii) of the Act and this way, the deduction of Rs.6,91,88,217/- claimed by the assessee in his return of income was disallowed and the same was added to the interest income under the head “income from other sources”.

4.On appeal, the ld. CIT(A) deleted the addition,holding that the same identical issue had been examined by the Hon‟ble ITAT Mumbai in the case of HimanshuKanakia, brother of the assessee, for A.Y 2011-12 involving exact identical issue, vide & 3191/m/2014, A.Y. 2010-11 & 2011-12, order dated 16.03.2016, wherein the Tribunal allowed the claim of the assessee in respect of such interest expenditure incurred by the assessee observing that issue relating to payment of interest on such loans had already been examined by the Assessing Officer in the earlier assessment years and no such disallowance of interest was made by the Assessing Officer in the earlier years. From the bank statement of the Page | 3

Shri Rasesh B. Kanakia ITA No.5447/Mumbai/2016 assessee it was clear that there was a direct correlation between the loan amount received and the loan advanced by the assessee. It was also held that the loans were raised and investments were made by the assessee with a view to earn interest income and the assessee had offered for taxation a positive interest income. The ld. CIT(A) also noted that he has passed an order on the same, identical facts in the case of assessee for A.Y 2011-12. Therefore, following his own judgment in the assessee‟s case which was passed by him and also following the order of the Hon‟ble ITAT, Mumbai in the case of HimanshuKanakia, brother of assessee, for A.Y 2011-12, deleted the addition of Rs.6,91,88,220/- made by assessing officer.

5.Not being satisfied with the order of the ld. CIT(A), the Revenue is in appeal before us. The Ld. DR for the Revenue has primarily reiterated the stand taken by the AO, which we have already noted in our earlier para and is not being repeated for the sake of brevity. On the other hand, the ld. Counsel for the assessee has submitted before us that assessee has charged interest on loan given and paid interest on loan taken but there was a difference of Rs.61,78,611/- in the amount of interest received and paid which had been disallowed in the return of income and computation of income submitted by the assessee. The difference of Rs.61,78,611/- was arising due to the fact that there was no column in the return of income to disallow the notional amount of interest. The ld. Counsel stated that in the statement of income through his submissions during the assessment proceedings, the assessee submitted that an amount of Rs.61,78,611/- was interest loss not claimed by the assessee out of interest paid of Rs.7,53,66,829/-. The counsel also stated that there was direct nexus between the interest paid and the interest income received and the transactions were done through the banking channels and the bank statement of the assessee proves that there was Shri Rasesh B. Kanakia ITA No.5447/Mumbai/2016 direct correlation between the loan amount received and the loan advanced by the assessee.

5.1 In addition to this, the ld. Counsel for the assessee submitted that this issue is squarely covered in favour of assessee by the judgment of ITAT, Mumbai in assessee‟s own case in 3198/M/2014 A.Y.2009- 10 and 2010-11, dated 18.11.2016,wherein it was held that the loans upon which the assessee had paid interest were not the new loans. The issue relating to payment of interest on such loans had already been examined by the AO in the earlier assessment years and no such disallowance of interest was made by the AO in the earlier years. The bank statement of the assessee proves that there was a direct correlation between the loan amount received and the loan amount advanced by the assessee. It was evident that the loans were raised and investments were made by the assessee with a view to earn interest income and the assessee had offered for taxation a positive interest income. Besides, that the assessee at his own disallowed a sum of Rs.18,64,054/- and has offered interest income of Rs.25,01,695/- and that the suo-moto disallowance had been made by the assessee taking into consideration the overall loan taken during the year on which the interest was paid and the overall loan given during the year on which interest was received. The assessee has disallowed the proportionate interest on the amount of loan taken which was more than the amount of loan given. The ld Counsel stated that based on the above facts the Hon`ble ITAT, in assessee`s own case, on the same identical facts deleted the addition.

5.2 Apart from this, the ld. Counsel for the assessee also relied on the judgment of Hon‟ble ITAT, Mumbai in & 3191/M/2014 in the case of assessee‟s brother, ShriHimanshu B. Kanankia wherein it was held thatthe issue relating to payment of interest on such loans had already been examined by the AO in the earlier assessment years Page | 5

Shri Rasesh B. Kanakia ITA No.5447/Mumbai/2016 and no such disallowance of interest was made by the AO in the earlier years. There was a direct correlation between the loan amount received and the loan amount and it was evident that the loans were raised and investments were made by the assessee with a view to earn interest income and the assessee had offered for taxation a positive interest income. Besides that the assessee at his own disallowed a sum of Rs.18,64,054/- and has offered interest income of Rs.25,01,695/- and that the suo-moto disallowance had been made by the assessee taking into consideration the overall loan taken during the year on which the interest was paid and the overall loan given during the year on which interest was received. The assessee has disallowed the proportionate interest on the amount of loan taken which was more than the amount of loan given. Evidently, loans were raised and investments were made with a view to earn interest income and interest income to the tune of Rs.88,14,417/- has actually been earned and declared. Therefore, interest expenditure cannot be disallowed. In any case, interest received at Rs.88,14,417/- is more than the interest paid at Rs.81,76,776/-, resulting into positive income under the head „interest‟. Still the assessee on his own disallowed a sum of Rs.18,64,054/- and has offered interest income of Rs.25,01,695/-. This disallowance has been made on the basis of a well thought out logic, which is 'what is the average loan taken during the year on which interest is paid and what is the average loan given during the year on which interest is received'. If the average loan taken is higher than average loan given during the year, then interest is disallowed on the difference amount of loan taken vis-à-vis loan given calculated at the effective rate of interest paid.

6.We have given a careful consideration to the rival submissions and perused the materials available on record, we note that payment of interest on the loan taken and interest received on the loan given has Page | 6

Shri Rasesh B. Kanakia ITA No.5447/Mumbai/2016 been examined by the Assessing Officer and he has failed to bring any evidence on record to prove that the interest paid and the interest received were not genuine. From the bank statement submitted by the assessee during the assessment proceedings, it was evidently clear that there was a direct correlation between the loan amount received and the loan advanced by the assessee. It was also evident that the loans were raised and investments were made by the assessee with a view to earn interest income and the assessee had offered for taxation. We also note that assessee has offered suomoto disallowance of interest paid at Rs.61,78,611/- and the said suomoto disallowance had been made by the assessee taking into account the loan taken during the year on which the interest was paid and the loans given on which interest was received. We note that there was direct nexus between funds borrowed and funds advanced by the assessee. The Assessing Officer has not questioned the genuineness of the transactions. When the assessee was offering income from interest then equity demands that any expenditure incurred in the nature of interest on loan taken should also be allowed. Moreover, the entire funds have come to the bank account of the assesseeand the loans have been given from the same bank account of the assessee. Therefore, the flow of funds, namely income and outgoing, was not questionable. Therefore, we are of the view that there was no reason to disallow such a claim in a situation where the issue is covered by the judgment of coordinate Bench Mumbai in assessee‟s own casein & 3198/M/2014 A.Y.2009-10 and 2010-11, dated 18.11.2016 (supra).

We also note that on the same identical fact, the issue is covered by the judgment ofcoordinate Bench of Mumbai Tribunal in the case ofassessee‟s brother, ShriHimanshu B. Kanankia‟s case (supra). Therefore, as the issue is squarely covered in favour of assessee by Page | 7

Shri Rasesh B. Kanakia ITA No.5447/Mumbai/2016 the decisions of Coordinate bench in assessee‟s own case and in assessee‟s brother case and there was no change in facts and law and the Revenue is unable to produce any material to controvert the aforesaid findings and the ld. CIT(A) has allowed the appeal of the assessee by following the decision of the Tribunal in assessee‟s own and brother`s case(supra), we find no reason to interfere in the order of ld. CIT(A) and therefore we uphold the order of ld. CIT(A).

7.In the result, the appeal filed by the Revenue is dismissed.

Order is pronounced in the open court on28/02/2018.

Sd/- Sd/- (C. N. PRASAD) (DR. A.L.SAINI) न्यधनयक सदस्य / JUDICIAL MEMBER ऱेखध सदस्य / ACCOUNTANT MEMBER Place: Mumbai Dated: 28/02/2018 (RS,SPS) आदेशकीप्रनिलऱपपअग्रेपषि/Copy of the Order forwarded to :

1. 1. अपीऱाथी/ The Appellant –DCIT, Circle-4(1), Cen. Rg.4, Mumbai प्रत्यथी/ The Respondent-Shri Rasesh B. Kanakia 2. आयकरआयुक्त(अपीऱ) / The CIT(A), 3. आयकरआयुक्त/ CIT 4.