DCIT, CC-XXX, KOLKATA, KOLKATA vs. M/S SNOWTEX INVESTMENT LTD., KOLKATA

At the outset itself, the Ld. AR drew our attention to the fact that the revenue appeal is hit by the Circular No. 21/2015 and since the CBDT has directed the department to withdraw/not to press the appeal if the tax effect is less than Rs. 10 lacs before ITAT, the Ld. AR wants us not to adjudicate the matter. The Ld. DR fairly accepted the fact that the tax effect of the revenue appeal falls below Rs. 10 lacs, therefore, we do not admit the revenue appeal and do not wish to adjudicate the matter. However, in case, the revenue later finds that the tax effect is more than Rs. 10 lacs then it has liberty to move 2 & 1793/Kol/2014 Snowtex Investment Ltd.., AY, 2010-11 appropriate application to recall this order. With this caveat, we are inclined to dismiss this appeal of revenue on the ground that it is below the tax effect of less than Rs. 10 lakh.

Coming to assessee’s appeal. Ground no.1 is general in nature and needs no adjudication.

Ground no. 2 is against the action of the Ld. CIT(A) in sustaining the disallowance of interest payment to the extent of Rs.35,85,884/-. Brief facts of the issue are that the assessee during the year filed the return of income on 20.09.2010 declaring a total income of Rs.32,94,694/- which included income from share and derivative trading. In the course of assessment, the AO noted that interest free loans of Rs.9.81 cr. were advanced during the year and he took note of the fact that loans and advances had increased by Rs.22.23 cr. on which interest of Rs.1,28,91,481/- was paid by the assessee. Since assessee did not earn any interest on amount of Rs.9.81 cr. given as loans and advances, the AO disallowed proportionate interest of Rs.56,71,095/- out of the total interest of Rs.1,28,91,481/- claimed u/s. 36(1)(iii) of the Income tax Act, 1961 (hereinafter referred to as the “Act”). In the words of AO “interest free loan and advance has increased by Rs.9.81 cr. Since there is no much change in own fund this increase of interest free loan and advance of Rs.9.81 cr must be from loan fund, which has increased by Rs.22.30 cr. over the same period. Since there is no interest charged from the loan and advance given of an amount of Rs.9.81 cr., the cost of this fund must be from the interest paid towards Rs.22.30 cr. On proportionate basis the interest for this fund is Rs.1,28,91,481/- x 9.81 cr/22.30 crores which is equal to Rs.56,71,095/-. This interest is the cost of loan and advance given to different person for which no interest has been charged.” Thereafter, he was pleased to disallow the interest of Rs.56,71,095/-. Aggrieved by the decision of the AO, the assessee preferred appeal before the Ld. CIT(A), who was pleased to give partial relief to the assessee and restricted the disallowance of interest at Rs.35,85,884/- as against Rs.56,71,095/- made by the AO. Aggrieved by the aforesaid decision of the Ld. CIT(A), the assessee is before us.

We have heard rival submissions and gone through the facts and circumstances of the case. The main plea of the assessee is that the assessee is engaged in the business of share and derivative trading and all the transactions relating to share and derivative trading 3 & 1793/Kol/2014 Snowtex Investment Ltd.., AY, 2010-11 were entered into through the broker M/s. BMA Wealth Creators Ltd. The Ld. AR submitted that substantial amounts were advanced to the brokers for the purpose of purchasing securities etc. The Ld. AR drew our attention to page nos. 25 to 38 of paper book, which consist of bank statement of HDFC Bank of assessee, wherein the Ld. AR brought to our knowledge that the funds were mostly advanced to M/s. BMA Wealth Creators Ltd. which in turn returned the surplus funds available with them from time to time after utilizing the money for purchase of securities required. The Ld. AR drew our attention to the fact that a perusal of the bank book would reveal that the broker from time to time returned funds to the assessee which were then utilized by the assessee for either repaying its unsecured loans or were advanced to its sister concerns for their business purposes. It was brought to our knowledge that by doing so, the assessee earned interest of Rs.60.12 lakhs which was offered to tax by the assessee in its return. Further, the Ld. AR drew our attention to page 22 of the paper book which is the details of loan given and interest received and pages 23 and 24 which show the details of interest paid to M/s. JM Financial which reveals that loan from JM Financial was obtained for the purpose of subscribing to shares in NPHC Ltd. which was held as stock. Further, the Ld. AR invited our attention to page 22 which shows that assessee had advanced interest free funds to AB Investments, M/s. BMA Commodities Pvt. Ltd., M/s. Bliss Paper Mills Pvt. Ltd. etc. It was brought to our notice that the partnership firm a sister concern of the assessee AB Investments owed a sum of Rs.3,68,20,000/- to the assessee at the year end. On perusal of the firm’s Balance sheet at page 43 of the paper book shows that a sum of Rs.6,64,69,016/- was invested in stock i.e. shares. The firm since did not have sufficient own funds (only Rs.71.95 lakhs) to finance stock in trade of this amount and thus funds were borrowed from the assessee for making investment in stock in trade/business. On perusal of the P&L Account of the firm at page 44 of the paper book which reveals that the said firm had earned profits of Rs.43,36,657/- during the year from share and derivative trading and the same was offered to tax as its business income, which is revealed from page 40 to 42 of the paper book. Thus, the Ld. AR contended that the funds which were borrowed was in fact utilized for the purpose of business of the assessee being that of share and derivative trading and, therefore, since the amount of interest paid in respect of capital borrowed was for the purpose of the business in share and derivative 4 & 1793/Kol/2014 Snowtex Investment Ltd.., AY, 2010-11 trading, the conditions prescribed in sec. 36(1)(iii) of the Act is satisfied and is an allowable expenditure.

Further, the Ld. AR drew our attention to page 10 of the paper book from where it is revealed that the assessee has made income from sale of shares and securities to the tune of Rs.24.86 cr. which was made through M/s. BMA Wealth Creators Ltd., which in turn had a nil outstanding balance at the year end. From a perusal of the bank book placed from pages 25 to 38 of the paper book, which the assessee maintained in the HDFC Bank reveals that the broker from time to time returned surplus funds available with it to the assessee.

We note that a total receipt of Rs.55.91 cr. from the broker thus includes the sale proceeds of securities which were all deposited in the HDFC Bank account of the assessee. We note from a perusal of the bank book which shows that trading receipt/sale proceeds from securities were subsequently utilized by the assessee either to repay its unsecured loans or to advance interest free loans to sister concerns. The interest free loans made to sister concerns have been highlighted by the Ld. AR which is evident from page 26 entry no. 69 which shows that on 24.06.2009 Rs.60,00,000/- was given as loan to BMA Stainless Ltd., a sister concern. Likewise, entry no. 73 at page 27 and loan was refunded by entry no. 137 by BMA Stainless Ltd. of Rs.35,00,000/- etc. From a perusal of the bank book of the assessee maintained in HDFC which is kept at from pages 25 to 38 of the paper book reveals that interest free loans were made from the HDFC Bank account wherein the trading investment and surplus funds were deposited. So, according to the Ld. AR, the presumption must be drawn that interest free loans were made from the trading receipts. We have to keep in mind that the AO has made proportionate interest for an amount of Rs.9.81 cr. and the assessee has made an income by sale of shares and securities to the tune of Rs.24.86 cr. In a similar case, the Coordinate Bench of this Tribunal in ITA No. 2961/Kol/1991 in M/s. Makalbari Kanoi Tea Estates Pvt. Ltd. Vs. D. C. Spl. Range-2, placed at paper book pages 62 to 71 when deciding a similar issue as held in page 67 para 11 after taking note of Hon’ble Jurisdictional High Court decision in Woolcombers of India Ltd. Vs. CIT 134 ITR 219 has held as under: “11. The above decision of the Hon’ble Madras High Court and the Hon’ble Calcutta High Court would show that in a case where there is mixed fund, no attempt should be made to 5 & 1793/Kol/2014 Snowtex Investment Ltd.., AY, 2010-11 bifurcate the same for the purpose of applying the provisions of section 36(1)(iii) of the Act. In the present case, it is common ground and an unchallenged fact that all the sale proceeds of tea are deposited in the bank. The assessee has different kind of facilities with the bank, namely tea hypothecation loan, NABARD loan etc. It is also common ground that the assessee had advanced moneys to it’s sister concerns only out of the fund maintained by the assessee with the bank. The departmental authorities have not made any attempt to establish that the amounts advances to the sister concerns came only out of the borrowed fund. On the contrary, the assessee has been able to point out to the existence of a mixed or common fund into which the sale proceed in respect of tea are also deposited. The chart depicted in the Annexure will show that the sale proceed of tea are to the tune of 378.31 lacs, Rs.345.04 lacs and Rs.392.13 lacs for the assessment years 1986-87, 1987-88 and 1988-89 respectively. The amount advanced to the sister concerns during the year, without taking into account the amount received back from them during the year are Rs.334.11 lacs, Rs.131.33 lacs and Rs.225.30 lacs respectively. These figures show that the amounts advanced during the year to the sister concern are less than the receipts of the assessee by way of tea sales. It is, therefore, possible applying the ratio of the decisions cited above, to say that the assessee had advanced monies to its sister concerns out of the sale proceeds of tea. In other words, it cannot be conclusively established, which is a requirement of the provisions of section 36(1)(iii) if the department is to successfully disallow a portion of the interest payment on the ground that it is not for the purpose of the business, or show that the advances came only out of the borrowed fund. As laid down by the decisions cited above, this fact cannot be said to have been established by the department in the present case.”

On perusal of the above decision of the Tribunal as well as the Hon’ble jurisdictional High Court in the case of Woolcombers of India Ltd., (supra) and the Hon’ble Madras High Court’s decision in P.RM. S. Ramanathan Chettiar (1969) 72 ITR 534 (Mad), we note that all the sale proceeds of shares and derivatives were deposited in the HDFC Bank maintained by the assessee. We note that the assessee has advanced monies to its sister concern only from the HDFC Bank of the assessee. The AO/CIT(A) have not made any attempt to establish that the amounts advanced to the sister concern came only out of the borrowed funds. On the other hand, we note that the assessee has been able to point out the existence of the mixed or common fund into it where the sale proceeds in respect of sales of shares and securities were deposited. The P&L Account placed at page 10 of paper book which shows that the assessee had an income from sale of shares and securities to the tune of Rs.26.81 cr. According to the AO, an amount of Rs.9.81 cr. advanced to the sister concern were interest free and, therefore, the proportionate interest disallowance was made to the tune of Rs.56,71,095/-. From the figures discussed above, the amounts advanced during the year to the sister concern are comparatively less than the receipts of the assessee by way of sale of shares and securities. By applying the ratio of the decision cited above by the Coordinate Bench one can presume that the assessee had advanced monies to its sister concern out of the sale 6 & 1793/Kol/2014 Snowtex Investment Ltd.., AY, 2010-11 proceeds of sale of shares and securities. As held by the Coordinate bench, in other words it cannot be conclusively established and which is the requirement of the provisions of sec. 36(1)(iii), if the department is to successfully disallow a portion of the interest payment on the ground that it is not for the purpose of the business it has to show that the advance came only out of the borrowed funds. Since the AO/CIT(A) was not able to establish the same that the amount advanced to the sister concern came only out of the borrowed funds and the assessee being able to demonstrate the existence of mixed or common funds into which the sale proceeds in respect of shares and securities were deposited and which were in fact advanced to sister concern also took place from the very same bank account the ratio of the judgment in Woolcombers of India Ltd. (supra) and P.RM. S. Ramanathan Chettiar (supra) squarely applies to the case. Further, we rely on the decision of Hon’ble jurisdictional High Court in CIT Vs. Britannia Industries Ltd. (2006) 280 ITR 525 (Cal), we are inclined to allow the appeal of the assessee and direct the deletion of the entire disallowance of interest payment made by AO and partially upheld by Ld. CIT(A). So, we direct deletion of addition.

In the result, appeal of the revenue is dismissed and that of the assessee is allowed. Order is pronounced in the open court on 15th November, 2017 Sd/- Sd/- (Dr. A. L. Saini) (Aby. T. Varkey) Accountant Member Judicial Member Dated : 15th November, 2017 Jd.(Sr.P.S.) Copy of the order forwarded to: