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Income Tax Appellate Tribunal, ‘A’ BENCH: CHENNAI
Before: SHRI N.R.S. GANESAN & SHRI D.S.SUNDER SINGH
आदेश / O R D E R
PER D.S.SUNDER SINGH, ACCOUNTANT MEMBER:
This is an appeal filed by the Revenue against the Order dated 07.11.2016 of Commissioner of Income Tax (Appeals)-15, Chennai, in for the AY 2012-13 and raised the following grounds:
ITA No.448/Mds/2017 :- 2 -:
The order of the Commissioner of Income Tax (Appeals) is contrary to the law and facts of the case.
The learned CIT(A) erred in directing the AO to delete the disallowance of bad debts written off to the extent of Rs.21,00,000/-. 2.1 The Ld.CIT(A) failed to examine whether the impugned amount was a proper debt or a part thereof. 2.2 The Ld.CIT(A) failed to examine whether the impugned amount was capital or revenue in nature. 2.3 The Ld.CIT(A) erred in directing the AO to delete the addition of interest on accrual basis of Rs.14,31,000/-. 2.4 The Ld.CIT(A) erred in deleting the addition towards interest accrued on loan advanced by assessee even though it follows mercantile system of accounting. 2.5 The Ld CIT(A) erred in holding that interest on loans to be offered fortaxation only on realization basis when Section 43D extends such facility only to banks and financial institution and assessee does not fall in the category of assessee provided therein. 2.6 The Ld CIT(A) ought to have followed ratio laid down in binding decision of Jurisdictional High Court in the United Nilagiri Tea Estates CoLtd., Vs DCIT (210 Taxman 62) and CIT Vs Peria Karamalai Tea & Produce Co Ltd (216 Taxman(Marg). 3. For these and other grounds that may be adduced at the time of hearing, it is prayed that the order of the learned CIT(A) may be set aside and that of the Assessing Officer restored.
2.0 Ground Nos.1& 3 are general in nature which does not require specific adjudication.
3.0 Ground Nos.2 to 2.1 are related to the addition of Rs.21.00 lakhs on account of bad debts written off.
During the assessment proceedings, the AO found that the assessee has written off bad debts amounting to Rs.21.00 lakhs and the claimed the same as deduction. The AO contended that the bad debts are related to the term loan and not the trade debt and no income was derived in the earlier years on the debts and accordingly disallowed a sum of ITA No.448/Mds/2017 :- 3 -:
Rs.21.00 lakhs as not allowable expenditure as per Sec.36(2) of IT Act and brought to tax.
3.1 The assessee went on appeal before the CIT(A) and the Ld.CIT(A) deleted the addition as under:
4.2 Per contra, the appellant company has contended that an amount of Rs.21,00,000/- was to be received from M/s.Amithalakshmi Spinning Mills Pvt. Ltd. towards down payment of One Time Settlement (OTS) of its Term Loan dues. In terms of the settlement, the appellant company offered the impugned sum as income for the assessment year relevant to the F.Y.2007-08. It has been further submitted that since the afore-said company did not adhere to the terms and conditions therein, the OTS sanctioned was cancelled and the entry was reversed during the impugned assessment year, writing off the same as bad debts. 4.3 The matter is considered. The Hon’ble Supreme Court of India, in its judgment in the case of Vijaya Bank Vs. Commissioner of Income-tax reported in [2010] 190 Taxman 257 (SC) has held that where the assessee has written off bad debts in its books by way of a debit to the profit and loss account, simultaneously reducing the corresponding amount from loans and advances to debtors depicted on assets side in balance sheet at the close of the year, the assessee was entitled to allowance of bad debts under 36(1)(vii) of the Act, and for that purpose, it was not necessary for it to close individual account of each of its debtor in its books. In the case of Director of Income-tax Vs. Deutsche Bank AG reported in [2014] 48 taxmann.com 323 (Bom), the Hon’ble Bombay High Court has held that advances given by the assessee to its associate company in the ordinary course of business, later lost on account of security scam, was allowable as bad debts. In the appellant company’s case, it is undisputed that the impugned amount was offered as income on accrual basis in the year of OTS, and later in the event of default by the debtor Company, the entries were reversed, and bad debt was claimed. On careful consideration of the governing facts and circumstances, I am of the considered view that the appellant company is entitled to the claim of bad debts of Rs.21,00,000/- as claimed. The disallowance made by the AO stands deleted. This ground is allowed.
3.2 Appearing for the assessee, the Ld.AR argued that the assessee is a state government undertaking, a non-banking financial company wholly owned by the state of Tamil Nadu and engaged in promotion of industrial infrastructure in the state of TN by acquiring land developing infrastructure including SEZ and providing financial assistance by way of medium and long term loans. The Ld.AR argued that the AO was of the view that the assessee is not engaged in the money lending activity, which is not correct. The assessee is a non-banking financial institution lends
ITA No.448/Mds/2017 :- 4 -: term loans for promoting small industries in the state of Tamil Nadu. In that process, the assessee has extended financial assistance to M/s.Amithalakshmi Spinning Mills Pvt., Ltd., which was settled for one time settlement for down payment for Rs.21.00 lakhs and the impugned sum was also admitted as income for the AY 2007-08. But the company M/s.Amithalakshmi Spinning Mills Pvt. Ltd failed to honour the commitment and ultimately the amount could not be recovered and was written off as bad debt. Therefore, the Ld.AR contended that the loan of Rs.21.00 lakhs due from M/s.Amithalakshmi Spinning Mills Pvt. Ltd is very much covered by Sec.36(2) of IT Act and required to be allowed as deduction.
3.3 On the other hand, the Ld.DR argued that the assessee is engaged in the banking business as NBFC and the amounts advanced to M/s.Amithalakshmi Spinning Mills Pvt. Ltd and reached for one time settlement towards the down payment, the admission of the impugned sum as income for the FY 2007-08 was not borne out of the Assessment Order. Therefore, the Ld.DR contended that all these issues require further verification at the end of the AO and the case should be remitted back to the file of the AO for further verification and the Ld.AR did not object for sending the matter back to the file of the AO.
4.0 We heard the rival submissions and perused the material placed before us.
ITA No.448/Mds/2017 :- 5 -:
The assessee is a NBFC and advance the loan to M/s.Amithalakshmi Spinning Mills Pvt. Ltd. Since the repayment was not forthcoming the assessee reached for an agreement with the debtor for one time settlement and the resultant income was offered in the AY 2007-08.
These details were not placed before the AO and the Ld.CIT(A) did not call for the Remand Report and there was no occasion for the AO to examine whether the amount of Rs.21.00 lakhs was relating the trade debt and the admission of income in the FY 2007-08. The Ld.AR did not place any evidence to show that the amount of Rs.21.00 lakhs was admitted as income in the FY 2007-08 or the interest on loan given to the debtor was admitted as income. Therefore, in the interest of justice we are of the considered opinion that the issue should go back to the file of the AO for further verification. Accordingly, we remit the matter back to the file of the AO with a direction to examine the issue afresh and decide the same on merits. The Revenue’s appeal on this ground is allowed for statistical purpose.
5.0 Ground Nos.2.3 to 2.6 are related to the addition on account of accrual of interest on sticky loans. The assessee is NBFC and has not charged the interest on sticky and doubtful advances as per the Reserve Bank of India guidelines. Since the assessee is a company and following the mercantile system of accounting, the AO made the addition of Rs.14.31 lakhs being interest on loans and advances accrued on mercantile basis. The Ld.AR argued that the assessee has not charged the ITA No.448/Mds/2017 :- 6 -: interest on sticky loans based on the notification issued by the Department of company affairs in GSR 550(e) dated 16.05.1989. Further, the Ld.AR submitted that the assessee is a non-banking financial institution following Accounting Standard-9 and the guidelines issued by the RBI with regard to income recognition and provision in the case of non-performing assets. The interest income on sticky loans is recognized on cash basis but not on mercantile basis. The Ld.CIT(A) deleted the addition following the Tribunal Order in the assessee’s own case for the AYs 2003-04 & 2007-08 & 2009-10.
6.0 We heard both the parties. The assessee is a NBC and during the previous year the assessee has not charged the interest on sticky loans as per the guidelines of the RBI. The assessee is charging the interest on cash basis on sticky loans and the AO has made the addition charging interest on accrual basis. The facts of the case are identical to the assessee’s own case and squarely covered by the decision of this Tribunal in Appeal Nos.1290, 1291, 1292 & 1293/Mds/2011 & in dated 07.03.2013 of ‘A’ Bench. This Tribunal held that the addition cannot be made for interest income that has not been charged by the assessee in its books based on the principles of accrual, where the assessee is a non-banking financial company bound by the directions of RBI. For the sake of convenience and clarity, we extract the relevant paragraphs of the Tribunal Order which reads as under:
ITA No.448/Mds/2017 :- 7 -:
We have perused the orders and heard the rival submissions. There is no dispute that assessee is a Non-Banking Financial Company. There cannot also be a dispute that being a Non-Banking Financial Company, assessee was bound by RBI directives. Prudential Norms having been prescribed by Reserve Bank of India, by virtue of power vested in it under RBI Act, assessee was bound to follow such Prudential Norms. No doubt, Hon'ble Apex Court in the case of Southern Technologies Ltd. (supra) had held that the Reserve Bank of India Directions, 1998 was only in the context of presentation of NPA in the balance sheet and such directions operated in a totally different field than of Income-tax Act, 1961. It has also been held by Hon'ble jurisdictional High Court in the case of United Nilagiri Tea Estates Co. (supra) that an assessee following mercantile system of accounting had to show interest income in the year in which it had accrued. However, there is a fine distinction, in our opinion, between a provision made for bad debts based on the Prudential Norms, by a Non-Banking Financial Company and non-charging of interest on NPA in the books of accounts by a Non-Banking Financial Company. Admittedly, here the assessee was providing loans to its clients as also seed capital assistance. Contention of the assessee that loans on which interests were not received for a period of six months became non- performing asset, as per the Prudential Norms, is also in consonance with the Prudential Norms. But, here what has been added by the Assessing Officer is not any interest reversal done by the assessee or any provision made in the accounts for non-performing assets. It is not equivalent to a case where assessee had already charged interest on loans in its books and thereafter reversed such interest, finding its recovery to be difficult or based on Prudential Norms. On the other hand, it is a case where the assessee did not charge any interest in its accounts on non-performing assets at all. It is not disputed that under the Prudential Norms prescribed for Non-Banking Financial Companies, interest could not have been recognized on non-performing assets. Hon'ble Apex Court in the case of Southern Technologies Ltd. (supra) was dealing with a case where assessee had bad debts and had claimed deduction under Section 36(1)(vii) of the Act. In our opinion, this cannot be equated with an assessee which has not charged interest in its books of accounts. In our opinion, learned A.R. is right in her argument that Hon'ble jurisdictional High Court in the case of United Nilagiri Tea Estates Co. (supra) was dealing with an assessee which was not a Non- Banking Financial Company. An assessee which is not a Non-Banking Financial Company, is not bound by any Prudential Norms or RBI regulations. Therefore, the question of RBI regulations have overriding effect on the method of accounting of income did not arise there at all. Hence, in our opinion, this case will not help the Revenue in any way. On the other hand, a look at the decision of Hon’ble Delhi High Court in the case of Vasisth Chay Vaapar Ltd. (supra) clearly shows that an addition cannot be made for interest income that has not been recognized by the assessee in its books based on the principles of accrual, where the assessee concerned is a Non-Banking Financial Company bound by the directions of RBI. Hon’ble Delhi High Court had taken this view after duly considering the decision of Hon'ble Apex Court in the case of Southern Technologies Ltd. (supra). We are, therefore, of the opinion that ld. CIT(Appeals) was justified in relying on the decision of Hon’ble Delhi High Court in the case of Vasisth Chay Vaapar Ltd. (supra) and deleting the additions made by the Assessing Officer. No interference is required.
ITA No.448/Mds/2017 :- 8 -:
Since the facts of the case are the same, respectfully following the decision of this Tribunal, we uphold the order of the Ld.CIT(A) and dismiss the Revenue appeal.
7.0 In the result, the appeal of the Revenue is partly allowed.
Order pronounced in the Open Court on 7th June, 2017, at Chennai.