SMRUDHI ASSOCIATES,MUMBAI vs. ITO 23(3)(3), MUMBAI

PDF · subscribers
ITA 6653/MUM/2014Status: DisposedITAT Mumbai23 December 2016AY 2010-114 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that there is no provision in the Partnership Act or the Income Tax Act that mandates charging interest on partners' debit balances or deems such notional interest as income of the firm. Therefore, the disallowance of interest was not justified.

What were the facts?

The assessee firm debited interest on unsecured loans towards its work-in-progress account. The Assessing Officer disallowed a portion of this interest because partners had significant withdrawals resulting in debit balances in their capital accounts, and the firm did not charge interest on these drawings.

What were the issues?

Whether interest on unsecured loans debited to work-in-progress is disallowable when partners have debit balances in their capital accounts without being charged interest. Whether notional interest on partners' drawings can be considered income of the firm.

Which sections of the Income-tax Act were involved?

Section 40(b),Section 4,Section 2(24),Section 5

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCH “E”, MUMBAI

Before: SHRI P.K. BANSAL & SHRI PAWAN SINGH

For Appellant: Shri M. Subramanian
For Respondent: Shri B.S. Bist
Hearing: 19/12/2016Pronounced: 23/12/2016

This appeal has been filed by the assessee against the order of CIT(A)-33, Mumbai dated 16.7.2014. The only issue involved in this appeal relates to sustenance of the action of Assessing Officer by CIT(A) in disallowing the interest amounting to Rs.14,00,206/-.

2.

This appeal is time barred by 6 days. After hearing the rival submissions, we condone the delay as in our opinion it is a fit case for condonation of delay.

3.

The facts relating to the case are that the Assessing Officer found that assessee had debited a sum of Rs.18,91,324/- as interest on unsecured loans towards work-in-progress account. It was further noted that partner’s capital account named Shri Ganesh Siva Thakur and K.S. Thakur, HUF had been debited with huge withdrawals amounting to Rs.1,42,25,000/- and Rs.1,20,00,000/- by the firm resulting in debit balance in their capital account amounting to Rs.2,14,64,488/- and Rs.74,01,898/- respectively. The Assessing Officer, therefore, asked assessee to explain as to why the interest debited to work-in-progress account of Rs.18,91,324/- should not be disallowed when the firm has not charged any interest on the excess withdrawals of its partners. The Assessing Officer was not satisfied with the explanation of the assessee and, therefore, he disallowed proportionate interest of Rs.14,00,206/-. When the matter went before CIT(A), CIT(A) also confirmed the order of Assessing Officer.

4.

We heard the rival submissions and carefully considered the same alongwith the order of tax authorities below. We noted that there was no provision in the Partnership Deed, as submitted by the ld. AR, that the partners have to pay interest in case of drawings made from the partnership firm. The provisions of Sec. 40(b) of the Income Tax Act, 1961 (in short ‘the Act’) which deals with the disallowance to be made in case of any firm in respect of expenses which are otherwise allowable does not state about disallowance of any interest on the debit balances of the partners, rather the provisions of Sec. 40(b)(iv) of the Act allows payment of interest to the partners which is authorised by and is in accordance with the terms of the Partnership Deed provided the amount does not exceed the amount calculated @ 12% simple interest per annum. Section 4 of the Act defines ‘charging of income’ for any assessment year at any rate or rates at which the income tax shall be charged for that year. From this, for levying tax it is necessary that there must be income in the hands of the assessee. Sec. 2(24) of the Act defines ‘income’. It nowhere talks of such interest on the debit balances of the partners to be the income in the hands of the firm. Even Sec. 5 of the Act, which defines the scope of total income, doesn’t lay down that where the partners are having debit balance, there will be income accruing to the partnership firm by way of deeming interest. The ld. DR even though vehemently relied on the order of Assessing Officer, but could not bring to our knowledge any relevant provisions of the Act under which such income can be added in the hands of the firm. In view of this fact, we set aside the order of CIT(A) and delete the addition.

5.

In the result, the appeal filed by assessee is allowed.

Order pronounced in the open court on 23rd December, 2016.

More judgments on Section 40(b)

All 428 judgments and leading authorities on Section 40(b) →

Recent GST High Court judgments

Search GST case law →