ROYAL CUSHION VINYL RPODUCTS LTD,MUMBAI vs. ACIT 9(3), MUMBAI

Appellant by : Shri Mayur A Shah, Respondent By : Smt. Amrita Singh, Date of Hearing : 17/08/2016 Date of pronouncement : 30/09/2016 ORDER PER N.K. PRADHAN, A.M This is an appeal filed by the assessee. The relevant assessment year is 2004-05. The appeal is directed against the order of the Commissioner (Appeals)-20, Mumbai and arises out of the order u/s 143(3) of the Income Tax Act, 1961 (The Act).

2.1 The AO during the course of assessment proceeding found that the assessee had debited interest on customs duty amounting to Rs. Rs.3,78,25,074/- in the P & L a/c. He asked the AR of the assessee to produce evidence on the above. However, as per the AO, the assessee could not produce any evidence to show why interest has been charged by the authorities on custom duty. As the assessee failed to produce the above details, the AO disallowed interest on custom duty amounting to Rs.3,78,25,074/- u/s 37(1) of the Act ,treating the expenses as due to infringement of law and therefore, penal in nature.

2.2 The ld. CIT(A) confirmed the above disallowances made by the AO stating that the assessee failed to prove that the aforesaid interest liability arose not on account of infraction of law and also as no material was placed before him to counter the stand taken by the AO.

2.3 The ld. Counsel of the assessee submitted that the assessee had disallowed Rs.3,78,25,074/- being interest on customs duty u/s 43B. He referred to the working of disallowance appearing at page 23 of the paper book and also to the computation of total income. He could not clarify whether any evidence as called for by the AO regarding payment of interest in custom duty was produced. Only he referred to the order of the ITAT in the case of the assessee for the A.Y. 2002-03 (ITA No.2848/M/2006.

2.4 The ld. DR supported the order of the ld. CIT(A) upholding the above disallowance made by the AO.

2.5 After considering the rival submission and perusing the relevant material on record, we find that the Tribunal in the case of the assessee for the A.Y. 2002-03 (ITA No.2848/M/2006) was concerned with the disallowance of interest on customs duty u/s 43B of the Act. Therefore, the case of the assessee in the impugned assessment year is distinguishable from the above order of the Tribunal for the A.Y. 2002-03.

We also find that in the written submission filed before the AO on 28/11/2006, the assessee referred to the notes on accounting policies of the annual report. The ld. AR of the assessee referred to the interest on custom duty. He has not filed before the AO the evidence on why interest has been charged by the authorities on custom duty. In view of the above, we deem it fit to set aside the order of the ld. CIT(A) disallowing interest on custom duty of Rs.3,78,25,074/- and restore it to back to the file of the AO to consider the above issue afresh after giving reasonable opportunity of being heard to the assessee. The assessee is also directed to produce the relevant details before the AO. Therefore, the above ground of appeal is allowed for statistical purpose.

3.1 The AO disallowed interest on electricity charges of Rs.7,24,201/- on the ground that the assessee failed to produce any evidence to show why interest on electricity has been charged by the concerned authority.

3.2 The ld. CIT(A) confirmed the above disallowance made by the AO on the ground that no material was placed before the AO to prove that the said interest liability arose not an account of infraction of law.

3.3 The ld. Counsel of the assessee stated that before the AO copies of electricity bills evidencing payment of interest therein were submitted on 28/11/2006 and a perusal of it shows that interest has been paid on the delayed payment.

3.4 The ld. DR supported the order of the ld. CIT(A) upholding the above disallowance made by the AO.

3.5 After considering the rival submission and perusing the relevant material on record, we find that the ld. AR of the assessee had filed before the AO on 28/11/2006, copies of electricity bills evidencing payment of interest therein. We have also found that such interest towards delayed payment is not penal in nature. In view of the above, the disallowance of Rs.7,24,201/- made by the AO towards interest in electricity is deleted.

4.1 The AO disallowed the above sum representing interest on excise duty on the ground that the assessee could not produce before him evidence to show that interest has been charged on excise duty by the concerned authority.

4.2 The ld. CIT(A) confirmed the above disallowance on the ground that no material was placed before the AO to prove that the said interest liability arose not an account of infraction of law.

4.3 The ld. Counsel of the assessee submitted that the assessee desires to restrict the disputed allowance to Rs.4,16,810/- as against the dispute raised in the grounds of appeal at Rs.9,59,481/-, thereby conceding part disallowance at Rs.5,42,671/-. Also it was stated that before the AO, vide submission dated 28/11/2005, copies of challans for interest on excise duty were filed.

4.4 The ld. DR supported the order of the ld. CIT(A) confirming the above disallowance made by the AO.

4.5 After considering the rival submissions and perusing the relevant material on record, we find that the ld. Counsel of the assessee in his written submission filed before the Tribunal has stated that the assessee desires to restrict the disputed disallowance in the case of interest on excise duty to Rs.4,16,810/-, thereby conceding part disallowance at Rs.5,42,671/-. Thus, we find that a new fact has emerged before the Tribunal. In view of the above, we deem it fit to set aside the order of the ld. CIT(A) on the above issue and restore it to the file of the AO for verification and passing an order after giving reasonable opportunity of being heard to the assessee. Thus, ground no. 3 of the appeal filed by the assessee is allowed for statistical purpose.

5.1 The AO, during the course of assessment proceedings found that the outstanding loan amounts of Rs.187,22,98,816/- which consist of secured loans amounting to Rs.150,85,51,088/- and unsecured loans of Rs.36,37,47,728/- on which the assessee had claimed financial charges / interest of Rs.30,99,47,401/- and after excluding the bank charges and the interest on statutory payments amounting to Rs.4,00,16,651/-, the balance interest on the secured and unsecured loans worked out to Rs.27,04,38,648/-, thus the rate of interest works out to 14.44%. At the same time, the assessee company has advanced loans to sister concerns amounting to Rs.1,44,94,403/-. The AO came to a finding that the assessee had taken huge loans for the purpose of business and on which it is claiming interest expenditure whereas it has advanced huge loans to sister concerns without charging interest and thereby reducing its profitability. Therefore, the AO disallowed the proportionate interest @ 14.44% on the funds advanced to sister concerns amounting to Rs.1,44,94,403/- which works out to Rs.20,92,991/-.

5.2 The ld. CIT(A) confirmed the above disallowance made by the AO stating that no business purpose is involved in diversion of borrowed funds to the sister concerns.

5.3 The ld. Counsel of the assessee submitted that the assessee had given interest free advances to certain firms which have been also mentioned by the AO at Para 6.1 of the assessment order. The advances of interest free loans given are mutually beneficial and fulfil the requirement of commercial expediency. It was stated that the details were filed before the AO on 28/11/2006 during the course of assessment proceedings and the same has been extracted by the AO at para 6.1 of the assessment order. Even otherwise, a major portion of the interest liability has been disallowed u/s 43B. Reliance was placed by him on the decision of the Hon’ble Supreme Court in the case of S.A. Builders Ltd. vs. CIT 288 ITR 1 (SC). Therefore, it was submitted that the proportionate interest of Rs.20,92,991/- disallowed by the AO is without any basis and the same should be deleted.

5.4 The ld. DR supported the order of the ld. CIT(A) upholding the above disallowance made by the AO.

5.5 After considering the rival submission and perusing the relevant material on record, it is observed that the ld. AR of the assessee had filed a detailed explanation before the AO vide its letter dated 13/11/2006. This has been produced by the AO at para 6.1 of his assessment order dated 29/11/2006. Therefore, the contention of the AO that the assessee did not file details is not correct.

The Hon’ble Supreme Court in the case of S. A. Builders Ltd. (supra) has held that:

“Once it is established that there is nexus between the expenditure and the purpose of the business (which need not necessarily be the business of the assessee itself), the Revenue cannot justifiably claim to put itself in the arm-chair of the businessman or in the position of the board of directors and assume the role to decide how much is reasonable expenditure having regard to the circumstances of the case. No businessman can be compelled to maximize its profit. The income tax authorities must put themselves in the shoes of the assessee and see how a prudent businessman would act. The authorities must not look at the matter from their own view point but that of a prudent businessman. Once has to see the transfer of the borrowed funds to a sister concern from the point of view of commercial expediency and not from the point of view whether the amount is advanced for earning profits. It is not correct that in every case interest on borrowed loan has to be allowed if the assessee advances it to a sister concern. It all depends on the facts and circumstances of the respective case. For instance, if the directors of the sister concern utilize the amount advanced to it by the assessee for their personal benefit, obviously it cannot be said that such money was advanced a measure of commercial expediency. However, money can be said to be advanced to a sister concern for commercial expediency in many other circumstances (which need not be enumerated here). Where it is obvious that a holding company has a deep interest in its subsidiary, and hence if the holding company advances borrowed money to a subsidiary and the same is used by the subsidiary fr some business purpose, the assessee would, ordinary be entitled to deduction of interest on its borrowed loans.” 5.6 As the AO has not controverted the submission of the AR of the assessee dated 13/11/2006 which has been produced at para 6.1 of the assessment order, we follow the decision in the case of S. A. Builders Ltd. (supra) and delete the disallowance of Rs. 20,92,991/- made by the AO.

6.1 The AO during the course of assessment proceedings found that the assessee had claimed payment of fees to foreign technician amounting to Rs. 2,23,000/-. As the assessee failed to produce before him any evidence of tax deducted at source from the said payment, the AO made a disallowance of it.

6.2 The ld. CIT(A) upheld the above disallowance made by the AO because the assessee failed to furnish any material to show as to why no tax was deductible u/s 195 of the Act on the payment made to non-resident as technical fees.

6.3 The ld. Counsel of the assessee submitted that it had submitted before the AO all the details except a few ones. The said details could not be filed for compelling circumstances which were explained to the AO vide letter dated 20/11/2006.

6.4 The ld. DR supported the order of the ld. CIT(A) confirming the disallowance made by the AO on the above issue.

6.5 After considering the rival submission and perusing the relevant material on record, it is observed that admittedly, the assessee could not file before the AO full details in respect of payment of fees to foreign technician. The said details could not be filed for compelling circumstances which were explained to the AO by the assessee vide letter dated 20/11/2006. Unless the full details in respect of payment of fees to foreign technician are filed by the assessee, it would not be possible to arrive at a correct finding. In view of the above, the order of the ld. CIT(A) on the above issue is set aside and the same is restored the file of the AO to make a fresh assessment after giving reasonable opportunity of being heard to the assessee. Thus, the fifth ground of appeal raised by the assessee is allowed for statistical purpose.

7. As we have discussed, ground no 1 to 5, there is no necessity of discussing ground no. 6 filed by the assessee which relates to the earlier grounds.

Order pronounced in the open court on 30/09/2016.