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Income Tax Appellate Tribunal, DIVISION BENCH ‘B ’, CHANDIGARH
Before: SHRI SANJAY GARG & MS. ANNAPURNA GUPTA
IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH ‘B ’, CHANDIGARH
BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA No.935/Chd/2017 (Assessment Year : 2008-09) M/s Metalman Auto Pvt. Ltd., Vs. The Addl.C.I.T., E-127, Phase-V, Range-1, Focal Point, Ludhiana. Ludhiana. PAN: AABCM5441M (Appellant) (Respondent)
Appellant by : Shri Amarjit Kamboj, CA Respondent by : Shri Gulshan Raj, CIT(DR) Date of hearing : 16.05.2018 Date of Pronouncement : 14.08.2018
ORDER PER ANNAPURNA GUPTA, AM:
The present appeal has been preferred by the assessee
against the order of learned Commissioner of Income Tax
(Appeals)-1, Ludhiana (hereinafter referred to as
CIT(Appeals)) dated 27.4.2017 relating to assessment year
2008-09.
Ground No.1(a) reads as under:
“1. Commissioner of Income Tax (Appeals)-l, Ludhiana has erred in law and on facts of the case:- a) By arbitrarily and wrongly confirmed the disallowance of interest Rs.35131/- made u/s 36(1) (iii) of the Income Tax Act, 1961 w.r.t. the amount of capital work in progress and advance given for purchase of machinery.” 3. Brief facts relating to the issue raised in the above
ground regarding disallowance of interest amounting to
Rs.35,131/- u/s 36(l)(iii) of the IT Act, is that during the
course of assessment proceedings, the Assessing Officer
noticed that the assessee had made the following capital
advances:-
(a) Capital work in progress amounting to Rs.31,22,096/- (b) Advance for purchase of machinery to M/s Chakan Engineering Pvt. Ltd. amounting to Rs.6,25,000/-. 4. The assessee was asked to show whether interest
pertaining to the same had been capitalized or not and if not
why the said interest be not disallowed and capitalized. In
response, the assessee submitted that the capital work in
progress pertained to payments/ expenses on installation of
Enterprises Resource Planning (ERP) Navision, for which the
assessee had not availed any term loan in any year. As for
the advance of Rs.6,25,000/- given to Chakan Engineering
Co. Pvt. Ltd., it was submitted that the same had been given
for purchase of Boarding Machine which was received in the
next year, on 17.05.2008, and that the said advances had
been made out of current account of the Waluj Unit of the
assessee at Aurangabad, where no interest was paid on any
working capital facility or for making the said advance. The
Assessing Officer was not satisfied with the reply of the
assessee and held that since the entire funds are from
common kitty, the assessee had incurred interest
expenditure on the funds which had been invested in capital
work in progress and advances for machinery, relying upon
various case laws especially, the decision of the Hon'ble
Punjab & Haryana High Court in the case of M/s Abhishek
Industries Ltd. 286 ITR 1.He therefore computed interest
pertaining to the said investments at Rs.35,131/- and
disallowed the same u/s 36(l)(iii) of the Income Tax Act,
1961 (in short ‘the Act’).
During appellate proceedings before the Ld.CIT(A), the
assessee raised various contentions which included the
sufficiency of funds available with it by way of profits for
the year being Rs.4.85 crores, share capital of Rs.1.30
crores and reserves & surplus of Rs.20.39 crores, which
were sufficient for making investment in the capital work-
in-progress amounting to Rs.31,22,096/- and for the
advance given for purchase of boring machine amounting to
Rs.6,25,000/-. The submissions of the assessee did not find
favour with the CIT(Appeals) who upheld the disallowances
made by holding at para 2.3 of his order as under:
“2.3 The appellant has justified the claim of interest as revenue expense on the ground that it is to be allowed as deduction. The appellant has placed reliance on a number of judicial decisions with regard to the issue of disallowance u/s 36(l)(iii) of the IT Act. Having considered the material placed on record, I find that appellant has failed to appreciate the fact that funds have been advanced for purchase of capital asset and therefore proportionate interest on those funds has to be capitalized. This is mandatory in view of the specific provisions as enunciated in Proviso to sec 36(l)(iii) of the IT Act. The judicial decisions relied upon by the appellant are distinguishable on facts as are found to be not on this specific issue of interest expense to be capitalized or to be allowed as revenue. Accordingly, I confirm the disallowance of Rs.35,131/- made by the Assessing Officer under this head.” 6. Before us, the Ld. counsel for assessee reiterated his
contentions made before the CIT(Appeals) that in view of the
sufficiency of funds available with him for making impugned
investment no disallowance of interest was warranted as per
the provisions of section 36(1)(iii) of the Act. Reliance was
placed on the decision of the Hon'ble Punjab & Haryana
High Court in support of this proposition in the case of
Gurudas Garg Vs. CIT(A), Bathinda (2015) 63 Taxman 289
and CIT Vs. Kapsons Associates (2016) 381 ITR 204.
The Ld. DR, on the other hand, relied upon the order
of the CIT(Appeals).
We have heard the rival contentions and after perusing
the order of the Ld.CIT(Appeals) we find merit in the
contentions raised by Ld. counsel for assessee. The fact of
availability of own interest free funds in the form of profits
for the year amounting to Rs.4.85 crores, share capital
amounting to Rs.1.3 crores and reserves & surplus
amounting to Rs.20.39 crores, has remained undisputed
and uncontroverted by the Revenue. The investment in
capital work-in-progress and advance for machinery on
account of which interest has been disallowed applying the
provisions of section 36(1(iii) on account of diversion of
interest bearing funds for the purpose of making these
investments amounts to Rs.37.5 lacs (Rs.31.22 lacs +
Rs.6.25 lacs) respectively. Clearly therefore, there were
enough own funds available with the assessee for making
impugned investment. Further the proposition laid down by
the Hon'ble Jurisdictional High Court in the case of
Gurudas Garg and M/s Kapsons Associates (supra), as
pointed out by the lower authorities, is that where
sufficient own interest free advances are available, it is to
be presumed that the same have been used for making
interest free advances or non-business advances. The Ld.
DR has not brought to our notice any contrary decision of
the Hon'ble Jurisdictional High Court or the Hon'ble Apex
Court in this regard. In view of the same, we agree with the
Ld. counsel for assessee that no interest bearing funds can
be attributed to have been used for the purpose of making
impugned investment in capital work-in-progress and
advance for purchase of machinery. The Revenue,we find,
has not pointed out any nexus between the interest
bearing funds of the assessee and the investment in the
same and the disallowance has been made by giving a
vague/ general statement that the funds have been found to
have been advanced for the purchase of capital asset
without specifying whether /which interest bearing funds
have been so used. In the absence of the same and
considering the totality of the facts and circumstances of
the present case, we hold that no disallowance of interest is
warranted in the present case as per the provisions of
section 36(1)(iii) of the Act. The disallowance so made
amounting to Rs.35,131/- is, therefore, directed to be
deleted. Ground No.1(a) raised by the assessee is allowed.
Ground No.1(b) reads as under:
“b) By arbitrarily and wrongly confirmed the disallowance of expenses Rs.3,98,008/- u/s 14A of the Income tax Act, 1961.”
The facts relating to this ground of appeal relates to
disallowance of Rs.3,98,008/- u/s 14A of the Act. During the
course of assessment proceedings, the Assessing Officer
noticed that the assessee company had made investment in
mutual funds from which exempt income was being earned.
The assessee was asked to provide details of the expenses
incurred on making these investments and whether they had
been added back u/s 14A. In response, it was submitted that
the assessee had voluntarily disallowed the amount of
Rs.1,36,000/- on account of section 14A disallowance.
Thereafter, not satisfied with the reply of the assessee, the
Assessing Officer calculated the disallowance u/s 14A
amounting to Rs.5,34,008/- and after giving credit for the
amount already disallowed by the assessee of Rs.1,36,000/-,
the balance amount of Rs.3,98,008/- was disallowed and
added to the income of the assessee.
Before the Ld.CIT(Appeals), the assessee raised several
contentions, as reproduced in para 3.1 of the order, which
briefly put were to the effect that the assessee had suomoto
disallowed administrative expenses of Rs.1,36,000/-,being
part of salary and telephone expenses of one of its employee
for maintaining portfolio of its investments, that no interest
expense was disallowable since net interest had been
earned by the assessee, the interest paid in any case
related to term loans and specific purpose loans and no
part of borrowed funds were used for making the
investment, that the investment had been made out of sale
of mutual funds and that the assessee had sufficient own
funds in the form of profits for the year for making the
impugned investments . The submissions of the assessee
did not find favour with the Ld.CIT(Appeals) who held that
the requisite conditions for invoking the provisions of
section 14A were found applicable in the facts of the case
and, therefore, the disallowance was rightly worked out by
invoking the machinery provisions given in Rule 8D of the
Income Tax Rules. The relevant findings of the CIT(A) at
para 3.3 of the order is as under:
“3.3 Having considered the submissions made in this regard, I find that requisite conditions for invoking the provisions of sec 14A of the IT Act are found to be applicable in the facts of this case. The appellant has also not denied the same and the only difference of opinion is with regard to the computation of the amount of disallowance to be made u/s 14A of the IT Act. I find that for this purpose, machinery provision has been given in Rule 8D of the IT Rules. As regards the contention of recording the satisfaction of Assessing Officer is concerned, I find that it has been clearly complied with by the Assessing Officer on page 9-11 of the order. I do not find any infirmity in the computation made by the Assessing Officer and accordingly confirm the disallowance of Rs.3,98,008/- made u/s 14A of the IT Act.” 12. Before us, the Ld. AR reiterated the contentions made
before the CIT(Appeals) regarding sufficiency of own surplus
funds available with the assessee for the purpose of making
investment warranting no disallowance of interest u/s 14A
of the Act. Reliance was placed on the decision of the
Hon'ble Punjab & Haryana High Court in the case of CIT vs
Max India Ltd. in ITA no.186 0f 2013 dt.06-09-16 and the
decision of the Hon’ble Gujarat High Court in the case of
Principal Commissioner of Income Tax-4 vs Sintex
Industries Ltd. (2017) 82 taxmann.com 171 (Guj).It was
pointed out that the SLP filed against the order of the
Hon’ble Gujarat High Court was dismissed by the Apex
court in its judgement reported in (2018) 93 taxmann.com
24.
The Ld. DR, on the other hand, relied upon the order
of the CIT(Appeals).
We have heard the rival contentions and gone through
the orders of the authorities below. We find merit in the
contentions of the Ld. counsel for assessee. The fact that
the investment in relation to which disallowance u/s 14A
was made amounted to Rs.2,60,75,051/- while the own
funds available with the assessee as stated in the earlier
part of our order amounted in all to Rs.26.54 crores, in the
form of profits of Rs. 4.85 crores, share capital of Rs. 1.30
crores and Reserves & Surplus of Rs 20.39 crores, is not
disputed, nor has the same been controverted by the
Revenue. Further we find that the Hon'ble Jurisdictional
High Court in the case of Max Industries (supra) and the
Hon’ble Gujarat High Court in the case of Sintex
Industries(supra) has held that where sufficient own funds
are available, no disallowance on account of interest is
warranted u/s 14A of the Act. We have also noted that SLP
against the order of the Hon’ble Gujrat High Court has been
dismissed by the apex court. In view of the same, we find
merit in the contention of the assessee that no disallowance
of interest, in the present case, was warranted on account
of sufficient own funds available with the assessee which
could be attributed to the making of impugned investments
in the present case. Further, we find that the assessee had
contended that the investment had been made out of sale of
mutual funds held in the preceding year. It was pointed out
by the Ld. counsel for assessee that mutual funds held in
the preceding year amounted to Rs.8.50 crores which had
been sold and invested in mutual funds in the impugned
year to the extent of Rs.2.60 crores. The same was
demonstrated through the schedule of investment forming
part of the balance sheet showing none of the old
investments of Rs. 8.5 crores appearing in the investments
of the current year which show new investments of Rs.2.60
crores. Thus we find that the assessee had clearly
demonstrated the attribution of the source of the
investment in the mutual funds to be out of non interest
bearing sources. In view of the same, there was no occasion
at all to invoke the provisions of section 14A of the Act and
made disallowance of interest under the same. The
disallowance, therefore, made of Rs.3,98,008/- is directed
to be deleted. Ground No.1(b) raised by the assessee is,
therefore, allowed for statistical purposes.
Ground No.1(c) raised by the assessee is as under:
“c) By arbitrarily and wrongly confirmed the disallowance of expenses for Rs.5,79,063/- paid for purchase of diesel u/s 40A(3) of the Income Tax Act, 1961.” 16. This ground relates to the disallowance of expenses of
Rs.5,79,063/- u/s 40A(3) of the Act, on account of payment
made in cash exceeding the specified limit. The facts
leading to the same are that during assessment
proceedings, the Assessing Officer noticed that the assessee
had made payments in cash exceeding Rs.20,000/- for
purchase of diesel amounting to Rs.5,79,063/-. The
assessee was asked to show cause as to why this
expenditure be not disallowed in view of the provisions of
section 40A(3). In response, the assessee submitted that the
company was purchasing diesel from a regular retail outlet,
which was accepting payments by cheque. However, it was
only in the event of non availability of diesel at the said out
let that it purchased diesel from other outlet to whom
payment had to be made in cash only. The Assessing Officer
was not satisfied with the reply of the assessee stating that
the situation cited by the assessee did not fall within any of
the situations referred to in Rule 6DD of the Income Tax
Rules, 1962. Therefore, disallowance was made of the
amount paid in cash exceeding the limits specified u/s
40A(3) of the Act of Rs.5,79,063/- and added back to the
income of the assessee.
Before the Ld.CIT(A) the assessee reiterated the
contentions made before the AO stating that the cash
payments were unavoidable due to urgent need of diesel for
running the unit in case of power cuts. Copy of account of
both the parties from whom diesel was regularly purchased
and from whom purchases were made due to urgency and
payment made in cash thereof, was filed. It was stated that
the payments in cash had been made due to urgency in
business and the genuineness and identity of the parties not
being doubted ,no disallowance u/s 40A(3) was warranted.
Reliance was placed on a number of judicial decisions in
this regard. Ld.CIT(A) was not convinced with the contention
of the assessee and therefore upheld the disallowance made
stating that the assessee had failed to substantiate the
expenditure and the relevant clause of Rule 6DD whereunder
the same was permissible. The relevant findings of the CIT(A)
at para 4.2 of the order is as under:
“4.2 I have carefully considered the facts of the case, the basis of the disallowance made by the Assessing Officer and arguments of the AR and find that a disallowance of Rs.5,79,063/- has been made by the Assessing Officer u/s 40A(3) of the IT Act. The disallowance was made on the ground that cash payments have been made exceeding Rs.20,000/- in contravention to the provisions of sec 40A(3) of the IT Act. The appellant has failed to furnish any evidence to prove that payments made are covered under which clause of Rule 6DD of the IT Rules. The appellant has reiterated the submissions filed before the Assessing Officer and stated that payments were made for purchase of diesel from a dealer other than the regular dealer from whom purchases were made by cheque. The appellant has also cited a number of judicial decisions to support its contentions but the same were found to be distinguishable on facts. Further, I find that appellant has failed to bring on record any evidence even in the course of present proceedings to substantiate the expenditure incurred and the relevant clause of Rule 6DD where under the same is permissible Thus, considering all these facts, I hold that the Assessing Officer was justified in making a disallowance of Rs.5,79,063/- u/s 40A(3) of the IT Act and accordingly confirm the same.” 18. Before us Ld.Counsel for the assessee reiterated the
contentions made before the lower authorities that the
genuineness of the expenditure had not been doubted and
the urgency also had been established for making the
payment in cash, therefore, no disallowance was permissible
u/s 40A(3) of the Act. Reliance was placed on the following
case laws in support of its contention:
• Gurdas Garg vs CIT(A),Bhatinda (2015) 63 taxmann.com 289 (P&H) • Dhuri Wine vs DCIT,Circle-IV,Ludhiana(2017) 83 taxmann.com 20(Chd) 19. Ld.DR on the other hand relied on the order of the
CIT(A) stating that the assessees situation did not fall in any
of the conditions prescribed u/r 6DD of the Income Tax
Rules, 1962 and therefore the disallowance had been rightly
made.
We have heard the rival contentions and gone through
the order of the authorities below. We find merit in the
contention of the Ld.Counsel for the assessee. No
disallowance u/s 40A(3) is warranted if the genuineness of
the expenditure is not doubted and the business expediency
for making the same in cash is duly demonstrated, even if it
does not qualify under any of the situations enumerated in
Rule 6DD of the Income Tax Rules, 1962, for the said
purpose. The jurisdictional High Court in the case of
Gurudas Garg (supra) has laid down this proposition, which
has been followed by the coordinate bench of the ITAT in the
case of Dhuri Wines (supra).It has been held that the
situations listed in Rule 6DD are not exhaustive but are only
illustrative and any situation bringing out business exigency
for making the payment in cash will therefore not be
excluded for the purpose of grant of immunity from the
rigours of disallowance u/s 40A(3),merely because it finds
no place in the list in Rule 6DD of the Income Tax
Rules,1962.
Having said so, we find that in the present case the
assessee has filed evidence to establish the genuineness of
the expenditure and also the business expediency for making
the payment in cash, by filing copies of accounts of both the
parties one from whom diesel was purchased in regular
course and the other in urgent situations only making
payment to him in cash on demand. The Revenue has not
controverted the said facts. Therefore the genuineness of the
expenditure and also the business expediency for making the
payment in cash stands established. In this factual
background and in view of the proposition of law laid down
by courts as above, no disallowance u/s 40A(3) was
warranted ,merely for the reason that the assessees
situation did not fall in that listed in Rule 6DD of the
Income Tax Rules,1962. The disallowance so made of
Rs.5,79,063/- is therefore deleted. Ground of appeal No1©
is allowed.
Ground No.1(d) raised by the assessee reads as under:
d) By arbitrarily and wrongly restricted the disallowance of foreign travelling expenses at Rs.87,000/-out of Rs.174966/- made by the Ld. A.O on adhoc basis.” 23. The above ground relates to disallowance of
Rs.1,74,966/- out of foreign travel expenses. During the
course of assessment proceedings, the Assessing Officer
noticed that the assessee had debited an amount of
Rs.8,74,832/- on account of foreign travel expenses. The
assessee was asked to provide the complete details of
foreign travel expenses with vouchers. In response, the
assessee produced date wise details of foreign traveling
expenses and also stated that the tour were undertaken to
explore new markets for exports, new manufacturing
machines, to attend international auto expo's and to study
new products, designs etc. The Assessing Officer was not
totally satisfied with the reply of the assessee because the
assessee did not have proper evidence to establish the claim
and relevance of these expenses being incurred for business
purpose. Therefore, the Assessing Officer disallowed 20% of
these expenses, which worked out at Rs.1,74,966/- and
added back to the income of the assessee.
Before the Ld.CIT(A) the assessee contended that no
personal usage could be attributed to the said expense since
all expenses were incurred on directors of the assessee
company only. Further it was contended that the tours were
undertaken to explore new markets, new manufacturing
machines and to attend auto expo and that the assessee had
exported goods worth Rs.32 lacs & 1.42 crores in the
succeeding years on account of the same. The Ld. CIT(A)
found some merit in the contention of the assessee and
further restricted the disallowance to Rs.87,000/-since
complete nexus could not be established between the
expenses incurred and the business purpose of the travel.
Before us Ld.Counsel for the assessee reiterated the
contention made before the CIT(A) and stated that the
disallowance was purely adhoc which was not permissible in
law. Reliance was placed on the following case law in
support of its contention:
• M/s Vallabh Yarns Pvt. Ltd. vs JCIT ITA No.1250/Chd/2017 dated 28-03-18 26. Ld.DR on the other hand strongly supported the order
of the CIT(A) stating that the restriction of disallowance to
Rs.87,000/- out of total expense incurred of Rs.8,74,832/-
was reasonable considering the fact that the assessee had
failed to establish nexus between the expenditure incurred
and business purpose of travel undertaken.
After considering the rival contentions we find merit in
the contention of the Ld.Counsel for the assessee. The fact
that the travelling was undertaken by the directors of the
assessee company was established by the assessee filing
details and copy of account of travelling expenses. The
revenue has not controverted the said fact. Further the fact
that the assessee has made considerable export sales in the
immediately succeeding years of Rs.32 lacs and Rs.1.42
crores has also remained uncontroverted. Therefore there is
no reason for attributing any personal/non business usage
in the said expenses when the entire travel has been
undertaken by the directors of the company resulting in
visible increase in sales in the succeeding year. The
disallowance upheld by the CIT(A) to the extent of
Rs.87,000/- is purely adhoc without any basis, and is
therefore deleted. Ground of appeal No.1(d) therefore stands
allowed.
In the result, the appeal of the assessee is allowed.
Order pronounced in the Open Court.
Sd/- Sd/- (SANJAY GARG) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 14th August, 2018 *Rati* Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A) 4. The CIT 5. The DR
Assistant Registrar, ITAT, Chandigarh