I.T.O WD - 7(1),KOLKATA, KOLKATA vs. M/S AVRO COMMERCIAL COMPANY LIMITED., KOLKATA

b. The accumulated profits of M/s. JAFPL as on 31-03-2008 was Rs.28,72,80,404/- and as on 31-03-2009 was Rs.31,66,33,101/-.

5.1 The assessee took this loan for very short period of time from M/s. JAFPL and repaid the same before the end of the previous year. Before the ld.AO, the assessee argued that M/s. JAFPL is a non banking financial company [ In short ‘NBFC] and holding certificate of registration from the RBI. The main object of the company, i.e M/s. JAFPL is money lending business among others. A sum of Rs. 66.22 lakhs has been derived as interest income by M/s. JAFPL. M/s. JAFPL had deployed Rs.18,82,80,249/- in its money lending business out of total liquid funds available at Rs. 31,24,44, 463/-. It was argued that where lending is made in the ordinary course of business to the shareholder and where lending is also substantial part of the business of the lending company, then it would fall under the exception clause of section 2 CO No.28/K/2013 -A-AM M/s.Avro Commercial Co.Ltd 2(22)(e) of the I.T Act. The ld.AO observed the following from the income criteria of the assessee , which is tabulated as below :- Particulars of Income As on 31/03/2009 As on 31/03/2008 1) Sale of shares Rs.8,84,01,687 NIL 2)Interest Income Rs.66,21,789 Rs.79,95,548 3)Profit on sale Rs.2,26,59,650 Rs.2,77,05,361 of investments 4) Other income Rs.1,33,05,036 (Rs.94,60,872)

5.2 According to the ld.AO, the total income of the assessee is Rs.3.59 crores and out of which interest income is only Rs.66 lakhs, which is not even 20% of the total income. Based on this, he concluded from the income criterion, that lending is not substantial part of business of the lending company, M/s. JAFPL.

5.3. The ld. AO observed the following from funds deployment criterion, which is tabulated as below:- Particulars As on 31/03/2009 As on 31/03/2008 1) Capital Rs.36,50,26,678 Rs.33,89,87,440 2) Investments Rs. 33,40,66,614 Rs.25,28,44,997 3) % age of total capital 91.5% 74.58% 4) Loan & Advance Rs.1,83,47,769 Rs. 74,578 5) % age of total capital 5% 22% 5.4 The ld.AO observed that M/s. JAFPL despite making good profits has not chosen to declare dividend for so many years. The ld.AO observed that in this scenario granting of loans to the assessee being shareholder without declaring dividends need to be construed as deemed dividend u/s. 2(22)(e) of the Act going by the real intention of the said provision. On the 1st appeal, the ld.CIT(A) appreciated the contentions of the assessee and deleted the addition as made by the ld.AO on this issue. Aggrieved 3 CO No.28/K/2013 -A-AM M/s.Avro Commercial Co.Ltd the revenue is in appeal before us and the assessee has also filed cross objection for its alternative claim.

“(22) dividend includes- ( a) to (d) *** *** *** ***

(e) any payment by a company, not being a company in which the public are substantially interested, of any sum (whether as representing a part of the assets of the company or otherwise)[made after the 31st day of May, 1987, by way of advance or loan to a shareholder", being a person who is the beneficial owner of shares (not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits) holding not less than ten per cent of the voting power, or to any concern in which such shareholder is a member or a partner and in which he has a substantial interest (hereafter in this clause referred to as the said concern)] or any payment by any such company on behalf, or for the individual benefit, of any such shareholder, to the extent to which the company in either case possesses accumulated profits" ; but "dividend" does not include-

(i) a distribution made in accordance with sub-clause (c) or sub- clause (d) in respect of any share issued for full cash consideration , where the holder of the share is not entitled in the event of liquidation to participate in the surplus assets;

"[(ia) a distribution made in accordance with sub-clause (c) or sub- clause (d) in so far as such distribution is attributable to the capitalised profits of the company representing bonus shares allotted to its equity shareholders after the 31st day of March, 1964, [ and before the 1st day of April, 1965] ;]

(ii) any advance or loan made to a shareholder [ or the said concern] by a company in the ordinary course of its business , where the lending of money is a substantial part of the business of the 4 CO No.28/K/2013 -A-AM M/s.Avro Commercial Co.Ltd company;

the business of a lending company should come from the business of lending, the legislature could have specifically provided for that percentage while drafting cl.(ii) of s.2(22) of the Act. The legislature had deliberately used the word “substantial” instead of using the word "major" and/or specifying any percentage of the business or profit to be coming from the lending business of the lending company for the purpose of cl. (ii) of s. 2(22) of the Act. We would give a an illustration to ascertain the meaning of the expression "substantial business" or "substantial income" of a company. In the modern days, large number of companies do not restrict to one or two businesses. They carry on numerous activities and carry on numerous businesses and have numerous business divisions. Let us take a case of a first company which has 3 divisions of works consisting of three different types of business. Turnover as well as the profit of the first division is 40 per cent; turnover and profit of second division is 30 per cent and the turnover and profit of the third line of business is 30 per cent. In the case of this company no part of the business has turnover exceeding 50 per cent and no part of the business company generates profit of more than 50 per cent of the total. In such a case can it be said that none of the business of the said company is a substantial business of the company. In our view now. The first business which constitutes 40 per cent of the turnover and contributes 40 per cent to the profit would be the single largest part of the business of the company, the second and third divisions of the business, each of which contributes 30 per cent of the turnover as well as profit of the company, though not the major and not even single largest part of the business of the company, would still be a substantial part of the business of the company, because if any part of the three divisions of the business of the company was to be closed down, that would result in loss of turnover and/or business of 30 per cent, ordinarily no company would regard such part of the business as insignificant. As rightly observed in Stroud’s Judicial dictionary, it is not possible to give any fixed definition of the word “substantial “in relation to a “a substantial business of a company”. Any business of a company which the company does not regard as small, trivial or inconsequential as compared to the whole of the business is substantial business. Various factors and circumstances would be required to be looked into while considering whether a part of the business of a company is its substantial business. Sometimes a portion which contributes substantial part of the turnover, though it contributes a relatively small portion of the profit, would be substantial part of the business. Similarly, a portion which relatively small as compared to the total turnover, but generates large, say more than 50 per cent of the total profit of the company would also be substantial part of its business. Percentage of turnover in relation to the whole as also the percentage of the profit in relation to the whole and sometimes even percentage of a 7 CO No.28/K/2013 -A-AM M/s.Avro Commercial Co.Ltd manpower used for a particular part of business in relation to the total manpower or working force of the company would be required to be taken into consideration. Employees of a company are now called its “human resources “and, therefore, the percentage of “human resources” used by the company for carrying on a particular division of business may also be required to be taken into consideration while considering whether a particular business forms substantial part of its business. “

The ld.AR submitted that the market for loans and advances and investment in shares vary from year to year. M/s. JAFPL, a NBFC, which has own capital of around Rs. 36 crores and has invested its money in bonds, stocks, debentures etc. and giving of loans and advances, which is best suited for its growth opening apparatus. He argued that money market by granting of loans and advances in the form of inter corporate deposits on short term as in long term basis may or may not be lucrative in a particular year. Therefore, the funds are to be put under better option such as in investment, mutual funds and shares with an expectation to yield better results. He further argued that there is no doubt that during the year, M/s. JAFPL has a current advance amount of Rs. 11 crores and total deployment of fund in the loans and advances was much more than that as per the statement filed and these figures indicate that substantial part of the business of the lending company is of money lending. He further argued that it does not matter whether the advances have been refunded during the year and balance of loans and advances at the end of the year had got reduced. We find lot of force in the arguments of the ld.AR. We hold that what has to be seen is the nature of the lending company’s business and analysis of deployment of funds during the year and also in previous years and intention of the party. We hold that by seeing the balance sheet at the end of the year, which only reflects the financial status of the activities carried out by the assessee all throughout the year, but what has to be seen is the actual picture and affairs of the lending company to determine the correct nature of business. We draw support from the decision of the Hon’ble Allahabad High Court in the case of Ravi Agarwal Vs. ACIT reported in (2015) 64 Taxmann.com 31 (All.) vide order dated 8-10-2015, wherein it has been held as below :- 8 CO No.28/K/2013 -A-AM M/s.Avro Commercial Co.Ltd

“ 11 We are of the opinion that it is not possible to give a fixed definition of the word "substantial" in relation to a substantial business of a Company. We are of the opinion that any business of a Company which is not trivial or inconsequential as compared to the whole of the business would be termed as substantial part of the business. In the instant case, the assessing officer has held that the business of giving loans and advances by Sarnath Finance Company constituted less than 20% of the total investment and, therefore, the same is not a substantial part of the business of the Company. In our view, such reasoning is per se misconceived.

8.1 From the aforesaid decision, we find that the Hon’ble Allahabad High Court had held that the income and funds deployed even if it is less than 20% of the total investment would still be construed as ‘substantial part of business’ of the company. We also draw support from the decision of the Co-ordinate Bench of the Delhi Tribunal in the case of Mrs. Rekha Modi Vs. ITO in dated 19-01- 2007, wherein the Delhi Tribunal held that 20% criterion shall be relevant to determine the ‘substantial part of the business’ in the context of section 2(22)(e) of the Act. Further, we draw support from the decision of the Co-ordinate Bench of ITAT Lucknow in the case of DCIT Vs. Kishorilal Agarwal reported in (2014) 150 ITD 741(Lucknow), wherein it has been held as follows:- 9 CO No.28/K/2013 -A-AM M/s.Avro Commercial Co.Ltd

“14. In the light of aforesaid judicial pronouncement, we have examined the facts of the case in hand and we are of the view that there should not be any controversy that "substantial part of business" is not equivalent to the word "major part of business", as the Legislature has not used the words "major part of business" in place of "substantial part of business". Had it been used, then it would have to be examined that assessee's business should be more than 50% in that particular activity. But the Legislature has consciously used the words "substantial part of business" which means that any business of a company which the company does not regard as small, trivial, or inconsequential as compared to the whole of the business is substantial business. Therefore, if particular percent of capital of the company is employed in the money lending business, the company can be called to have substantial part of business in money lending. In the light of Explanation 3(b) below section 2(22)(e) of the Act, where a person shall be deemed to have a substantial interest in a concern, other than a company, if he is, at any time during the previous year, beneficially entitled to not less than twenty per cent of the income of that concern and the order of the Tribunal in the case of Mrs Rekha Modi vs. Income Officer, New Delhi (supra) and other judgment of the Hon'ble High Court, we are of the view that if 20% of the capital of the company is deployed in money lending business of the company, the company shall be held to have a substantial part of business in money lending.”

8.2 We also place our reliance on the decision of the Hon’ble Bombay High Court in the case of CIT Vs. Jayant H. Modi reported in (2015) 232 Taxman 0337 (Bom.), wherein it has been held as below:- “7. The Tribunal also referred to the assessment order in the case of M/s. JMC Securities Pvt. Ltd for the year under consideration, namely 2006-07, wherein the nature of the business of that company was indicated as finance. The company continued in the business of short term finance of idle funds. M/s. JMC Securities Pvt. Ltd. During the year under consideration, earned interest income to the tune of Rs.9,16,088/- which constituted about 70% of its total business income amounting to Rs.13,04,088/-. The maximum amount of loan advanced by the company during the year under consideration was to the tune of Rs. 95,45,000/-. That constituted 32% of the total funds available with the said company. In these circumstances, the Tribunal concluded that that the lending of money is a substantial part of the business of M/s. JMC Securities Pvt. Ltd. The addition made by the assessing officer and sustained by the Commissioner was not valid and legal, 10 CO No.28/K/2013 -A-AM M/s.Avro Commercial Co.Ltd particularly in the background facts. In the light of the undisputed factual position, we are of the view that the Tribunal's order is correct and reliance placed by it on the Division Bench judgment of this Court is not misplaced.”

8.3 From the details available as per records, we find that the liquid funds available with the assessee were Rs.31,24,44,463/- and assessee had granted loans during the year amounting to Rs.11,26,65,003/-, which works out to 36.06% of total liquid funds available. Hence, it can be safely concluded that the lending activity is substantial part of the business of M/s. JAFPL from the factual position as stated herein above from the angle of funds deployment criterion.

8.4. The ld. AR for the assessee also made an alternative argument that what was received by the assessee from M/s. JAFPL is only in the nature of inter corporate deposits and not loans and advances. Hence, the provisions of section 2(22)(e) of the Act cannot be made applicable in the facts of the case. He also argued that M/s. JAFPL had shown interest income as interest received on inter corporate deposits in its books. He stated that terms ‘loan’, advance’ and ‘deposit’ are distinct and separate, In support of this proposition, he placed his reliance on the following decisions:- 1) ITAT Mumbai in the case of Oil Industries Vs. DCIT reported in 28 SOT 383(Mum.Trib) 2) ITAT Kolkata in the case of IFB Agro Industries Vs.DCIT reported in 63 SOT 207 (Kol.Trib). 3) ITAT Kolkata in the case of DCIT Vs. P.C Chandra Holdings P.Ltd In 38 CCH 115(Kol.Trib)

8.5 He argued that in all these aforesaid decisions the expression ‘loans’, ‘advances’ and ‘deposits’ have been distinguished. It has also been held that the provisions of section 2(22)(e) of the Act cannot be made applicable for inter corporate deposits as received by the assessee. He also argued that M/s. JAFPL in the 11 CO No.28/K/2013 -A-AM M/s.Avro Commercial Co.Ltd instant case has got no borrowings and has got own funds of Rs. 10.45 crores. Accordingly, it had chosen to place deposits with the assesseee.

8.6 In view of above, we further find lot of force in the alternative argument of the ld. AR of the assessee and the decisions as relied upon by him before us. In view of the aforesaid findings and judicial precedents relied upon herein above in respect of expression ‘substantial part of the business’ and the alternative argument of the assessee, we hold that no addition could be made in the hands of the assessee u/s. 2(22)(e) of the Act. Accordingly, the Ground Nos. 1,2 & 3 u/s. 2(22) (e) of the Act as raised by the revenue are dismissed.

1. That on the facts and in the circumstances of the case, the ld.CIT(A) erred to direct the Assessing Officer for recalculation of disallowance u/s. 14A, whereas the disallowance made by the Assessing officer u/s. 14A of Rs.311105/- was without recording any satisfaction and contrary to the provisions of law and therefore the action of the ld.CIT(Appeal) not to delete the entire disallowance u/s. 14A is bad in law.

2. That alternatively the disallowance u/s. 14A read with Rule 8D is to be made in respect of only those investments which does not and shall not form part of total income. “

11. Thus, ground no.2 of revenue’s appeal and grounds of cross objection of the assessee are taken up together for disposal as it involves regarding the issue of disallowance of u/s. 14A of the Act. 12 CO No.28/K/2013 -A-AM M/s.Avro Commercial Co.Ltd

12. The brief facts of this issue are that the assessee had disallowed a sum of Rs.15,451/- voluntarily u/s. 14A of the Act in its return of income . The ld.AO applied the provisions of Rule 8D(2)(iii) of the IT Rules 1962 in respect of investments yielding exempt income and made a disallowance of Rs.3,13,008/- u/s. 14A. On 1st appeal, the ld.CIT(A) had directed the ld.AO to adopt Rs. 87,216/- for making disallowance u/s. 14A of the Act.

plainly contrary to the provisions of the statute. The CIT, in the circumstances, allowed the appeal of the assessee and the Tribunal did not interfere. Challenging the order of the tribunal, the present appeal has been filed. We have heard Mr. Bhowmik and are of the opinion that no point of law has been raised. Therefore, this appeal is dismissed. “

Respectfully following the decision of the Hon’ble Jurisdictional Calcutta High Court (supra), we have no hesitation in directing the ld. AO to delete the addition made on this count u/s. 14A of the Act. This ground of revenue’s appeal is dismissed and cross objection of the assessee is allowed.