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Income Tax Appellate Tribunal, MUMBAI BENCH “A”, MUMBAI
Before: SHRI RAJENDRA & SHRI SANJAY GARG
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the assessee against the order dated 24.12.2010 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2006-07.
The assessee has taken the following grounds of appeal:
1. The learned Commissioner of Income Tax (Appeals) has erred in law and on facts in confirming the notional house property income at Rs.84,000/- instead of Rs.24,000/- as stated by the appellant.
2. The learned Commissioner of Income Tax (Appeals) has erred in law and on facts in confirming the disallowance of interest expenses amounting to Rs.2,40,935/- paid for bank overdraft facility utilized for the purpose of investment in the business.
The learned Commissioner of Income Tax (Appeals) has erred in law and on facts in confirming addition of Rs.57,650/- in Business Income being partners remuneration from Popatbapa & Sons without properly considering that the M/s. Popatbapa & Sons has not claimed deduction of remuneration to partners in their Return of Income as the income declared by the firm is income from house property and not income from business.
4. The learned Commissioner of Income Tax (Appeals) has erred in law and on facts in confirming the disallowance of appellants claim of Rs.25,32,545/- being payment of stamp duty and registration charges for purchase of shop premises at Prime Plaza being cost of acquisition of which Short Term Capital Gain is declared at Rs.3,24,67,455/- by the appellant.
5. The learned Commissioner of Income Tax (Appeals) has erred in law and on facts in partly confirming Rs. 3 Lacs on account of the low withdrawal without considering the fact that the appellant is staying in the joint family and the over all family withdrawal of Rs.6,34,197/- was sufficient to meet the household expenses.”
Ground No.1 3. Vide ground No.1, the assessee has agitated the action of the Ld. CIT(A) in confirming the annual rental value of the house of the assessee at Rs.84,000/- as against claimed by the assessee at Rs.24,000/-. The brief facts relevant to this issue are that the assessee owns residential flat at Devlali and the said flat is lying vacant. The assessee estimated the fair rental value of the said flat at Rs.2000/- per month. However, the Assessing Officer (hereinafter referred to as the AO) adopted the fair rental value of the said flat at Rs.10,000/- per month.
In appeal, the Ld. CIT(A) reduced the fair rental value from Rs.10,000/- per month to Rs.8000/- per month.
The assessee has come in further appeal before us contending that even the fair rental value of Rs.8000/- per month estimated by the Ld. CIT(A) is on higher side. The Ld. A.R., in this respect, has submitted that the flat under consideration is situated in the congested area of Devlali and hence no tenants are available for renting it. He has further contended that the flat is specified for Jain community and not open to rent to any person of other community
3 Shri Ashok P. Shah other than the Jain. He has further contended that the AO while estimating the rental value has considered the property as bungalow; whereas, the same is a flat only admeasuring about 98 sq. meter. The Ld. A.R. has further contended that in the previous assessment year 2005-06, the AO estimated the fair rental value of the said flat at Rs.4000 per month and at the maximum same can be adopted.
On the other hand, the Ld. D.R. has relied upon the findings of the lower authorities.
We have heard the rival contentions and have also gone through the records. Considering the contention of the Ld. A.R. that the house in question is not a bungalow but only a flat and that is also meant for renting out to the Jain community only and not open for rent to any person of other community other than Jain and the same is lying vacant and used mainly by the assessee for his own purpose and also taking into consideration that for the immediate earlier assessment year, the AO has adopted the value of the flat at Rs.4000/- per month. We are of the view that the estimation made by the Ld. CIT(A) of Rs.8000/- per month is on higher side. Considering the overall facts and circumstances of the case, in our view, the estimation at the rate of Rs.5000/- per month will be quite reasonable. We accordingly direct the AO to adopt the fair rental value of the house at Rs.5000/- per month. This issue is decided accordingly.
Ground No.2 7. Vide ground No.2, the assessee has agitated the confirmation of disallowance of interest expenses amounting to Rs.2,40,935/- paid for bank overdraft facility utilized for the purpose of investment in the business. The facts in relation to the issue under consideration are that the assessee had claimed interest amounting to Rs.2,40,935/- paid for bank overdraft facility utilized for the purpose of capital investment in the partnership firm in which 4 Shri Ashok P. Shah the assessee is a partner. The firm has offered its income for taxation. The AO while computing the income of the assessee disallowed the claim of interest expenditure. While holding so, the AO observed that the interest of bank overdraft, even if used for capital investment, cannot be claimed against the remuneration received from the firm. He further observed that the assessee has given substantial funds as interest free loans to certain parties. He, therefore, disallowed the interest expenditure.
The Ld. CIT(A) confirmed the above finding of the AO. The assessee has thus come in appeal before us.
The Ld. A.R. of the assessee, before us, has submitted that the interest bearing funds were used for capital investment in the firm and the interest paid thereon was deductable from the interest and remuneration received from the firm as the interest and remuneration received from the firm are taxable under section 28(v) of the Income Tax Act. He, in this respect, has relied upon the decision of the Ld. Single Member Bench (SMC) of the Tribunal in the case of “Santosh Kumar Agrawal vs. ACIT” (2001) 78 ITD 394 wherein the Ld. SMC has held that since any remuneration due to or received by a partner from the firm is chargeable to tax under section 28(v) under the head ‘Profits and gains of business or profession’, consequently the interest paid by the partner for the purpose of earning the remuneration must also be deducted. The Ld. A.R. has further relied upon the decision of the Hon’ble Bombay High Court in the case of “CIT vs. Reliance Utilities and Power Ltd.” (2009) 313 ITR 340 (Bom), wherein, it has been held that where sufficient own/interest free funds are available to the assessee on the date of investment, then the presumption is that the investment is used from the own/interest free funds available to the assessee.
After considering the submissions of the Ld. A.R., we find that the issue is squarely covered by the decision of the Ld. SMC bench of the Tribunal
5 Shri Ashok P. Shah (supra). Further, we find that as per the provisions of section 28(v), any interest, salary, bonus, commission or remuneration by whatever name called, due to, or received by, a partner from such firm is taxable as profits and gains of business or profession. Hence, any expenditure incurred by the assessee for earning of the above income should also be allowed as deduction so as to give full and proper effect to the above provision. This issue is accordingly decided in favour of the assessee.
Ground No.3 11. Vide ground No.3, the assessee has agitated the action of the Ld. CIT(A) in confirming the addition of Rs.57,650/- in business income being partner’s remuneration from M/s. Popatbapa & Sons. The contention of the Ld. A.R. is that the said firm M/s. Popatbapa & Sons has not claimed deduction or remuneration to partners in their return of income as the income declared by the firm is income from house property and not from business. The said firm has not claimed any expenses including salary to partner, hence the assessee, as per the proviso to section 28(v), has rightly not considered the salary credit by firm in computing of income as no deduction of salary to partner is allowed in case of firm.
As per the proviso to section 28(v) of the Act, where any interest, salary, bonus, commission or remuneration by whatever name called or any part thereof has not been allowed to be deducted under clause (b) of section 40, the income under this clause shall be adjusted to the extent of amount not so allowed to be deducted. Further as per section 40(b), in case of any firm, certain payments as explained therein are not deductable as expenditure of the firm. Considering the above circumstances, we remand this issue to the file of the AO with a direction to give definite finding as to whether the remuneration received by the assessee from M/s. Popatbapa & Sons falls in the category of the amounts which are not deductable while assessing the income of the firm and if the claim of the assessee is found correct that the remuneration received
6 Shri Ashok P. Shah from M/s. Popatbapa & Sons falls within the scope of the clauses of section 40(b), then the AO will not consider the said income in the hands of the assessee for taxation. This issue is decided accordingly.
Ground No.4 13. Vide ground No.4, the assessee has agitated the confirmation of Rs.2,50,000/- being payment of stamp duty paid for purchase of shop premises at Prime Plaza claimed by the assessee as cost of acquisition for which the assessee has declared short term capital gains. The brief facts in relation to the above issue are that the assessee declared short term capital gains of Rs.3,24,67,455/-. The assessee claimed deduction of stamp duty paid as cost of acquisition. The AO disallowed the claim of stamp duty as well as registration charges holding that if possession of the property is not taken, then the stamp duty paid is refundable.
The Ld. CIT(A) confirmed the above finding of the AO.
Before us, the Ld. A.R. of the assessee has relied upon the decision of the co-ordinate bench of the Tribunal dated 12.04.12 in the case of “Shri Chandresh P. Shah”, the other partner of the firm. We find that in the said decision (supra), the assessee had not pressed the ground No.4 in the said appeal relating to short term capital gains of Rs.3 crores and the said ground was dismissed as being not pressed. We further find that the AO has discussed this issue in in para 7 of the assessment order. The AO, after considering the various clauses of the agreement, has observed that as per the cancellation of deed dated 11.11.05, the assessee is entitled to refund of the stamp duty. The Ld. A.R., before us, has admitted that the said purchase agreement was cancelled. In view of this, there is no merit in the above ground of the assessee and the same is accordingly decided against the assessee.
7 Shri Ashok P. Shah Ground No.5 16. Vide ground No.5, the assessee has agitated the confirmation of addition of Rs.3 lakh on account of low withdrawals. The AO during the appellate proceedings observed that the withdrawals of the assessee for personal/household expenses was at Rs.43,62,126/-. The assessee explained that out of total withdrawal, a sum of Rs.41,92,957/- pertained to withdrawal for the purpose of marriage expenditure for Jay Kumar A Shah and the balance amount of Rs.1,69,169/- was towards household expenses. The AO observed that for the A.Y. 2005-06, the withdrawals shown by the assessee were to the tune of Rs.2,96,113/-. He observed that instead of increase in the household withdrawal with increase in inflation, there was a decrease in household withdrawals of the assessee. He further observed that in the immediate preceding year for A.Y. 2005-06, an estimated addition of Rs. Rs.2,50,000/- was made to the household withdrawals shown by the assessee and accordingly the total household withdrawals were estimated at Rs.5,46,113/-. The said addition has been confirmed by the Ld. CIT(A) in the earlier assessment year. Considering the above position, the AO for the year under consideration made an addition of Rs.4 lakh to the income of the assessee.
In appeal, the Ld. CIT(A), considering the facts and circumstances of the case, restricted the addition on this issue to Rs.3 lakhs.
Before us, the Ld. A.R. of the assessee has stated that the assessee lives in a joint family consisting of father, mother, brother and his two sons. The total family withdrawals for the year have been shown as under: Name Relation Amount (Rs.) P.A.N. ------- ------- ------- ------- Ashok P. Shah Self 1,69,169/- ALJPS3432L Smt. Lilavati A. Shah Wife 79,600/- AMXPS5090B Jaykumar A. Shah Son 1,38,904/- AMJPS8477Q Ajay A. Shah Son 64,600/- AUUPS6200N Popatlal Shah Father 66,000/- AAGPS8217F Panbai P. Shah Mother 10,000/- AAQPS6497P Chandresh P. Shah Brother 1,05,924/- AAQPS6498C
8 Shri Ashok P. Shah ---------------- 6,34,197/- Total ========= 19. The Ld. A.R. has further stated that the average withdrawal of the family, thus, worked out to be Rs.53,000/- per month and that the same was reasonable and adequate. The Ld. A.R. has submitted that merely because in the earlier assessment year, the assessee had not contested the above addition of Rs.2,50,000/- on account of low withdrawals that itself cannot be a ground for not to consider the submissions of the assessee on merits for the year under consideration. He has submitted that all the members of the joint family of the assessee are earning members and contributing for household expenses, hence the assessee’s contribution of Rs.1.69 lakhs is most reasonable and no addition is warranted on this issue. The Ld. D.R., on the other hand, has relied upon the findings of the lower authorities.
Considering the fact and circumstances of the case and above submissions of the assessee, the total expenditure of Rs.53,000/- in a month for the family of seven members in the financial year 2005-06 seems to be reasonable and adequate. In our view, no additions are warranted on this issue. This ground is accordingly allowed in favour of the assessee.
In view of our findings given above, the appeal of the assessee is treated as partly allowed for statistical purposes.
Order pronounced in the open court on 29.02.2016. आदेश क� घोषणा खुले �यायालय म� �दनांकः 29.02.2016 को क� गई ।