MARTIN & HARRIS LABORATORIES LTD.,MUMBAI vs. DCIT - 1(2), MUMBAI

Brief facts qua the issue raised in ground no. 1 is that, the assessee had advanced Rs. 49,40,812/- as interest-free advances to the following persons: 1. P G Infrastructure P. Ltd. Rs. 1,15,440/- 2. G M Infrastructure P Ltd. Rs.38,25,000/- 3. Saffire Chemicals P Ltd. Rs. 3,20,372/- 4. Mr. B V Garg (Director) Rs. 1,80,000/-

2 M/s Martin and Harris Laboratories Ltd The AO noted that, assessee has borrowed funds which as on 31st March, 2004 stood at Rs. 4,53,60,782/- on which the assessee has incurred interest expenses of Rs.34,19,167/- and these interest free advances given to the persons were covered under the provisions of section 40A(2)(b). In response to the show cause notice as to why disallowance of interest should not be made, the assessee submitted that, these advances were given in the course of the business and there was no nexus between the amounts borrowed and funds advanced to the these persons. It was further contended that assessee had huge surplus funds which has exceeded the borrowed funds, therefore, no disallowance should be made. The Ld. AO, however, rejected the contention of the assessee and relying upon certain decisions calculated the disallowance at Rs. 3,34,375/-. The Ld. CIT(A) too confirmed the said addition after referring to various judicial pronouncements which has been dealt and incorporated by him at page 5 and 6 of the appellate order.

Before us, the Ld. Counsel submitted that, assessee had own funds of Rs. 11.60 crores which included reserves and surplus fund of Rs. 5.97 crores and once that is so, then amount of Rs. 44 lakhs given to the concerned persons should be presumed to have been given out of these funds only. In support of his contention, strong reliance was placed on Bombay High Court decision in the case of CIT vs Reliance Utilities and Power Ltd. reported in [2009] 313 ITR 34 (Bom); in the case of CIT v HDFC Bank Ltd., reported in [2014] 366 ITR 505. Thus, he argued that no disallowance should be made.

On the other hand, Ld. DR relied upon the order of the CIT(A) and submitted that onus is on the assessee to show that the borrowed funds were not utilized for giving advances to the concerned persons.

After considering the rival submissions and on perusal of the impugned orders, we find that it is not in dispute that assessee

So far as the disallowance under section 14A of Rs. 54,448/-, the Ld. Counsel submitted that assessee has not earned any exempt income and, therefore, there is no question of making any disallowance under section 14A. In support, he has relied upon the decision of Hon’ble Delhi High Court in the case of Cheminvest Ltd vs CIT, reported in [2012] 347 ITR 272 (Del) wherein it has been held that, if assessee does not have any exempt income, then disallowance under section 14A cannot be triggered. He further pointed out that, assessee has own huge surplus funds, therefore, investment aggregating to Rs. 24,31,530/- can be very well held to be made out of own funds. The Ld. DR, on the other hand, relied on order of the CIT(A).

After considering the rival contention and on perusal of impugned orders, we find that, firstly, there is no exempt income earned by the assessee, therefore, in view of the principles laid down by the Hon’ble Delhi High Court in the case of Cheminvest Ltd. (supra) no disallowance under section 14A can be made; and secondly, a huge surplus funds was available with the assessee

In the result, appeal of the assessee is allowed. Order pronounced in the open court on 10th February, 2016.