M/S LMJ BUSINESS CENTRE (P) LTD.,KOLKATA vs. ITO,WARD-8(3), KOLKATA, KOLKATA

The next common issue in & 541/K/2012, 1699 & 1700/K/2011 in the case of LMJ Business Centre P. Ltd. is as regards to whether depreciation is to be allowed or not in case income is assessed under the head income from house property. At the outset, Ld. counsel for the assessee fairly stated that the assessee is not interested in prosecuting this issue. The Ld. DR has not objected to the same. Hence, this issue is dismissed as not pressed.

The next issue in in the case of LMJ Business Centre (P) Ltd. is as regards to disallowance of travelling expenses, At the outset, Ld. counsel for the assessee fairly stated that the assessee is not interested in prosecuting this issue. The Ld. DR has not objected to the same. Hence, this issue is dismissed as not pressed.

The next common issue in & 88/Kol/2012 in the case of LMJ Overseas Ltd. and ITA No. 540 & 541/K/2012, 1700/K/2011 in the case of LMJ Business Centre P. Ltd. is as regards to allowance of interest expenses on loan given to sister concerns. This is a common issue in the above noted appeals and for the sake of brevity we will take up the facts in ITA No. 1699/K/2011 in the case of LMJ Business Centre Pvt. Ltd. for the AY 2004-05 and decide the issue relating to all the appeals. To this proposition Ld. counsel for the assessee as well as Ld. Sr. DR fairly conceded the position.

Briefly stated facts are that the AO during the course of assessment proceedings noted that the assessee has claimed interest expenses amounting to Rs.9,97,285/- against rental earned from leasing of the property. The assessee claimed that interest on borrowed capital is on account of loan taken by assessee but actually this was transferred to assessee’s sister concern LMJ International Ltd. For this, the assessee produced copy of agreement dated 30.08.2002 entered into between assessee company and its sister concern but the AO disallowed for the reason that loan is neither taken for house property nor for the maintenance expenses of the property but this interest bearing loan is diverted to sister concern without charging any interest. Aggrieved, assessee preferred appeal before CIT(A), who also confirmed the action of AO by stating that the assessee has not proved commercial expediency in the hands of assessee’s sister concern LMJ International Ltd. and also utilisation of funds. Aggrieved, now assessee came in second appeal before Tribunal.

We have heard rival submissions and gone through facts and circumstances of the case. We find from the facts of the case that the assessee has advanced interest free loans to its sister concerns to the extent of Rs.1.06 cr. And assessee now before us claimed that it has interest free funds available i.e. total fund of Rs.1.39 cr. In the shape of share capital of Rs.1 cr., deposits of Rs. 0.19 cr. And advance of Rs.0.10 cr. And PBT fund of Rs.0.10 cr. According to assessee, the total funds availability i.e. interest free fund of Rs.1.39 cr. is more than the loan given to its sister concerns at Rs.1.60 cr. and hence, following the decision of Hon’ble Bombay High Court in the case of CIT Vs. Reliance Utilities & Powers Ltd. (2009) 313 ITR 340 (Bom.) as well as the decision of Kolkata ITAT 3rd Member in the case of S. P. Jaiswal Estate reported in 147 TTJ 649 there cannot be any disallowance. We find that the loan given to sister concern is less than the interest free fund available with the assessee and accordingly, this issue is covered in favour of the assessee by the decision of Hon’ble Bombay High court in the case of Reliance Utilities & Powers Ltd., supra wherein it is held as under:

“If there be interest-free funds available to an assessee sufficient to meet its investments and at the same time the assessee had raised a loan it can be presumed that the investments were from the interest-free funds available.” Further, the assessee also argued the commercial expediency for giving interest free loans to sister concern M/s. LMJ International Ltd. as the assessee’s sister concern is engaged in the same nature of business and also utilization. As the issue we have decided in favour of the assessee on the factual aspect of availability of interest free fund, we need not to go on commercial expediency. Accordingly, this issue of assessee’s appeal is allowed. Similar is the facts in other appeals also as noted above, and Ld. Counsel for the assessee as well as Ld. Sr. DR admitted that the facts are exactly identical in other appeals also. Taking a consistent view, we allow this common issue of assessee’s appeals for all the years in entirety.

The next common issue in 1700/K/2011 and 541/K/2012 is as regards to disallowance of salary and other business expenditure. The issue is common, hence, we will take the facts from ITA No. 88/K/2012 in the case of LMJ Overseas Ltd. for AY 2006-07 and decide the issue.

We have heard rival submissions and gone through facts and circumstances of the case. The AO during the course of assessment proceedings disallowed the expenses relating to salary and other office expenditure relating to business claimed by the assessee for the reason that these expenses are claimed on rental income, which was assessed by the AO as income from house property. Aggrieved, assessee preferred appeal before CIT(A), who also confirmed the disallowance for the reason that the assessee is receiving rental income and income is assessed under the head income from house property and not under the head profits or gains of business or profession. Hence, such expenses are not allowable. Aggrieved, now assessee is in second appeal before us.

We find that the assessee relied on the decision of Hon’ble Calcutta High Court in the case of CIT Vs. Ganga Properties (1993)199 ITR 94 (Cal) and CIT Vs. Karanpura Collieries Ltd. (1993) 201 ITR 498 (Cal), wherein Hon’ble Calcutta High Court held that just to maintain company some expenses are bound to be incurred by the assessee. We are in agreement with the findings of CIT(A) that expenditure claimed qua rental income should not have been allowed and rightly disallowed by AO and confirmed by CIT(A) but in term of both the decisions of Hon'ble Calcutta High Court cited supra, we direct the AO to find out how much expenses are relatable to the company to maintain its establishment for complying with statutory obligations as are required to be allowed. Accordingly, this issue is partially set aside to the file of AO for fresh adjudication in terms of the above. This is a common issue of all the aforesaid appeals and hence, same decision will apply in other appeals also.

The next issue in in LMJ Business Centre (P) Ltd. for AY 2003-04 is as regards to the order of CIT(A) confirming the action of AO in disallowing administrative and other expenses.

We have heard rival submissions and gone through facts and circumstances of the case. Briefly stated facts are that the AO during the course of assessment proceedings disallowed legal fee, travelling expenses, consultancy charges, sales promotion and brokerage. The CIT(A) also confirmed the action of AO for the same reason that once rental income earned by assessee is assessed as income from house property consequential expenses cannot be allowed. Accordingly, we are also of the view that no expenses i.e. administrative and other expenses can be allowed or claimed by the assessee against rental income when the income is assessed under the head income from house property. Accordingly, we confirm the orders of the lower authorities and this issue of assessee’s appeal is dismissed.

The next issue in in the case of LMJ Business Centres P. Ltd. for AY 2004-05 is as regards to disallowance of loan processing fee by AO and confirmed by CIT(A).

We have heard rival submissions and gone through facts and circumstances of the case. We find that the AO while disallowing interest on loan amounting to Rs.9,97,285/- also disallowed loan processing charges. This issue we have already adjudicated in favour of assessee and against revenue wherein the issue of disallowance of interest is dealt in para 8 pages 3 and 4 of this order. Taking a consistent view that interest is to be allowed then processing charges for loan are also to be allowed. Hence, taking a consistent view, we allow this issue of assessee’s appeal.

The next issue in this appeal of assessee in for AY 2005-06 is as regards to the order of CIT(A) confirming the disallowance of repair and maintenance expenses for non deduction of TDS u/s. 194C of the Act thereby invoking the provision of section 40(a)(ia) of the Act.

We have heard rival submissions and gone through facts and circumstances of the case. At the outset, Ld. counsel for the assessee stated that this issue is covered in favour of the assessee and against the revenue by the decision of Hon'ble Calcutta High Court in the case of CIT v Virgin Creations, ITAT No. 302 of 2011, GA 3200/2011, decided on November 23, 2011, wherein the dispute was that the TDS was deposited on 30.06.2005 relating to FY 2004-05 relevant to this AY 2005-06. It was stated by the Ld. counsel for the assessee that this TDS was deducted and deposited within the due date of filing of return of income u/s. 139(1) of the Act. We find that this TDS was deposited on 30.06.2005 and dates are verifiable from assessment order. Accordingly, following the decision of Hon'ble Calcutta High Court in the case of Virgin Creation, supra, we allow this issue of assessee’s appeal.

In the result, all the appeals of assessee are allowed as indicated above.

Order is pronounced in the open court on 14.09.2015.