M/S KOEING SOLUTIONS LTD.,CHANDIGARH vs. DCIT, C-1(1), CHANDIGARH
In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.
What did the Tribunal hold?
The Tribunal held that since the disallowance was based on a High Court decision that was later reversed, and all relevant details were disclosed, the assessee cannot be charged with furnishing inaccurate particulars or concealing income. Therefore, the penalty is deleted.
What were the facts?
The assessee's interest expenses were disallowed under Section 36(1)(iii) for making interest-free advances without establishing business expediency. Subsequently, a penalty under Section 271(1)(c) was levied and confirmed by the CIT(Appeals).
What were the issues?
Whether penalty under Section 271(1)(c) is leviable when disallowance under Section 36(1)(iii) is based on a High Court ruling that was subsequently reversed, and all particulars were disclosed by the assessee.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cases cited in this judgment(3)Show listHide list
Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.
- CIT v. Abhishek Industries Ltd.359 citing286 ITR 1 · 2006 · HC
- Enterprises Pvt. Ltd. v. CIT, Jalandhar’ (supra)76 citing381 ITR 204 · 2016 · HC
- Bright Enterprises Pvt. Ltd. v. CIT64 citing381 ITR 107 · 2016 · HC
Income Tax Appellate Tribunal, DIVISION BENCH ‘A’, CHANDIGARH
Before: MS.DIVA SINGH & MS.ANNAPURNA GUPTA
IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH ‘A’, CHANDIGARH BEFORE MS.DIVA SINGH, JUDICIAL MEMBER AND MS.ANNAPURNA GUPTA, ACCOUNTANT MEMBER
ITA No.1554/Chd/2017 (Assessment Year : 2013-14) M/s Koeing Solutions Ltd., Vs. The D.C.I.T., Plot No.22, Industrial Area, Circle 1(I), Phase-II, Chandigarh. Chandigarh. PAN: AABCK9007D (Appellant) (Respondent)
Appellant by : Shri Tej Mohan Singh, Adv. Respondent by : Smt.Chanderkanta, Addl.CIT Date of hearing : 04.04.2018 Date of Pronouncement : 04.05.2018
ORDER PER ANNAPURNA GUPTA, A.M.: This appeal has been preferred by the assessee against
the order of Ld. Commissioner of Income Tax (Appeals)-1,
Chandigarh (hereinafter referred to as (‘Ld.CIT(Appeals)’)
dated 29.9.2017 confirming the levy of penalty u/s 271(1)(c)
of the Income Tax Act, 1961 (in short ‘the Act’) on the
disallowance of interest made u/s 36(1)(iii) of the Act.
The assessee has raised the following ground before
us:
“1) That Learned Commissioner of Income Tax (Appeals)-l, Chandigarh has failed to appreciate the facts and circumstances of the case and has thereby erred in sustaining penalty u/s 271(l)(c) of Income Tax Act, 1961 on the ground of disallowance u/s 36(l)(iii) of Income Tax Act, 1961. The order under appeal is erroneous as disallowance u/s 36(l)(iii) does not tantamount to furnishing of inaccurate particulars of income.
In view of the above it is prayed that order of Learned Commissioner of Income Tax (Appeals)-l may kindly be quashed.” 3. During the course of hearing before us, the Ld. counsel
for assessee stated that penalty in the present case had
been levied on account of disallowance of interest expenses
made u/s 36(1)(iii) of the Act. Ld.Counsel took us through
the assessment order passed u/s 143(3) of the Act in the
present case and drew our attention to para 4 of the order
wherein the disallowance of interest u/s 36(1)(iii) of the Act
was discussed and made by the Assessing Officer amounting
to Rs.4,54,507/-. Referring to para 4 of the assessment
order, the Ld. counsel for assessee pointed out that the
Assessing Officer during assessment proceedings had noted
that the assessee had made loans and advances amounting
to Rs.37,87,561/-, the business expediency of which could
not be explained by the assessee. The Assessing Officer
further found that the assessee was incurring expenditure
on interest payment of secured and unsecured loans.
Therefore, applying the ratio laid down by the Hon'ble
Jurisdictional High Court in the case of CIT Vs. Abhishek
Industries Ltd., 286 ITR 1, the Assessing Officer held that
since the business expediency for making the aforesaid
loans and advances had not been established, it was clear
that the assessee had diverted interest bearing funds for
non-business purpose. He, therefore, proceeded to disallow
proportionate interest of Rs.4,54,507/- on the said
advances calculated @ 12% of the advances so made. The
Ld. counsel for assessee thereafter stated that the
Assessing Officer initiated penalty proceedings on the same
as per the provisions of section 271(1)(c) of the Act and
thereafter levied penalty vide order dated 24.2.2016 which
was in turn confirmed by the Ld.CIT(Appeals) stating that it
was a fit case for levy of penalty since the assessee had not
brought anything on record as to what interest free sources
were available with it for making interest free advances, nor
was any explanation given of any business purpose for the
advances made. The relevant findings of the Ld.CIT(Appeals)
at para 4 of his order are as under:
“4. As regards penalty levied on disallowance made u/s 36(l)(iii) of the Act, it is noticed that the appellant has neither brought on record what interest free resources were available with it for making interest free advance, nor the appellant has explained any business purpose of the advance made. Since the appellant has failed to substantiate its claim, penalty levied on this account is confirmed.” 4. The Ld. counsel for assessee, after detailing the facts
of the case, proceeded to make arguments against the
action of the Ld.CIT(Appeals) in upholding the levy of
penalty on the aforesaid disallowance made of interest u/s
36(1)(iii) of the Act, stating that the basis for the
disallowance made was the decision of the Hon'ble
Jurisdictional High Court in the case of Abhishek
Industries Ltd. (supra),laying down the proposition that
where mixed funds are available it cannot be presumed that
interest free advances have been made from interest free
funds and the onus is on the assessee to establish user of
interest bearing funds for business purposes for claiming
deduction of interest paid on account of the same, failing
which interest expenses are liable to be disallowed to the
extent borrowed funds are used for non business purpose .
Ld.Counsel for the assessee stated that subsequently the
jurisdictional High Court in a number of decisions held
that where mixed funds are available, it is to be presumed
that interest free advances have been made out of interest
free funds warranting no disallowance of interest u/s
36(1)(iii) of the Act. Ld.Counsel for the assessee drew our
attention to the decision of the Hon'ble jurisdictional high
court in the case of Bright Enterprises Pvt. Ltd. vs CIT,
Jaladhar (2016) 381 ITR 107 & CIT vs Kapsons Associates
381 ITR 204. The Ld. counsel for assessee, therefore, stated
that since all particulars relevant to the expenses had been
furnished and disallowance had been made relying upon a
decision of the Jurisdictional High Court which had
subsequently been diluted, it could not be said that the
assessee had either furnished inaccurate particulars of
income or concealed particulars of his income. The Ld.
counsel for assessee pointed out that the issue in any case
was debatable and, therefore, the assessee could not be
charged with either furnishing of inaccurate particulars or
concealing particulars of income. Ld.Cousel for the assessee
further relied on the following case laws in support of his
contention that no penalty was leviable on account of
disallowance of interest made by applying the provisions of
section 36(1)(iii) of the Act.
1) CIT Vs. Trident Infotech Corpn. Ltd. 34 Taxman.com 132 (P&H)
2) Pr. CIT Vs. Rana Sugar Ltd. 81 Taxman.com 77 (P&H)
3) Pr. CIT Vs. Torque Pharmaceuticals (P) Ltd. 82 Taxman.Com 47 (Chandigarh-Trib) 5. The Ld. DR, on the other hand, relied upon the order
of the Ld.CIT(Appeals).
We have heard the rival contentions. We have also
gone through the orders of the authorities below leading to
and confirming the levy of penalty in the present case. In
the present case penalty has been levied on account of
disallowance made on interest u/s 36(1)(iii) of the Act. It is
not disputed that the particulars relating to interest were
all fully disclosed by the assessee in its Balance Sheet and
the assessee had claimed the entire interest as business
expenditure. It is also not disputed that the assessee had
made interest free advances and had failed to establish
commercial expediency of the same. The impugned
disallowance, we find, has been made following the
decision of the Hon'ble Jurisdiction High Court in the case
of Abhishek Industries Ltd. (supra), as per which, where the
assessee had borrowed interest bearing funds and at the
same time made interest free advances without any
business purpose, the interest to the extent of interest free
advances made had to be disallowed since the interest
bearing borrowings made to the extent of interest free
advances was held to be not for the purpose of business but
for supplementing the cash diverted without deriving any
benefit out of it. This proposition laid down by the Hon'ble
Jurisdictional High Court we find, has been reversed in its
subsequent judgments in Bright Enterprises Pvt. Ltd vs CIT,
Jalandhar (2016) 381 ITR 107 & Kapsons Associates (supra)
wherein it has been held that where mixed funds, both
interest bearing and interest free, were available with the
assessee and the interest free funds are sufficient to make
the interest free advances made by the assessee, the
presumption is that the said advances had been made out of
interest free funds and consequently no disallowance of
interest u/s 36(1)(iii) of the Act was warranted.
In such circumstances, where all details of expense
have been duly disclosed and the disallowance of expense is
based on proposition of law laid down by the Hon’ble High
Court, which subsequently is reversed, the assessee cannot
be charged with having concealed or furnished any
inaccurate particulars of income so as to levy penalty on
account of the same u/s 271(1)(c) of the Act.
Further in any case addition in the present case was
made on the basis of decision of Hon’ble High Court which
has only interpreted the scope of the section. The assessee
having otherwise furnished all details of the said expenses,
it cannot be said to have concealed particulars of its income
to the extent of disallowance made based on the
interpretation of the scope of the section by the Hon’ble
High Court. The Hon’ble Punjab & Haryana High Court has
held so in the case of CIT vs Trident Infotech Corpn. Ltd
(supra) wherein penalty levied on identical disallowance of
interest u/s 36(1)(iii) following decision of the High Court
in the case of Abhishek Industries (supra) was held to be
not as per law. The Hon’ble High Court while upholding the
deletion of penalty by the ITAT held at para 3 of its order as
under:
“3. In the present case, the assessee has furnished its return prior to the judgment of this Court in Abhishek Industries Ltd. case (supra). In view of the principles of law laid down in the aforesaid judgment, the Assessing Officer made addition to the extent of Rs.45,14,3737-. The learned Tribunal has set aside the penalty on the aforesaid addition inter alia for the reasons that such additions were made on account of judgment of this Court in Abhishek Industries Ltd. case (supra) and it does not establish that the assessee has either concealed its income or furnished inaccurate particulars of income. The scope of the provisions of the Act came to be interpreted by this court in the aforesaid judgment. Therefore, the claim of the Assessee cannot be said to be concealment of income, which may attract penalty.” 9. In view of the above therefore, we direct the deletion of
penalty levied on disallowance of interest made u/s
36(1)(iii) of the Act. The ground of appeal raised by the
assessee is allowed.
In the result, the appeal of the assessee is allowed.
Order pronounced in the Open Court.
Sd/- Sd/- (DIVA SINGH) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 4th May, 2018 *Rati* Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A) 4. The CIT 5. The DR Assistant Registrar, ITAT, Chandigarh
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