Appeal details
Counselvise Citation
[2017] 127 COUNSELVISE.COM (IT) 7759 (ITAT-AMRITSAR)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 7 month(s) 12 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
24-10-2017
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Next Hearing Date
09-08-2017
Assessment Year
2009-2010
Appeal Filed On
13-03-2015
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER I.T.A NO.143/(ASR)/2015 ASSESSMENT YEAR: 2009-10 PAN: AAACW1346E M/S. WALIA TRADERS PVT. LTD., K.C. TOWER, CHANDIGARH ROAD, NAWANSHAHAR. VS. THE DY. C. I. T., CENTRAL CIRCLE-II, NEW JAWAHAR NAGAR MARKET, JALANDHAR. (APPELLANT) (RESPONDENT) I.T.A NO.157/(ASR)/2015 ASSESSMENT YEAR: 2009-10 PAN: AAACW1346E THE DY. C. I. T., CENTRAL CIRCLE-II, NEW JAWAHAR NAGAR MARKET, JALANDHAR. VS. M/S. WALIA TRADERS PVT. LTD., K.C. TOWER, CHANDIGARH ROAD, NAWANSHAHAR. (APPELLANT) (RESPONDENT) I.T.A NO.213/(ASR)/2015 ASSESSMENT YEAR: 2010-11 PAN: AAACW1346E M/S. WALIA TRADERS PVT. LTD., K.C. TOWER, CHANDIGARH ROAD, NAWANSHAHAR. VS. THE DY. C. I. T., CENTRAL CIRCLE-II, NEW JAWAHAR NAGAR MARKET, JALANDHAR. (APPELLANT) (RESPONDENT) I.T.A NO.510 & 511/(ASR)/2015 ASSESSMENT YEAR: 2010-11 PAN: AAACW1346E THE DY. C. I. T., CENTRAL CIRCLE-II, NEW JAWAHAR NAGAR MARKET, JALANDHAR. VS. M/S. WALIA TRADERS PVT. LTD., K.C. TOWER, CHANDIGARH ROAD, NAWANSHAHAR. (APPELLANT) (RESPONDENT) ITA NOS. 143,157,213,510 ,511& 144/(ASR)/2015 ASSESSMENT YEARS: 2009 -10&2010-11 2 I.T.A N O.144/(ASR)/2015 ASSESSMENT YEAR: 2010-11 PAN: AAACW1346E M/S. WALIA TRADERS PVT. LTD., K.C. TOWER, CHANDIGARH ROAD, NAWANSHAHAR VS. THE C. I. T., (CENTRAL) LUDHIANA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. M.R. BHAGAT & RAJINDER CHOPRA RESPONDENT BY: SH. S. S. KANWAL (D.R.) DATE OF HEARING: 09.10.2017 DATE OF PRONOUNCEMENT: 24.10.201 7 ORDER PER BENCH: THESE ARE SIX APPEALS FILED BY ASSESSEE AS WELL AS BY REVENUE. THERE WERE HEARD TOGETHER AND COMMON ISSUES ARE INV OLVED IN THESE APPEALS, EXCEPT IN ITA NO.144(ASR)/2015, THEREFORE FOR THE SAKE OF CONVENIENCE A COMMON AND CONSOLIDATED ORDER IS BEIN G PASSED. 2. THE GROUNDS OF APPEAL TAKEN BY ASSESSEE IN ITA N O. 143/ASR/2015 ARE REPRODUCED BELOW: 1. THE ORDER IS PERVERSE, ARBITRARY AND NOT BASED ON PROPER APPRECIATION OF THE FACTS OF THE CASE TO THE EXTENT THAT THERE WAS NO NEXUS BETWEEN THE BANK LOAN AND THE LOAN ADVANCED F OR THE PURPOSES OF THE BUSINESS. 2. THE COMMISSIONER OF INCOME TAX (APPEAL) ERRED IN DISALLOWING INTEREST @11% ON AMOUNT ADVANCE TO LWS KNITWEARS F OR THE PURPOSES OF THE BUSINESS. IT IS PRAYED THAT THE ADD ITION MAY BE DELETED. 3. THE APPELLANT CRAVES LEAVE TO AMEND ANY GROUND ( S) OR ADD ANY NEW GROUND (S) BEFORE THE APPEAL IS FINALLY DISPOSE D OFF. ITA NOS. 143,157,213,510 ,511& 144/(ASR)/2015 ASSESSMENT YEARS: 2009 -10&2010-11 3 GROUNDS OF APPEAL IN ITA NO. 157/ASR/2015 1. WHETHER THE LD. CIT(A) HAS ERRED IN FACT IN ALL OWING CLAIM OF THE ASSESSEE FOR DEDUCTION OF DEPRECIATION TO THE EXTEN T OF RS.2,71,11,158/- FOR UNDER CONSTRUCTION BUILDING IG NORING THE DETAILED FACTS AND REASONS AS MENTIONED IN THE ASSE SSMENT ORDER. 2. WHETHER THE LD. CIT(A) HAS ERRED IN FACT IN NOT ENHANCING THE DISALLOWANCE OF DEPRECIATION TO RS.3,18,95,480/- IG NORING THE DETAILED FACTS AND REASONS SUBMITTED IN THE REMAND REPORT. 3. WHETHER THE DECISION OF THE LD. CIT(A) IS RIGHT IN ALLOWING THE INTEREST RATE PAID @ 11% INSTEAD OF RATE APPLIED @ 15% IGNORING THE DETAILED FACTS AND REASONS AS MENTIONED IN THE ASSE SSMENT ORDER. 4. IT IS PRAYED THAT THE ORDER OF THE LD. COMMISSIO NER OF INCOME TAX (APPEALS) BE SET ASIDE. GROUNDS OF APPEAL IN ITA NO. 213/ASR/2015 1. THE ORDER IS PERVERSE, ARBITRARY AND NOT BASED ON PROPER APPRECIATION OF THE FACTS OF THE CASE TO THE EXTENT THAT THERE WAS NO NEXUS BETWEEN THE BANK LOAN AND THE LOAN ADVANCED F OR THE PURPOSES OF THE BUSINESS. 2. THE COMMISSIONER OF INCOME TAX (APPEAL) ERRED IN DISALLOWING INTEREST @11% ON AMOUNT ADVANCE TO LWS KNITWEARS F OR THE PURPOSES OF THE BUSINESS. IT IS PRAYED THAT THE ADD ITION MAY BE DELETED. 3. THE APPELLANT CRAVES LEAVE TO AMEND ANY GROUND ( S) OR ADD ANY NEW GROUND (S) BEFORE THE APPEAL IS FINALLY DISPOSE D OFF. GROUNDS OF APPEAL IN ITA NO. 510/ASR/2015 1. WHETHER THE LD. CIT(A) HAS, IN THE ORIGINAL ORD ER DATED 27.02.2015 ERRED IN FACT IN ALLOWING CLAIM OF THE A SSESSEE FOR DEDUCTION OF DEPRECIATION TO THE EXTENT OF RS.6,00, 15,113/- FOR UNDER CONSTRUCTION BUILDING IGNORING THE DETAILED F ACTS AND REASONS AS MENTIONED IN THE ASSESSMENT ORDER. AS PRAYED IN APPEAL FOR A.Y. 2009-10, THE ADDITION BE ENHANCED TO RS.7,06,06,616 /-. 2. WHETHER THE DECISION OF THE LD. CIT(A) IS RIGHT IN ALLOWING THE INTEREST PAID @11% INSTEAD OF THE RATE APPLIED @15% IGNORING THE DETAILED FACTS AND REASONS AS MENTIONED IN THE ASSE SSMENT ORDER AND THE FACT THAT THE ASSESSEE HAS PAID INTEREST TO BANKS AT A RATE AS HIGH AS 18.75%. ITA NOS. 143,157,213,510 ,511& 144/(ASR)/2015 ASSESSMENT YEARS: 2009 -10&2010-11 4 3. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE G ROUNDS OF APPEAL ON OR BEFORE THE APPEAL IS HEARD AND DISPOSE D OFF. 4. IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A), L UDHIANA BE SET ASIDE AND THAT OF THE A.O. BE RESTORED. GROUNDS OF APPEAL IN ITA NO. 511/ASR/2015 1. WHETHER THE LD. CIT(A) WAS CORRECT IN LAW IN RE JECTING THE RECTIFICATION APPLICATION OF ASSESSING OFFICER TO C ANCEL THE ORIGINAL ORDER U/S 250 IN VIEW OF THE FACT THAT THE ORDER OF THE PR. CIT(C) LUDHIANA U/S 263 DATED 13.01.2015, SETTING ASIDE TH E ORIGINAL ASSESSMENT ORDER DATED 17.08.2012 WAS PASSED PRIOR TO THE ORDER OF THE CIT(A) U/S 250 DATED 27.02.2015, THEREBY ASS UMING VALID JURISDICTION AS PER EXPLANATION (C) TO SECTION 263( 1). 2. WHETHER THE LD. CIT(A) HAS, IN THE ORIGINAL ORD ER DATED 27.02.2015 ERRED IN FACT IN ALLOWING CLAIM OF THE A SSESSEE FOR DEDUCTION OF DEPRECIATION TO THE EXTENT OF RS.6,00, 15,113/- FOR UNDER CONSTRUCTION BUILDING IGNORING THE DETAILED F ACTS AND REASONS AS MENTIONED IN THE ASSESSMENT ORDER. AS PRAYED IN APPEAL FOR A.Y. 2009-10, THE ADDITION BE ENHANCED TO RS.7,06,06,616 /-. 3. WHETHER THE DECISION OF THE LD. CIT(A) IS RIGHT IN ALLOWING THE INTEREST PAID @11% INSTEAD OF THE RATE APPLIED @15% IGNORING THE DETAILED FACTS AND REASONS AS MENTIONED IN THE ASSE SSMENT ORDER AND THE FACT THAT THE ASSESSEE HAS PAID INTEREST TO BANKS AT A RATE AS HIGH AS 18.75%. 4. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE G ROUNDS OF APPEAL ON OR BEFORE THE APPEAL IS HEARD AND DISPOSE D OFF. 5. IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A), L UDHIANA BE SET ASIDE AND THAT OF THE A.O. BE RESTORED. GROUNDS OF APPEAL IN ITA NO.144/ASR/2015 1. THE ORDER IS PERVERSE, ARBITRARY, AND NOT BASED ON PROPER APPRECIATION OF THE FACTS OF THE CASE. 2. THE LEARNED CIT(CENTRAL) ERRED IN CANCELING THE ASSESSMENT MADE BY THE A.O. U/S 143(3) OF THE ACT, WITHOUT APP RECIATING THAT THE APPELLANT HAD NOT CLAIMED ANY B/F BUSINESS LOSS IN THE SUBSEQUENT YEAR. 3. AT THE OUTSET, THE LD. AR TOOK UP ASSESSEES APP EAL IN ASSESSMENT YEAR 2009-10 & 2010-11 AND SUBMITTED THAT THE COMMO N POINT IN THESE ITA NOS. 143,157,213,510 ,511& 144/(ASR)/2015 ASSESSMENT YEARS: 2009 -10&2010-11 5 TWO APPEALS IS THE ACTION OF LD. CIT(A) BY WHICH TH E LD. CIT(A) HAS UPHELD THE ACTION OF ASSESSING OFFICER BY DISALLOWI NG INTEREST PAID TO BANK ON THE BASIS THAT THE ASSESSEE HAD GIVEN INTER EST FREE ADVANCES. THE LD. AR SUBMITTED THAT THE LD. CIT(A) HAS FOLLOWED T HE CASE LAW OF ABHISHEK INDUSTRIES LTD. WHICH HAS BEEN OVERRULED B Y HON'BLE SUPREME COURT. EXPLAINING THE FACTS OF THE CASE, THE LD. AR SUBMITTED THAT ASSESSEE HAD INTEREST FREE FUNDS TO THE TUNE OF RS. 50 CRORES WHEREAS THE INTEREST FREE ADVANCES WAS ONLY TO THE EXTENT OF RS .2 CRORES. IT WAS SUBMITTED THAT UNDER SUCH CIRCUMSTANCES WHEN THE AS SESSEE HAD MORE INTEREST FREE FUNDS AVAILABLE, THE DISALLOWANCE OF INTEREST CANNOT BE MADE AS WAS HELD BY HON'BLE SUPREME COURT IN THE CASE OF HERO CYCLE PVT. LTD. VS. CIT 2015 (379) ITR 347. IT WAS FURTHER SUBMITTE D THAT FOLLOWING THE HON'BLE SUPREME COURT ORDER IN THE CASE OF HERO CYC LE PVT. LTD. THE HON'BLE AMRITSAR BENCH HAS DECIDED IN THE CASE OF M ALHOTRA BOOK DEPOT JALANDHAR WHICH HAS BEEN UPHELD BY HON'BLE PUNJAB & HARYANA HIGH COURT IN ITA NO. 31 VIDE ORDER DATED 23.02.2017 AND IN THIS RESPECT, THE LD. AR FILED COPIES OF ORDERS PASSED BY HON'BLE HIG H COURT. TO HIGHLIGHT THIS POINT OF HAVING MORE INTEREST FREE FUNDS THAN INTEREST FREE ADVANCES, THE LD. AR INVITED OUR ATTENTION TO THE COPIES OF B ALANCE SHEET PLACED AT P.B. PAGE 8 WHERE THE POSITION RELATING TO SHARE CA PITAL, RESERVES AND SURPLUS AND INTEREST FREE UNSECURED LOANS FROM DIRE CTORS WAS PLACED. 4. ARGUING UPON APPEAL IN ITA NO.144(ASR)/2015 W HICH IS AGAINST THE ORDER OF LD. CIT PASSED BY HIM U/S 263 OF THE A CT, THE LD. AR SUBMITTED THAT THE LD. CIT HAS PASSED THIS ORDER U/ S 263 AS IN HIS ITA NOS. 143,157,213,510 ,511& 144/(ASR)/2015 ASSESSMENT YEARS: 2009 -10&2010-11 6 OPINION THE ASSESSEE HAD CLAIMED BUSINESS LOSS WHIC H COULD NOT HAVE BEEN CLAIMED AS THE RETURN WAS FILED AS A BELATED R ETURN AND ASSESSING OFFICER IN HIS ASSESSMENT ORDER HAD WRONGLY ALLOWED ASSESSEE TO CARRY FORWARD LOSS WHICH INCLUDED BUSINESS LOSS AS WELL A S DEPRECIATION LOSS. THE LD. AR IN THIS RESPECT INVITED OUR ATTENTION TO COPY OF COMPUTATION OF INCOME PLACED AT PAPER BOOK-16 AND SUBMITTED THAT A SSESSEE AT ITS OWN DID NOT CLAIM ANY BUSINESS LOSS TO BE CARRY FOR WARD AND IT WAS WRITTEN ON THE COMPUTATION OF INCOME ITSELF. IT WAS FURTHER SUBMITTED THAT DURING THE SUBSEQUENT YEAR ALSO THE ASSESSEE DID NO T CARRY FORWARD AND CLAIMED PREVIOUS YEARS BUSINESS LOSS AS IS APPARENT FROM THE NEXT YEAR COMPUTATION OF INCOME PLACED AT PAPER BOOK 19-20. I T WAS SUBMITTED THAT IT WAS A MISTAKE BY ASSESSING OFFICER WHICH CO ULD HAVE BEEN RECTIFIED U/S 154 OF THE ACT AND RATHER INVITED OUR ATTENTION TO PAPER BOOK -2 WHERE A COPY OF THE NOTICE ISSUED BY THE AS SESSING OFFICER U/S 154 FOR CARRYING OUT THE RECTIFICATION WAS PLACED. THE LD. AR SUBMITTED THAT THE ASSESSEE DID NOT OBJECT TO SUCH PROPOSED R ECTIFICATION. THE LD. AR SUBMITTED THAT SINCE THEN SIX YEARS HAS PASSED A ND ASSESSEE HAD NEVER CLAIMED ANY CARRY FORWARD BUSINESS LOSS AND T HEREFORE, THERE WAS NO LOSS TO REVENUE AND FOR AN ORDER TO BE PASSED U/ S 263 ORDER HAS TO BE ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE. HE SUBMITTED THAT THOUGH THE ORDER MAY BE ERRONEOUS BUT IT WAS N OT PREJUDICIAL TO THE INTEREST OF REVENUE AS ASSESSEE ITSELF DID NOT CLAI M ANY BUSINESS LOSS TO BE CARRIED FORWARD AND NEITHER IT WAS ALLOWED IN TH E SUBSEQUENT YEARS ITA NOS. 143,157,213,510 ,511& 144/(ASR)/2015 ASSESSMENT YEARS: 2009 -10&2010-11 7 AND THEREFORE, IT WAS SUBMITTED THAT THE ORDER PASS ED BY THE LD. CIT SHOULD BE SET ASIDE. 5. THE LD. DR ON THE OTHER HAND SUBMITTED THAT THE ASSESSEE HAD UTILIZED THE AMOUNT FOR MAKING INTEREST FREE ADVANC ES WHEREAS IT WAS PAYING INTEREST ON THE BANK LOANS. IT WAS SUBMITTED THAT HAD THE ASSESSEE REPAID BANK LOANS INSTEAD OF ADVANCES INTE REST FREE LOANS, THE INTEREST LIABILITY WOULD HAVE BEEN LOWERED AND THER EFORE THE AUTHORITIES BELOW HAS RIGHTLY MADE THE ADDITION ON ACCOUNT OF D ISALLOWANCE OF INTEREST. 6. AS REGARDS THE ORDER PASSED U/S 263 THE ASSESSI NG OFFICER HAD WRONGLY ALLOWED ASSESSEE TO CARRY FORWARD THE BUSIN ESS LOSS AND ASSESSEE ITSELF ADMITTED THAT IT WAS NOT ENTITLED TO CARRY F ORWARD OF LOSS AND THEREFORE, THE ORDER PASSED BY LD. CIT IS CORRECT A ND SHOULD BE UPHELD 7. ARGUING UPON THE REVENUES APPEALS, THE LD. DR S UBMITTED THAT THE ASSESSING OFFICER HAD DISALLOWED INTEREST @ 15% WHEREAS THE LD. CIT(A) HAS REDUCED THE SAME TO 11%. THE LD. DR FURT HER SUBMITTED THAT ASSESSING OFFICER HAD MADE THE ADDITION ON ACCOUNT OF DEPRECIATION ON BUILDING UNDER CONSTRUCTION WHEREAS THE LD. CIT(A) HAS WRONGLY DELETED. THE SAME. THE LD. DR FURTHER SUBMITTED THAT IN APPE AL IN ITA NO. 511/ASR/2015, THE REVENUE HAS TAKEN A FURTHER GROUN D THAT THE RECTIFICATION APPLICATION OF ASSESSING OFFICER TO C ANCEL THE ORIGINAL ORDER U/S 250 WAS WRONGLY REJECTED. ITA NOS. 143,157,213,510 ,511& 144/(ASR)/2015 ASSESSMENT YEARS: 2009 -10&2010-11 8 8. THE LD. AR ON THE OTHER HAND SUBMITTED THAT WHEN THE ASSESSEE WAS HAVING SURPLUS INTEREST FREE FUNDS THERE WAS NO QUESTION OF DISALLOWING INTEREST U/S 36(1)(III) AND THEREFORE T HE GROUND OF APPEAL OF THE REVENUE MAY BE DISMISSED. AS REGARDS THE DEPRECIATION CLAIM ON BUILDING, THE LD. AR SUBMITTED THAT ASSESSEE HAD THREE BUILDINGS WHICH W ERE RUNNING AS HOTELS AND THERE WAS ALSO WORK IN PROGRESS GOING ON A BUILDING AND ON WHICH THE ASSESSEE HAD NOT CLAIMED ANY DEPRECIATION AND THEREFORE LD. CIT(A) DELETED THE DISALLOWANCE OF DEPRECIATION AS THE ASSESSEE NEVER CLAIMED THE DEPRECIATION AT ALL ON WORK IN PROGRESS AND IN THIS RESPECT OUR ATTENTION WAS INVITED TO COPY OF BALANCE SHEET PLACED AT PAGE 8 WHERE THE CAPITAL WORK IN PROGRESS TO THE TUNE OF RS.14.9 9 CRORES WAS MENTIONED AND ON WHICH NO DEPRECIATION WAS CLAIMED. OUR ATTENTION ALSO INVITED TO P.B. PAGE 9 WHERE SCHEDULE OF FIXED ASSE TS FORMING PART OF BALANCE SHEET WAS PLACED FROM WHERE THE WDV AFTER D EDUCTING DEPRECIATION WAS TAKEN TO THE BALANCE SHEET AND IN VIEW OF THE ABOVE, IT WAS SUBMITTED THAT THE ORDER PASSED BY LD. CIT(A) I S CORRECT. 9. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THOUGH THE MATERIAL PLACED ON RECORD. AS REGARDS THE ASSESSEES APPEALS REGARDING DISALLOWANCE OF INTEREST U/S 36(1)(III). WE FIND TH AT THE TOTAL FUNDS AVAILABLE WITH THE ASSESSEE COMPANY AS ON 31 MARCH, 2009 ARE TO THE TUNE OF RS.50.51 CRORES AS DETAILED BELOW: 1. SHARE CAPITAL RS.6.82 CRORES ITA NOS. 143,157,213,510 ,511& 144/(ASR)/2015 ASSESSMENT YEARS: 2009 -10&2010-11 9 2. RESERVES AND SURPLUS RS.32.58 CRORES 3. UNSECURED LOANS RS.11.11 CRORES TOTAL RS.50. 51 CRORES OUT OF SUCH NON INTEREST BEARING FUNDS, THE ASSESSE E HAD ADVANCED ONLY RS. 2 CRORES IN THE YEAR UNDER CONSIDERATION A ND FOR WHICH THE ASSESSING OFFICER HAD MADE DISALLOWANCE OF INTEREST U/S 36(1)(III) TO THE TUNE OF RS.14,94,268/- FOR ASSESSMENT YEAR 2009-10 AND RS.30 LACS IN ASSESSMENT YEAR 2010-11. ADDITIONS WERE MADE FOR TH E SAME LOANS OF RS. 2 CRORES TO LWS KNITWEARS. THE DIFFERENCE IN DISAL LOWANCE IN THESE TWO YEARS IS DUE TO THE FACT THAT DURING ASSESSMENT YEA R 2009-10, THE ADVANCE WAS MADE DURING A PART OF YEAR WHEREAS IN A SSESSMENT YEAR 2010-11 THE LOAN REMAINED FOR THE WHOLE OF THE YEAR . THE ASSESSING OFFICER HAD DISALLOWED INTEREST @ 15% WHEREAS THE L D. CIT(A) HAS REDUCED THE DISALLOWANCE TO 11%. WE FIND THAT ASSE SSEE HAD SUFFICIENT NON INTEREST BEARING FUNDS, THEREFORE UNDER THESE C IRCUMSTANCES THE DISALLOWANCE OF INTEREST WAS NOT WARRANTED. THE AMR ITSAR BENCH IN THE CASE OF MALHOTRA BOOK DEPOT UNDER SIMILAR FACTS AND CIRCUMSTANCE HAD DELETED THE DISALLOWANCE U/S 36(1)(III) AND HON'BLE PUNJAB & HARYANA HIGH COURT VIDE ITS ORDER DATED 23.02.2017 HAS DISM ISSED THE APPEAL OF THE REVENUE BY HOLDING AS UNDER: 4. WE HAVE HEARD LEARNED COUNSEL FOR THE PARTIES. 5. THE MATTER HAS BEEN CONSIDERED BY THE TRIBUNAL I N DETAIL. A PERUSAL OF THE ORDER PASSED BY THE TRIBUNAL SHOWS THAT THE CAPITAL OF THE ASSESSEE COMPANY WAS RS. 31,71,64,888/- FOR THE ASSESSMENT Y EAR 2010-11. THE INVESTMENT IN SISTER CONCERNS IN THE SHAPE OF SHARE APPLICATION MONEY WAS TO THE TUNE OF RS.20,32,60,000/-. THE ASSESSEE WAS HAVING CURRENT LIABILITIES AND PROFITS TO THE TUNE OF RS. 17,41,39 ,750/-. THE TOTAL NON INTERESTS BEARING FUNDS AVAILABLE WITH THE ASSESSEE WERE AT RS ITA NOS. 143,157,213,510 ,511& 144/(ASR)/2015 ASSESSMENT YEARS: 2009 -10&2010-11 10 49,43,04,638/-. OUT OF THE TOTAL FUNDS ON WHICH NO INTEREST WAS PAID BY THE ASSESSEE AMOUNTING TO RS. 49,43,04,638/-,THE AS SESSEE HAD ADVANCED RS. 20,32,60,000/-. THUS, THERE WAS SUFFICIENT NON- INTEREST BORROWING FUNDS OUT OF WHICH THE ASSESSEE HAD ADVANCED/INVEST ED IN SISTER CONCERNS. IT WAS FURTHER RECORDED THAT IN THE ASSES SMENT YEAR 2012-13 ALSO, THE ASSESSEE HAD SUFFICIENT INTEREST FREE FUN DS TO MAKE INVESTMENT IN THE GROUP COMPANIES RELYING UPON THE DECISION OF TH E APEX COURT IN HERO CYCLE PRIVATE LIMITED VS. COMMISSIONER OF INCOME TA X (CENTRAL) 63 TAXMANN.COM 308 AND COMMISSIONER OF INCOME TAX 1, L UDHIANA VS. M/S ABHISHEK INDUSTRIES LIMITED, LUDHIANA (2006) 286 ITR 1(P&H). THE TRIBUNAL ALLOWED THE APPEALS FILED BY T HE ASSESSEE. THE RELEVANT FINDINGS RECORDED BY THE TRIBUNAL READ THU S:- 9. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HE MATERIAL PLACED ON RECORD. WE FIND THAT FOR ASSESSMENT YEAR 2010-11 THE CAPITAL OF THE ASSESSEE COMPANY WAS RS. 31,71,64,88 8/- WHICH IS APPARENT FROM THE COPY OF BALANCE SHEET AS PLACED I N (PB-2). AS AGAINST THIS THE INVESTMENTS SISTER CONCER N IN THE SHAPE OF SHARE APPLICATION MONEY AS PER PAPER BOOK PAGE 2 AN D AS NOTED BY ASSESSING OFFICER IS RS.20,32,60,000/-. WE FURTHER FIND THAT ASSESSEE WAS HAVING CURRENT LIABILITIES AND PROFITS TO THE TUNE OF RS.17,41,397750/-, THEREFORE, THE TOTAL OF NON INTE RESTS BEARING FUNDS AVAILABLE WITH THE ASSESSEE WERE PAID AT RS. 49,43,04,638/-. THESE FIGURES ARE VERIFIABLE FROM THE COPIES OF BAL ANCE SHEET AS PLACED IN (PB PAGE 2). OUT OF TOTAL AVAILABLE FUNDS ON WHICH NO INTEREST WAS PAID BY ASSESSEE AMOUNTING TO RS. 49,4 3,04,638/-, THE ASSESSEE HAD ADVANCED RS.20,32,60,000/-, THEREF ORE, ONE FACT IS CLEAR THAT IN ITA NO.L96(ASR)/2015, THERE WAS SU FFICIENT NON INTEREST BORROWING FUNDS OUT OF WHICH THE ASSESSEE HAD ADVANCED/INVESTED IN THE SISTER CONCERNS. 10. SIMILARLY, WE FIND THAT FOR ASSESSMENT YEAR 201 2-13 THE CAPITAL OF THE FIRM AS PER BALANCE SHEET PLACED AT (PB PAGE 3) WAS RS. 13,21,61,500/- AND THE INTEREST FREE CURRENT LIABIL ITIES WERE TO THE TUNE OF RS. 91,20,514/- MAKING THE TOTAL AVAILABILI TY OF INTEREST FREE FUNDS TO THE TUNE OF RS. 104.58 CRORES. THE ASSESSE E IN THIS YEAR HAD MADE INVESTMENTS IN THE GROUP CONCERNS AS NOTED BY ASSESSING OFFICER TO THE TUNE OF RS. 53.76 CRORES. THEREFORE, WE FIND THAT IN THIS YEAR ALSO THE ASSESSEE HAD SUFFICIENT INTEREST FREE FUNDS TO MAKE INVESTMENT IN THE GROUP COMPANIES. FURTHER WE FIND THAT LEARNED CIT(A) HAS FOLLOWED THE DECISION OF PUNJAB & HARYAN A HIGH COURT IN THE CASE OF ABHISHEK INDUSTRIES AND HAS FURTHER REL IED UPON THE 'DECISION OF M/S BRIGHT ENTERPRISES PRIVATE LIMITED DECIDED BY AMRITSAR BENCH, WE FIND THAT THE DECISION OF BRIGHT ENTERPRISES PRIVATE LIMITED HAS BEEN OVERRULED BY PUNJAB & HARY ANA HIGH COURT. THE FINDINGS OF HON'BLE PUNJAB & HARYANA HIG H COURT ARE REPRODUCED BELOW. HELD, ALLOWING THE APPEAL, THAT WHETHER THE AMOUNT WAS DEBITED TO THE ACCOUNT OF THE SISTER CONCERN IN RESPECT OF THE PAYMENT MADE OR WHETHER THE AMOUNT WAS ACTUALLY PAID TO SISTER CONC ERN AND USED ITA NOS. 143,157,213,510 ,511& 144/(ASR)/2015 ASSESSMENT YEARS: 2009 -10&2010-11 11 BY IT FOR THE PURPOSE OF BUSINESS, WAS IMMATERIAL. EITHER WAY THE AMOUNT WAS USED FOR THE BUSINESS OF THE SISTER .CON CERN. IT WAS NOT EVEN SUGGESTED THAT THE ADVANCE WAS USED BY THE SIS TER CONCERN FOR THE PURPOSE OTHER THAN FOR THE PURPOSES OF ITS BUSI NESS. IN THE MEMORANDUM OF APPEAL, THE ASSESSEE EXPRESSLY STATED THAT IT HAD ADVANCED THE AMOUNT TO ITS SISTER CONCERN AS A MEAS URE OF COMMERCIAL EXPEDIENCY FOR THE PURPOSE OF BUSINESS. THE ASSERTION WAS NEVER DENIED. THE ASSESSEE OWNED ABOUT 89 PER C ENT OF THE EQUITY CAPITAL. WHEN A HOLDING COMPANY INVESTED MON EY FOR THE PURPOSE OF THE BUSINESS OF ITS SUBSIDIARY, IT MUST NECESSARILY BE HELD TO BE AN EXPENSE ON ACCOUNT OF COMMERCIAL EXPE DIENCY. A FINANCIAL BENEFIT OF ANY NATURE DERIVED BY THE SUBS IDIARY ON ACCOUNT OF THE AMOUNTS ADVANCED TO IT BY THE HOLDING COMPAN Y WOULD NOT MERELY INDIRECTLY BUT DIRECTLY BENEFIT ITS HOLDING COMPANY. THERE WOULD BE A DIRECT BENEFIT ON ACCOUNT OF ADVANCE MAD E BY THE ASSESSEE TO ITS SISTER COMPANY, IF IT IMPROVED THE FINANCIAL HEALTH OF THE SISTER COMPANY AND MADE IT A VIABLE ENTERPRISE. BUT IT WAS NOT NECESSARY THAT THE ADVANCE RESULTS IN A POSITIVE TA NGIBLE BENEFIT. THUS, THE ASSESSEE WAS ENTITLED TO THE DEDUCTION UN DER SECTION 36(L) (III) OF THE INCOME TAX ACT, 1961. 6. LEARNED COUNSEL FOR THE APPELLANT HAS NOT BEEN A BLE TO SHOW THAT THE FINDINGS RECORDED THE TRIBUNAL ARE ILLEGAL OR P ERVERSE WARRANTING INTERFERENCE BY THIS COURT. THUS NO SUBSTANTIAL QUE STION OF LAW ARISES. CONSEQUENTLY, BOTH THE APPEALS STAND DISMISSED. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AND F OLLOWING THE JUDICIAL PRECEDENTS, WE ALLOW THE APPEALS FILED BY ASSESSEE IN ITA NO.143(ASR)/2015 AND ITA NO.157(ASR)/2015. NOW COMING TO THE APPEALS FILED BY REVENUE, WE FIN D THAT THE REVENUE IS AGGRIEVED AS THE LD. CIT(A) HAD REDUCED THE DISALLOWANCE OF INTEREST FROM 15% TO 11%. WE HAVE ALREADY HELD IN T HE APPEALS FILED BY ASSESSEE THAT NO DISALLOWANCE WAS WARRANTED AND THE REFORE THIS GROUND OF APPEAL OF THE REVENUE TAKEN AS GROUND NO.2 IN IT A NO. 510/ASR/2015 AND GROUND NO. 3 IN ITA NO. 511/ASR/2015 AND GROUND NO.1 TO 3 IN ITA NO. 213/ASR/2015 ARE DISMISSED. ITA NOS. 143,157,213,510 ,511& 144/(ASR)/2015 ASSESSMENT YEARS: 2009 -10&2010-11 12 AS REGARDS THE SECOND ISSUE REGARDING THE DISALLOW ANCE OF DEPRECIATION, WE FIND THAT ASSESSEE HAD GROSS BLOCK OF RS.13,07,63,2,234/- CONSISTING OF BUILDING, PLANT A ND MACHINERY, FURNITURE, VEHICLES AND COMPUTERS. OUT OF THIS BLOC K, THE ASSESSEE HAD CLAIMED DEPRECIATION. BESIDES THE GROSS BROCK THE ASSESSEE WAS HAVING CAPITAL WORK IN PROGRESS TO THE EXTENT OF RS.14.99 CRORES WHICH IS APPARENT FROM PAGE 8 OF P.B. AND ON WHICH THE ASSES SEE DID NOT CLAIM ANY DEPRECIATION AS IS APPARENT FROM THE DEPRECIATI ON CHART AS PLACED AT P.B. PAGE 9 AND ALSO FROM THE BALANCE SHEET PLACED AT P.B. PAGE 8. THE ASSESSING OFFICER MISTOOK HIMSELF IN BELIEVING THAT ASSESSEE HAD CLAIMED DEPRECIATION ON THIS AMOUNT OF RS.14.99 CRORES AND THEREFORE HE DISALLOWED THE ENTIRE DEPRECIATION WHEREAS LD. CIT( A) HAS RIGHTLY DELETED THE DISALLOWANCE HOLDING THE ASSESSEE HAD NOT CLAIM ED DEPRECIATION ON SUCH CAPITAL WORK IN PROGRESS. THE RELEVANT FINDING S OF THE LD. CIT(A) ARE REPRODUCED BELOW: 10. I HAVE CONSIDERED THE FACTS OF THE CASE, THE B ASIS OF DEPRECIATION DISALLOWED/ALLOWED BY THE ASSESSING OFFICER, THE AR GUMENTS OF THE AR DURING THE APPELLATE PROCEEDINGS AND COMMENTS OF TH E ASSESSING OFFICER ON THE SAME. IT IS QUITE APPARENT FROM THE PERUSAL OF THE FACTS OF THE CASE THAT THE ASSESSING OFFICER HAS CONFUSED THE FIGURE OF RS. 14.99 CRORES SHOWN IN THE BALANCE-SHEET AS WORK IN PROGRESS WITH THE CLAIM OF DEPRECIATION, AS NO DEPRECIATION ON THE WORK IN PRO GRESS HAS BEEN CLAIMED. THE ASSESSING OFFICER HAS IGNORED THE .FACT THAT TH E DEPRECIATION HAS BEEN ALLOWED ON FURNITURE AND FIXTURE, PLANT AND MACHINE RY AND COMPUTER SYSTEM WHICH HAVE BEEN HOUSED IN THE SAME BUILDING ON WHICH THE DEPRECIATION TO THE EXTENT OF ONLY 15 PER CENT HAS BEEN ALLOWED. IT IS APPARENT THAT THE BUSINESS HAS BEEN DONE BY THE ASS ESSEE AS EVIDENCED BY PAYMENT OF VAT RS. 3,83,292/- FOR THE PERIOD END ING MARCH 2009. VARIOUS ITEMS USED FOR THE PURPOSE OF CATERING FOR SOME PARTIES ALSO HAD BEEN DEBITED IN THE BOOKS OF ACCOUNT WHICH HAVE NOT BEEN DOUBTED. THE REGISTRATION FOR THE PURPOSE OF SERVICE TAX HAS ALS O BEEN DONE AS SERVICE TAX HAS BEEN CHARGED ACCORDINGLY. THEREFORE, I DO N OT SEE ANY LOGIC IN THE ASSESSING OFFICER'S ACTION OF RESTRICTING THE DEPRE CIATION TO AN ADHOC FIGURE ITA NOS. 143,157,213,510 ,511& 144/(ASR)/2015 ASSESSMENT YEARS: 2009 -10&2010-11 13 OF 15 PER CENT ESPECIALLY WHEN THERE IS SATISFACTIO N ON RECORD. THE BUILDING HAS BEEN USED FOR THE PURPOSE BUSINESS. THE DISALLO WANCE IS THEREFORE DIRECTED TO BE DELETED. IN THE NEXT YEAR ALSO THE ASSESSING OFFICER HAD DI SALLOWED THE DEPRECIATION ON THE SAME FACTS THAT THE ASSESSEE HA D DECLARED WORK IN PROGRESS AND THEREFORE THE BUILDING WAS NOT COMPLET ED WHEREAS THE FACT REMAINS THAT ONE OF THE BUILDINGS WHICH WAS SHOWN U NDER WORK IN PROGRESS WAS NOT COMPLETED AND WAS NOT PUT TO USE A ND THEREFORE, ASSESSEE HAD NOT CLAIMED ANY DEPRECIATION ON THAT. IN VIEW OF THE FACTS AND CIRCUMSTANCES THE ACTION OF LD. CIT(A) IN DIREC TING ASSESSING OFFICER TO ALLOW DEPRECIATION IS CORRECT. IN VIEW OF THE ABOVE GROUND NO. 1 IN ITA NO. 510/A SR/2015 AND GROUND NO. 2 IN ITA NO. 511/ASR/2015 AND GROUND NO. 1 AND 2 IN ITA NO. 157/ASR/2015 ARE DISMISSED. AS REGARDS GROUND NO. 1 IN ITA NO. 511/ASR/2015, W E FIND THAT THERE IS NO FINDING OF LD. CIT(A) REJECTING THE APP LICATION OF ASSESSING OFFICER TO CANCEL THE ORIGINAL ORDER U/S 250 AND NO SUCH GROUND WAS TAKEN BEFORE HIM. NOTHING IS COMING OUT OF THE ORDE R OF LD. CIT(A), THEREFORE, GROUND NO.1 IN ITA NO. 511(ASR)/2015 IS DISMISSED. NOW COMING TO APPEAL IN ITA NO.144(ASR)/2015 FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY CIT U/S 263, W E FIND THAT IT IS UNDISPUTED FACT THAT ASSESSEE DID NOT CLAIM CARRY F ORWARD OF BUSINESS LOSS AS IS APPARENT FROM COMPUTATION OF INCOME PLAC ED AT PAPER BOOK ITA NOS. 143,157,213,510 ,511& 144/(ASR)/2015 ASSESSMENT YEARS: 2009 -10&2010-11 14 16 WHERE THE ASSESSEE ITSELF SUBMITTED THAT BUSINES S LOSS HAS TO BE IGNORED. WE FURTHER FIND THAT IN THE SUBSEQUENT YEA R ALSO THE ASSESSEE DID NOT CLAIM ANY BROUGHT FORWARD BUSINESS LOSS AS IS APPARENT FROM THE PAPER BOOK -20. THE ASSESSING OFFICER, HOWEVER, WRO NGLY ALLOWED TO CARRY FORWARD LOSSES ON ACCOUNT OF DEPRECIATION AS WELL AS BUSINESS LOSS WHICH WAS A MISTAKE AND WHICH COULD HAVE BEEN RECTI FIED BY THE ASSESSING OFFICER. IN FACT, ASSESSING OFFICER VIDE NOTICE DATED 07.08.2014 HAD ISSUED A NOTICE U/S 154 TO RECTIFY THE SAME MIS TAKE AND TO WHICH ASSESSEE HAD NOT OBJECTED AND THEREFORE, ASSESSING OFFICER MUST HAVE PASSED RECTIFICATION ORDER. THE LD. CIT BEFORE PASS ING THE ORDER U/S 263 SHOULD HAVE EXAMINED THIS ASPECT AS ASSESSEE IN REP LY TO SHOW CAUSE NOTICE HAD SUBMITTED THE SAME SUBMISSIONS WHICH ASS ESSEE HAD SUBMITTED BEFORE US. OTHER THAN THE ISSUE OF CARRY FORWARD OF BUSINESS LOSS, THERE IS NO OTHER OBSERVATION OF LD. CIT AND SUCH BUSINESS LOSS HAS NEVER BEEN CLAIMED IN THE RETURN OF INCOME AND IN S UBSEQUENT YEARS. FROM THE ABOVE FACTS AND CIRCUMSTANCES, WE FIND TH AT THERE IS NO LOSS TO THE REVENUE AS ASSESSEE DID NOT CLAIM ANY C ARRY FORWARD BUSINESS LOSS. THEREFORE, WE SET ASIDE THE ORDER OF LD. CIT WITH THE DIRECTION TO RECONSIDER THESE FACTS AND PASS A FRESH ORDER U/S 2 63 IF ANY, AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES. THE LD. CI T IN THE ALTERNATIVE CAN ALSO DIRECT THE ASSESSING OFFICER TO CARRY OUT NECESSARY RECTIFICATION IF IT HAS NOT ALREADY BEEN DONE. ITA NOS. 143,157,213,510 ,511& 144/(ASR)/2015 ASSESSMENT YEARS: 2009 -10&2010-11 15 NEEDLESS TO SAY THAT ASSESSEE WILL BE PROVIDED SUF FICIENT OPPORTUNITY OF BEING HEARD. IN VIEW OF THE ABOVE, THE APPEAL IN ITA NO.144(ASR) /2015 FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 10. IN NUTSHELL, THE APPEALS IN ITA NO.143, 213 ARE ALLOWED AND APPEALS IN ITA NOS.157, 510 & 511 ARE DISMISSED WHE REAS APPEAL IN ITA NO.144 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24.10.2017. SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24.10.2017. /GP/SR. PS . COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER
