Formative Fashions Pvt.Ltd., Surat V. The Dy.CIT.,Circle-1, Surat

ITA 615/AHD/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80304 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 08-07-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 23-02-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND SR DR
• Assessee Lawyers: S B VAIDYA
• Keywords: Capital asset; Corroborative evidences; Capital receipt; Revised return; Revenue expenditure

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD .., ! '# '# '# '# $ %&, ! BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER 1. #./ I.T.A. NO.615/AHD/2010 A.Y. 2007-08 2. #./ I.T.A. NO.1022/AHD/2010 A.Y. 2007-08 1. FORMATIVE FASHIONS PVT. LTD. 3024, WORLD TRADE CENTRE RING ROAD, SURAT 2. DY.COMMISSIONER OF INCOME-TAX CIRCLE-1, SURAT / VS. 1. DY.COMMISSIONER OF INCOME-TAX CIRCLE-1, SURAT 2. FORMATIVE FASHIONS PVT.LTD., SURAT !( #./)* #./ PAN/GIR NO. : AAACF 8809 P ( (+ / // / APPELLANTS ) .. ( ,-(+ / RESPONDENTS ) ASSESSEE BY : SHRI S.B. VAIDYA, AR REVENUE BY: SHRI ROOP CHAND, SR.DR $'. / & / / / / DATE OF HEARING 08/08/2014 012 / & / DATE OF PRONOUNCEMENT 28/08/2014 3 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THESE CROSS-APPEALS BY THE ASSESSEE AND THE REVE NUE ARE DIRECTED AGAINST THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-I, SURAT (CIT(A) IN SHORT) DATED 22/01/2010 PERTAIN ING TO ASSESSMENT YEAR (AY) 2007-08. THESE CROSS-APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO.615/AHD/2010 (BY ASSESSE E) AND ITA NO.1022/AHD/2010 (BY REVENUE) FORMATIVE FASHIONS PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 2 - 2. FIRST, WE TAKE UP THE ASSESSEES APPEAL IN ITA N O.615/AHD/2010 FOR A Y-2007-08 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS O F APPEAL:- 1. THE LD.CIT(A) HAS ERRED IN HOLDING THAT COMPLET E FOREIGN TOUR EXPENSES CLAIMED BY THE APPELLANT WERE NOT FOR PURP OSE OF BUSINESS AS NO EVIDENCE WAS FILED TO SHOW THAT THE EXPENSES WER E FOR BUSINESS PURPOSE. 2. THE LD.CIT(A) HAS ERRED IN DISALLOWANCE OF ENTI RE CLAIM OF FOREIGN TRAVELLING EXPENSES RS.3,62,112/-. THE EXPENDITURE WAS INCURRED FOR THE PURPOSE OF BUSINESS AND IS ALLOWABLE DEDUCTION. 3. THE LD.CIT(A) HAS ERRED IN HOLDING THAT THE APP ELLANT FAILED TO SHOW WHAT SERVICES WERE RENDERED BY THE AGENT TO WHOM PA YMENT OF BROKERAGE/COMMISSION WERE MADE. 4. THE LD.CIT(A) HAS ERRED IN DISALLOWING THE CLAI M OF PAYMENT OF COMMISSION/BROKERAGE RS.10,08,707/- WHICH WAS ALLOW ABLE AS DEDUCTION AS THE APPELLANT HAD PROCURED JOB WORK TH ROUGH THESE AGENTS AND THE ASSESSEE HAD FILED SUPPORTING EVIDENCE. 5. THE LD.CIT(A) HAS ERRED IN HOLDING THAT THE IN TEREST SUBSIDY RECEIVED BY THE APPELLANT WAS OF REVENUE NATURE AND HENCE TA XABLE, IT WAS NOT OF CAPITAL NATURE. 6. THE LD.CIT(A) HAS ERRED IN HOLDING THAT THE CLA IM OF THE APPELLANT THAT SUBSIDY WAS OF CAPITA NATURE AND HENCE NOT INC LUDIBLE IN INCOME COULD NOT BE ALLOWED AS THE CLAIM WAS NOT MADE IN T HE RETURN OF REVISED RETURN BUT MADE DURING ASSESSMENT PROCEEDINGS AFTER EXPIRY OF TIME ALLOWED FOR FILING REVISED RETURN. 7. THE INTEREST SUBSIDY RUPEES FIVE LACS RECEIVED BY THE APPELLANT FROM STATE GOVERNMENT WAS OF CAPITAL NATURE AND HENCE NO T TAXABLE AS HELD BY HONBLE SUPREME COURT AND HIGH COURTS IN DECISIO NS FILED BEFORE DY.CIT AND THE LD.CIT(A). FOLLOWING THESE DECISION S WHICH WERE FULLY APPLICABLE IN APPELLANTS CASE THE SUBSIDY BE ACCEP TED AS OF CAPITAL NATURE AND HENCE EXCLUDED FROM TOTAL INCOME. ITA NO.615/AHD/2010 (BY ASSESSE E) AND ITA NO.1022/AHD/2010 (BY REVENUE) FORMATIVE FASHIONS PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 3 - 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE A SSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 30/11/09, THEREBY THE ASSESSING OFFICER (AO IN SHORT) REJECTE D THE BOOK RESULTS AND ESTIMATED THE ADDITION OF RS.26,08 ,862/- ON ACCOUNT OF DIFFERENCE IN G.P. AS DECLARED BY THE ASSESSEE AND ESTIMATED BY THE AO. THE AO HAS ALSO MADE DISALLOWANCE OF THE TRAVELING EXPENSES AMOUNTING TO RS.3,62,112/, DISALLOWANCE OF EXCESS INTEREST PA YMENT OF RS.2,80,512/- AND DISALLOWANCE OF THE COMMISSION AND BROKERAGE EX PENSES OF RS.10,08,707/-. AGAINST THIS, THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS, D ELETED THE ADDITION MADE ON ACCOUNT OF ESTIMATION OF G.P. AND CONFIRMED THE ADDITION ON ACCOUNT OF DISALLOWANCE OF COMMISSION AND BROKERAGE EXPENSES, INTEREST SUBSIDY AND FOREIGN TRAVELLING EXPENSES. DURING TH E COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD.CIT(A), THE ASSESSEE SUBM ITTED THAT THE SUBSIDY RECEIVED FROM THE GOVERNMENT OF STATE OF GUJARAT HA S BEEN WRONGLY INCLUDED INTO THE INCOME AS REVENUE INCOME. IN FAC T, THE SAME OUGHT TO HAVE BEEN TREATED AS CAPITAL RECEIPT. THE LD.CIT(A ) AFTER CONSIDERING THE SUBMISSIONS REJECTED THIS CLAIM ALSO. FEELING AGGR IEVED, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE THIS TRIBUNAL. 3. GROUND NOS.1 & 2 OF ASSESSEES APPEAL ARE AGAINS T THE DISALLOWANCE OF FOREIGN TOUR EXPENSES AMOUNTING TO RS.3,62,112/-. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AUTH ORITIES BELOW FAILED TO APPRECIATE THE FACT THAT THE DIRECTORS HAVE TRAVELE D ABROAD FOR THE PURPOSE ITA NO.615/AHD/2010 (BY ASSESSE E) AND ITA NO.1022/AHD/2010 (BY REVENUE) FORMATIVE FASHIONS PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 4 - OF BUSINESS AND, THEREFORE, EXPENDITURE INCURRED FO R TRAVELING OUGHT TO HAVE BEEN ALLOWED. 3.1. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE AO DISALLOWED THE EXPENSES ON THE BASIS THAT THE ASSESSEE COULD NOT FURNISH THE SUPPORTING EVIDENCES IN RESPECT OF THE EXPENDITURE INCURRED. THE FINDING OF THE AO WAS CO NFIRMED BY THE LD.CIT(A) ON THE BASIS THAT NEITHER DURING THE ASSE SSMENT PROCEEDINGS NOR DURING THE APPELLATE PROCEEDINGS THE ASSESSEE COULD FILE ANY EVIDENCE AND POINT OUT THAT THE PEOPLE TRAVELED TO CHINA ACTUALL Y FOR THE PURPOSE OF BUSINESS. THE CONTENTION OF THE ASSESSEE IS THAT T HE DIRECTOR OF THE COMPANY SHRI VIPUL SARAF VISITED SWITZERLAND AND CH INA FOR THE PURPOSE OF BUSINESS. WE FIND THAT THE ASSESSEE HAS PLACED ON RECORD A LEDGER ACCOUNT OF FOREIGN TRAVELLING EXPENSES AT PAGE 34 O F THE PAPER-BOOK. HOWEVER, NO DETAILS OF THE FOREIGN PARTIES HAS BEEN PLACED ON RECORD SUGGESTING THAT THE ASSESSEE HAD, IN FACT, GONE FOR BUSINESS PURPOSE. IN THE ABSENCE OF SUPPORTING EVIDENCE, WE DO NOT FIND ANY INFIRMITY IN THE ORDERS OF THE AUTHORITIES BELOW. MOREOVER, THE AS SESSEE FAILED TO DEMONSTRATE THAT TRIPS UNDERTAKEN BY THE DIRECTORS OF THE ASSESSEE- COMPANY WAS FOR THE PURPOSE OF BUSINESS. THUS, GRO UND NOS.1 & 2 OF THE ASSESSEES APPEAL ARE REJECTED. ITA NO.615/AHD/2010 (BY ASSESSE E) AND ITA NO.1022/AHD/2010 (BY REVENUE) FORMATIVE FASHIONS PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 5 - 5. GROUND NOS.3 & 4 OF ASSESSEES APPEAL ARE AGAINS T THE CONFIRMATION OF ADDITION OF RS.10,08,707/- MADE ON ACCOUNT OF DISALLOWANCE OF THE CLAIM OF COMMISSION/BROKERAGE. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AUTHORITIES BELOW W ERE NOT JUSTIFIED IN MAKING THE DISALLOWANCE. THE LD.COUNSEL FOR THE AS SESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD.CIT(A). HE SUBMITTE D THAT THE NAMES AND ADDRESSES ALONG WITH PAN OF 10 PERSONS TO WHOM THE COMMISSION/BROKERAGE WAS PAID WERE FURNISHED. THE ASSESSEE HAS ALSO FILED LIST OF PARTIES FROM WHOM JOB CHARGES EXCEEDI NG RS.1,00,000/- WERE RECEIVED GIVING THE AMOUNTS RECEIVED FROM EACH. 5.1. ON THE CONTRARY, LD.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THERE IS NO ERROR IN THE I MPUGNED ORDER. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. THE LD.CIT(A) HAS GIVEN A FINDING THAT THE APPELLANT C OULD NOT DEMONSTRATE AS TO HOW THE FAMILY MEMBERS OR FAMILY CONCERNS WERE C OMPETENT TO BRING THE BUSINESS FOR THE ASSESSEE WHICH THE ASSESSEE IT SELF COULD NOT HAVE DONE. THE AUTHORITIES BELOW REJECTED THE CLAIM ON THE BASIS THAT THE ASSESSEE COULD NOT ESTABLISH THE NATURE OF SERVICES RENDERED BY THE PERSONS TO WHOM THE BROKERAGE WAS PAID. WE FIND TH AT BEFORE THE LD.CIT(A), THE ASSESSEE HAD RELIED ON THE JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF ALUMINIUM CORPORATION OF INDIA VS. CIT REPORTED AT (1972) 86 ITR 11(SC), ISHWAR PRAKASH & BROS (159 ITR 843)[PUNJAB], GOODLUCK NEROLAC PAINTS LTD. (188 ITR 01)[BOMBAY] AND ITA NO.615/AHD/2010 (BY ASSESSE E) AND ITA NO.1022/AHD/2010 (BY REVENUE) FORMATIVE FASHIONS PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 6 - HINDUSTAN DEVELOPMENT CORPORATION (101 TAXMAN 146)[ CALCUTTA]. THESE DECISIONS ARE NOT CONSIDERED BY THE LD.CIT(A) . THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE IS THAT ALL THE DET AILS REGARDING NATURE OF SERVICES RENDERED BY THE PERSONS TO WHOM THE COMMIS SION WAS PAID WERE FILED BUT NOT CONSIDERED BY THE AUTHORITIES BELOW. HE HAS DRAWN OUR ATTENTION TOWARDS CREDIT-NOTES, BALANCE-SHEET ETC. WHICH ARE PLACED AT PAGE NOS.51 TO 68 OF THE PAPER-BOOK. AFTER CONSIDE RING THE TOTALITY OF THE FACTS OF THE CASE, WE ARE OF THE CONSIDERED VIEW TH AT THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE IS REQUIRED VERIFICATIO N AT THE END OF THE AO, THEREFORE, GROUND NOS.3 & 4 OF ASSESSEES APPEAL AR E RESTORED BACK TO THE FILE OF AO FOR DECISION AFRESH AND THE ORDER OF THE LD.CIT(A) ON THIS ISSUE IS HEREBY SET ASIDE. THUS, GROUND NOS.3 &4 ARE ALL OWED FOR STATISTICAL PURPOSES. 7. GROUND NOS.5 & 6 ARE AGAINST THE FINDING GIVEN B Y THE LD.CIT(A) THAT THE INTEREST SUBSIDY RECEIVED BY THE APPELLANT WAS OF REVENUE NATURE AND HENCE TAXABLE. THE LD.COUNSEL FOR THE ASSESS EE SUBMITTED THAT THE ISSUE IS COVERED BY THE DECISION OF HONBLE APEX CO URT RENDERED IN THE CASE OF CIT VS. PONNI SUGARS AND CHEMICALS LTD. REP ORTED AT (2008) 306 ITR 392 (SC). HE ALSO PLACED RELIANCE ON THE JUDGE MENT OF HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF CIT VS. P RASAD ART PICTURES P.LTD. REPORTED AT 257 ITR 699 (MAD.). 7.1. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. ITA NO.615/AHD/2010 (BY ASSESSE E) AND ITA NO.1022/AHD/2010 (BY REVENUE) FORMATIVE FASHIONS PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 7 - 8. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE CASE-LAWS RELIED UPON BY THE LD.COUN SEL FOR THE ASSESSEE. WE FIND THAT THE LD.CIT(A) HAS DECIDED THE ISSUE BY OBSERVING AS UNDER:- 6.3.1. I HAVE CONSIDERED THE SUBMISSION MADE BY TH E APPELLANT AND THE OBSERVATION OF THE A.O. AS CITED BY THE AP PELLANT THE HONBLE SUPREME COURT IN THE CASES QUOTED ABOVE HAS STATED THAT THE CHARACTER OF SUBSIDY RECEIPT HAS TO BE DETERMINED WITH RESPEC T TO THE PURPOSE WHICH IT IS GIVEN. THERE IS NO DOUBT ABOUT THIS LE GAL POSITION. I DO NOT AGREE WITH THE APPELLANT THAT THE INTEREST SUBSIDY RECEIVED IS OF CAPITAL NATURE. THE DECISIONS RELIED UPON BY THE APPELLANT ARE NOT AT ALL APPLICABLE ON THE FACTS OF THE ASSESSEES CASE. IN THE CASE OF THE APPELLANT, THE APPELLANT HAS BEEN GIVEN INTEREST SU BSIDY OF RS.5 LACS. IF THE ASSESSEE HAD NOT RECEIVED THE SUBSIDY THEN THE INTEREST EXPENDITURE OF THE ASSESSEE WOULD HAVE BEEN HIGHER. THE INTERE ST EXPENDITURE IS ALLOWABLE U/S.36(III) AS REVENUE EXPENDITURE WHETHE R THE SAID INTEREST EXPENDITURE IS USED FOR LOAN OR WHATEVER PURPOSE IS ALLOWABLE AS REVENUE EXPENDITURE. THIS IS SO IN VIEW OF THE DEC ISION OF THE HONBLE SUPREME COURT IN THE CASE OF INDIA CEMENTS LTD. V. CIT [1966] 60 ITR 52 IN WHICH IT HAS BEEN OBSERVED THAT FOR CONSIDERI NG WHETHER PAYMENT OF INTEREST ON BORROWING IS REVENUE EXPENDITURE OR NOT, THE PURPOSE FOR WHICH THE BORROWING IS MADE IS IRRELEVANT. IN OUR VIEW, SECTION 36(1)(III) OF THE 1961 ACT HAS TO BE READ ON ITS OW N TERMS. IT IS A CODE BY ITSELF. SECTION 36(1)(III) IS ATTRACTED WHEN TH E ASSESSEE BORROWS THE CAPITAL FOR THE PURPOSE OF HIS BUSINESS. IT DOES N OT MATTER WHETHER THE CAPITAL IS BORROWED IN ORDER TO ACQUIRE A REVENUE A SSET OR A CAPITAL ASSET, BECAUSE ALL THAT THE SECTION REQUIRES IS THA T THE ASSESSEE MUST BORROW THE CAPITAL FOR THE PURPOSE OF HIS BUSINESS. THIS DICHOTOMY BETWEEN THE BORROWING OF A LOAN AND ACTUAL APPLICAT ION THEREOF IN THE PURCHASE OF A CAPITAL ASSET, SEEMS TO PROCEED ON TH E BASIS THAT A MERE TRANSACTION OF BORROWING DOES NOT, BY ITSELF BRING ANY NEW ASSET OF ENDURING NATURE INTO EXISTENCE, AND THAT IT IS THE TRANSACTION OF INVESTMENT OF THE BORROWED CAPITAL IN THE PURCHASE OF A NEW ASSET WHICH BRINGS THAT ASSET INTO EXISTENCE. THE TRANSACTION OF BORROWING IS NOT THE SAME AS THE TRANSACTION OF INVESTMENT. IF THIS DIC HOTOMY IS KEPT IN MIND IT BECOMES CLEAR THAT THE TRANSACTION OF BORROWING ATTRACTS THE PROVISIONS OF SECTION 36(1)(III). THUS, THE DECIS ION OF THE BOMBAY HIGH COURT IN CALICO DYEING AND PRINTING WORKS [1958] 34 ITR 265 AND THE JUDGMENT OF THE SUPREME COURT IN INDIA CEMENTS LTD. [1966] 60 ITR 52 ITA NO.615/AHD/2010 (BY ASSESSE E) AND ITA NO.1022/AHD/2010 (BY REVENUE) FORMATIVE FASHIONS PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 8 - HAVE BEEN GIVEN WITH REFERENCE TO THE BORROWINGS MA DE FOR THE PURPOSES OF A RUNNING BUSINESS, WHILE THE DECISION OF THE SU PREME COURT IN CHALLAPALLI SUGARS LTD. [1975] 98 ITR 167 WAS GIVEN WITH REFERENCE TO THE BORROWINGS WHICH COULD NOT BE TREATED AS MADE F OR THE PURPOSES OF BUSINESS AS NO BUSINESS HAD COMMENCED IN THAT CASE. THEREFORE, THERE IS NO INCONSISTENCY BETWEEN THE ABOVE DECISIONS. 6.3.2. THE APPELLANT HAS FAILED TO SHOW THAT AS PER THE SANCTION LETTER THE SUBSIDY HAS BEEN GIVEN ON CAPITAL ACCOUNT. IN THE ENTIRE SCHEME DATED 10.06.2004 NOWHERE THE GOVT.OF GUJARAT HAS ST ATED THAT THIS INTEREST SUBSIDY IS TOWARDS PURCHASE OF CAPITAL GOO DS. THEREFORE, IT IS CLEAR THAT THE INTEREST SUBSIDY IS BASICALLY FOR RE DUCING THE INTEREST BURDEN. THIS SUBSIDY ONLY REDUCES THE INTEREST WHI CH WAS OTHERWISE CLAIMABLE BY THE ASSESSEE AS REVENUE EXPENDITURE. HENCE, I AGREE WITH THE A.O. THAT THE INTEREST SUBSIDY IS PURELY ON REV ENUE NATURE. HENCE THE A.O. HAS RIGHTLY TAXED THE INTEREST SUBSIDY AS OF REVENUE NATURE. 6.3.3 WITH RESPECT TO THE ARGUMENT TAKEN BY THE A. O. THAT EVEN THOUGH THE INTEREST SUBSIDY IS TAXABLE AS REVENUE RECEIPT, STILL THE CLAIM OF THE ASSESSEE IS NOT ENTERTAINABLE DURING THE COURSE OF ASSESSMENT PROCEEDINGS IS CORRECT. ANY NEW CLAIM BY THE ASSES SEE NOT MADE IN THE RETURN CAN ONLY BE MADE BY WAY OF REVISED RETURN. THE APPELLANT HAS NOT MADE THIS CLAIM IN THE RETURN. THE APPELLANT H AS ALSO NOT MADE A REVISED RETURN AS PER SECTION 139(5). THE TIME ALL OWED FOR REVISING THE RETURN HAS EXPIRED. THE APPELLANT HAS NOT MADE THI S CLAIM BEFORE THE AO ALSO WITHIN THE TIME AVAILABLE FOR REVISING THE RETURN. THIS AMOUNTS TO REVISING THE RETURN FOR WHICH THE TIME IS NO MOR E AVAILABLE U/S.139(5). IN VIEW OF THE ABOVE, IT IS CLEAR THAT DESPITE THE REJECTION OF CLAIM DURING THE COURSE OF ASSESSMENT PROCEEDING FOR THE REASON GIVEN ABOVE EVEN OTHERWISE THE INTEREST SUBSIDY RECEIPT IS TAXABLE A S REVENUE RECEIPT AND NOT AS A CAPITAL ASSET. THESE GROUNDS OF APPEAL AR E, THEREFORE, DISMISSED. 8.1. THE HONBLE SUPREME COURT IN THE CASE OF CIT V S. PONNI SUGARS AND CHEMICALS LTD.(SUPRA) HAS HELD AS UNDER:- 17. APPLYING THE ABOVE TESTS TO THE FACTS OF THE P RESENT CASE AND KEEPING IN MIND THE OBJECT BEHIND THE PAYMENT OF TH E INCENTIVE SUBSIDY WE ARE SATISFIED THAT SUCH PAYMENT RECEIVED BY THE ASSESSEE UNDER THE SCHEME WAS NOT IN THE COURSE OF A TRADE BUT WAS OF CAPITAL NATURE. ITA NO.615/AHD/2010 (BY ASSESSE E) AND ITA NO.1022/AHD/2010 (BY REVENUE) FORMATIVE FASHIONS PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 9 - ACCORDINGLY THE FIRST QUESTION IS ANSWERED IN FAVOU R OF THE ASSESSEE AND AGAINST THE DEPARTMENT. 8.2. IN THE PRESENT CASE, THE INTEREST SUBSIDY HAS BEEN GRANTED BY GOVERNMENT OF GUJARAT, INDUSTRIES & MINES DEPARTMEN T, RESOLUTION NO.APN/102004/1161(2)/1, SACHIVALAYA, GANDHINAGAR, DATED 10 TH JUNE- 2004. THE CLAUSE 4 OF THE RESOLUTION SPEAKS AS UND ER:- 4.0 QUANTUM OF ASSISTANCE: (I) INTEREST SUBSIDY WILL BE AVAILABLE FOR ESTABLISHING NEW UNITS OR FOR EXPANSION/DIVERSIFICATION AND MODERNIZATION OF EXISTING UNITS. (II) FOR THE PURPOSE OF INTEREST SUBSIDY, THE SME UNIT M AY GET TERM LOAN FROM FINANCIAL INSTITUTION/BANK RECOGNIZED BY RESERVE BANK OF INDIA. (III) DISBURSEMENT OF THE LOAN SHOULD BE WITHIN THE OPERA TIVE PERIOD OF THE SCHEME. (IV) THE UNIT MUST START COMMERCIAL PRODUCTION WITHIN TH E OPERATIVE PERIOD OF THE SCHEME. (V) MAXIMUM INTEREST SUBSIDY AT THE RATE OF 5% WILL BE AVAILABLE TO SME. HOWEVER, UNIT WILL BE REQUIRED TO PAY MINIMUM 5% INTEREST PER ANNUM TO THE FINANCIAL INSTITUTIONS. ACCORDINGLY, IF THE RATE OF INTEREST IS LESS THAN 10%, THE INTEREST SUBSIDY SHALL BE REDUCED TO THAT EXTENT. IF THE UNIT IS AVAILING BE NEFIT UNDER GOVERNMENT OF INDIA, SCHEME, TOTAL INTEREST SUBSIDY BY GOVERNMENT OF INDIA & THE STATE GOVERNMENT SHALL BE GRANTED IN SUCH A WAY THAT THE UNIT SHALL HAVE TO BEAR MINIMUM 5% INTEREST ON THE LOAN. (VI) THE INTEREST SUBSIDY WILL BE AVAILABLE ONLY ON INTE REST LEVIED BY THE FINANCIAL INSTITUTION. PENAL INTEREST OR OTHER CHARGES WILL NOT BE REIMBURSED. (VII) THE INTEREST SUBSIDY WILL BE AVAILABLE FOR MAXIMUM 5 YEARS LIMITED TO MAXIMUM RS.5 LAKHS PER YEAR. 9. SINCE THE INTEREST SUBSIDY IS GRANTED UNDER THE SCHEME OF GOVERNMENT OF INDIA, RESPECTFULLY FOLLOWING THE JUD GEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF CIT VS. PONNI S UGARS AND CHEMICALS ITA NO.615/AHD/2010 (BY ASSESSE E) AND ITA NO.1022/AHD/2010 (BY REVENUE) FORMATIVE FASHIONS PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 10 - LTD.(SUPRA). THE AO IS HEREBY DIRECTED TO TREAT T HE INTEREST SUBSIDY RECEIVED BY THE ASSESSEE AS CAPITAL RECEIPT AND MAK E NECESSARY CHARGES IN THE COMPUTATION OF INCOME OF THE ASSESSEE. HENCE, THE GROUND NOS.5 AND 6 ARE DISPOSED OF AS INDICATED HEREINABOVE. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE, I.E. ITA NO.615/AHD/2010 IS PARTLY ALLOWED FOR STATISTICAL P URPOSES. 11. NOW, WE TAKE UP THE REVENUES APPEAL IN ITA NO. 1022/AHD/2010 FOR AY 2007-08. THE REVENUE HAS RAISED THE FOLLOWI NG GROUNDS OF APPEAL:- 1) ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION MADE B Y THE AO OF RS.26,08,862/- ON ACCOUNT OF FALL IN G.P. 2) ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LA W, THE LD.CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF INTEREST U/S.40A(2)(B) MAE BY THE AO OF RS.2,80,572/-. 3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESS ING OFFICER. 4) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT( A) MAY BE SET-ASIDE AND THAT OF ASSESSING OFFICER MAY BE RESTORED TO TH E ABOVE EXTENT. 12. APROPOS TO GROUND NO.1, THE LD.SR.DR REITERATED THE SUBMISSIONS AS WERE MADE IN THE STATEMENT OF FACTS AND SUBMITTE D THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN DECIDING THE ADDITION. ON THE CONTRARY, THE LD.AR SUPPORTED THE ORDER OF THE LD.CIT(A) AND REITERATED THE CONTENTION MADE BEFORE THE LD.CIT(A). ITA NO.615/AHD/2010 (BY ASSESSE E) AND ITA NO.1022/AHD/2010 (BY REVENUE) FORMATIVE FASHIONS PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 11 - 13. WE HAVE HEARD THE RIVAL CONTENTIONS ADVANCED BY THE RESPECTIVE REPRESENTATIVES OF THE PARTIES AT BAR. THE CONTENT ION OF REVENUE ARE THAT THE LD.CIT(A) HAS NOT APPRECIATED THAT DURING THE Y EAR UNDER CONSIDERATION, THE ASSESSEE HAS DISCLOSED THE MARGI N OF GP @ 40.12% AS AGAINST GP OF 45.64% DISCLOSED BY THE ASSESSEE ITSE LF IN THE IMMEDIATE EARLIER YEAR, I.E. THE MARGIN OF GP DISCLOSED IN TH E YEAR UNDER CONSIDERATION IS LOWER BY 5.52% THAN DISCLOSED IN T HE EARLIER YEAR. THE LD.CIT(A) HAS NOT APPRECIATED THAT AS APPOINTED BY THE AO THE MANUFACTURING EXPENSES AND PERSONNEL EXPENSES H AVE BEEN INCREASED BY 344% AND 417% RESPECTIVELY AS COMPARED TO IMMEDI ATE EARLIER YEAR. THE LD.CIT(A) HAS NOT APPRECIATED THAT ON BEING SPE CIFICALLY ASKED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE COULD NOT FURNISH ANY SATISFACTORY EXPLANATION OR COULD NOT F URNISH ANY JUSTIFIABLE EVIDENCES WHICH MAY JUSTIFY THE HUGE INCREASE OF 34 4% AND 417% IN THE MANUFACTURING EXPENSES AND PERSONNEL EXPENSES R ESPECTIVELY. THE LD.CIT(A) HAS NOT APPRECIATED THAT IN VIEW OF THE D EFECTS AND DEFICIENCIES NOTICED BY THE AO, THE AO HAD RIGHTLY REJECTED THE BOOK RESULT DISCLOSED BY THE ASSESSEE U/S.145(3) OF THE ACT AND ONCE THE BOOK RESULT DISCLOSED IS REJECTED THE AO IS BOUND TO ESTIMATE THE PROFIT, WHICH IS VERY FAIRLY AND REASONABLY ESTIMATED BY THE AO @ 45.64% WHICH WAS D ISCLOSED BY THE ASSESSEE ITSELF IN THE IMMEDIATE EARLIER YEAR. WE FIND THAT THE LD.CIT(A) HAS DECIDED THE ISSUE IN PARA 2.3 OF HIS ORDER AS U NDER:- 2.3. I HAVE CONSIDERED THE SUBMISSION MADE BY THE APPELLANT AND THE OBSERVATION OF THE A.O. THE APPELLANT HAS EXPLAINE D THE FALL IN G.P. RATE BY GIVING FULL DETAILS. THE APPELLANT HAS STA TED THAT THE DISPROPORTIONATE INCREASE IN THE MANUFACTURING EXPE NSES AND PERSONAL EXPENSES APPEARS TO BE SO BECAUSE THE A.O. HAS COMP ARED THE TURNOVER IN TERMS OF RUPEES AND NOT IN TERMS OF QUANTITY. I F THE TURNOVER IS ITA NO.615/AHD/2010 (BY ASSESSE E) AND ITA NO.1022/AHD/2010 (BY REVENUE) FORMATIVE FASHIONS PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 12 - COMPARED IN TERMS OF QUANTITY THEN AS IS SEEN FROM PARA 2.2.3 THE PRODUCTION HAS INCREASED 406 TIMES IN TERMS OF QUAN TITY WHEREAS MANUFACTURING EXPENSES HAVE INCREASED ONLY 344 TIME S. TE PERSONAL EXPENSES HAVE INCREASED ONLY 417 TIMES WHICH ARE CO MPARABLE WITH INCREASE IN PRODUCTION IN QUANTITY TERMS. THE APPE LLANT HAS FURTHER STATED THAT THE AVERAGE COST OF YARN/JARI HAS INCRE ASED FROM RS.212.13 PER KG. TO RS.226/- PER KG. WHEREAS THE JOB RECEIP T PER METER HAS DECREASED IN THE CURRENT YEAR TO RS.39.16 PER METER FROM RS.42.80 PER METER IN THE LAST YEAR. THE APPELLANT HAS STATED T HAT IN THE LAST YEAR NO BONUS WAS PAID TO THE EMPLOYEES WHEREAS IN THE CURR ENT YEAR A BONUS OF RS.2,25,900/- HAS BEEN PAID. THERE WAS SOME INCREA SE IN THE SALARY OF EMPLOYEES ALSO. THIS HAS ACCOUNTED FOR MARGINAL IN CREASE IN THE PERSONAL EXPENSES AS COMPARED TO LAST YEAR IF THE S AME IS COMPARED WITH PRODUCTION IN QUANTITY. THE APPELLANT HAS FUR THER POINTED OUT THAT THE A.O. HAS BROUGHT NO MATERIAL ON RECORD TO SHOW THAT THE BOOKS OF ACCOUNT ARE NOT RELIABLE OR THAT THEY ARE INCOMPLET E AND CORRECT PROFIT CANNOT BE DEDUCTED FROM THAT. THE A.O. HAS BROUGHT NO MATERIAL ON RECORD TO SHOW THAT THE SALES WERE UNACCOUNTED FOR OR UNDERVALUED OR THE PURCHASES OR OTHER EXPENSES WERE EITHER BOGUS O R INFLATED. I AGREE WITH THE APPELLANT THAT SINCE NO DEFECTS HAVE BEEN POINTED OUT IN THE BOOKS OF ACCOUNT, THE SAME CANNOT BE REJECTED. THE APPELLANT HAS EXPLAINED THE FALL IN G.P. RATE AS DISCUSSED ABOVE. IN VIEW OF THIS REASON, GROUNDS NO.1, 2 & 3 ARE ALLOWED AND THE ADD ITION IS DELETED. 13.1. WE FIND THAT THE ABOVE FINDING OF LD.CIT(A) I S NOT CONFRONTED BY THE REVENUE BY PLACING ANY CONTRARY MATERIAL ON REC ORD. HENCE, WE DO NOT FINDING ANY REASON TO INTERFERE WITH THE ORDER OF LD.CIT(A), SAME IS HEREBY UPHELD. THUS, THIS GROUND OF REVENUES APPE AL IS REJECTED. 14. GROUND NO.2 OF THE REVENUES APPEAL IS AGAINST THE DELETION OF DISALLOWANCE OF INTEREST U/S.40A(2)(B) OF THE ACT A MOUNTING TO RS.2,80,572/-. 14.1. THE LD.SR.DR REITERATED THE SUBMISSIONS MADE IN THE STATEMENT OF FACTS AND SUBMITTED THAT THE ORDER OF LD.CIT(A) IS NOT JUSTIFIED. ON THE ITA NO.615/AHD/2010 (BY ASSESSE E) AND ITA NO.1022/AHD/2010 (BY REVENUE) FORMATIVE FASHIONS PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 13 - CONTRARY, THE LD.COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDER OF THE LD.CIT(A) AND REITERATED THE SUBMISSIONS MADE BEFOR E THE AUTHORITIES BELOW. 15. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE PART IES. THE CONTENTION OF THE REVENUE ARE THAT THE LD.CIT(A) HAS NOT APPRE CIATED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ON BEING ASKED BY THE AO, THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCES WHICH MAY SHOW THAT THEY HAVE TAKEN ALL POSSIBLE MEASURES TO OBTAIN LOANS FROM BA NKS OR TO INCREASE FURTHER LIMITS, OR HAD NOT FURNISHED ANY EVIDENCES WHICH MAY SHOW THAT THEIR LIMITS FOR EXTENDING OD LIMIT HAS EXHAUSTED. THE LD.CIT(A) HAS NOT APPRECIATED THAT THE ASSESSEE HAD MERELY PLACED A G ROUND OF EXHAUSTING OF BANK LIMITS BUT HAS NOT SUBSTANTIATED THEIR SUCH CL AIM BY PLACING ANY RELIABLE AND JUSTIFIABLE EVIDENCES AND THEIR UNSUBS TANTIATED VERSION IS ACCEPTED BY CIT(A) AND HAS REJECTED THE FINDINGS OF THE AO THAT THE ASSESSEE HAD PAID UNREASONABLE AND EXCESSIVE RATE O F INTEREST TO THE SPECIFIED PERSONS WITHIN THE MEANING OF SECTION 40A (2)(B) OF THE ACT. WE FIND THAT THE LD.CIT(A) HAS DECIDED THIS ISSUE IN P ARA 4.3 OF HIS ORDER AS UNDER:- 4.3. I HAVE CONSIDERED THE SUBMISSION MADE BY THE APPELLANT AND THE OBSERVATION OF THE A.O. THE APPELLANT HAS ARGUED T HAT IT HAD EXHAUSTED ITS MAXIMUM POSSIBLE TERM LOAN AND OD LIMITS AND, T HEREFORE, IT HAD NO OTHER WAY EXCEPT TO RAISE UNSECURED LOANS. IT IS A LSO TR4UE THAT THE UNSECURED LOANS ARE AVAILABLE AT VARIOUS RATES DEPE NDING UPON TIME TO TIME. THE A.O. HAS COMPARED THE RATE OF UNSECURED LOAN OF 15% WITH THE RATE OF LOAN GIVEN BY THE BANK AND NOT WITH RAT E OF UNSECURED LOANS AVAILABLE IN THE MARKET. FOR A DISALLOWANCE U/S.40 A(2)(B) THE A.O. IS REQUIRED TO COMPARE THE MARKET RATE. IN THE CASE O F BINIT CORPORATION (24-TTJ-541), THE HONBLE ITAT, AHMEDABAD STATED TH AT FIRST OF ALL THE ITA NO.615/AHD/2010 (BY ASSESSE E) AND ITA NO.1022/AHD/2010 (BY REVENUE) FORMATIVE FASHIONS PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 14 - A.O. HAS TO SATISFY HIMSELF WHETHER THE EXPENDITURE ITSELF IS GENUINE OR NOT AND IF IT IS GENUINE THEN FOR THE PURPOSE OF FI NDING OUT THE PORTION OF DISALLOWANCE HE SHALL HAVE TO FIND OUT THE FAIR MAR KET VALUE OF THE SERVICES AND THIS WOULD PRESUPPOSE THAT SERVICES AR E COMMONLY AVAILABLE FOR WHICH MARKET VALUE CAN BE KNOWN. THE REAFTER THE A.O. SHALL HAVE TO EVALUATE THE LEGITIMATE NEEDS OF THE BUSINESS AT A POINT OF TIME WHEN THE SERVICES WERE RENDERED AND THIS WOULD INVOLVE AN INQUIRY AS A BUSINESS MAN BECAUSE IN TIMES OF DIRE NEED SER VICES ARE OBTAINED EVEN AT HIGHER COST, THE ULTIMATE AIM BEING TO EARN PROFIT OR TO MAINTAIN THE BUSINESS RELATIONS. ACCORDING TO THE ITAT, THE A.O. SHALL HAVE TO FIND OUT WHAT BENEFIT IS DERIVED BY THE ASSESSEE AN D THIS WOULD NOT NECESSARILY CONFINE TO THE YEAR IN QUESTION BUT SHA LL HAVE TO TAKE OVERALL PICTURE DEPENDING UPON THE FACTS OF EACH CASE. EVE N THE BENEFIT ACCRUING TO THE ASSESSEE SHALL HAVE TO BE EVALUATED . THIS AGAIN MAY NOT BE CONFINED TO THE PERIOD OF ACCOUNTING YEAR ONLY A ND AGAIN IT WOULD NOT BE ESSENTIAL THAT BENEFIT MUST BE IN THE REVENUE FI ELD. THEREAFTER ACCORDING TO THE ITAT THE AO SHALL HAVE TO GIVE REA SONABLE OPPORTUNITY TO THE ASSESSEE TO REBUT HIS FINDING. IN VIEW OF T HE ABOVE, THE A.O. IS REQUIRED TO COMPARE THE RATE OF INTEREST WITH THE U NSECURED LOANS AVAILABLE IN THE MARKET ESPECIALLY WHEN THE OVERALL LIMIT OF THE APPELLANT TO OBTAIN SECURED LOAN OR OD LIMIT FROM THE BANKS H AS BEEN EXHAUSTED. IN THE PRESENT CASE, WHEN THE BANKS ARE GIVING LOAN AT 12.5% FROM 22.01.2007 AND OD INTEREST IS 14% THEN THE UNSECURE D LOAN AT 15% IS NOT EXCESSIVE. HENCE THE DISALLOWANCE MADE BY THE A.O. IS DELETED AND THESE GROUNDS OF APPEAL ARE ALLOWED. 15.1. AFTER CONSIDERING THE TOTALITY OF THE FACTS O F THE CASE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A), S INCE UNDER THE FACTS AND CIRCUMSTANCES THE AO COULD NOT DEMONSTRATE AS TO HO W THE INTEREST PAID TO SPECIFIED PERSONS IS UNREASONABLE AND EXCESSIVE. THUS, THIS GROUND OF REVENUES APPEAL IS REJECTED. 16. GROUND NOS.3 & 4 ARE GENERAL IN NATURE REQUIRE NO INDEPENDENT ADJUDICATION. ITA NO.615/AHD/2010 (BY ASSESSE E) AND ITA NO.1022/AHD/2010 (BY REVENUE) FORMATIVE FASHIONS PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 15 - 17. IN THE COMBINED RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES, WHEREAS THE APPEA L OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) ($ %&) ! ! ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 28/ 08 /2014 6.., '.../ T.C. NAIR, SR. PS 3 / ,&7 872& 3 / ,&7 872& 3 / ,&7 872& 3 / ,&7 872&/ COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. ## & $9 / CONCERNED CIT 4. $9() / THE CIT(A)-I, SURAT 5. 7'%: ,& , , / DR, ITAT, AHMEDABAD 6. :; <. / GUARD FILE. 3$ 3$ 3$ 3$ / BY ORDER, -7& ,& //TRUE COPY// = == =/ // / #) #) #) #) ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 13.8.14(DICTATION-PAD 11+AGE S ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..14/19.8.14 OTHER MEMBER... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BAC K TO THE SR.P.S./P.S. 28.8.14 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 28.8.14 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER