2010 (2) TMI 763 - AT - Income Tax

The disallowance made by the AO in respect of lease rentals paid to various financial institutions towards lease of assets . - The stand of the Revenue is that the lease rentals paid by the assessee and debited to P and L account would need to be disallowed in view of the fact that there were no assets with reference to which the lease rental can become an allowable expenditure. - On the other hand, the claim of the assessee that the lease rental in any case an allowable expenditure, if not, as lease rentals but as financial charges commands worth consideration. - Held that - Unless the Revenue has disputed the assessee s claim with documentary evidence, it cannot be termed as sham or a device. In fact, the Revenue has placed more stress on the survey report rather than making discreet inquiries to pin point where the assessee was at fault. - the transactions made by the assessee during the assessment years under dispute were treated as financial transactions and the claims of Rs.1,38,65,266/-, Rs.1,63,10,230/- and Rs.44,63,063/- for the AYs 97-98, 98-99 and 99-00 respectively are treated as the interests paid for the financial loans availed by the assessee and that the assessee is entitled to claim the same as allowable deduction for the respective assessment years under dispute. Unexplained cash credit - addition u/s 68 - held that - the assessing officer had not discharged the onus cast upon him to look into the cash credit and make necessary enquiry and come to a finding on such an enquiry in a proper and fair manner and, therefore, we are of the firm view that without causing any inquiry, treating 10% of total advances as unexplained cash credits is contrary to the spirit of judicial precedents. AO was not justified in treating Rs.7,16,30,000/- as unexplained cash credits u/s 68 of the Act. Payment of conversion charges - disallowance of Rs.345925/- by invoking the provisions of s.40A(2)(b) - Held that - this issue is remitted back on the file of the AO for fresh consideration. Interest on borrowed funds - The assessee was in the process of expansion of ISP for which a considerable power was necessitated for smooth running of the said plant. Since SNPL - a sister concern - had inclined to generate the required power for the assessee for which the assessee had advanced funds for implementation of the said project and accordingly a Memorandum of the Understanding was drawn between them. - Held that - there was no question of diversion of business funds on the part of the assessee and as such, the authorities below were not justified in disallowing a sum of Rs.4,91,65,609/-.

Summary

Issues Involved:
1. Re-opening of assessment without jurisdiction.
2. Disallowance of lease rentals.
3. Allowance of financial charges and upfront fees.
4. Addition of unexplained cash credits under section 68.
5. Disallowance under section 40A(2)(b).
6. Disallowance of interest on borrowed funds.
7. Condonation of delay in filing appeal.

Issue-wise Detailed Analysis:

1. Re-opening of Assessment Without Jurisdiction:
The assessee argued that the re-opening of the assessment under section 147 was without jurisdiction and invalid. The CIT(A) observed that the Revenue had sufficient reason to re-open the assessment based on materials found during a survey, which indicated that the assessee was claiming bogus lease rentals. The CIT(A) acknowledged a technical flaw in not providing the reasons for re-opening to the assessee but rejected the plea to quash the re-assessment proceedings. The Tribunal held that the AO had disclosed the reasons for re-opening in a letter dated 12.3.2003, and the assessee failed to object timely. Therefore, the re-opening was upheld as valid.

2. Disallowance of Lease Rentals:
The assessee claimed lease rentals for SGCI Rolls, which were disallowed by the AO, citing them as sham transactions. The CIT(A) upheld the disallowance, noting that the transactions were paper transactions without physical movement of assets, intended as a colorable device to claim depreciation. The Tribunal found that the AO relied heavily on the survey report without independent verification. The Tribunal concluded that the transactions should be treated as financial transactions, and the lease rentals claimed should be allowed as interest on financial loans.

3. Allowance of Financial Charges and Upfront Fees:
For AY 1997-98 and 1999-00, the AO disallowed financial charges and upfront fees related to a new steel plant, considering it a new project rather than an expansion. The CIT(A) allowed the deductions, treating the new plant as an extension of the existing business. The Tribunal upheld the CIT(A)'s decision, noting that the conditions for deduction under section 36(1)(iii) were met, and the expenses were revenue in nature.

4. Addition of Unexplained Cash Credits Under Section 68:
The AO added Rs. 7.16 crores as unexplained cash credits, citing the assessee's failure to provide confirmations for advances received. The CIT(A) upheld the addition. The Tribunal found that the AO did not make proper inquiries to verify the genuineness of the credits and relied on judicial precedents to hold that the addition was unjustified. The Tribunal deleted the addition.

5. Disallowance Under Section 40A(2)(b):
The AO disallowed Rs. 344925 paid as conversion charges to an associate concern, considering it excessive. The CIT(A) upheld the disallowance. The Tribunal remitted the issue back to the AO for fresh consideration, advising the assessee to provide comparative figures to justify the payment.

6. Disallowance of Interest on Borrowed Funds:
The AO disallowed Rs. 4.91 crores of interest on borrowed funds, alleging diversion of funds to a sister concern, SNPL, for non-business purposes. The CIT(A) upheld the disallowance. The Tribunal found that the funds were advanced for commercial expediency to procure electricity for the assessee's expanded plant. The Tribunal concluded that there was no diversion of funds and allowed the interest deduction.

7. Condonation of Delay in Filing Appeal:
The assessee's appeal for AY 1999-2000 was delayed by 113 days due to the previous counsel's lackluster approach. The Tribunal condoned the delay, accepting the assessee's explanation and affidavit, and directed the Registry to take the appeal on record.

Conclusion:
The Tribunal partly allowed the assessee's appeals for AY 1997-98 and 1998-99, fully allowed the appeal for AY 1999-2000, and dismissed the Revenue's appeals for AY 1997-98 and 1999-00.