2011 (3) TMI 964 - AT - Income Tax

Disallowance u/s 40(b) - The dispute is related to the determination of the Capital account balances of the partners on which the interest is payable - Held that the assessing officer is authorized only to verify whether the payment of interest to any partner is authorized by and is in accordance with the terms of partnership deed and also it relates to the period falling after the date of partnership deed - it could be seen that no where it is provided that the assessing officer is entitled to disallow the payment of interest to partners by reworking the capital account balances of the partners - Assessing Officer is not entitled to compel the assessee to provide for depreciation in the books of account and consequently not entitled to recomputed the capital account balances of the partners by deducting the cumulative amount of depreciation that was allowed in the hands of the assessees herein - Decided in the favour of assessee

Summary

Issues Involved:
1. Whether the Ld CIT(A) is justified in confirming the action of the assessing officer in disallowing a portion of interest paid to the partners by reworking the partners' capital account balances.

Issue-wise Detailed Analysis:

1. Justification of Disallowing Interest by Reworking Partners' Capital Account Balances:

The appeals by the assessees challenge the confirmation by the Ld CIT(A) of the assessing officer's action to disallow a portion of the interest paid to the partners. The main issue revolves around whether the assessing officer was justified in reworking the partners' capital account balances by reducing them for depreciation not provided in the books of account but claimed under section 32 of the Act.

Facts and Background:
Both assessees are partnership firms that complied with section 40(b) of the Act, which allows interest paid to partners as a deduction subject to prescribed conditions. However, the assessing officer noticed that the firms did not provide for depreciation on fixed assets in their books but claimed it while computing total income, resulting in inflated capital balances and higher interest claims. The assessing officer, relying on case laws such as G.R. Govindarajulu Naidu v. CIT and CIT v. Elecon Engineering Company Ltd., held that depreciation should be provided in the books, reducing the capital balances and the allowable interest.

Arguments by Assessees:
The assessees argued that there is no provision in the Act enabling the assessing officer to rework capital balances for allowing interest. They contended that compliance with section 40(b) should suffice for the interest deduction. They highlighted the complexity of reworking capital balances, noting differences in depreciation methods (SLM vs. WDV) and rates under the Companies Act and Income-tax Act. They also cited division bench decisions of the Visakhapatnam Tribunal, which held that the assessing officer is not entitled to rework capital balances for determining interest payable to partners.

Arguments by Revenue:
The Ld D.R. relied on the decision in Arthi Nursing Home and argued that depreciation is mandatory per explanation 5 to section 32, which applies retrospectively. They also cited the Supreme Court's observation in CIT v. British Paints India Ltd., asserting the assessing officer's duty to ensure true state of accounts and correct income.

Tribunal's Analysis:
The Tribunal examined the applicability of the British Paints case, noting that it pertained to stock valuation affecting total income, unlike depreciation, which does not affect total income computation. The Tribunal observed that the computation of total income under the Income-tax Act disregards book depreciation, making the British Paints ratio inapplicable to depreciation issues.

The Tribunal also considered the statutory framework, noting no compulsion for partnership firms under the Partnership Act to provide for depreciation or follow ICAI accounting standards. They emphasized that explanation 5 to section 32 mandates the assessing officer to allow depreciation, not the assessee to claim it.

Conclusion:
The Tribunal concluded that the assessing officer is not authorized to compel the provision of depreciation in books or rework partners' capital balances by deducting cumulative depreciation. They reversed the Ld CIT(A)'s orders and directed the assessing officer to allow the interest deduction if it complies with section 40(b).

Result:
The appeals of the assessees were allowed.

Pronouncement:
The judgment was pronounced in the open Court on 17.3.2011.