2012 (8) TMI 226 - AT - Income Tax

Addition made u/s.40A(2)(b) - CIT(A) deleted the additions - Held that - The A.O. made hypotheticated calculation in assessment order without any base and material. The addition was made on presumption. In both years, there is no nexus between the borrowed fund and interest free loan - The assessee did not take substantial interest in the business of the specified person or the specified person has a substantial interest in the business of the assessee - A.O. has not brought on record any evidence regarding the assessee has substantial interest in M/s. Yuletide Industries Private Ltd. and M/s Covenent Investment Co. Ltd. and vice versa. - as interest free loan given to alleged sister concern were part consideration of service rendered by both the companies. Therefore, in both the years, the order of ld. CIT(A) are confirmed and appeal of the revenue are dismissed. Adjustment of Excise Duty on purchase, sales and closing stock u/s 145A - Held that - Considering amendment w.e.f. 01.04.1999 in Subclause b of Section 145A adjustment to include the amount to any tax, duty, cess or fee actually paid or incurred by the assessee to bring goods to the place of its location and condition as on date of valuation is required to adjust as per law by the A.O - A.O. is directed to make suitable adjustment as per law.

Summary

Issues Involved:
1. Deletion of additions under Section 40A(2)(b) of the IT Act for assessment years 2004-05 and 2005-06.
2. Deletion of addition on account of adjustment of Excise Duty on closing stock under Section 145A of the IT Act for assessment year 2005-06.

Detailed Analysis:

1. Deletion of Additions under Section 40A(2)(b) of the IT Act:

Assessment Year 2004-05:
- Transaction with M/s. Baroda Intermediates Pvt. Ltd. (BIPL):
- The assessee entered into a service contract with BIPL, providing raw materials and paying service charges of Rs. 1,75,000 per month. The assessee also gave an interest-free deposit of Rs. 50 lacs to BIPL.
- The AO considered the interest-free deposit as an excessive payment, resulting in an addition of Rs. 5,25,000 under Section 40A(2)(b).
- The CIT(A) found that the transactions were not hit by Section 40A(2)(b) as the shareholding did not meet the substantial interest threshold and the payments were reasonable and beneficial for the assessee.

- Transaction with M/s. Yuletide Industries Pvt. Ltd. (YIPL):
- The assessee had a similar arrangement with YIPL, including an interest-free deposit of Rs. 45 lacs.
- The AO added Rs. 1,50,853, considering the notional interest on the deposit as excessive payment.
- The CIT(A) ruled that the transactions were not excessive or unreasonable and were outside the ambit of Section 40A(2)(b).

Assessment Year 2005-06:
- Similar Findings:
- The CIT(A) upheld the deletion of additions for both BIPL and YIPL, reiterating that the transactions were not covered by Section 40A(2)(b) and were commercially expedient.

Tribunal's Decision:
- The Tribunal confirmed the CIT(A)'s order, stating that the AO made hypothetical calculations without substantial evidence. The assessee did not have a substantial interest in the specified persons, and the interest-free loans were part of the service consideration. Hence, the appeals by the revenue were dismissed for both years on these grounds.

2. Deletion of Addition on Account of Adjustment of Excise Duty on Closing Stock under Section 145A of the IT Act:

Assessment Year 2005-06:
- The AO made adjustments for excise duty on purchases, sales, and closing stock, disallowing the assessee's claim and reducing the profit by Rs. 4,59,676.
- The CIT(A) referenced the Madras High Court decision in English Electric Co. of India Ltd., which held that excise duty should not be included in the value of unsold finished goods. Hence, the addition was deleted.

Tribunal's Decision:
- The Tribunal directed the AO to make suitable adjustments as per the law, considering the amendment in Section 145A effective from 01.04.1999, and to provide the assessee an opportunity to be heard. This issue was set aside to the AO for re-evaluation.

Conclusion:
The appeals were partly allowed for statistical purposes, with the Tribunal confirming the CIT(A)'s deletion of additions under Section 40A(2)(b) and setting aside the issue of excise duty adjustment under Section 145A for reassessment by the AO.