2012 (12) TMI 483 - AT - Income Tax

Disallowance of interest paid - Held that - It is revealed from the orders passed by AO as well as the CIT (A) that interest was paid during the relevant previous year, thus when interest has been paid during the financial year no disallowance could be made u/s 40(a)(ia) in view of Special Bench decisions in the case of M/s. Merlyn Shipping & Transports vs. ACIT (2012 (4) TMI 290 - ITAT VISAKHAPATNAM) - in favour of assessee. Unexplained credits - Held that - The addition solely on the reasoning that cash was deposited in Smt. Indira Golechha s bank account before the loan was advanced by her to the assessee. This by itself cannot be a ground to disbelieve the advancement of loan of Rs.2,90,000/- to the assessee without making proper enquiry to find out whether the creditor had sufficient cash balance with her to advance the loan - Issue restored back to AO with a direction to make proper enquiry - in favour of assessee for statistical purposes. Excess Remuneration paid to Director - Disallowance u/s 40A(3) - Held that - As entire amount was paid in cash in violation of provisions contained u/s 40A(3) disallowance of 20% out of the expenditure claimed is warranted - uphold the order passed by the CIT(A)- against assessee. Disallowance of capital loss - Held that - Appeal proceeding being a continuation of assessment proceeding any omission or mistake in the assessment order can be considered by the CIT (A). The CIT (A) after examining the materials also found that the said amount is a capital loss - Addition of Rs.43,505/- is confirmed and ground raised by the assessee is rejected - against assessee.

Summary

Issues:
1. Disallowance of interest paid without deduction of tax at source.
2. Addition of unexplained credits in the name of an individual.
3. Disallowance of remuneration paid in cash in violation of provisions.
4. Disallowance of capital loss claimed as business expenditure.

Issue 1: Disallowance of interest paid without deduction of tax at source
The appellant, a company providing services in shares and securities, claimed expenditure towards interest payment. The Assessing Officer (AO) disallowed the interest payment as the purpose was not clearly established. The appellant contended that the interest was paid on unsecured loans for business purposes and submitted Form 15G to show no tax deduction at source. The CIT (A) agreed the interest was for business but disallowed it under section 40(a)(ia) for non-deduction of tax. However, the ITAT Hyderabad directed the AO to delete the disallowance as interest was paid during the financial year, citing a precedent. The ground raised by the appellant was allowed.

Issue 2: Addition of unexplained credits in the name of an individual
The AO added an amount as unexplained credits from an individual, Smt. Indira Golecha, due to insufficient details on creditworthiness. The CIT (A) found part of the amount explained but sustained the addition of Rs. 2,90,000 as unexplained, linking it to cash deposits in her bank account. The ITAT Hyderabad noted that Smt. Indira Golecha confirmed the loan and had a stable income, suggesting she could have had cash to lend. The ITAT directed the AO to conduct a proper inquiry to verify the creditworthiness of the creditor before making a decision, providing the appellant with a fair opportunity to be heard.

Issue 3: Disallowance of remuneration paid in cash in violation of provisions
The appellant paid remuneration to a director in cash, which the AO disallowed partially under section 40A(3) for violating cash payment rules. The CIT (A) upheld the disallowance of 20% of the expenditure. The ITAT Hyderabad agreed with the CIT (A)'s decision, stating it was in line with statutory provisions, and rejected the appellant's ground challenging the disallowance.

Issue 4: Disallowance of capital loss claimed as business expenditure
The appellant claimed a capital loss as a business expenditure, which the AO suggested disallowing during the CIT (A) proceedings. The CIT (A) rejected the claim, considering it a capital loss, not a business expenditure. The ITAT Hyderabad affirmed the CIT (A)'s decision, confirming the addition of the capital loss amount. The appellant's ground was rejected in this regard.

In conclusion, the ITAT Hyderabad partially allowed the appeal, directing the AO to delete the disallowance of interest paid without tax deduction, ordering a proper inquiry into unexplained credits, upholding the disallowance of cash remuneration, and confirming the addition of the capital loss claimed.