2013 (4) TMI 39 - AT - Income Tax

Interest free finance to subsidiary company - disallowance u/s 36 - whether would fall within the ambit of assessee s business expediency? - CIT(A) granted relief to the assessee - Held that - CIT(A), in the second round while deleting the addition, held that the A.O. has not given any finding as to whether the advance to subsidiary was for its revival or not. He has further held that the contention of the assessee that the business of subsidiary got revived and the advances got fully recovered (consequent to merger) remained uncontroverted. The coordinate Bench of ITAT has observed that allowing interest free finance to subsidiary company could fall within the ambit of assessee s business expediency. The aforesaid finding of CIT(A) could not be controverted by the Revenue by bringing any contrary material on record. CIT(A) while deleting the addition has also relied on the decision S.A. Builders Pvt. Ltd. vs. CIT 2006 (12) TMI 82 - SUPREME COURT wherein held that to decide whether interest on funds borrowed by the assessee to give an interest free loan to a sister concern (e.g., a subsidiary of the assessee) should be allowed as a deduction under section 36(1)(iii) one has to enquire whether the loan was given by the assessee as a measure of commercial expediency. The expenditure may not have been incurred under any legal obligation, but yet it is allowable as business expenditure if it was incurred on grounds of commercial expediency. Thus no reason to interfere with the order of CIT(A) - in favour of assessee.

Summary

Issues:
Revenue's appeal against the order of ld. CIT(A)-XI, Ahmedabad dated 21.01.2010.

Analysis:
The case involved the disallowance of interest expenditure under section 36(1)(ii) by the Assessing Officer (A.O.) in the original assessment. The CIT(A) granted relief to the assessee, which was challenged by the Revenue before the ITAT. The ITAT, in its order, directed the A.O. to re-adjudicate the matter to verify if the interest-free funds given to the subsidiary company were for commercial expediency. The A.O. confirmed the disallowance, stating that the transactions appeared to be a colorable device to claim bad debts and interest simultaneously. The A.O. initiated penalty proceedings under section 271(1)(c) for furnishing inaccurate particulars of income.

In the appeal before the CIT(A), it was contended that the interest-free advances to the subsidiary were for the revival of its business, and the advances were out of commercial expediency. The CIT(A) allowed the appeal, stating that the disallowance of interest was not justified based on the facts presented and the decision in the case of S.A. Builders Ltd. v. CIT (288 ITR 1).

The Revenue challenged the CIT(A)'s order before the ITAT. The Revenue argued that the transactions were colorable and not for commercial expediency, as claimed by the assessee. The assessee, on the other hand, maintained that the advances to the subsidiary were made out of commercial expediency to safeguard its business interests. The ITAT, considering the facts and the S.A. Builders Ltd. decision, upheld the CIT(A)'s order, stating that interest-free finance to the subsidiary could fall within the ambit of business expediency.

The ITAT found that the A.O. had not given any finding on whether the advance to the subsidiary was for its revival, and the CIT(A)'s decision was not controverted by the Revenue. The ITAT also relied on the S.A. Builders Ltd. decision, emphasizing that expenditure incurred for commercial expediency, even if not under a legal obligation, is allowable as business expenditure. Consequently, the ITAT dismissed the Revenue's appeal, upholding the CIT(A)'s order.

In conclusion, the ITAT upheld the CIT(A)'s decision to delete the disallowance of interest, emphasizing the importance of verifying whether the transactions were for commercial expediency, as per the S.A. Builders Ltd. decision. The appeal of the Revenue was dismissed, and the order of the CIT(A) was upheld.