2013 (7) TMI 693 - AT - Income Tax

Nature of Interest - Capitalization - company is a fully owned subsidiary of NHAI for carrying out the National objective of road development in the country - Return of income was filed - the company was under pre-operation stage, all expenditure and income was capitalized under the head Capital Work-in-progress - Held that advances to subsidiary companies found to be made for business consideration, onus to prove commercial expediency is discharged and deduction of interest is allowable - court relied upon the judgement in C.I.T. vs Bharti Televenture Ltd.(2011 (1) TMI 326 - DELHI HIGH COURT) - Court set aside the order and hold that the interest payable by the assessee company on sub-debt to NHAI was given under business expediency and the same is allowable u/s 36(1)(iii) - the addition be deleted by allowing interest paid to NHAI on sub-debts. Whether the regular assessment in this case was completed at an income u/s 143(3) - the addition was made on the basis of auditor s remarks in item no. 2(vii) in the auditor s report - no effort has been pressed in action for verifying confirmation from the creditors - appeal is restored to AO with a direction that he shall re-decide the issue de novo by affording due opportunity of hearing to the assesse appeal decided in favour of revenue.

Summary

Issues Involved:
1. Disallowance of interest on sub-debt from NHAI.
2. Addition u/s 41(1) of the Income Tax Act related to financial advisory fees.

Disallowance of Interest on Sub-Debt from NHAI:
The appeal was against the order of the Commissioner of Income Tax regarding the disallowance of interest on sub-debt from NHAI. The assessee argued that the amount recoverable from NHAI was not a loan or advance but a part of continuous business activity. The Assessing Officer disallowed the interest, but the AR contended that interest was not chargeable as per terms with NHAI. The Tribunal observed the balance sheet and held that the interest paid was allowable under section 36(1)(iii) of the Act. The Tribunal referred to relevant case laws and set aside the disallowance, directing deletion of the addition.

Addition u/s 41(1) for Financial Advisory Fees:
Regarding the addition under section 41(1) for financial advisory fees, the AR argued that the provisions were not applicable as no deduction was claimed in the assessment year, and there was no evidence of remission or cessation of liability. The authorities made the addition based on auditor's remarks without verifying confirmation from creditors. The Tribunal noted the lack of verification and directed the Assessing Officer to re-decide the issue, ensuring proper verification and opportunity for the assessee. The issue was restored to the Assessing Officer for a fresh decision.

This judgment highlighted the disallowance of interest on sub-debt from NHAI and the addition under section 41(1) related to financial advisory fees. The Tribunal allowed the appeal regarding interest disallowance, emphasizing business expediency and compliance with relevant provisions. For the addition under section 41(1), the Tribunal directed a fresh assessment by the Assessing Officer to ensure proper verification and consideration of relevant factors.