2014 (11) TMI 729 - AT - Income Tax

Exclusion of loan written back to credit of P&L a/c Applicability of section 41(1) Loans waived by group companies - Held that - In the audited financial statements the Trustees of the assessee have recognised liabilities written back dividend and bank interest as income - Loss on sale of investments was claimed as expenditure - No doubt entries in the books of accounts do not determine the taxability or otherwise of a transaction but at the same time the entries give a good indication as to the understanding of the management of the nature of the transactions - The assessee claims that it is a pass through entity - the parent company has taken into account the income expenditure and losses of the assessee Trust while computing its income - The assessee for the AY 2009-10 has disclosed dividend income as well as interest income - If the arguments of the assessee has to be accepted then it has to be seen as to in which entitity s hands this income has been offered to tax - From the facts on record this is not clear - If the loss on sale of investments has been booked in the hands of the Holding Company or any of the Subsidiary Companies on the ground that they are the real owners then the dividend income has to be taken in their account - This needs verification. Be it as it may when the loan taken by the assessee is written off the same cannot be treated as income of the assessee u/s 41(1) as the loan was taken on capital account in Logitronics Pvt. Ltd. vs. CIT 2011 (2) TMI 12 - DELHI HIGH COURT has laid down the principle that if a loan was taken for acquiring a capital asset waiver thereof would not amount to any income exigible to tax - the liabilities written off cannot be brought to tax - The assessee is not claiming any deduction on the loss on sale of investments - The issue now boils down to dividend income and bank interest - As the facts are not clear the issue of taxability of dividend and interest should be set aside to the file of the AO for fresh adjudication after verification Decided in favour of assessee.

Summary

Issues Involved:

1. Taxability of loan written back by the assessee.
2. Treatment of loss on the sale of investments.
3. Taxability of dividend income and bank interest.
4. Applicability of Section 41(1) of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Taxability of Loan Written Back by the Assessee:

The primary issue was whether the loan written back by the assessee could be treated as income under Section 41(1) of the Income Tax Act. The assessee argued that the loans were advanced by group companies for purchasing shares under the Stock Appreciation Right (SAR) scheme and were capital in nature. The CIT(A) relied on the precedent set in the case of Religare Commodities Ltd., where it was held that SAR discounts are capital expenditures and not allowable as business expenses. The Tribunal agreed with the assessee, referencing the Delhi High Court's rulings in Logitronics Pvt. Ltd. vs. CIT and CIT vs. Tosha International Ltd., which established that loans taken for acquiring capital assets, when waived, do not constitute taxable income.

2. Treatment of Loss on the Sale of Investments:

The assessee initially claimed a loss on the sale of investments in its income computation but later retracted this claim before the CIT(A). The CIT(A) dismissed the appeal, considering the SAR discount as capital expenditure. The Tribunal noted that the assessee, being a pass-through entity, should not have any income or loss. The Tribunal directed the AO to verify whether the loss on the sale of investments was accounted for in the hands of the holding or subsidiary companies.

3. Taxability of Dividend Income and Bank Interest:

The assessee disclosed dividend income and bank interest in its financial statements. However, the Tribunal highlighted the need to verify which entity had offered this income for tax, as the assessee claimed to be a pass-through entity. The Tribunal remanded this issue back to the AO for fresh adjudication and verification.

4. Applicability of Section 41(1) of the Income Tax Act:

The AO had assessed the loan written back as income under Section 41(1). However, the Tribunal held that Section 41(1) is not applicable as the loan was taken on capital account. The Tribunal referenced case laws to support that the waiver of loans taken for capital purposes does not result in taxable income.

Conclusion:

The Tribunal allowed the appeals for statistical purposes, directing the AO to re-examine the taxability of dividend income and bank interest while confirming that the loan written back is not taxable under Section 41(1). The Tribunal emphasized the need for verification to ensure that the income and losses are correctly accounted for in the appropriate entities.