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2015 (6) TMI 315 - AT - Income TaxRevision u/s 263 - the interest income to the tune of ₹ 77,40,000/- has not been offered to tax - Held that- What started with a proposed revision of assessment order on the ground that interest income to the tune of ₹ 77,40,000 has not been offered to tax ended with a discretion to the assessing officer to examine the diversion of interest bearing funds towards investments which are not yielding any income as the assessee directly or conclusively could not prove that he has not diverted interest bearing borrowings towards investments which are not income yielding . As to whether such a shift in the stand of the CIT, while exercising powers under section 263, we find guidance from a co-ordinate bench s decision in the case of Synergy Entrepreneur Solutions Pvt Ltd vs DCIT 2011 (3) TMI 52 - ITAT MUMBAI to conclude that itt is thus clear that there has been shift in the stand of the CIT on whether it was a fit case for revision on the ground that the assessee was not eligible for set off of losses on speculative transactions or whether it was a case for revision on the ground that the AO did not make necessary verifications about the transactions. The reason given in the show-cause notice is former, while the reason for which revision powers are finally exercised in the impugned order are latter. Even on merits there is nothing on record to show that the assessee was under any obligation to charge interest @12% on the aforesaid advance. On the contrary, learned CIT has himself treated this advance as an investment which did not yield any income. As learned counsel points out that there is a mention about 12% interest p.a. in respect of firm s transactions with the partners and such a provision has no bearing on transactions between the partners inter se. Learned DR could not point out anything which even indicates charging of interest on such loans. The very foundation of the impugned revision proceedings was devoid of legally sustainable basis. As regards the question of disallowance of interest, we have noted that the assessee s uncontroverted stand is that no deduction has been claimed for any interest payment. When there is no claim for deduction, there is the question of disallowance of such deduction. - Decided in favour of assessee.
Issues Involved:
1. Validity of the revision order under section 263 of the Income-tax Act, 1961. 2. Obligation of the assessee to charge interest on the advance made. 3. Disallowance of interest when no deduction was claimed. Detailed Analysis: 1. Validity of the Revision Order under Section 263 of the Income-tax Act, 1961: The primary issue is the validity of the revision order dated 25th March 2015, passed under section 263 r.w.s. 143(3) for the assessment year 2009-10. The Commissioner of Income-tax initiated revision proceedings on the grounds that the assessment order dated 28.12.2011 was erroneous and prejudicial to the interest of revenue. The Commissioner noted that the assessee had advanced Rs. 6.45 crores to a partner, Mr. Shakeel Ahmed, without offering the interest income of Rs. 77,40,000 to tax. The Commissioner directed the Assessing Officer (AO) to examine the diversion of interest-bearing funds towards non-income yielding investments. In response, the Tribunal observed that the revision order's conclusions differed from the reasons stated in the show-cause notice. The Tribunal cited the case of Synergy Entrepreneur Solutions Pvt Ltd vs. DCIT, which held that a revision order is unsustainable if the conclusions differ from the reasons stated in the show-cause notice. The Tribunal emphasized that the Commissioner must point out the exact error in the order proposed for revision, allowing the assessee an opportunity to address it. 2. Obligation of the Assessee to Charge Interest on the Advance Made: The assessee contended that there was no agreement to charge interest at 12% on the Rs. 6.45 crore advance to Mr. Shakeel Ahmed. The Commissioner, however, inferred an obligation to charge interest based on an agreement within the firm, which the Tribunal found irrelevant to transactions between partners. The Tribunal noted that there was no evidence indicating an obligation to charge interest on the advance, thus undermining the basis of the revision proceedings. 3. Disallowance of Interest When No Deduction Was Claimed: The Tribunal also addressed the issue of disallowance of interest. The assessee asserted that no deduction for interest payment was claimed, making the question of disallowance moot. The Tribunal upheld this stance, noting that without a claim for deduction, there could be no disallowance. Conclusion: The Tribunal concluded that the revision order was unsustainable both procedurally and on merits. It quashed the revision order, allowing the assessee's appeal. The Tribunal emphasized that the Commissioner's shift in reasoning and lack of evidence for an obligation to charge interest invalidated the revision proceedings. The Tribunal also highlighted the absence of any interest deduction claim by the assessee, further supporting the decision to quash the revision order. Final Judgment: The appeal was allowed, and the revision order dated 25th March 2015 was quashed. The Tribunal pronounced the order on 17.4.2015.
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