2018 (6) TMI 1523 - AT - Income Tax

Disallowance of interest u/s. 36(1)(3) - interest free loan given to subsidiary - Held that - Issue covered in assessee s own case 2017 (5) TMI 108 - ITAT DELHI as held so long as funds have been given to the sister concern out of interest free funds, no disallowance u/s 36(l)(iii) can be made. Thus, without their being material to controvert the finding of the Learned CIT (Appeals) that advance standing in the name of the subsidiary is out of assessee s own interest free funds, we do not find any reason to deviate from such a finding of fact. Disallowance u/s. 14A - average of investment - Held that - Assessing Officer has considered average total investment appearing on the first day and last day of the financial year, which in our opinion is not justified. These investments may also include such investments from which no exempt income would have been earned by the assessee. As is clear from the Rule itself, the average of only such investments have to be taken into account, which yielded the income not forming part of the total income. Therefore, the AO was required to work out the average of such investment, the income from which did not form part of the total income instead of total value of investment. None of the parties before us, however, have laid any details to examine as to which of the investments have yielded such in come which did not form part of the total income. We, therefore, restore the matter back to the file of the Assessing Officer for calculating the disallowance u/s. 14A read with Rule 8D afresh

Summary

Issues Involved:
1. Legality of the assessment order.
2. Interpretation and application of Section 36(1)(iii) regarding disallowance of interest expenses.
3. Disallowance under Section 14A of the Income Tax Act.

Detailed Analysis:

1. Legality of the Assessment Order:
The assessee contended that the assessment order passed by the Assessing Officer (AO) and upheld by the CIT(A) was "bad in law." However, there were no specific arguments or detailed discussions provided in the judgment regarding this issue. The focus was primarily on the disallowance of interest expenses and the disallowance under Section 14A.

2. Interpretation and Application of Section 36(1)(iii):
The primary issue under this section was the disallowance of ?2,07,93,960/- as interest expense on a notional basis. The AO observed that the assessee had paid a significant amount of interest on loans while providing interest-free loans to its subsidiary. The AO disallowed the interest expense based on the judgment of the Punjab and Haryana High Court in the case of Commissioner of Income Tax vs. Abhishek Industries Ltd., asserting that the interest on borrowed funds diverted to sister concerns without business purpose should be disallowed.

The assessee argued that the advance to the subsidiary was out of business expediency and not from borrowed funds. The ITAT noted that in previous assessments for AY 2007-08 and AY 2008-09, similar disallowances were deleted by the Tribunal, which found that the advances were made out of surplus funds, not borrowed funds. The Tribunal referenced the Supreme Court's judgment in Munjal Sales Corporation vs. CIT, which reversed the decision in Abhishek Industries Ltd., holding that no disallowance under Section 36(1)(iii) can be made if funds are given to a sister concern out of interest-free funds.

The ITAT concluded that the disallowance of interest under Section 36(1)(iii) was not justified as the assessee had sufficient surplus funds, and there was no evidence that borrowed funds were diverted to the subsidiary. Thus, the issue was decided in favor of the assessee.

3. Disallowance under Section 14A:
The AO disallowed ?10,46,560/- under Section 14A read with Rule 8D, contending that administrative expenses were incurred to earn exempt income (dividend). The assessee argued that no expenditure was incurred for earning the exempt income since the investments were made in earlier years from its own funds, and no new investments were made during the assessment year.

The ITAT observed that the AO applied Rule 8D mechanically without recording satisfaction regarding the correctness of the assessee's claim. Citing the Supreme Court's decision in Maxopp Investments Ltd. vs. CIT, the Tribunal emphasized that the AO must record satisfaction about the incorrectness of the assessee's claim before applying Rule 8D. The ITAT also noted that the AO should consider only those investments that yielded exempt income, not the total investments.

The Tribunal restored the matter to the AO for recalculating the disallowance under Section 14A, considering only the investments that yielded exempt income and ensuring compliance with the procedural requirements of recording satisfaction.

Conclusion:
The appeal was partly allowed for statistical purposes. The disallowance of interest under Section 36(1)(iii) was deleted, while the issue of disallowance under Section 14A was remanded back to the AO for fresh consideration in light of the Tribunal's observations. The judgment underscores the importance of proper application of legal principles and procedural requirements in tax assessments.