2018 (4) TMI 1946 - AT - Income Tax

Allowability of assessee s claim of interest expenditure - Commissioner (Appeals) upheld the disallowance of interest expenditure by holding that interest income earned by the assessee has to be treated as business income and the interest expenditure cannot be allowed u/s 36(1)(iii) as it is not for the purpose of business and it cannot be allowed under section 37(1) as it was connected to activities prohibited in law or for infraction of law - HELD THAT - Commissioner(Appeals) has totally overlooked and ignored the inconsistencies pointed out by the assessing officer with regard to the nature of transactions between the parties in purported violation of various provisions of Companies Act. Commissioner(Appeals) while allowing assessee s claim in Assessment Year 2010 11 has not at all dealt with a number of factual issues raised by the assessing officer. In as much as, while deciding assessee s appeal for AY 2011 12 the Commissioner(Appeals) has upheld the disallowance of interest expenditure claimed by the assessee on a altogether different reasoning by changing the head of interest income shown by the assessee under the head income from other sources to business income . Thus, there is inconsistency even in the stand of the department with regard to the head of income. The most important factor which will have crucial bearing on the disputed issue is the fate of the cases filed by the CBI against the assessee under the Prevention of Corruption Act and Prevention of Money Laundering Act. A reading of the impugned assessment orders as well as the first appellate order for assessment year 2011 12 would leave no room for doubt that the disallowance of interest expenditure stands on the fulcrum of the allegations made by the CBI against the assessee and other persons in the charge sheet/complaint filed under the Prevention of Money Laundering Act, 2002 and Prevention of Corruption Act, 1988. Undisputedly, these are recent developments much after completion of proceedings before the Departmental Authorities. None of the Departmental Authorities had the benefit of the aforesaid orders passed by the learned Special Judge, CBI (04), New Delhi, which were produced for the first time in course of appeal hearing before us. Rules of natural justice and fair play demand that the Departmental Authorities must be given an opportunity to analyze and examine the impact the orders passed by the learned Special Judge, CBI (04), New Delhi, may have on the disputed issue arising in the present appeals. Therefore, regard being had to the facts discussed by us herein before and the changed scenario arising due to the orders passed by the learned Special Judge, CBI (04), New Delhi, we are of the considered opinion that the issues raised in the present appeals are required to be restored back to the Assessing Officer for de novo adjudication after considering all incidental facts and material including the orders of the learned Special Judge, CBI (04), New Delhi. Appeals are allowed for statistical purposes.

Summary

Issues Involved:
1. Allowability of the assessee’s claim of interest expenditure.
2. Nature of transactions between the parties and their legitimacy.
3. Impact of the Special Court's judgment on the assessee's involvement in alleged illegal activities.

Detailed Analysis:

1. Allowability of the Assessee’s Claim of Interest Expenditure:
The primary issue in both appeals is the allowability of the assessee's claim of interest expenditure. The assessee had received a loan of ?177.75 crore from Dynamix Realty and advanced the same to Cineyug, which then transferred ?175 crore to Kalaignar TV (KTV). The assessee claimed interest expenditure on the loan received from Dynamix Realty, which was disallowed by the Assessing Officer (AO) on the grounds that the transactions were beyond normal business activities and were intended for illegal gratification to KTV, Chennai, as part of the 2G scam. The AO contended that the loan transactions were colorable and lacked a legitimate business connection, thus disallowing the interest expenditure of ?11,38,00,114.

The Commissioner (Appeals) in the assessment year 2010-11 allowed the assessee's claim of interest expenditure, observing that if the interest income is assessed, the related interest expenditure must also be allowed. However, for the assessment year 2011-12, the Commissioner (Appeals) upheld the disallowance, stating that the interest income should be treated as business income, and the interest expenditure could not be allowed under sections 36(1)(iii) or 37(1) of the Income Tax Act, as it was connected to activities prohibited by law.

2. Nature of Transactions Between the Parties and Their Legitimacy:
The AO observed several discrepancies in the books of accounts and statements recorded from the directors of the assessee company. The AO noted that the transactions were not genuine business transactions but were intended to facilitate illegal gratification to KTV, Chennai. The AO highlighted the lack of matching funds, absence of proper documentation for inter-corporate deposits (ICDs), and violations of the Companies Act. The AO concluded that the entire loan transaction was a subterfuge to benefit KTV, Chennai, and disallowed the interest expenditure.

The Commissioner (Appeals) for the assessment year 2010-11 noted that the transactions were through regular banking channels and that the interest income and expenditure were genuine. However, for the assessment year 2011-12, the Commissioner (Appeals) took a different view, treating the transactions as an adventure in the nature of trade and disallowing the interest expenditure.

3. Impact of the Special Court's Judgment:
The Special Court, CBI, New Delhi, acquitted the assessee and other accused persons from all charges related to the Prevention of Corruption Act and Prevention of Money Laundering Act. The court observed that there was no evidence of criminality or conspiracy in the acts allegedly committed by the accused persons, including the transfer of ?200 crore to KTV, Chennai. The court held that the prosecution failed to prove any charge against the accused, and accordingly, all accused were acquitted.

The Tribunal noted that the orders of the Special Court were crucial developments that occurred after the completion of proceedings before the Departmental Authorities. The Tribunal emphasized that the Departmental Authorities should be given an opportunity to analyze and examine the impact of the Special Court's orders on the disputed issues.

Conclusion:
The Tribunal remanded the issues back to the AO for de novo adjudication, considering all incidental facts and material, including the orders of the Special Court, CBI, New Delhi. The AO was directed to afford a reasonable opportunity of being heard to the assessee before deciding the issue. Both appeals were allowed for statistical purposes. The order was pronounced in the open Court on 17.04.2018.