2017 (2) TMI 167 - AT - Income Tax

Disallowance of claim for interest expenditure under section 36(1)(iii) or 14A - Held that - The borrowing is by way of unsecured loan, so that the same is without any stipulation with regard to the application of funds, and neither has any been stated by either the assessee or the Revenue. The assessee has a net excess of current liabilities over current assets at ₹ 3518.66 lacs as on 31/03/2006. It is this excess, no longer tied in current assets (working capital), so that it provides liquidity, that can be said to fund the investment in shares, besides the depletion in capital by way of debit balance in the profit and loss account. It is only the balance excess which, along with the share capital and the borrowed funds, finance the investment in fixed assets. For the following two years, which are the years under reference, there has been a decline in the borrowed funds, so that there has been in fact a net repayment of borrowings. It is the release of funds from fixed assets (principally through depreciation, a non-cash charge) and further accretion to current liabilities upon realization of the spontaneous current assets, that provide the funds for investment in shares for the immediately following year, i.e., f.y. 2006-07. No part of the borrowed capital can thus be said as applied for or considered as financing the investment in shares so as to attract any disallowance, either u/s. 36(1)(iii) or u/s. 14A.

Summary

Issues Involved:
1. Disallowance of depreciation on plant and machinery and electric installation.
2. Disallowance of repairs incurred.
3. Disallowance of interest expenditure under section 36(1)(iii) of the Act.

Issue-wise Detailed Analysis:

1. Disallowance of Depreciation on Plant and Machinery and Electric Installation:
The principal issue in these appeals is the disallowance of depreciation on plant and machinery and electric installation. The assessee claimed depreciation on assets used for job work for its sister concern, M/s. Applicomp India Ltd. The Revenue disallowed the claim, suspecting the job work to be a make-believe arrangement to bolster the depreciation claim. The assessee argued that expenses on power, fuel, and water were incurred for the job work, which were allowed in the assessment for AY 2008-09, despite the disallowance of depreciation.

The tribunal clarified the law regarding the prerequisites for claiming depreciation under Section 32(1) of the Act, emphasizing that both ownership and actual use of the asset are required. The court referenced multiple judicial precedents to conclude that passive user, where the asset is in a ready-to-use state, could be considered as sufficient compliance for the user test for depreciation allowance. However, the tribunal noted that the assessee's claim lacked detailed substantiation and directed the Assessing Officer (AO) to verify the claim by examining the job work processes and the machinery used.

The tribunal also highlighted the need to determine whether the job work represented the same business as the erstwhile manufacturing business. If the job work is considered a separate business, depreciation would be allowable only for the assets used in the job work business. The tribunal set aside the assessment for both years and restored the matter to the AO for adjudication based on definite findings of fact.

2. Disallowance of Repairs Incurred:
The second issue involved the disallowance of repairs claimed at ?6.16 lacs and ?2.51 lacs for the two consecutive years. The disallowance was guided by the same reasons as the depreciation disallowance. The tribunal noted that repairs could not be disallowed merely because the assessee was also undertaking trading operations. The AO was directed to examine the claim in light of the materials and explanations furnished by the assessee and decide accordingly.

3. Disallowance of Interest Expenditure under Section 36(1)(iii) of the Act:
The third issue pertained to the disallowance of interest expenditure. The assessee had borrowed funds from American Express Bank, which were found to be diverted for investment in shares. The disallowance was made for AY 2007-08 and confirmed for AY 2008-09, with the AO invoking Section 14A as well.

The tribunal emphasized that the matter was factual, requiring an examination of whether the investment in shares was met by the assessee's own funds or represented a diversion of borrowed funds. The tribunal noted that the deletion of disallowance for AY 2007-08 in the first appeal was without basis, as the investment in shares did not represent either revenue or capital expenditure but only an investment. The tribunal directed the AO to examine the assessee's claim of having sufficient own funds with reference to its audited accounts and fund flow statement.

The tribunal concluded that no part of the borrowed capital could be considered as financing the investment in shares, thus not attracting disallowance under Section 36(1)(iii) or Section 14A. The tribunal directed accordingly.

Conclusion:
The assessee's appeal was partly allowed and partly allowed for statistical purposes, while the Revenue's appeal was partly allowed for statistical purposes. The tribunal directed the AO to re-examine the claims based on definite findings of fact and proper verification.