2018 (12) TMI 1505 - AT - Income Tax

Addition on account of sale of shares - auditors have given a remark that payment has not been made by the company on the sale of the shares and Demat account has not been provided for verification - Held that - From the perusal of the material placed it cannot be disputed that amount of Rs. 1, 20, 56, 085/- on account of sale of shares have been duly reflected in the P and consequently same is directed to be deleted. Disallowance u/s.40a(ia) - assessee has raised loan from NBFC and has paid interest as claimed as an expenditure but the assessee has not deducted TDS on such a payment - scope of amended provision - Held that - efore us the ld. counsel though admitted that TDS has not been deducted but now in view of 3rd proviso to section 40(a)(ia) brought by the Finance Act 2014 w.e.f. 2014-2015 the disallowance if at all which could be made would be 30% of the expenditure claimed and therefore the disallowance if at all should be restricted to 30%. Such a proviso has to be given retrospective effect in view of various decisions like in the case of CIT vs. Ansal Land Mark Township which was in respect of 2nd proviso to Section 40a(ia). He submitted that same principle would apply here also. Accordingly we direct the Assessing Officer that disallowance should be restricted to 30% in view of the newly inserted proviso. Thus this ground is partly allowed.

Issues Involved:
1. Addition on account of sale of shares.
2. Disallowance of expenditure in respect of Bus Queue Shelters (BQS).
3. Disallowance of expenditure for late filing of Service Tax return.
4. Disallowance of Bihar Project Expenses.
5. Addition on account of notional interest on loans and advances.
6. Addition on account of notional interest on investment in a joint venture.
7. Addition on account of share capital/share application money/share premium.
8. Disallowance under section 40(a)(ia).

Issue-wise Detailed Analysis:

1. Addition on Account of Sale of Shares:
The Assessing Officer (AO) added Rs. 1,20,56,085/- for the sale of shares, citing that neither the sale amount nor the profit was shown in the Profit and Loss (P&L) account. The assessee contended that the sale value was declared in the P&L account and provided various evidences. The Tribunal found that the amount of Rs. 1,20,56,085/- was duly reflected in the P&L account, and the profit on the sale of shares was disclosed. Since there was no dispute regarding the sale of shares and profit, the addition was deemed erroneous and directed to be deleted.

2. Disallowance of Expenditure in Respect of Bus Queue Shelters (BQS):
The AO treated 4/5th of the expenditure of Rs. 1,62,39,484/- as deferred revenue expenditure. The Tribunal referred to the Supreme Court's decision in Taparia Tools Ltd. vs. JCIT, which states that revenue expenditure incurred in a particular year should be allowed in that year. Since the assessee claimed it as revenue expenditure, the Tribunal ruled that the revenue could not disallow it by spreading it over years and directed the deletion of the disallowance.

3. Disallowance of Expenditure for Late Filing of Service Tax Return:
The AO disallowed Rs. 27,297/- for late filing of the service tax return, treating it as an offence. The Tribunal held that the payment was compensatory and not an offence, thus not disallowable under Explanation to Section 37(1). The disallowance was directed to be deleted.

4. Disallowance of Bihar Project Expenses:
The AO disallowed Rs. 1,47,647/- for Bihar Project Expenses due to lack of evidence. The Tribunal upheld this disallowance as the assessee failed to provide proof of expenses incurred for business purposes.

5. Addition on Account of Notional Interest on Loans and Advances:
The AO added Rs. 28,94,472/- as notional interest on loans and advances of Rs. 4,82,41,209/- given to various parties, citing diversion of interest-bearing funds. The Tribunal found that the assessee had surplus funds of Rs. 15.75 crore, and no disallowance could be made on advances given to related concerns. The addition was directed to be deleted.

6. Addition on Account of Notional Interest on Investment in a Joint Venture:
The AO added Rs. 16,65,000/- as notional interest on investment of Rs. 1,38,75,013/- in a joint venture. The Tribunal ruled that since the assessee had sufficient surplus funds, no disallowance should be made. The addition was directed to be deleted.

7. Addition on Account of Share Capital/Share Application Money/Share Premium:
The AO added Rs. 5,09,74,000/- for share capital/share application money/share premium, citing lack of confirmation and bank statements. The Tribunal found that the assessee provided sufficient evidence, including confirmations, bank statements, and financial statements of the subscriber companies. The Tribunal ruled that the identity, genuineness, and creditworthiness of the transactions were established, and the addition was directed to be deleted.

8. Disallowance under Section 40(a)(ia):
The AO disallowed Rs. 27,57,000/- for non-deduction of TDS on interest paid to NBFC. The Tribunal directed that, in view of the third proviso to Section 40(a)(ia) brought by the Finance Act, 2014, the disallowance should be restricted to 30% of the expenditure claimed.

Conclusion:
The appeal was partly allowed with specific directions for each issue. The Tribunal provided a detailed analysis and justification for each decision, ensuring adherence to legal principles and precedents.

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