2021 (1) TMI 955 - AT - Income Tax

Disallowance of the expenditure claimed on account of interest paid on borrowed funds - HELD THAT - Issue decided in favour of assessee as relying on assessee s own case. 2016 (8) TMI 1522 - ITAT JAIPUR . Disallowance of depreciation charged for the year under appeal - HELD THAT - There is no dispute that there are assets which were acquired in the earlier years and forms part of the opening block of assets and there are fresh assets in the nature of air conditioner and open well (pump) to the tune of 62, 455 which have been acquired by the assessee during the year under consideration and used for the purposes of business. Therefore in absence of any adverse finding by the AO the disallowance of claim of depreciation is hereby set-aside and the ground of appeal so taken by the assessee is allowed. Disallowance of expenditure in nature of exceptional items claimed u/s 36(1)(vii) - HELD THAT - It is the case of the assessee that it had cancelled the allotment of certain flats in its commercial complex as the allottees/debtors refused to pay the outstanding amount towards the interest complex maintenance charges and electric installation charges and the same were reversed and written off in respective ledger accounts of the parties and claimed in its profit/loss account for the previous year relevant to impugned assessment year. As further submitted that such interest complex maintenance charges and electric installation charges were duly offered to tax in previous assessment years and the return for those years have been assessed u/s 143(3) wherein such charges have been brought to tax and accepted by the Assessing officer. We find force in the contentions so advanced on behalf of the assessee and agree with the same. It is a settled legal position as laid down by the Hon ble Supreme Court in case of TRF Ltd 2010 (2) TMI 211 - SUPREME COURT and also accepted by the CBDT as communicated vide circular no. 12/2016 dated 30.05.2016 that claim for any debt or part thereof in any previous year shall be admissible under section 36(1)(vii) of the Act if it is written off as irrecoverable in the books of accounts of the assessee for that previous year and it fulfills the conditions stipulated in sub section (2) of section 36 i.e such debt or part thereof has been taken into account in computing the income of the assessee of the previous year in which the amount of such debt or part thereof is written off or of an earlier previous year. All the AO has to examine is whether the amount of aforesaid charges so recoverable have been actually reversed in respective ledger accounts of individual allottees/debtors and written off in the books of accounts of the assessee during the previous year relevant to impugned assessment year or not. AO has to examine whether such charges which have not been claimed as irrecoverable and written off were forming part of income and offered to tax in the previous assessment years or not. Given that these details have been claimed to be on record and in absence of findings of the AO we are constrained to remand the matter to the file of the AO. Therefore for the limited purposes of verifying these two aspects the matter is set-aside to the file of the AO and where the same is found to be in order the AO is directed to allow the necessary relief to the assessee. In the result the ground of appeal is partly allowed for statistical purposes.

Issues Involved:
1. Disallowance of interest expenditure claimed by the assessee.
2. Disallowance of depreciation claimed by the assessee.
3. Disallowance of expenditure claimed under section 36(1)(vii) as exceptional items.
4. Non-allowance of set off of brought forward unabsorbed business loss and unabsorbed depreciation.

Detailed Analysis:

1. Disallowance of Interest Expenditure:
The assessee challenged the disallowance of ?4,77,36,535/- on account of interest expenditure. The Tribunal noted that similar disallowances in the assessee’s own case for previous years (AY 2004-05 to 2011-12) were deleted by the Tribunal. The Tribunal observed that the interest paid on fresh loans taken to repay old loans should be allowed as business expenditure. The Tribunal followed the principle of consistency and directed the AO to delete the disallowance, emphasizing that the character of the loan remains the same, and the fresh loans were utilized for repaying old loans taken for business purposes.

2. Disallowance of Depreciation:
The assessee contested the disallowance of ?25,282/- on account of depreciation. The Tribunal found that the AO did not provide any cogent reason for the disallowance, and the CIT(A) upheld the disallowance without proper reasoning. The Tribunal noted that the assets were used for business purposes and formed part of the opening block of assets. Therefore, the Tribunal set aside the disallowance and allowed the depreciation claimed by the assessee.

3. Disallowance of Expenditure under Section 36(1)(vii):
The assessee claimed ?11,59,34,654/- as exceptional items, which included interest recoverable from debtors, complex maintenance charges, and electric installation charges. The AO disallowed the claim, stating that the assessee failed to provide complete details and documentary proof. The Tribunal noted that the assessee had written off these amounts in the books of accounts and had offered them for taxation in earlier years. Referring to the Supreme Court judgment in TRF Ltd. and CBDT Circular No. 12/2016, the Tribunal held that the assessee only needed to write off the debt in the books of accounts to claim the deduction. The Tribunal remanded the matter to the AO for verifying the details and directed that if the conditions were met, the deduction should be allowed.

4. Non-allowance of Set Off of Brought Forward Losses:
The assessee argued that the CIT(A) erred in not allowing the set off of brought forward unabsorbed business loss and unabsorbed depreciation. The Tribunal did not provide a specific ruling on this issue in the summarized judgment, but it can be inferred that the Tribunal’s directions in the other issues would impact the computation of income and the set-off of losses.

Conclusion:
The Tribunal allowed the appeals of the assessee on the grounds of disallowance of interest expenditure and depreciation. It remanded the issue of disallowance of expenditure under section 36(1)(vii) to the AO for verification. The Tribunal's directions were to be applied consistently to the assessment years 2012-13 to 2014-15.

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