2022 (11) TMI 664 - AT - Income Tax

Addition on account of notional interest on the credit balance in the capital account of the assessee with a Partnership Firm - Partnership firm has not paid interest to partner and not claimed deduction u/s 40(b) - HELD THAT - A.O. has not disputed the fact that there was no payment of interest or credit of interest by the partnership firm in the account of the assessee partner. A.O. has added the said income as notional interest on the capital balance of the assessee with the partnership firm. The assessee has now produced the audited financial statements of partnership firm as well as the assessment order passed under section 143(3), dated 18.11.2019 to show that the partnership firm has neither made any provision of the interest to the partners nor claimed any deduction on this account. CIT(A) has passed the ex parte order after granting six opportunities to the assessee however, on the last date of hearing, the assessee sought adjournment vide application filed online alongwith the medical certificate of the A.R. of the assessee. Therefore, once the assessee has requested for adjournment of hearing on the ground of illness of the A.R. and proof of illness was also filed then the CIT(A) ought to have granted one more opportunity of hearing to the assessee. Matter restored before the CIT(A) for fresh adjudication. - Appeal of the assessee is allowed for statistical purpose.

Issues Involved:
1. Dismissal of appeal ex parte by the CIT(A) due to non-compliance with notice.
2. Addition of Rs. 74,31,417/- on account of notional interest on the credit balance in the capital account with M/s. Shree Infratech.
3. Failure to appreciate that the partnership firm did not pay or credit any interest on the capital account.
4. Incorrect application of section 28(v) of the Income Tax Act, 1961.
5. Levy of interest under sections 234B and 234C of the Income Tax Act, 1961.
6. Violation of principles of natural justice.

Detailed Analysis:

1. Dismissal of Appeal Ex Parte:
The assessee argued that the CIT(A) erred in dismissing the appeal ex parte by stating that no response or submission was received in compliance with the notice dated 02.06.2022. The assessee had sought a short adjournment due to the illness of its counsel and provided a medical prescription as evidence. The Tribunal noted that the CIT(A) passed the ex parte order without considering the adjournment request, which was a violation of the principles of natural justice. The Tribunal emphasized that the CIT(A) should have granted one more opportunity for a hearing.

2. Addition of Rs. 74,31,417/- on Account of Notional Interest:
The primary issue was the addition made by the A.O. on account of notional interest calculated at 12% on the credit balance of Rs. 6,19,28,475/- in the capital account with M/s. Shree Infratech. The assessee contended that no interest was payable or paid by the partnership firm, and thus, the addition was unjustified. The Tribunal observed that the partnership deed allowed interest payment only if mutually agreed by the partners, and no such agreement or supplementary deed existed.

3. Non-Payment of Interest by the Partnership Firm:
The assessee highlighted that the partnership firm neither paid nor credited any interest on the capital account, as agreed upon by the partners in the partnership deed. The Tribunal noted that the A.O. did not dispute this fact and that the partnership firm had not claimed any deduction for interest on the capital account.

4. Incorrect Application of Section 28(v):
The assessee argued that under section 28(v) of the Income Tax Act, interest on capital received from a partnership firm is chargeable to tax only if the interest has been allowed as a deduction under section 40(b). Since the partnership firm did not claim any interest deduction, the notional interest could not be taxed in the hands of the partner. The Tribunal agreed with this interpretation, stating that the addition of notional interest was unsustainable.

5. Levy of Interest under Sections 234B and 234C:
The assessee denied the levy of interest under sections 234B and 234C. However, the Tribunal did not provide a detailed analysis on this issue, as the primary focus was on the addition of notional interest and the ex parte dismissal.

6. Violation of Principles of Natural Justice:
The Tribunal concluded that the CIT(A) violated the principles of natural justice by dismissing the appeal ex parte without considering the adjournment request due to the illness of the assessee's counsel. The Tribunal emphasized that the CIT(A) should have decided the appeal on merits after considering the facts explained in the statement of facts.

Conclusion:
The Tribunal set aside the impugned order of the CIT(A) and remanded the matter for fresh adjudication on merits, after giving the assessee one more opportunity for a hearing and considering the relevant evidence. The appeal was allowed for statistical purposes.

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