2013 (3) TMI 534 - AT - Income Tax

Disallowance of interest - Disallowance of notional interest - Disallowance u/s 40(a)(ia) - Held that - In our considered opinion, acquiring shares in Sameera Electronics Pvt. Ltd. by the assessee is not connected for the purpose of business. Therefore, the acquisition of shares in Sameera Electronics Pvt. Ltd. is not for the purpose of the business and the interest paid thereon is not allowable either in the section 36(1)(iii) or section 37 of the Act The issue raised by the assessee, i.e. assessee having sufficient own funds, was neither examined by the AO nor by the CIT(A). Therefore, in the interest of justice, we set aside the order of the CIT(A) and restore the issue to the file of the AO with a direction to examine the issue and decide the same after considering the decision Hon ble Bombay High court in the case of Reliance Utilities and Power (2009 (1) TMI 4 - HIGH COURT BOMBAY ) after providing reasonable opportunity of hearing to the assessee. As per section 196 a statutory corporation, which is established under law is exempt from the TDS. In this case, in our opinion, whether the assessee has to deduct the tax in view of section 196 or not has to be examined. Therefore, neither the AO nor CIT(A) examined the issue in proper perspective. Thus, we restore issue to the AO with a direction to decide the issue afresh in the light of section 196 of the Act. Appeal of the assessee is partly allowed

Summary

Issues Involved:
1. Disallowance of interest cost incurred for investment in shares.
2. Treatment of interest-free advance given to a vendor and a subsidiary.
3. Disallowance of consultancy and loan syndication charges.
4. Disallowance of interest on borrowed funds used for interest-free loans.
5. Disallowance under section 40(a)(ia) for non-deduction of tax at source on payments.

Issue-wise Detailed Analysis:

1. Disallowance of Interest Cost Incurred for Investment in Shares:
The CIT(A) upheld the disallowance of interest cost of Rs. 16,91,958/- on the grounds that the interest cost was incurred for the purpose of making an investment in the shares of Sameera Electronics Pvt. Ltd. (Sameera) and not for the business of the appellant. The AO noted that the assessee classified these shares as 'investment' in the balance sheet and not under 'Fixed assets', indicating that the acquisition was not for business purposes. The AO also observed no increase in turnover and concluded that the investment was for earning exempt dividend income. The Tribunal agreed with the AO and CIT(A), noting that the acquisition of shares was not for business purposes and the interest paid is not allowable under sections 36(1)(iii) or 37 of the Act.

2. Treatment of Interest-Free Advance Given to Vendor and Subsidiary:
The AO observed that the assessee had advanced Rs. 15,60,865/- as an interest-free loan to Sameera Electronics Pvt. Ltd. and disallowed proportionate interest of Rs. 1,40,477/-. The CIT(A) confirmed the AO's action. The Tribunal remitted the issue back to the AO to examine whether the assessee had sufficient interest-free funds, following the decision in CIT Vs. Reliance Utilities Power Ltd., which presumes that investments are made from interest-free funds if they are sufficient.

3. Disallowance of Consultancy and Loan Syndication Charges:
The AO disallowed Rs. 2,56,684/- as consultancy charges and Rs. 8,15,000/- as loan syndication charges, stating these were not connected with the business of the assessee. The CIT(A) confirmed this disallowance. The Tribunal dismissed the assessee's appeal on this ground, linking it to the conclusions drawn in the first issue.

4. Disallowance of Interest on Borrowed Funds Used for Interest-Free Loans:
The AO disallowed interest on borrowed funds used for interest-free loans to Sameera Electronics Pvt. Ltd. The CIT(A) upheld this disallowance. The Tribunal remitted the issue back to the AO to verify if the assessee had sufficient interest-free funds, in line with the Reliance Utilities Power Ltd. case.

5. Disallowance under Section 40(a)(ia) for Non-Deduction of Tax at Source on Payments:
The AO disallowed Rs. 3,78,248/- paid as testing charges to Electronic Regional Testing Laboratory and Electronic Corporation of India for non-deduction of tax at source, noting that these entities are liable for service tax. The CIT(A) upheld this disallowance. The Tribunal restored the issue to the AO to examine whether the payments fall under section 196, which exempts certain statutory corporations from TDS.

Conclusion:
The Tribunal partly allowed the appeal, remitting some issues back to the AO for further examination and upholding the disallowance of interest cost and consultancy charges.