2014 (11) TMI 255 - AT - Income Tax

Reopening of assessment u/s 147 Disallowance of interest by AO Reasons for reopening not furnished by AO- Held that - The AO did not furnish the reasons for reopening of assessment to the assessee before the completion of the assessment - the AO has extracted the reasons for reopening in the assessment order - the disallowance made relates to the interest paid u/s 234A and 234B of the Act as decided in Bharat Commerce And Industries Ltd. Versus Commissioner of Income-Tax 1998 (3) TMI 2 - SUPREME Court - the payment of interest cannot be allowed as deduction - apparently the assessee may not be having a case on merits - the assessee is strongly placing reliance on the technical ground of non- furnishing of reasons - Commissioner of Income-tax Versus Videsh Sanchar Nigam Ltd. 2011 (7) TMI 715 - Bombay High Court - the assessment order cannot be upheld, since the AO has failed to furnish the reasons for reopening to the assessee before the completion of the assessment Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of re-opening of assessment u/s 147 of the Income Tax Act, 1961.
2. Disallowance of claim of interest paid under the Income Tax Act.
3. Validity of charging interest u/ss 201(1A), 234C, and 244A of the Act.

Issue-wise Detailed Analysis:

1. Validity of Re-opening of Assessment u/s 147 of the Income Tax Act, 1961:

The assessee challenged the re-opening of the assessment on the grounds that the reasons for re-opening were not furnished before the completion of the assessment. The assessee had filed a return under protest and sought reasons for re-opening through a letter dated 24-02-2003, but the assessing officer failed to provide the reasons before completing the assessment. The AO had reopened the assessment based on the audit party's view that the interest levied by the department under various provisions was not allowable as a deduction u/s 37 of the Act. The AO disallowed the interest expenditure of Rs. 3.87 crores based on the decision of the Hon'ble Supreme Court in the case of Bharat Commerce Industries Ltd (230 ITR 733). The Tribunal held that the failure to furnish reasons before the completion of the assessment rendered the assessment order invalid, following the jurisdictional Bombay High Court's decision in the case of CIT Vs. Videsh Sanchar Nigam Ltd (2012)(340 ITR 66)(Bom).

2. Disallowance of Claim of Interest Paid under the Income Tax Act:

The assessee had received interest income from the department and was also liable to pay interest under various provisions of the Act. The assessee netted the interest payment against the interest receipt and offered the net interest as income, relying on the Tribunal's decision in the case of Cynamid India Ltd. However, the AO disallowed the interest expenditure of Rs. 3.87 crores, citing the Supreme Court's decision in Bharat Commerce Industries Ltd, which held that interest paid for committing a default in respect of statutory liability to pay advance tax is not an allowable deduction as it is not connected with preserving or promoting the business of the assessee.

3. Validity of Charging Interest u/ss 201(1A), 234C, and 244A of the Act:

The Tribunal did not specifically address this issue in the judgment as it set aside the assessment order on the preliminary issue of non-furnishing of reasons for re-opening the assessment. Consequently, the other issues, including the validity of charging interest under various sections, were not adjudicated.

Conclusion:

The Tribunal set aside the assessment order due to the non-furnishing of reasons for re-opening the assessment before its completion, following the binding decision of the jurisdictional Bombay High Court. As a result, the appeal filed by the assessee was allowed, and the other issues were not adjudicated.