2017 (8) TMI 950 - AT - Income Tax

Interest on borrowed capital - making advances for purchase of fixed assets cannot be allowed u/s 37(1) or 36(1) iii) - whether these advances sought to be made to equipment suppliers were genuine or were these colorable devices adopted by the assessee to evade taxes and were part of sham transactions? - Held that - The onus is on the assessee to prove the genuineness of the said transaction of granting advances to equipment suppliers. The assessee is also directed to produce the details/project report of various machinery/equipment required for the upgradation/improvement in quality of services as approved by ITI Limited, which ultimately did not materialized and got cancelled and the amount was refunded by the supplier parties. Thus, for proper verification and enquiry and establishing genuineness of the said transactions, the matter is set aside to the file of the A.O. and assessee is directed to produce all cogent evidences as detailed above before the A.O. to establish the genuineness of the transaction in context of the claim of the assessee for upgradation of the quality of service w.r.t. data center entered set up by the assessee in JV with ITI Limited. The onus is on the assessee to prove that these interest expenses are allowable in accordance with the provisions of the 1961 Act. The assessee shall be allowed by the AO to file all relevant evidences/ explanations in its defense, which shall be admitted by the AO in the interest of justice. Needless to say that the A.O. shall provide adequate and sufficient opportunity to the assessee of being heard in accordance with principles of natural justice in accordance with law.

Issues Involved:
1. Disallowance of interest under Section 36(1)(iii) of the Income-tax Act, 1961.
2. Whether the advances given by the assessee were for legitimate business needs.
3. Applicability of proviso to Section 36(1)(iii) regarding assets not put to use.

Detailed Analysis:

1. Disallowance of Interest under Section 36(1)(iii):
The primary issue revolves around the disallowance of interest amounting to ?1,48,96,056/- under Section 36(1)(iii) of the Income-tax Act, 1961. The AO disallowed the interest on the grounds that the advances given by the assessee were not for the purpose of business and thus, the interest on borrowed capital used for these advances cannot be allowed as a deduction. The AO observed that the funds were mainly borrowed, and the assessee had a significant loan liability. The AO also noted that the advances were given for the purchase of fixed assets which were not put to use during the year.

2. Legitimacy of Advances for Business Needs:
The assessee contended that the advances were given for the purchase of additional equipment for an existing data center project at Bangalore. However, the AO found discrepancies in the purchase orders, such as lack of specific details, absence of delivery dates, and no confirmations from suppliers. The AO concluded that the advances were not for legitimate business needs and were not incurred wholly and exclusively for business purposes.

3. Applicability of Proviso to Section 36(1)(iii):
The AO further held that the interest expenses on borrowed funds used for these advances were not allowable under the proviso to Section 36(1)(iii) because the fixed assets were not put to use. The AO noted that the assessee did not provide evidence to show that the advances were made from internal accruals and not borrowed funds. The AO calculated the disallowed interest based on the total advances and the interest rate of 14%.

CIT(A) Findings:
The CIT(A) upheld the AO's decision, noting that the assessee failed to provide evidence that the advances were not for the extension of business. The CIT(A) observed that the loans from Trimax IT Infrastructure and Services Limited increased significantly during the year, and the assessee could not prove that these loans were not utilized for the purchase of equipment for business extension. The CIT(A) also noted that the amounts were recovered in the next year, and the assessee could not provide evidence to support its claim that the advances were for replacing equipment in the existing data center.

Tribunal's Decision:
The Tribunal noted that the assessee is engaged in providing data center services in a joint venture with ITI Limited. The assessee claimed that the advances were for upgrading equipment to enhance service quality, but due to a shortage of funds, the orders were canceled, and the advances were recovered later. The Tribunal observed that the AO did not properly appreciate the documents submitted by the assessee, such as purchase orders and confirmations from suppliers.

The Tribunal directed the assessee to provide all relevant documents, including communications, approvals, and project reports from ITI Limited, to establish the genuineness of the transactions. The Tribunal set aside the matter to the AO for de novo determination, directing the AO to verify and examine the evidence provided by the assessee. The AO is to allow the assessee to file all relevant evidence and provide an adequate opportunity to be heard.

Conclusion:
The appeal was allowed for statistical purposes, and the matter was remanded to the AO for fresh examination and verification of the evidence to determine the genuineness of the transactions and the allowability of the interest expenses under the provisions of the Income-tax Act, 1961. The AO is to provide sufficient opportunity to the assessee to present its case.

← Previous Next →