Income Tax Appellate Tribunal - Mumbai
Hush India P. Ltd, Mumbai vs Assessee on 5 May, 2010
IN THE INCOME TAX APPELLATE TRIBUNAL
"H" BENCH, MUMBAI
BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER, AND
SHRI VIJAY PAL RAO, JUDICIAL MEMBER
ITA no. 6327/Mum./2010
(Assessment Year : 2007-08)
Hush India Pvt. Ltd.
46, Saki Vihar Road
Andheri (E), Mumbai 400 072
PAN - AAACP6815F ....................... Appellant
v/s
Income Tax Officer
Ward-8(2)1, Aayakar Bhavan
Maharshi Karve Marg
Mumbai 400 020 ................... Respondent
Assessee by : Mr. Rakesh Milwani
Revenue by : Mr. V.V. Shastri
Date of Hearing - 13.10.2011 Date of Order - 21.10.2011
ORDER
PER J. SUDHAKAR REDDY, A.M.
This appeal preferred by the assessee, is directed against the impugned order dated 5th May 2010, passed by the Commissioner (Appeals)- XVII, Mumbai, for assessment year 2007-08, on the following grounds:-
"1. Considering the facts and circumstances of the case, the CIT(A) erred on facts and in law in confirming the disallowance of Rs. 251078 out of interest paid by the appellant and the same ought to have been allowed.
2 Hush India Pvt. Ltd.
ITA no. 6327/Mum./2010
2. Considering the facts and circumstances of the case and without prejudice to ground No. 1 above, the CIT(A) erred on facts and in law in not restricting disallowance to Rs. 201420 being disallowance on same issue in earlier assessment year in the manner calculated in Annexure I."
2. The assessee is in the business of trading. The facts regarding the disallowances are brought out at Pages-2 and 3 of the assessment order. The Assessing Officer observed that the assessee has given an interest free advance of ` 13,00,383 to its sister concern M/s. Softex Manufacturing Co. as the assessee company had also borrowed funds on interest. The Assessing Officer was of the view that interest bearing funds were diverted as interest free advance to sister concern. He rejected the contentions of the assessee that interest free funds were available with it by observing that the same are already blocked / invested in fixed assets worth ` 42,96,698. Thus, he disallowed 12% of the interest paid on borrowed funds on an amount of ` 13,00,055. Aggrieved, the assessee carried the matter in appeal but without any success. Further aggrieved, the assessee is in appeal before the Tribunal.
3. We have heard the learned Counsel, Mr. Rakesh Milwani, on behalf of the assessee and learned Departmental Representative, Mr. V.V. Shastri, on behalf of the Revenue. On a careful consideration of the facts and circumstances of the case and on perusal of the papers on record, we hold as follows:-
4. The assessee has advanced the amounts in question to the sister concern M/s. Softtex Manufacturing Co. in the earlier assessment years and this amount of ` 13,00,383, is only the opening balance as at this year. Coming to the factual position, we find that the assessee has both interest free funds as well as interest bearing funds. On analysis of the balance sheet shows that as on 31st March 2007, the interest free funds are ` 25,57,234. Against this, the net block i.e., fixed assets of ` 18,01,404. The assessee also has net current assets for ` 36,50,304. The secured loans in this case are only from a scheduled bank on hypothecation of stocks and the amount 3 Hush India Pvt. Ltd.
ITA no. 6327/Mum./2010 is ` 23,94,484. In other words, the loan was sanctioned for a very specific purpose and it would be wrong to allege diversion of the same without any evidence.
5. On the above factual matrix, we hold that the assessee had sufficient interest free funds which can be presumed to have been utilised for the purpose of advancing amounts to the sister concern. The Hon'ble Jurisdictional High Court in CIT v/s Reliance Utilities & Power Ltd. (2009) 313 ITR 340 (Bom.), held as follows:-
"Held, dismissing the appeal, that if there were funds available both interest-free and overdraft and/or loans taken, then a presumption would arise that investments would be out of the interest-free funds generated or available with the company, if the interest-free funds were sufficient to meet the investments. In this case this presumption was established considering the finding of fact both by the CIT(A) and the Tribunal. The interest was deductible."
6. The principles, therefore, would be that if there are funds available both interest free and over draft and/or loans taken, then a presumption would arise that investment would be out of interest free funds generated or available with the assessee company if the interest free funds were sufficient to meet the investments.
7. Applying the proposition laid down by the Hon'ble Jurisdictional High Court cited supra, we agree with the contentions of the learned Counsel and, consequently, set aside the order of the Commissioner (Appeals) and delete the disallowance in question.
8. In the result, assessee's appeal is allowed.
Order pronounced in the open Court on 21st October 2011 Sd/- Sd/-
VIJAY PAL RAO J. SUDHAKAR REDDY
JUDICIAL MEMBER ACCOUNTANT MEMBER
MUMBAI, DATED: 21st October 2011
4 Hush India Pvt. Ltd.
ITA no. 6327/Mum./2010
Copy to:
(1) The Assessee;
(2) The Respondent;
(3) The CIT(A), Mumbai, concerned;
(4) The CIT, Mumbai City concerned;
(5) The DR, "H" Bench, ITAT, Mumbai.
TRUE COPY
BY ORDER
Pradeep J . Chowdhu ry ASSISTANT REGISTRAR
Sr. Private Secretary ITAT, MUMBAI BENCHES, MUMBAI
Date Initial
1. Draft dictated on 13.10.2011 Sr.PS
2. Draft placed before author 17.10.2011 Sr.PS
3. Draft proposed & placed 18.10.2011 JM/AM
before the second
member
4. Draft discussed/approved 18.10.2011 JM/AM
by Second Member
5. Approved Draft comes to 18.10.2011 Sr.PS
the Sr.PS/PS
6. Date of pronouncement 21.10.2011 Sr.PS
7. File sent to the Bench 21.10.2011 Sr.PS
Clerk
8. Date on which file goes to
the Head Clerk
9. Date of dispatch of Order