Income Tax Appellate Tribunal - Jodhpur
Rakesh Kumar Doshi, Barmer vs Acit/Dcit , Barmer on 21 March, 2024
IN THE INCOME TAX APPELLATE TRIBUNAL
JODHPUR BENCH, JODHPUR
BEFORE: DR. S. SEETHALAKSHMI, JJUDICIAL MEMBER &
SHRI RATHOD KAMLESH JAYANTBHAI, ACCOUNTANT MEMBER
I.T.A. No. 85/Jodh/2024
Assessment year 2017-18
Rakesh Kumar Doshi Vs. ACIT/DCIT,
Chohtan, Barmer. Barmer.
[PAN: AASPD 2444 H] (Respondent)
(Appellant)
Appellant by Sh. Amit Kothari, C.A.
Respondent by Sh. A.S Nehra Sr.-DR
Date of Hearing 19.03.2024
Date of Pronouncement 21.03.2024
ORDER
PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by assessee is arising out of the order of the National Faceless Appeal Centre, Delhi dated 31.01.2024 [here in after "NFAC"] for the assessment year 2017-18, which in turn arise from the order dated 10.12.2019 passed under section 143(3) of the Income Tax Act, 1961 (here in after "Act") by the AO.
2. In this appeal, the assessee has raised following grounds: -
I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 2 "1. The ld. CIT(A) has erred in upholding the order passed by ld. AO u/s 143(3). The order so passed is bad in law and bad on facts.
2. The ld. CIT has erred in sustaining disallowance of Rs. 52,51,681/- out of interest expenses claimed which is bad in law and bad on facts.
3. That ld. CIT has erred in sustaining disallowance of Rs. 9,39,813/- on account of claim of depreciation which is bad in law and bad on facts.
4. The ld. CIT has erred in sustaining disallowance of Rs. 4,03,033/-, on account of interest on car loan and Rs. 1,13,550/- on account of payment of motor insurance expenses u/s 57 which is bad in law and bad on facts.
5. The appellant craves liberty to add, alter, amend or vary from the above the above grounds of appeal at or before the time of hearing."
3. Brief fact of the case is thatthe return of income for assessment year 2017-18 was e-filed by the assessee on 30.10.2017 vide acknowledgement No. 274712301301017 at an income of Rs.
1,11,46,350/-, Thereafter, assessee revised his return of income on 07.11.2017 vide acknowledgement No.293122911071117 declaring total income at Rs.1,11,46,350/-. The case was subsequently selected for Scrutiny through CASS and the reason ofselection was "Large deduction claimed u/s 57". Accordingly, notice u/s 143(2) was issued on 13.08.2018 through Income Tax Business Application (ITBA) platform and duly served on the assessee's registered e-mail.Accordingly, notices u/s 142(1) were issued to the assessee on 06.08.2019, 25.10.2019, 31.10.2019, 02.11.2019 and show cause notice on 27.11.2019 & 05.12.2019 for getting information along with necessary documents I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 3 required for the assessment proceeding. Accordingly assessee complied on 10.08.2019, 29.10.2019, 04.11.2019, 15.11.2019, 02.12.2019, 04.12.2019 and show cause reply on 07.12.2019 through e-proceedings.
4. During the year under considering the assessee is a partner in firm named M/s Kanhaiya lal Rakesh Kumar & Co., M/s Balaji Enterprises, M/s Jagdamba Export and M/s Jagdamba Enterprises. The assessee's main sources of income are salary, share of profit from partnership firms and income from trading of shares. During the course of assessment proceedings in order to verify the deduction claimed u/s 57 various relevant documents were called for an examined. In the year under consideration on the perusal of documents submitted regarding the income from other sources. During the assessment proceedings assessee was asked to explain the nexus of deductions claimed with the income earned under the head income from other source along with documentary evidences. In the instant case on the perusal of documents submitted regarding the income from other sources, it was observed that assessee claimed interest income from parties of Rs. 66,83,393/-. In this connection assessee was asked to explain the parties from whom such interest income was received. Assessee submitted its reply vide letter dated 15.11.2019 in which assessee claimed that out of total interest I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 4 income of Rs. 67,89,633/- he has received interest from his four partnership firms which is as follows:-
1. Balaji Enterprises Rs. 7,84,825/-
2. Kanhayalal Rakesh Kumar & co. Rs. 2,897/-
3. Jagtamba Exports Rs. 17,25,920/-
4. Jagtamba Enterprise Rs. 12,66,092/-
Total Rs. 37,79,734/-
As the assessee has received Rs. 37,79,734/- from his partnership firm during the year under consideration, therefore, the same is covered by the definition of income from business and profession mentioned under section 28(v) of the Act. The assessee has claimed that in the year under consideration he has received interest income of Rs.67,89,633/-
from the loans advanced by him. Assessee has also claimed that he had to pay interest expense of Rs. 62,11,788/- on the loan borrowed by him in past years. As per assessee's claim the fund borrowed by him on which interest expense was shown, were further advanced and interest income was earned. In this connection assessee claimed interest income of Rs. 67,89,633/- under the head Income From other sources and assessee has claimed interest expenditure of Rs. 62,11,788/-. As per section 57 of the Income tax act, 1961 expenditure incurred wholly and exclusively for the purpose of earning interest income shall be I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 5 allowed as expenditure. In this regard assessee was asked to submit a nexus between interest bearing loans and interest earning advances. In his submission dated 15.11.2019 assessee submitted a list of loans taken and advance given along with date of loans taken and advance given. On perusal of the submission of the assessee it was noticed that the loans on which assessee is earning interest income during the year under consideration were advanced in the financial year 2004-05, 2005- 06, 2006-07, 2008-09. 2011-12 2012-13, 2014-15, 2015-16 and 2016-
17. Whereas, the loans on which interest expenditure claimed were borrowed in the financial year 2004-05, 2008-09, 2011-12, 2012-13, 2014-15, 2015-16 and 2016-17. As it was clear from the above that assessee has advanced higher amount of money in the earlier years white higher amount of money was borrowed in later year on which interest expense was claimed, so there is no nexus between money advanced for earning interest and amount borrowed on which interest expenditure was claimed. When the fund used to lend money itself belongs to time prior to the borrowed fund, it is clear beyond doubt that there is no nexus between money borrowed and money advanced for interest. Considering this a show cause notice was issued to the assessee on 27.11.2019 and 05.12.2019. In response to the show cause notice assessee submitted its reply on 07.12.2019. The reply of I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 6 the assessee is not acceptable as section 57 of the Income Tax Act, 1961 clearly states allow-ability of expenditure only when it is incurred wholly and exclusively for the purpose of earning such income and in this case assessee himself through his submission proved that there is no nexus between interest earning advance and interest bearing loans.
Further assessee is claiming that the same loan for which interest expenditure is claimed was used for advancing the loan to partnership firm. This contention of the assessee is also not acceptable because the interest bearing loan on which interest was paid was taken many years after in which loan was advanced to partnership firm expense of assessee work out Rs. 9,60,107/-. The assessee has claimed depreciation of Rs. 9,39,813/- as expense u/s 57 of the Act. The assessee was asked to substantiate his claim and establish the nexus with the income earned under the head income from other sources.
Thus, out of interest paid of Rs. 62,11,788/- only Rs. 9,60,107/- was considered as allowable and rest of the claim of interest was disallowed.
3.3 The assessee in his submission dated 15.11.2019 claimed that the vehicle was maintained keeping in mind the necessity and to keep in touch with all the constituents in the city of Mumbai. Further in his own reply vide para4assessee accepted that this asset was used specifically for business purpose but also failed to substantiate his I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 7 claim regarding usage of such motor car in his business. Here, since the asset was claimed to be used for the benefit of firms and had no nexus in earning the interest income which has been shown by the assessee in the income from other sources, therefore depreciation on car is not allowable expenses under section 57 of Income Tax Act, 1961. The assessee has claimed payment of interest on car loan of Rs. 4,30,033/-
and payment of motor insurance expense Rs. 1,13,550/- as expense u/s 57 of the Act. The assessee was asked to substantiate his claim and establish the nexus with the income earned under the head income from other sources and interest paid on care loan. The claim of the assessee that the same car was used for purpose of the business was never established by the assessee. Assessee in its return of income claimed it as expense under the head income from other sources while in his submission dated 06.12.2019 assessee has claimed it as expense under section 36, section 32 and section 37 but he failed to submit nexus of such expense with income from other sources and also failed to establish allow ability of such expense under the head income from business or profession. Mere change of claim by the assessee during the assessment proceedings does not establish the allow ability of expense under the head Income from Business or Profession. Again, assessee himself has agreed that above mentioned expenses has no I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 8 nexus with the income earned from other sources and hence cannot be allowed.
5. Aggrieved from the above order of the ld. AO, the assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds of the appeal so raised by the assessee, the relevant finding of the ld. CIT(A) is reiterated here in below:-
"The appellant's contention is that the AO considered only new loans and that the interest relatable to the corresponding borrowings only was allowed without considering the old borrowings and allowable interest thereon.
As for showing the entire interest income received under 'Income from other source, the appellant's logic is the allocation of interest against investment in the business firms and other advances given, could not be precisely done by him which was why the interest income in full was shown under Income from other sources and the deduction on interest paid, was, accordingly claimed against this interest.
The appellant's detailed submission has been gone through carefully. Irrespective of what the principles say, what is most material is to show the expenditure actually being incurred. The plethora of court cases relied upon mostly differ from the appellant's case fact- wise. None of the decisions has discounted the importance of 'nexus', so vital for the claim of the deduction.
In respect of the present case, the appellant has at any time not been able to give any evidence to back its claim as regards the allowability of the interest paid to the the tune of Rs.62,11,788. The AO gave a succinct picture of how much to allow and how much not to, out of that interest (paid) amount in the table in para 7.4, followed by analytical discussion on each row of the table. Clearly, the appellant had neither any evidence-based counter on those analytical discussions contained in para 7.5 to 7.13 and also the table during assessment proceedings or during appeal proceedings by way of the written submission I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 9 I am, therefore, inclined to agree with the AO on the disallowance of Rs.52.51,681.
The ground 2, is, therefore, dismissed.
Ground 3:
The appellant claimed depreciation of Rs.9,39.813 on motor car, but u/s 57 of theIT Act. When asked by the AD to substantiate his claim by way of proving the nexusbetween the depreciation and the income earned under the head Income from other sources,he submitted that the car was specifically used for business purpose. Since the AO felt thatthe asset in question was claimed to be used for the benefit of the firms the appellant was apartner of and did not have any nexus with the appellant's interest income under Incomefrom Other Sources, he sent a show cause notice asking the appellant to justify the allowability of the depreciation and the latter gave a combined reply dtd. 06/12/2019 which covers other expenses, viz., interest on car loan and motor car insurances to be dealt with, in Grounds 4 and 5 respectively hereinafter. The excerpt of the said reply reads as under-
Disallowance of expenses of Rs. 14,83,396/- incurred for the purpose of earning interest income under the head income from other sources.
That the assessee was asked as to why the aforesaid expenses should not be disallowed these expenses are not since these expenses has no bearing on interest income and expended wholly and exclusively for the purpose of earning or making such income.
The details of expenses sought to be disallowed is as under:
S. No. Particulars Amount
1. Interest paid on car loan 4,30,033/-
2. Motor Insurance 1,13,550/-
3. Depreciation 9,39,813/-
Total 14,83,396/-
n this regard it is submitted that the aforesaid expenses have been incurred exclusively for the purpose of earning income from business and income from other sources and are allowable expense under Section 36, Section 32, Section 37 and Section 57 of the Income tax Act 1961 I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 10 From the appellant's reply and the AC's conclusion in para 8.4, it is evident that contrary to what was claimed in the ITR (u/s 57, that is), the appellant now wants to claim u/s 30, 32 and 37, that too without any evidence. In the last para of his combined reply, it was stated that all the 'aforesaid expenses including depreciation, have been incurred exclusively for the purpose of earning the income from business as well as other sources. This contention of the appellant along with the simultaneous mention of all the above 3(three) sections, is confusing and does no good to his claim for the deduction of all the three items, depreciation included.
In the written submission during the appeal proceedings (already reproduced above), the appellant submitted that he used his personal resources and assets for the benefit of the firm and to that extent the depreciation deserves to be allowed against his business income.
The appellant referred to a plethora of court cases, notably the Hon'ble Apex Court decision in CIT vs Ramniklal Kothari [74 ITR 57] which appears to have laid down a general proposition that the business carried on by a firm is business carried on by partners and so, as held in Ram Murli Sood vs ITO (1982) 14 TTJ (CHD) 352, the share of profit from the partnership firms constituted business income in the partner's hands from which the expenditure incurred actually for earning the income can be claimed.
From the appellant's submission as above, it is not difficult to conclude that the appellant's explanation lacks conviction.
First, he claimed depreciation as part of Sec.57 deduction in the return and when it came to giving explanation during assessment proceedings, he inexplicably invoked Sections 32, 36, 37 of the I.T. Act, all at one go, without trying to prove the nexus of the asset (on which depreciation has been claimed) with the earning of his business income, independent of that of the partnership firms he was partner of or even his Income from other Sources.
I am, therefore, disinclined to oppose the action of the AO in making the disallowance of the above sum of Rs. 9,39,813 claimed u/s 57 of the I.T Act. The ground 3, therefore, stands dismissed.
Grounds 4 and 5 Considering that expenses of interest paid on car loan (Rs 4,30,033) and insurance premia paid on the car (Rs.1,13,550) arose from one and the same asset (the motor car in question), the appellant's reply to the show cause notice dated. 27/11/2019 and his subsequent written submission were all I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 11 common for claims of depreciation, interest paid on car loan and car insurance and of course, the discussions in the assessment order on all the three items were on similar lines, my decision in regard to the claim of depreciation as discussed against Ground 3 above, will hold good in respect of Grounds 4 and 5 too.
Both Grounds 4 and 5, are, therefore, dismissed.
Ground 6:
Consequential in nature, so no separate discussion is called for.
In the end, the appeal is dismissed."
6. As the assessee did not receive any favour from the appeal filed before ld. NFAC/ CIT(A). The present appeal filed against the said order of the ld. NFAC before this tribunal on the grounds as reiterated herein above. To support the grounds so raised the ld. AR appearing on behalf of the assessee has placed reliance on the written submission which is extracted herein below:-
" The appellant respectfully begs to submit following facts and details for your honour's kind consideration :
1. Re: Gr. No. 1 : Disallowance of Interest expenses of Rs. 52,51,681/- :
1.1. The appellant had submitted return of income on 30.10.2017 declaring total income of Rs. 1,11,46,350/- and the main source of income had been income from partnership firm where the appellant is a partner and derives income in the form of salary, interest and share of profits from these firms. The appellant is partner in M/s Kanhiyalal Rakesh Kumar & Co, M/s Balaji Enterprises, M/s Jagdamba Exports, and M/s Jagdamba Enterprises.
1.2. The remuneration received from the various firms in which the appellant is a partner was shown as business income, while the interest income I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 12 received form these firms was disclosed as income from other sources including various other interest income earned by the appellant.
1.3. The interest paid was also claimed as deduction against the interest income shown by the appellant which had been not been partly allowed by the ld. A.O. 1.4. The perusal of the assessee order would revel that that the appellant had received interest income of Rs. 67,89,633/- against which the interest paid was Rs. 62,11,788/-. The interest received from firm was also included in the interest received.
1.5. The ld. AO observed that the interest from firm is taxable as business income and therefore the same needs to be taken as business income. It is submitted that whether the same is considered as business income or income from other sources, the deduction of interest was allowable against such interest income and other income received from the firm.
Besides interest income, the appellant had also derived remuneration and share of profits from these firms, which the ld. AO has not considered. The investment in the firm had benefitted the appellant to earn income against which the expenditure was being incurred.
1.6. The ld. AO has had a futile exercise in implementing his own judgment over the business decisions taken by the appellant in making his investment in the various firms and giving loans and advances. The ld. AO had made a fatal error in considering only the new loans and interest relatable only to these borrowings were allowed. The old borrowings on which interest was being paid was not considered. Further in these accounts there are regular transactions in which the funds are rotating depending upon the requirements and the year end balances being considered may not sometimes reflect the correct position. The theory of averages cannot be applied when exact date of all the years and calculations of interest is available on each loan account.
1.7. All the loans taken are verifiable and which had not been doubted or disputed in any of the assessment proceedings. The payment of interest payment is also not in dispute, all the parties are regular income tax assessee. Further the earning of income is also from various firms and other parties is also well accepted. The benefit is flowing not only in the form of interest but other benefits also in the form of remuneration and share of profits which the ld. AO has completely failed to appreciate. The total remuneration received from the firm during the year was Rs.
I.T.A. No.85/Jodh/2024
Rakesh Kumar Doshi 13
61,87,975/- and share of profits at Rs. 20,92,317/- from the firm. The investment and earning had been highly beneficial and the deduction of interest denied was absolutely without any valid basis or justification.
1.8. The interest had been received at 12% and on the similar rate the interest had been paid at 12%. The borrowings were made for the purpose of investment in the partnership firm and in making the other advances. The allocation of the interest against investment in business firm and other advances cannot be precisely done, and therefore the entire interest income received was shown as income from other sources and deduction for interest paid was claimed against this interest income.
1.9. If certain part of interest income is taken to Business income than the interest also had to be bifurcated and certain interest payment related to such investment has to be allowed as deduction against such income. Out of the total interest paid at Rs. 62,11,788/- deduction of only interest paid at Rs. 9,60,107/- has been allowed and balance Rs. 52,51,681/- has been disallowed.
1.10. There is no observation that the interest bearing funds had been diverted into any interest free advances or other investment which is yielding any non taxable income. The disallowance of interest was therefore without any legal basis and is contrary to the facts existing on records.
1.11. The disallowance of actual and real expenditure incurred cannot be made and tax can be levied only on the real income which the assessee has really earned. Tax cannot be levied on such notional income by disallowing actual expenditure incurred. The entire borrowings which had been made by the assessee had been used for the purpose of business and therefore the interest on such borrowings also cannot be disallowed.
1.12. Your kind attention is also invited towards the following judgments which also supports the contention of the assessee that under these facts no addition can be made.
i. Munjal Sales Corporation V/s CIT (2008) 298 ITR 298 (SC) at page 305 "The opening balance as on April 1, 1994 was Rs. 1.91 Crores whereas the loan given to the sister concern was a small amount of Rs. 5 lakhs. In our view, the profits earned by the assessee during the relevant year were sufficient to cover the impugned loan of Rs. 5 Lakhs." The disallowance out of interest was deleted.
I.T.A. No.85/Jodh/2024
Rakesh Kumar Doshi 14
ii. S.A. BUILDERS LTD.,vs. CIT (2007) 288 IR 1 (SC)
In order to decide whether interest on funds borrowed by the assessee to give an interest free loan to a sister concern (e.g. a subsidiary of the assessee) should be allowed as a deduction under section 36(1(iii) of the Income Tax Act, 1961, one has to enquire whether the loan was given by the assessee as a measure of commercial expediency. The expression "commercial expediency" is one of wide import and includes such expenditure as a prudent business-man incurs for the purpose of business. The expenditure may not have been incurred under any legal obligation, but yet it is allowable as business expenditure if it was incurred on grounds of commercial expediency.
Decisions relating to section 37 will also be applicable to section 36(1)(iii) because in section 37 also the expression used is "for the purpose of the business". "For the purpose of business" includes expenditure voluntarily incurred for commercial expediency, and it is immaterial if a third party also benefits thereby.
iii. Shahibag Entrepreneurs v. Income-tax Officer 50 ITD 113 (Ahd.) / 49 TTJ 554 (Ahd.) Section 36(1)(iii) of the Income-tax Act, 1961 - Interest on borrowed capital - Assessment years 1979-80,1980-81 and 1981-82 - Assessee paid interest on loans taken by it and claimed deduction thereof - Assessing Officer made proportional disallowance/addition on ground that assessee had advanced interest-free loans to its subsidiaries and others - Whether, in absence of nexus between interest-bearing loans taken and interest-free loans given, assessee was entitled to deduction of interest paid by it in terms of section 36(1)(iii) without any disallowance/addition as made by Assessing Officer - Held, yes HELD...there was no finding by the Assessing Officer that the loans obtained by the assessee-company from various parties for which interest was paid were not utilised for the purpose of business. It was an admitted fact that the assessee-company was to receive huge and substantial amounts from its subsidiary companies as well as from others in each of the three years and did not charge any interest from those parties for the loans and advances given by it. However, the Assessing Officer had not established by cogent evidence that the borrowed funds were utilised, diverted or given away to its subsidiary I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 15 companies and other parties. There was no nexus established by the Assessing Officer between the loans obtained and loans given to its subsidiary companies and others. This vital fact had been ignored and lost sight of by the first appellate authority in deciding the controversy before him. In the absence of any finding or evidence, the disallowance of proportionate interest by the Assessing officer could not be upheld.
Besides, it was also not the case of the Assessing Officer that the assessee- company had charged or earned income from its subsidiary companies and others but had not accounted for it in its accounts. The finding of the assessing Officer in all these years was that the assessee-company had not charged interest on receivables from its subsidiary companies and others. It was neither the case nor the finding of the Assessing Officer that the assessee had bargained for interest or had collected interest on such receivables and, therefore, it was liable to the taxed. The Assessing Officer could not fix notional interest as accrued and due to the assessee in respect of receivables nor in the facts and circumstances of the case could the Assessing Officer disallow proportionate interest, because it had paid substantial interest on loans obtained by it without correspondingly taking/charging interest on the receivables. Under the provisions of the Act, a person can be subjected to tax in respect of real income, i.e., to say income which has either been received by him or which has arisen or accrued to him. There is no provision anywhere in the Income-tax Act to subject a person to tax in respect of hypothetical income, that is to say, an income which ought to have been earned or which the assessee had jailed to earn.
Thus, the first appellate authority had erred in confirming the disallowance/ addition of proportionate interest of varying amounts for each of the years under appeal. The findings and conclusions of the assessing authority were, therefore, reversed and the additions made by him in each of the three relevant years were deleted.
iv. Raj Kumar Singh & Co. v. DCIT 51 ITD 628 (All.) Section 36(1)(iii) of the Income-tax Act, 1961 - Interest on borrowed capital - Assessment year 1990-91 - Assessee-firm was a sub-contractor and also earned income from hiring out tippers and dumpers - It had investment in shares also - During year under consideration it accepted interest-bearing deposits in order to repay interest-free advances received and invested in shares during 1986-87 - Amount borrowed was less than amounts paid towards old borrowings - Interest paid by it to creditors/depositors was disallowed on ground that withdrawals by partners were more than credit I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 16 balance and assessee did not carry any business in that year except hiring out tippers and dumpers and as such, borrowal was not for business purpose - At material time amount standing in credit of partners' accounts comprised sums of Rs. 12,87,58,000 being amount credited on revaluation of shares, Rs. 1,64,60,041 received as dividend from different companies and Rs. 1, 27,54,480 being profits allotted to partners' share - Total amount withdrawn by partners was Rs. 2,27,08,772 - Lower authorities held that amount credited in partners' account on revaluation of shares could not be taken into account and that partners had no right to withdraw amount from capital account - Whether, where borrowals in year in question were less than amounts repaid towards old borrowals, it could be said that borrowals were not for business purposes - Held, no - Whether, when shares had been received in exchange of old shares on amalgamation of company and shares were revalued, difference between original cost and actual cost could be credited in accounts of partners which could be utilised by partners as they wished - Held, yes - Whether in totality of circumstances and facts of case withdrawals by partners were less than credit balance and borrowal by firm was for business purpose and, therefore, no part of interest paid could be disallowed - Held, yes v.Sarvaraya Textiles Ltd. v. DCIT 54 ITD 612 (Hyd.) Section 37(1) of the Income-tax Act 1961- Business expenditure- Allowable as - Assessment year 1990-91 -Assessee gave interest-free advance to a firm whose computer time it was purchasing on payment of rentals- Said firm refunded said advance after a delay of two years- In absence of proper explanation by assessee, Assessing Officer disallowed interest thereon on ground that said amount came out of interest-bearing funds borrowed by assessee- Whether Assessing Officer having given no finding in regard to said amount having come entirely from borrowed funds, no disallowace was called for-Held, yes Held When the Commissioner (Appeals) went on to sustain the addition partly, he clearly proceeded on the footing that the assessee's own capital funds were available for making the interest-free advance. Having taken such a line, he should have proceeded further to examine the matter to see whether the initial interest-free advance of Rs 2 lakhs itself had come out of the assessee's own funds. The idea of weighted average was all right in theory but theory could not take the place of facts. The fact of the matter was that the Assessing Officer had not given any finding on the question whether the sum of Rs. 2 I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 17 lakhs came entirely from the borrowed funds of the assessee. In the circumstances, no disallowance was called of in the instant case.
vi. Gujarat Narmada Valley Fertilizers v. DC.I.T 108 taxman 213 (Ahd.) (Mag.) Section 36(1)(iii) of the Income-tax Act, 1961 - Interest on capital borrowed - Assessment year 1995-96 - Whether, where no direct nexus had been proved between interest bearing loans taken by assessee and interest free advances given to associate concerns, there was any justification to disallow part of interest claimed under section 36(1)(iii) - Held, no Held On going through the figures in the balance sheet of the assessee-company as on 1-4-1994 and 31-3-1995, it was found that the share capital and the reserves and surplus together with the accumulated depreciation would far exceed the loans and advances made to the said three concerns. The percentage of loans and advances in relation to the own funds of the assessee-company would be 0.012 per cent as on 1-4-1994 and 0.0135 per cent as on 31-3-1995 as per the details furnished in the paper book. In other words, there were sufficient funds available with the company on which no interest was paid and out of which the loans and advances to the above said concerns could be made. There was no clear evidence that the interest bearing loans taken by the assessee-company for the purpose of its own business had been diverted for non-business purposes. No direct nexus had been proved either by the Assessing Officer or by the Commissioner (Appeals) between the interest bearing loans taken and the interest free advances given. Hence, the Assessing Officer had to be directed to delete the addition.
vii. Oswal Industries v. ACIT 109 Taxman 279 (Mum.) (Mag.) Section 36(1)(iii) of the Income-tax Act, 1961 - Interest on borrowed capital - Assessment years 1990-91 and 1991-92 - Whether non-charging of interest on loans given by assessee could not be ground for disallowing interest paid by assessee on loans taken by it, in absence of any nexus having been brought on record - Held, yes Held The Assessing Officer had not brought on record any nexus between the interest-bearing loans taken by the assessee and the interest-free advance given by it. Non-charging of interest on the loans given by the assessee was not a ground for disallowing the interest paid by the assessee on the loans I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 18 taken by it in the absence of any nexus having been brought on record. The disallowance was, accordingly, deleted viii. A.C.I.T v. Shivalik Loha Mills (P.) Ltd. 123 taxman 276 (Chd.)(Mag.) Section 36(1)(iii) of the Income-tax Act, 1961 - Interest on borrowed capital - Assessment year 1989-90 - Assessing Officer disallowed interest paid by assessee on loan because certain amounts were taken by directors of company on which no interest was charged from them - Whether where Assessing Officer had not been able to establish nexus between interest bearing loans taken and interest-free advances made by assessee to its directors, Commissioner (Appeals) was justified in allowing interest and deleting additions - Held, yes Held The revenue was not able to controvert the factual findings given by the Commissioner (Appeals) that the department failed to establish nexus between the interest bearing loans taken by the assessee and the interest-free advances made to its directors. Therefore, the Assessing Officer was not justified in making disallowance of Rs. 57,885 on account of interest payable by the assessee and adding the same back to the income of the assessee. So, the Commissioner (Appeals) had rightly deleted the impugned addition. The assessee's claim of interest on borrowed capital was allowed.
ix. CIT v. Hotel Savera 148 CTR (Mad) 585 Business expenditure - Interest on borrowed capital - Advance to third party without charging interest - Even after debiting the drawings and the loss, there are sufficient funds with assessee-firm to cover the entire advance - Firm paying no interest on amounts outstanding in the accounts of its partners - In absence of any material or evidence to indicate that the firm had advanced moneys out of borrowed funds, the presumption would arise that money was advanced out of his its funds - Finding of the Tribunal that no disallowance is called for is a finding of fact - Same sustainable in law - Finding of AAC that the advance would have come proportionately out of own funds as well as borrowed funds is not based on any principle of law.
x. United Agencies v. ITO 37 TTJ (Ahd) 374 Deduction under s. 36(1)(iii) - Interest on borrowings - Interest paid on cash credit account with bank - Disallowed by ITO on the ground that assessee had given interest-free advances to its sister concern out of funds lying in cash credit account - Not justified on the facts of case - Total cheques drawn on the cash credit account with the Bank were of Rs. 53,61,519 so much so out I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 19 of which the cheques issued to sister concern during the currency of the year, were only for Rs. 1,24,500 - Further, the various business receipts received during the year were also credited or deposited in the aforesaid bank account
- Therefore, it cannot be said that there was a direct nexus between the loan borrowed from the bank and the interest-free amounts advanced to sister concern --The loan from the bank on the security of the hypothecation of goods was borrowed for the business purposes of the assessee-firm - Once it is established that the capital was borrowed for the purpose of business, it is immaterials as to how that borrowed capital was applied - Moreover, the interest-free funds and the current profit of the assessee were substantially more than the amount of interest-free loan advanced to sister concern - ITO is, therefore, directed to allow the entire amount of interest paid to the bank - ADDL. CIT Vs. LAXMI AGENTS P. LTD. (1980) 125 ITR 227 (Guj) applied. SUMAN NANGIA Vs. ITO (1990) 36 TTJ (Del) 177 distingushed.
xi. Ashok Brothers v. ITO 76 TTJ (Hyd) 427 Business expenditure - Interest on borrowed capital - Interest-free advances to sister concern - Disallowance can be made by the Department only when nexus is proved between the amounts borrowed and the amounts advanced - When there are sufficient funds available with the assessee on which no interest was paid, then diversion of such funds by way of interest-fee loans to sister-concern does not allow disallowance of interst paid - A Ltd. and AB appearing on two sides of the assessee's balance sheet are one and the same concern and when both these amounts are netted out there would be a net credit balance - No loan was advanced to said concern and the accountant had wrongly depicted the same amount on both sides - As regards advances made to other concern AS, the sole fact that cheques were issued from the cash credit account of the assessee does not prove that there is a nexus - Total borrowal of the assessee is covered by its business assets in the form of sundry debtors and stock on hand - Therefore, AO was not justified in disallowing part of the interest paid by assessee on its overdraft account.
Conclusion : No part of interest paid by assessee on its overdraft account could be disallowed on the ground that assessee had made interest-free advances to its sister concern by issuing cheques from its cash credit account when it has sufficient interest-free funds available to match the interest-free advances.
xii. Smt. Tara Devi v. ITO 68 TTJ (Jd) 361
I.T.A. No.85/Jodh/2024
Rakesh Kumar Doshi 20
Business expenditure - Interest on borrowed capital - Interest-free loan given to husband - Most of the interest-bearing loans were taken by assessee in prior years and interest on such loans had been allowed as deduction in earlier years - This fact clearly proves absence of any nexus between the funds borrowed on interest and interest free advances given by assessee to her husband - Even otherwise, assessee's own capital was substantially more than the interest-free loan - Disallowance made out of interest expenditure not justified.
It is therefore prayed that the addition made by the ld. AO may kindly be deleted.
2. Re : Gr. No. 2 : Disallowance of Other Expenses Rs. 14,83,396/- being depreciation claimed Rs. 9,39,813/- and Interest paid on Car Loan Rs. 4,30,033/- and Insurance of Car Rs. 1,13,550/- :
2.1. The appellant is partner in certain firm and had derived income from these partnership firm in the form of Interest, remuneration and share of profits.
This income from firm is liable to be taxed as income from business.
2.2. The appellant had been using the vehicles for the purpose of his business which is allowable as deduction against this income from firm. It is respectfully submitted that any expenditure incurred by the partners for the business is allowable business expenditure against business income.
2.3. The remuneration and interest received from the firm is also taxable in the hands of the partner and had been duly included in the income of the firm. Even in relation to the share of income received from firm, which is taxable as business income, and that the profit share from the firm does not qualify as 'income not chargeable to tax' since the same has already suffered tax in the hands of the firm. As said under Section 10(2A) of the I-T Act, the tax on profits have already been paid and so the same is exempt from tax in the hands of the partners.
2.4. It is respectfully submitted that the appellant had used his personal resources and assets for the benefit of the firm and had derived income the purpose of the business of the firm. Thus, the claim of depreciation deserves to be allowed against the business income.
2.5. It is further submitted that while under the Indian Partnership Act, the firm and its partners are synonymous. The firm is nothing but the collective name of the partners under the Partnership Act, as far as the I-T Act is I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 21 concerned, it is an entity distinct and separate from its partners. So, while the remuneration and interest earned by partners from the firm is taxable in the hands of the partners, the same is allowed as an expense for the firm from its profits. Once the firm pays taxes on its profits, any share distributed thereon, to avoid double taxation of the same income the same is excluded from the income of the partner. But the fact remains that such income also suffers incidence of tax.
2.6. Your kind attention is invited towards the decision in the case of Matubai Chunilal Patel v. CIT reported in 66 ITR 408 (Guj) "10. It is from that point of view that we have to approach the question that has been referred to us in the instant case. Under clause 7 of the deed of partnership, the assessee was one of the two managing partners of the firm of M/s. Dhirajlal Khushaldas & Bros. That partnership firm was the managing agency firm of limited company and was managing the affairs of that company. The amount which has been claimed by the assessee is found to have been incurred by the assessee in connection with the business of the firm and it is further clear that the income which the assessee gets by way of share in the profits of the partnership firm is chargeable under the head "business" under section 28 of the 1961 Act, similar to section 10(1) of the 1922 Act. Thus, it is against his income under the head "business" that the assessee claims deduction by way of expenses in connection with the motor-car, the having been used for the purpose of business of the partnership firm in question. It is clear to our mind that in the light of the facts and circumstances, which we have just now set out, the assessee had incurred this particular expenditure wholly and exclusively for the business. The fact that in this particular year his share of income from the firm of M/s. Dhirajlal Khushaldas & Bros. was nil makes no difference whatsoever to the conclusion that it is an allowable deduction against the assessee's income from that firm.
11. Under these circumstances, it is clear that the question referred to us must be answered in affirmative. We must make it clear that it is in the light of the facts and circumstances of this case that we have answered the question in favour of the assessee."
2.7. Your kind attention is also invited towards the decision of Hon'ble Supreme Court in the case of CIT v. Ramniklal Kothari reported in 74 ITR 57 (SC) in which also it has been held as under :
I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 22 "Business Expenditure - Allowability - Expenditure incurred for earning share income by partner of firm - Receipt of share income by partner is business income for purpose of section 10(1) of 1922 Act - Expenditure by way of salary and bonus to staff, maintenance of car and travelling expenses for the purpose of earning such income, therefore allowable as business expenditure."
b. RAM MURTI SOOD vs. ITO (1982) 14 TTJ (CHD) 352 Business Expenditure--Allowability of deduction--Personal car used by assessee partner for business of firm--Assessee was entitled to allowance of such expenditure and depreciation or car against share income from said firm Held:
The Learned Counsel for the assessee submitted that in this case also, the assessee has share income from three firms and has no independent business of his own. It was contended that factually he was travelling between Sirhind and Sadhugarh for purposes of the business of the firm and was also going to various villages for disbursement of amounts to Zamindars who were given advances to make sure that tey sell their produce through the assessee. As such the amount was admissible and should have been allowed. The Supreme Court in the case of Ramniklal Kothari has laid down a general proposition that the business carried on by a firm is business carried on by the partners. Profits of the firm are profits earned by all the partners in carrying on the business. The share of the partner is business income in his hands for purposes of s. 10(1) of the IT Act, 1922, and being business income expenditure necessary for purposes of earning that income and appropriate allowances are deductible therefrom in determining taxable income of the partners.Taking into consideration the general proposition of law laid down by the Supreme Court, Gujarat High Court and the Patna High Court that the partner if he expends an amount in earning the share of profit from a firm, he can on showing its actual expenditure be allowed a deduction from the total income, the case of the assessee is to be examined. The authorities below have not bifurcated the amount of Rs. 12,000 as to the expenditure on petrol and the depreciation on car. However, it is common ground that the car was new and was purchased during the previous year relevant to the asst. yr. under appeal. It was clarified at the bar by the Learned Counsel for the assessee and by the assessee who was present in the court that the total expenditure on petrol was Rs. 3,500 and he claimed Rs. 2,000 only as relating to the business activities of the firm from which he earned the profit. Applying the above laid down principles I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 23 by the Hon'ble Courts, it is held that the expenditure of Rs. 2,000 incurred by the assessee was an expenditure wholly and exclusively laid out for carrying on the business and earning business income. The share of profits of the assessee from various firms including the firm of M/s.Sood Bhandari and Cop. Therefore, constituted business income in his hands. Against this business income, the assessee is entitled to deduct the expenditure incurred actually for earning this income and depreciationon the car. It is found that the assessee had actually used the car for this purpose because the activities of the firm, the distance between the head office and the branch office and participation of the assessee in the business of the firm justify it.
c. CHELLA KRISHNA vs. ACIT (2018) 168 ITD 117 (Chennai) Business expenditure--Allowability--Income assessed under s. 28(v)-- Income of assessee a chartered accountant by way of salary and profits from various firms having been assessed under s. 28(v), expenses incurred by him towards clubs, travelling bank charges, lodging, periodicals, telephone, salary to employee were allowable expenditure-- However, since assessee had agreed to disallowance of 25 per cent of expenditure, disallowance directed to restricted to the extent 2.8 It is respectfully submitted that the claim of depreciation is apparently allowable against the business income, and inadvertently the same had been claimed set off against income from other sources. The deduction of such business expenditure is also apparently allowable against the business income taxed in the hands of the assessee.
2.9 It is respectfully submitted that similar issue came up for consideration before the Hon'ble ITAT in the case of Shri Sunil Dosi in ITA No. 53/Jodh/2020 for A.Y. 2016-17, in which the claim of depreciation under similar facts was directed to be allowed. The copy of the said decision of Hon'ble ITAT is attached, and in view of the said decision also the claim of the deduction may kindly be allowed to the appellant.
2.10. It is therefore submitted that the claim of expenses against business income may kindly be allowed to the assessee. It is also submitted that the claim of depreciation had been allowed in the earlier years also, and there would be no justification to disallow the same in the current year. "
I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 24
7. The ld. AR of the assessee in addition vehemently argued that the ld. AO and ld. CIT(A) did not demonstrate the use of fund for other purpose the interest income is higher than the interest claim and the ld.
AO has already accepted the fact that the assessee has invested the amount in firm and has also given the advances on interest. The ld. AO on the one hand accept that the use of the car is for the purpose of business and on the other hand disallowed the related claim of the expenditure which is contradictory. He relied the following observations of the AO Further in his own reply vide para 4 assessee accepted that this asset was used specifically for business purpose but also failed to substantiate his claim regarding usage of such motor car in his business.
Based on the above submission the ld. AR prayed that merely the claim is in other source the same cannot be disallowed once he has accepted the fact that the car is used for the purpose of the business.
8. Per contra, the ld. DR heavily relied upon the finding recorded in the lower authorities and submitted that the assessee has wrongly offered the interest income and also claimed the other expenses without providing the nexus of the payment and receipt. As regards the disallowance of depreciation on car, interest on car loan and insurance he has relied upon the orders of the lower authority.
I.T.A. No.85/Jodh/2024
Rakesh Kumar Doshi 25
9. We have heard the rival contentions and perused material available on record and have also persuaded the decision cited by both the parties. The brief facts of the case is that the assessee has claimed interest receipt against the interest payment and net income is offered u/s 57 of the Act. The ld. AO on examination that the interest received and paid by the assessee and net income is offered. The ld. AO also noted that the assessee has received a sum of Rs. 37,79,734/- from the four partnership firm as interest earned which is chargeable to tax u/s 28(v) of the Act. The ld. AO noted that against the interest receipt of Rs.
66,83,393/- a sum of Rs. 9,60,107 only considered as interest expenses and rest of the amount of Rs. 52,51,681/- added as income of the assessee considering that the assessee has not proved the nexus between loan taken and loan advanced. On this aspect of the matter, the matter carried before the ld. CIT(A) and ld. CIT(A) has not considered the contentions so raised by the assessee and he confirmed the finding of ld. AO. Before us, the ld. AR of the asessee submitted that the main source of income of interest received for Rs. 37,79,734/- and rest of the interest received on various advance given totally to Rs. 66,83,393 offered as interest income as gross in other source and from that expenditure for an amount of Rs. 61,11,788/- on money borrowed claimed u/s. 57 of the Act. Since the income of the firm interest is not I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 26 offered the ld. AO also not allowed the interest and considered the claim of interest expenditure on for Rs. 9,60,107/- considering it as related to the interest received on partnership firm where the assessee is a partner and derives income in the form of salary, interest and share of profits from these firms. The assessee is partner in M/s Kanhiyalal Rakesh Kumar & Co, M/s Balaji Enterprises, M/s Jagdamba Exports, and M/s Jagdamba Enterprises. The remuneration received from the various firms in which the assessee is a partner was shown as business income, while the interest income received form these firms was disclosed as income from other sources including various other interest income earned by the assessee. The interest paid was also claimed as deduction against the interest income shown by the assessee which has been partly allowed by the ld. A.O. The perusal of the assessment order would reveal that that the assessee had received interest income of Rs.
67,89,633/- against which the interest paid was Rs. 62,11,788/-. The interest received from firm was also included in the interest received.
The ld. AO observed that the interest from firm is taxable as business income and therefore the same needs to be taken as business income.
It is submitted that whether the same is considered as business income or income from other sources, the deduction of interest was allowable against such interest income and other income received from the firm.
I.T.A. No.85/Jodh/2024
Rakesh Kumar Doshi 27
Besides interest income, the assessee had also derived remuneration and share of profits from these firms, which the ld. AO has not considered. The investment in the firm had benefitted the appellant to earn income against which the expenditure was being incurred. The ld.
AO has had a futile exercise in implementing his own judgment over the business decisions taken by the assessee in making his investment in the various firms and giving loans and advances. The ld. AO had made a fatal error in considering only the new loans and interest relatable only to these borrowings were allowed. The old borrowings on which interest was being paid was not considered. Further in these accounts there are regular transactions in which the funds are rotating depending upon the requirements and the year end balances being considered may not sometimes reflect the correct position. The theory of averages cannot be applied when exact date of all the years and calculations of interest is available on each loan account. All the loans taken are verifiable and which had not been doubted or disputed in any of the assessment proceedings. The payment of interest payment is also not in dispute, all the parties are regular income tax assessee. Further the earning of income is also from various firms and other parties is also well accepted.
The benefit is flowing not only in the form of interest but other benefits also in the form of remuneration and share of profits which the ld. AO I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 28 has completely failed to appreciate. The total remuneration received from the firm during the year was Rs. 61,87,975/- and share of profits at Rs. 20,92,317/- from the firm. The investment and earning had been highly beneficial, and the deduction of interest denied was absolutely without any valid basis or justification. Considering the overall aspect of the matter we note that the interest income and expenditure is disputed because the assessee claimed income in other source the ld. AO also not allowed the interest expenses merely on the reason that the assessee has not proved the nexus but when the loans are of earlier year and the money is rotating and not having direct nexus but considering the aspect of the fact the interest income is higher then the interest expenditure the observation of the lower authority in sustaining the addition is purely based on the surmises and conjecture which we not correct. The ld. AO cannot direct the assessee to prove each rotating fund to prove with having direct nexus when interest earned is higher then the interest paid and there is no allegation of diversion of fund, thus, the interest expenditure cannot be denied to the assessee. We also find from the record that the assessee has in total offered the interest income of Rs. 66,83,393/- and claimed the interest payment of Rs. 62,11,788/- which is not exceeding the interest received and therefore, even in the assessment order, we find that the interest I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 29 payment is not disputed by the ld. AO and he has also accepted that assessee has given the loan and advanced as made the investments form various parties. Considering that the aspect of the matter the claim of Rs. 52,51,681/- cannot be denied to the assessee and in terms of these observations, the ground No. 2 raised by the assessee is allowed.
10. As regards the Ground No. 3, the ld. AO noted that the assessee has used the car and claimed the relevant expenditure against the other sources on the genuine use of the motor car and payment of insurance and car loan interest which is put to use by the assessee for the business purposes wherein the assessee has already offered the income of the interest and remuneration earned from the various firms the deduction on account of claim of depreciation and interest on car loan and insurance for an amount of Rs. 14,83,936/- cannot be denied to the assessee. In support of the contention so raised the ld. AR of the assessee relied upon the decision of the Co-ordinate Bench in the case of Sunil Kumar Kanhayalal Doshi vs. ACIT in ITA No. 53/Jodh/2020 dated 21/12/2020 wherein it has held as under:-
"5. After careful consideration of the matter we find that the fact that the expenditure was being incurred is not in dispute. In relation to the deprecation on one car and scooter, the CIT(A) is trying to judge from the angle as to why two cars and one scooter is required and one car would be sufficient. In our opinion this judgment would be the sole prerogative of the assessee and if the assets are purchased and used for the business the claim has to be allowed I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 30 in full. The disallowance of depreciation so made is therefore directed to be deleted. As regards membership fees to clubs is concerned, we find that in the case before Mumbai Bench of ITAT in KPMG India P. Ltd. v. ACIT reported in 142 ITD 628 (Mum) the Bench had referred to the decision of Hon'ble Supreme Court in the case of CIT(A) vs. United Glass Mgf. Co. Ltd. (Civil Appeal No. 6447 to 2012) wherein the question raised before the Supreme Hon'ble Court was that whether club membership fees for employees incurred by the assessee is a business expenses liable to be deducted under s. 37 of the Act and the same was answered by the Hon'ble Apex Court in favour of the assessee holding that it was pure business expenditure and following the said decision of Hon'ble Apex Court on the similar issue, the disallowance made was deleted. In another case of MKJ Tradex Ltd. v. CIT reported in 62 ITR_Trib 632 (Kol) the Tribunal observed that the clubs provided several kinds of facilities such as conferences, business meetings, as well as provision for multimedia exhibition. Many clubs allow membership to companies or other business entities. By visiting clubs, chances of making new contacts improve. With new contacts people can do more interactions which can bebeneficial for business and profession. Therefore, business organizations likecompany, firm, bank, co-operative society etc. functions through human agencies which may be directors or other officers of business organization. The purpose of the expenditure is to have a suitable platform for meeting people and getting advantages of meeting many people at a time to maintain old contacts and also to make new contacts. Following these decisions, we hold that the disallowance of such payment which was incurred in business expediency cannot be disallowed and the addition so made is directed to be deleted.
On being consistent to the findings so recorded hereinabove and considering the fact that assessee is a partner in four firms and the use of that car for the purpose of the business cannot be denied in the absence of the any adverse finding for the use of the car and the consequential depreciation, interest and insurance cannot be denied thus based on these aspect of the matter and following decision of the I.T.A. No.85/Jodh/2024 Rakesh Kumar Doshi 31 Co-ordinate Bench, the ground Nos. 3 and 4 raised by the assessee is allowed.
11. As regards ground No. 1 & 5 either in technical or other general in nature and the same is not required to be adjudicated.
In terms of these observations, the appeal of assessee is allowed.
Order pronounced in the open Court on 21/03/2024.
Sd/- Sd/-
(Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai)
Judicial Member Accountant Member
*Santosh/Ganesh Kumar
(On Tour)
Copy of the order forwarded to:
(1)The Appellant
(2) The Respondent
(3) The CIT
(4) The CIT (Appeals)
(5) The DR, I.T.A.T.
True Copy
By order