section
36(1)(iii)/Income-tax
act
[2005] 142 Taxman 681 (all.)
HIGH COURT OF ALLAHABAD
Commissioner
of Income-tax
v.
Radico
Khaitan Ltd.
R.K. Agrawal and K.N. Ojha, JJ.
IT Appeal No. 27 of 2000
September 14, 2004
Section 36(1)(iii) of the Income-tax Act,
1961 - Interest on borrowed capital - Assessment year 1990-91 -
Assessee-company had advanced loan of Rs. 17.19 lakhs to its sister
concern - It had borrowed huge sum from bank and financial institutions and
claimed deduction on amount of interest paid on borrowed capital - Assessing
Officer disallowed amount towards proportionate interest on said advances -
Tribunal deleted disallowance of interest on ground that there was sufficient
fund available with assessee-company in form of share capital reserve and
surplus other than borrowed money for diverting a sum of Rs. 17.19 lakhs to its
sister concern - Whether in view of findings recorded by Tribunal,
assessee-company was entitled to full allowance of amount of interest paid by
it on borrowed capital - Held, yes
Section 32A of the Income-tax Act, 1961 -
Investment allowance - Assessment year 1990-91 - Whether, in view of specific
provisions contained in section 32A(2A), investment allowance is admissible in
respect of plant and machinery installed for purpose of manufacturing any of
items mentioned in Eleventh Schedule - Held, no - Whether investment allowance
is admissible in respect of telephone exchange installed in fertilizer unit of
assessee-company as it fell under term ‘plant’ - Held, yes
Section 36(1)(ii) of the Income-tax Act,
1961 - Bonus or commission - Assessment year 1990-91 - Whether ex-gratia
payment towards bonus is an allowable deduction - Held, yes
Section 56 of the Income-tax Act, 1961 -
Income from other sources - Chargeable as - Assessment year 1990-91 - Whether
where assessee-company had received interest on loans/advances made by it to
its debtors and amount of interest was not relatable to any late payment of
invoices/bills or compensation/damages, amount of interest received could not
be treated as income from business but was to be treated under head ‘Income
from other sources’ - Held, yes
Facts
The
assessee-company engaged in the manufacture of industrial alcohol, Indian made
foreign liquor, country liquor, fertilizers, etc., had advanced a loan of Rs.
17.19 lakhs to its sister concern. It had borrowed huge sum from banks and
financial institutions and claimed deduction on amount of interest paid by it
on borrowed capital. The Assessing Officer disallowed amount towards proportionate
interest on said advances. Secondly, the Assessing Officer disallowed the
amount in respect of investment allowance on telephone exchange and diesel
generating set installed in the distillery unit and fertilizer unit of the
assessee-company, thirdly, the amount of ex gratia payment which was in
addition to the bonus paid to its employees was disallowed, and lastly, the
Assessing Officer treated the interest and dividend income disclosed by the
assessee-company under the head ‘Income from other sources’ and not as
‘business income’.
On appeal, the
Commissioner (Appeals) confirmed the order of the Assessing Officer. On further
appeal, the Tribunal deleted the disallowance of interest on the ground that
the assessee company was having sufficient fund in the form of share capital,
share application money, reserve and surplus other than borrowed money for
diverting a sum of Rs. 17.19 lakhs to its sister concern. In respect of the
investment allowance, the Tribunal held that the assessee-company was entitled
for the investment allowance on the telephone exchange as it was to be treated
as plant. In respect of the ex gratia payment, the Tribunal held that
the same was an allowable deduction. So far as the taxability of dividend and
interest income was concerned, the Tribunal treated the same as business
income.
On appeal:
Held
Ground No. 1
The principle for allowing the amount of
interest paid in respect of capital borrowed is that the following three
conditions should be fulfilled:—(i)
the capital must have been borrowed or taken for the purpose of the business or
profession; (ii)
the interest should have been payable; and (iii)
if the borrowing is not for the business purpose and is for private purpose or
not connected with the business, interest paid on such borrowings cannot be
allowed as a deduction under section 36(1)(iii).
[Para 17.5]
Applying the said principle to the facts of the
instant case, the Tribunal had recorded a finding that there was sufficient
fund available with the assessee-company in the form of capital share, share
application money, reserve and surplus other than the borrowed money for
diverting a sum of Rs. 17.19 lakhs. Thus, it could not be said that the amount
of loan advanced to the sister concern was out of the borrowed fund. [Para 17.6]
In view of the findings recorded by the Tribunal
that the assessee-company had sufficient fund other than the borrowed money for
giving the amount in question as loan to its sister concern, which finding had
not been specifically challenged in the instant appeal, the conditions of
section 36(1)(iii)
had been complied with and, therefore, the assessee-company was entitled to
full allowance of the amount of interest paid by it on borrowed capital.
Moreover, the Assessing Officer himself had not allowed the proportionate
amount of interest on the said loan during the relevant assessment year when
the said loan had been advanced by the assessee-company to its sister concern.
The Tribunal had rightly deleted the disallowance of proportionate interest on
that count. [Para 17.8]
Ground No. 2
It was not in dispute that the assessee-company was
engaged in the business of manufacture and production of one of the items
mentioned in the Eleventh Schedule at serial No. 1, i.e., beer, wine and other alcoholic spirit. In
view of the specific provisions contained in section 32A(2A) investment allowance
is not admissible in respect of the plant and machinery installed for the
purpose of manufacturing any of the items mentioned in the Eleventh Schedule.
No doubt, it was true that the plea of prohibition under the Eleventh Schedule
was not raised but being a pure question of law which does not involve any
investigation of fact, the revenue had been permitted to raise that plea in the
instant appeal. In view of the specific provisions, the assessee-company was
not entitled to any investment allowance in respect of the plant and machinery
installed for the manufacture of items mentioned in the Eleventh Schedule.
However, in respect of the telephone exchange installed in its fertilizer unit,
it would be entitled for investment allowance as the telephone exchange would
not be an office appliance but would fall under the term ‘plant’. [Para 18]
Ground No. 3
The proviso to section 36(1)(ii) had been omitted by the Direct Tax Laws
(Amendment) Act, 1987 with effect from 1-4-1989. Thus, after the omission from
1-4-1989, the ex gratia
payment towards bonus is an allowable deduction. [Paras
19 and 19.1]
Ground No. 4
It was not in dispute that the assessee-company
had received interest on the deposits/advances made by it. It was a running
concern. The amount of interest had not been received by it on account of
delayed payment towards sales or an item relatable to its business. Under
section 14 various heads of the income had been specified. An item of income
can fall under the head ‘Profits and gains of business and profession’ as the
assessee-company in the instant case claimed. However, if an item of income
does not fall under any of the heads enumerated in Head A to E mentioned in
section 14, it would fall under the residuary head, i.e., ‘Income from other sources’ mentioned
under Head F. Section 56 which deals with the income from other sources is also
to the same effect. [Para 20]
Admittedly in the instant case, the
assessee-company had received interest on loans/advances made by it to its
debtors. The amount of interest was not relatable to any late payment of the invoices/bills
or compensation/damages. Thus, the amount of interest which it had received
could not, by any stretch of imagination, be treated as income from business
but was to be treated under the head ‘Income from other sources’. [Para 21]
Case Review
CIT v. Electronics Research Industries (P.)
Ltd. [1991] 192 ITR 20/59 Taxman 46 (Kar.) followed. [Para 18]
Cases
referred to
CIT v. Sridev Enterprises [1991] 192 ITR
165/99 Taxman 439 (Kar.) [Para 3], Madhav Prasad Jatia v. CIT [1979]
118 ITR 200/1 Taxman 477 (SC) [Para 7], Marolia & Sons v. CIT
[1981] 129 ITR 475 (All.) [Para 7], CIT v. H.R. Sugar Factory (P.)
Ltd. [1991] 187 ITR 363/[1990] 53 Taxman 63 (All.) [Para 7], CIT v. H.R.
Sugar Factory [1991] 190 ITR 643 (All.) [Para 7], CIT v. Saraya
Sugar Mills (P.) Ltd. [1992] 193 ITR 575/[1991] 56 Taxman 231 (All.) [Para
7], CIT v. Saraya Sugar Mills (P.) Ltd. [1993] 201 ITR 181 (All.)
[Para 7], Murli Investment Co. v. CIT [1987] 167 ITR 368 (Raj.) [Para
10], Tuticorin Alkali Chemicals & Fertilizers Ltd. v. CIT
[1997] 227 ITR 172/93 Taxman 502 (SC) [Para 10], Dy. CIT v. Marudhar
Hotels (P.) Ltd. [2000] 245 ITR 138/[1999] 107 Taxman 452 (Raj.) [Para 11],
CIT v. Navyug Oil & Dal Mills [2001] 251 ITR 535/[2002] 125
Taxman 304 (Raj.) [Para 11], CIT v. Bombay Samachar Ltd. [1969]
74 ITR 723 (Bom.) [Para 12], CIT v. H.P. Lohia [1993] 203 ITR
928/[1994] 77 Taxman 476 (Cal.) [Para 12], CIT v. Elecon Engg. Co.
Ltd. [1974] 96 ITR 672 (Guj.) [Para 13], CIT v. Elecon Engg. Co.
Ltd. [1987] 166 ITR 66 (SC) [Para 13], CIT v. Electronics
Research Industries (P.) Ltd. [1991] 192 ITR 20/59 Taxman 46 (Kar.) [Para
13], CIT v. A.P. Industrial Infrastructure Corpn. Ltd. [1989] 175
ITR 361/[1988] 36 Taxman 201 (AP) [Para 15], CIT v. Tamil Nadu Dairy
Development Corpn. Ltd. [1995] 216 ITR 535/[1996] 87 Taxman 1 (Mad.) [Para
15], East India Pharmaceutical Works Ltd. v. CIT [1997] 224 ITR
627/91 Taxman 185 (SC) [Para 17.7], Bihar State Co-operative Bank Ltd.
v. CIT [1960] 39 ITR 114 (SC) [Para 20.1], S.G. Mercantile Corpn.
(P.) Ltd. v. CIT [1972] 83 ITR 700 (SC) [Para 20.1], CIT v. Basant
Rai Takhat Singh [1933] 1 ITR 197 (PC) [Para 20.1], Nalinikant Ambalal
Mody v. S.A.L. Narayan Row, CIT [1966] 61 ITR 428 (SC) [Para 20.1], Salisbury
House Estate Ltd. v. Fry (Inspector of Taxes) 15 TC 266 (HL) [Para
20.1] and CIT v. Govinda Choudhury & Sons [1993] 203 ITR
881/[1994] 74 Taxman 331 (SC) [Para 20.1].
A.N.
Mahajan for the Appellant.
V.B. Upadhaya and Vikram Gulati for the Respondent.
Judgment
R.K.
Agrawal, J. - The present
appeal preferred by the Revenue under section 260A of the Income-tax Act, 1961
(hereinafter referred to as “the Act”) has been admitted by this Court on the
following four substantial questions of law:—
“1. Whether on facts and circumstances of the
case, the Tribunal was justified in deleting the interest disallowed on loan
given by the assessee to its sister concern for non-business purposes?
2. Whether on facts and circumstances of the
case, the Tribunal was justified in directing to allow investment allowance on
telephone exchange installed in fertilizer unit and distillery unit which is
engaged in manufacture of articles and things listed in Eleventh Schedule of
Income-tax Act, 1961?
3. Whether on facts and circumstances of the
case, the Tribunal was legally justified in holding that the ex gratia
bonus payments made by the assessee over and above the bonus payable in
accordance with the provisions of Bonus Act, 1965 were an allowable deduction?
4. Whether on facts and circumstances of the
case, the Tribunal was justified in directing the Assessing Officer to treat
the interest and dividend income as business income while Assessing Officer has
rightly assessed the same as ‘Income from other sources’?”
2. Briefly stated the facts giving rise to the
present appeal are as follows:—
The respondent
(hereinafter referred to as “the assessee-company”) is a public limited company
incorporated under the provisions of the Com-panies Act. Earlier it was known
as the Rampur Distillery and Chemical Company Limited. It is engaged in the
manufacture of industrial alcohol, Indian made foreign liquor, country liquor,
fertilizers, etc. During the assessment year 1990-91, the previous year of
which ended on 31st March 1990, the assessee-company filed the return of income
on 31st December, 1990. It showed nil income after set off of carry
forward loss of Rs. 2,31,67,914. The return of income was processed under
section 143(1)(a) of the Act, vide intimation dated 31st August,
1991 and the Assessing Officer had made certain adjustments to the returned
income. Regular assessment proceedings were initiated and the Deputy
Commissioner of Income-tax (Assessment), Special Range, Moradabad, vide
order dated 26th November, 1992, disallowed amongst other, the following
items:—
(i) Rs. 2,83,635 being the amount of interest on
the loan to sister concern, namely M/s. Rampur International Private Limited,
Calcutta;
(ii) Rs. 42,526 and Rs. 38,792 in respect of the
investment allowance on telephone exchange and diesel generating set installed
in the distil-lery unit and fertilizer unit respectively;
(iii) Rs. 45,927 on account of ex gratia payment
which was in addition to the bonus paid to its employees;
(iv) He also treated the interest and dividend
income disclosed by the assessee-company under the head ‘Income from other
sources’ and not as ‘business income’.
3. In the appeal filed before the Commissioner
of Income-tax (Appeals), the action of the Assessing Officer was confirmed in
respect of the aforementioned points. Feeling aggrieved, the assessee-company
preferred a second appeal before the Income-tax Appellate Tribunal, New Delhi.
The Tribunal, vide order dated 20th July, 1999, had deleted the disallowance
of interest of Rs. 2,83,635 on the ground that the loan of Rs. 17.19 lakhs was
given to the sister concern M/s. Rampur International Private Limited as early
as in the financial year 1985 and the Department had not disallowed any of the
amount in the assessment year 1986-87 onwards till the assessment year 1990-91
on that count. Placing reliance on the decision of the Karnataka High Court in
the case of CIT v. Sridev Enterprises [1991] 192 ITR 1651, it has held that if the
assessee-company has advanced certain sum to another company having common
partners free of interest and the assessee was paying interest on the money
borrowed and in the past year the assessee claim for deduction of interest paid
was disallowed then no disallowance can be made in the subsequent years as it
is to be presumed that those advances were not out of borrowed fund by the
assessee and that is why no disallowance was made in the earlier years and the
principle of consistency required that the same point cannot be decided against
the assessee in the subsequent years. The Tribunal further held that the copy
of the balance sheet filed by the assessee as on 31-12-1985, goes to show that
the assessee was having sufficient fund on account of share capital, share
application money, reserve and surplus and it was having sufficient fund at its
disposal out of which a small sum of Rs. 17.19 lakhs could easily be diverted.
4. In respect of the investment allowance of Rs.
42,526 and Rs. 38,792, the Tribunal had held that the assessee-company is entitled
for the investment allowance on the telephone exchange as it is to be treated
as plant.
5. In respect of the ex gratia payment of
Rs. 45,927, the Tribunal had held that the same is an allowable deduction. So far
the taxability of dividend and interest income is concerned, the Tribunal has
held that in the earlier years the same nature of income was treated as income
of business and in the absence of any new fact and material, the same type of
income cannot be brought under the head ‘Income from other sources’. It has
further held that there was no increase in the secured loan taken from the
financial institution/bank and rather there was a reduction in the balance and,
thus, whatever advances was given by the assessee in the year under
consideration, was out of current cash profits generated from the business
activity of the assessee-company and, thus, the income so derived as interest
on such advances is to be treated as income from ‘business’ and not as ‘income
from other sources’.
6. We have heard Sri A.N. Mahajan the learned
Standing Counsel for the Revenue, and Sri V.B. Upadhaya, learned senior
counsel, assisted by Sri Vikram Gulati, on behalf of the respondent assessee-company.
7. Sri A.N. Mahajan, learned counsel, submitted
that in respect of other loans and advances made by the assessee-company, it
had charged interest whereas only in respect of one company, namely, M/s.
Rampur International Private Limited, to whom it has advanced a sum of Rs.
17.19 lakhs no interest has been charged. The assessee-company had borrowed
huge amount from the financial institutions/banks on which interest was payable
It was maintaining an overdraft account with the bank from which the amount of
Rs. 17.19 lakhs had been advanced. Even during the assessment year in question
there was a debit balance in the overdraft account and, therefore, the amount
of Rs. 17.19 lakhs could not be said to have been borrowed by the
assessee-company for the purpose of its business. According to him,
proportionate amount of interest paid by the assessee-company has rightly been
disallowed by the Assessing Officer. He further submitted that the inference
drawn by the Tribunal that at the time when the amount was advanced to the
sister concern, the assessee-company had sufficient money on account of share
capital, share application money, reserve and surplus, is also incorrect
inasmuch as these amounts may not have been available with the assessee-company
when the loan was advanced as these amount must have been invested in the fixed
assets and other requirement of the assessee-company. He submitted that the
Tribunal has committed a manifest error in holding that no disallowance was
warranted. He further submitted that each assessment year is an independent
unit of assessment and merely because in the past no disallowance was made in
respect of proportionate interest, the Tribunal was not right in applying the
principle of estoppel and acquiescence. He relied upon the following
decisions:—
(i) Madhav Prasad Jatia v. CIT
[1979] 118 ITR 2001 (SC);
(ii) Marolia & Sons v. CIT
[1981] 129 ITR 475 (All.);
(iii) CIT v. H.R. Sugar Factory (P.)
Ltd. [1991] 187 ITR 3632
(All.);
(iv) CIT v. H.R. Sugar Factory
[1991] 190 ITR 643 (All.);
(v) CIT v. Saraya Sugar Mills
(P.) Ltd. [1992] 193 ITR 5753
(All.); and
(vi) CIT v. Saraya Sugar Mills
(P.) Ltd. [1993] 201 ITR 181 (All.)
8. So far as the investment allowance is
concerned, he submitted that no investment allowance under section 32A of the
Act is admissible as the assessee-company is engaged in the manufacture or
production of beer, wine and other alcoholic spirits which are mentioned at
Item No. 1 in the Eleventh Schedule of the Act. According to him, in view of
the specific provisions of sub-section (2A) of section 32A of the Act,
investment allowance is not admissible at all. He further submitted that under
clause (b) of the second proviso to section 32A of the Act,
investment allowance is not admissible to any office appliances and telephone exchange
is an office appliance and cannot be said to be a plant.
9. In respect of ex gratia bonus payment
made by the assessee-company, he submitted that under section 36(1)(ii)
of the Act, the amount of ex gratia payment towards bonus which is over
and above the ceiling fixed under the Payment of Bonus Act is not an allowable
deduction.
10. In respect of interest and dividend income,
he submitted that under section 14 of the Act, heads of income have been
specified and all income have been classified under the various heads. Head F
specifies ‘Income from other sources’. According to him, under section 56 of
the Act income which do not fall under Head A to E of section 14 of the Act are
chargeable under the Head F - ‘Income from other sources’. He submitted that dividends
find a specific mention under clause(i) of sub-section (2) of section 56
of the Act. Likewise, interest income would also fall under section 56 of the
Act. He relied upon the following decisions:—
(i) Murli Investment Co. v. CIT
[1987] 167 ITR 368 (Raj.); and
(ii) Tuticorin Alkali Chemicals &
Fertilizers Ltd. v. CIT [1997] 227 ITR 1721 (SC).
11. Sri V.B. Upadhaya, learned senior counsel,
submitted that the Tribunal had found that the assessee-company was having
sufficient fund on account of the share capital, share application money,
reserve and surplus and was having sufficient fund at its disposal out of which
a small sum of Rs. 17.19 lakhs could easily be diverted and there was nothing
on record to prove that it had diverted borrowed fund to the sister concern.
This finding has been recorded on examination of the copy of the balance sheet
as on 31st December, 1985 filed by the assessee-company, which is a pure
finding of fact and has not been specifically challenged in the appeal, as no
question has been framed in that behalf. He, thus, submitted that the finding
of fact cannot be interfered with by this Court while deciding the appeal under
section 260A of the Act where the appeal lies on substantial question of law.
He relied upon the following decisions:—
(i) Dy. CIT v. Marudhar Hotels (P.)
Ltd. [2000] 245 ITR 1382
(Raj.); and
(ii) CIT v. Navyug Oil & Dal Mills
[2001] 251 ITR 5353 (Raj.)
12. On merit, he submitted that as the
assessee-company was having sufficient fund with it in the form of share
capital, share application money, reserve and surplus, the amount of loan of
Rs. 17.19 lakhs advanced by it to its sister concern cannot be linked to
borrowed money and, therefore, the Tribunal was justified in deleting the
disallowance of proportionate interest. He relied upon the following
decisions:—
(i) CIT v. Bombay Samachar Ltd.
[1969] 74 ITR 723 (Bom.);
(ii) Madhav Prasad Jatia’s case (supra);
(iii) CIT v. H.P. Lohia [1993] 203
ITR 9281 (Cal.); and
(iv) Sridev Enterprises’ case (supra)
13. On the question as to whether investment
allowance in respect of the telephone exchange installed at the
assessee-company - distillery and fertilizer units - should be allowed or not,
Sri Upadhaya submitted that to that extent, plea of the assessee-company
manufacturing one of the items mentioned in the Eleventh Schedule of the Act
was not raised before the Tribunal and, therefore, this question does not
arise. He submitted that the telephone exchange has been held to be a plant
and, therefore, the assessee-company is entitled to investment allowance. It
cannot be treated as a mere office appliance. He relied upon the following
decisions :—
(i) CIT v. Elecon Engg. Co. Ltd.
[1974] 96 ITR 672 (Guj.);
(ii) CIT v. Elecon Engg. Co. Ltd.
[1987] 166 ITR 66 (SC); and
(iii) CIT v. Electronics Research
Industries (P.) Ltd. [1991] 192 ITR 202 (Kar.).
14. In respect of the ex gratia payment of
Rs. 45,927, he submitted that the proviso to section 36(1)(ii) of the
Act which prohibited allowance of bonus paid over and above the ceiling fixed
under the Payment of Bonus Act, has been omitted with effect from 1st April,
1989 and, therefore, it was an allowable deduction.
15. In respect of dividend and interest income,
he submitted that for the past several years, the dividend and interest income
disclosed by the assessee-company was treated as falling under the head
‘Business income’ and not under the head ‘Income from other sources’ and,
therefore, the Tribunal was justified in directing the Assessing Officer to
treat the interest and dividend income under the head ‘business income’. He
relied upon the following decisions:—
(i) CIT v. A.P. Industrial
Infrastructure Corpn. Ltd. [1989] 175 ITR 3613 (AP); and
(ii) CIT v. Tamil Nadu Dairy Development
Corpn. Ltd. [1995] 216 ITR 5354
(Mad.).
16. We have heard the learned counsel for the
parties.
Question
No. 1
17. It is not in dispute that the
assessee-company had advanced a sum of Rs. 17.19 lakhs to its sister concern
M/s. Rampur International Private Limited, in the year 1985. It had not charged
any interest from the said Company whereas it had been charging interest from
other debtors. It had borrowed huge sum from the banks and the financial
institutions. In the present assessment year, the Assessing Officer had
disallowed the amount towards proportionate interest on the said advances. The
Tribunal after examining the balance sheet for the year ending 31st December,
1985 had come to the conclusion that the assessee-company was having sufficient
fund on account of share capital, share application money, reserve and surplus
and was having sufficient fund at its disposal out of which a small sum of Rs.
17.19 lakhs could easily be diverted. It is well-settled that if an amount has
been borrowed not for the business purposes but for some private purposes, then
the interest on such borrowings cannot be allowed as a deduction under section
36(1)(ii) of the Act. The Apex Court in the case of Madhav Prasad
Jatia (supra) while considering the provision of section 10(2)(iii)
of the Indian Income-tax Act, 1922, which is analogous to section 36(1)(ii)
of the Act, has held that for claiming a deduction under section 10(2)(iii)
of the Act, three conditions are required to be satisfied in order to enable
the assessee to claim a deduction on interest on borrowed capital, namely (a)
that the money (capital) must have been borrowed by the assessee; (b)
that it must have been borrowed for the purpose of business; and (c)
that the assessee must have paid interest on the said amount and claim it as a
deduction. The Apex Court has held that the expression ‘for the purpose of
business’ is wider in scope than the expression ‘for the purposes of earning income
profits or gains’ and has held that the expenditure incurred shall be for
carrying of the business and the assessee shall incur it in the capacity as a
person carrying on the business. If the borrowing was made to meet the personal
obligation and not the obligation of the business, such expenditure incurred by
the assessee by way of payment of interest thereon was not for carrying on
business and such expenditure can, by no stretch of imagination, be regarded as
business expenditure. In the case of Marolia & Sons (supra),
this Court has held as follows :
“Section 36(1)(iii) of the Income-tax Act
deals with the deduction on the amount of interest paid in respect of capital
borrowed for the purposes of business or profession. It would be found from clause
(iii) of sub-section (1) of section 36 of the Act that three conditions
must be established by an assessee for getting the benefit under the aforesaid
clause :
(1) interest should have been payable,
(2) there should be a borrowing, and
(3) capital must have been borrowed or taken for
business purposes.
If the capital borrowed is not utilized for the
purposes of the business, the assessee will not be entitled to deduction under
this clause. In case, after having borrowed the capital for business purposes,
the firm gives the same to its partners for their personal use or utilization,
the firm would not be entitled to claim deduction on the amount diverted for
utilization for other purposes or by other persons. This question has been the
subject-matter of decisions by several High Courts. It appears to be settled
that an assessee-firm cannot be entitled to claim deduction under clause (iii)
of sub-section (1) of section 36 of the Act on the amount which is not used for
the purposes of business but is given to the partners for their personal use.
Reference may be made to the decisions in Milapchand R. Shah v. CIT
[1965] 58 ITR 525 (Mad.) and Roopchand Chabildass & Sons v. CIT
[1967] 63 ITR 166 (Mad.).” (p. 478)
17.1 In the case of H.R. Sugar Factory (P.) Ltd.
(supra) this Court had found that had the money been not advanced to the
Directors, it would have been available to the assessee for its business
purpose and to that extent it may not have been necessary to borrow from the
bank and, therefore, the difference of interest has rightly been disallowed
under section 36(1)(ii) of the Act. The aforesaid decision has been
followed by this Court in the case of H.R. Sugar Factory (P.) Ltd. (supra)
and Saraya Sugar Mills (P.) Ltd.’s case (supra).
17.2 In the case of Bombay Samachar Ltd. (supra)
the Bombay High Court has held as follows:—
“As we have already pointed out, it is
undisputed that the amounts borrowed from outsiders on which interest has been
paid have been used for the purpose of the business of the assessee. It appears
to have been the view of the Income-tax Officer that if the assessee had
collected the outstandings which were due to it from others, it would have been
able to reduce its indebtedness and thus save a part of the interest which it
had to pay on its own borrowings. The assessee, therefore, was not justified in
allowing its outstandings to remain without charging any interest thereon while
it was paying interest on the amounts borrowed by it. To the extent, therefore,
to which it would have been in a position to collect interest on the
outstandings due to it from others, it could not be permitted to claim interest
paid by it to outsiders. In our opinion the view taken by the Income-tax Officer
is clearly unsustainable. As has been pointed out by the Madhya Pradesh High
Court in Ram Krishna Oil Mills v. CIT [1958] 34 ITR 265 the only
conditions required to be satisfied in order to enable the assessee to claim a
deduction in respect of the interest under section 10(2)(iii) are,
firstly, that money must have been borrowed by the assessee; secondly, it must
have been borrowed for the purpose of business and, thirdly, the assessee must
have paid interest on the said amount and claimed it as a deduction. It is not
the requirement of the provision that the assessee must further show that the
borrowing of the capital was necessary for the business so that if at the time
of borrowing the assessee had sufficient amount of its own, the deduction could
not be allowed. Similarly, the Madras High Court in Amna Bai Hajee Issa
v. CIT [1964] 51 ITR 835 has held that in deciding whether a claim for
interest on borrowing can be allowed the fact that the assessee had ample
resources at its disposal and need not have borrowed, is not a relevant matter
for consideration. The matter to be decided is whether the amount of interest
was paid in fact in respect of the capital borrowed for business.” (p. 730)
17.3 In the case of H.P. Lohia (supra),
the Calcutta High Court has held that the assessee had borrowed money for
advancing loans to two companies which were written of and, therefore, he was
not receiving any interest on the loans advanced to those two concerns. It,
however, did not absolve him of the liability of paying interest to his
creditors on the amount borrowed by him and, therefore, there was no
justification to exclude interest payable by him on account of interest not
receivable by him, could have been disallowed on the ground that the amount
advanced by him was not for the purposes of business for which the loan was
taken by him. Under the circumstances, there was no reason for disallowing the
interest on the amount of loan taken by the assessee.
17.4 In the case of Sridev Enterprises (supra),
the Karnataka High Court has held that the consistency and definiteness of
approach by the Revenue is necessary in the matter of recognizing the nature of
an account maintained by the assessee so that the basis of a concluded
assessment would not be ignored without actually reopening the assessment.
17.5 From the aforementioned cases, the principle
which emerges for allowing the amount of interest paid in respect of capital
borrowed is that the following three conditions should be fulfilled:—
(i) the capital must have been borrowed or taken
for the purpose of the business or profession;
(ii) the interest should have been payable; and
(iii) if the borrowing is not for the business
purpose and is for private purpose or not connected with the business, interest
paid on such borrowings cannot be allowed as a deduction under section 36(1)(iii)
of the Act.
17.6 Applying the aforesaid principle to the facts
of the present case, we find that the Tribunal has recorded a finding that
there was sufficient fund available with the assessee-company in the form of
capital share, share application money, reserve and surplus other than the
borrowed money for diverting a sum of Rs. 17.19 lakhs. Thus, it cannot be said
that the amount of loan advanced to the sister concern, namely, M/s. Rampur
International Private Limited, was out of the borrowed fund.
17.7 In the case of East India Pharmaceutical
Works Ltd. v. CIT [1997] 224 ITR 6271 the Apex Court while holding
that the payment of interest of Rs. 28,488 on money borrowed for payment of
income tax was for meeting the personal liability and such expenditure can
never be held to be wholly and exclusively for the purposes of earning income.
It found considerable force in the arguments advanced by the learned counsel
that the taxes were paid out of the profits of the relevant year and not out of
the overdraft account for the running of the business, would essentially depend
upon whether the entire profits had been pumped into the overdraft account,
whether such profits were more than the tax amount paid for the relevant year
and other germane factors. Since the appellant had not advanced the contention
either before the Tribunal or the High Court, and the amplitude of the question
posed before the High Court did not bring within its sweep the contention advanced
by the appellant, the Apex Court was of the view that it would not be
appropriate for the court to look into the additional papers produced by the
appellant for answering the question.
17.8 In view of the findings recorded by the
Tribunal that the assessee-company has sufficient fund other than the borrowed
money for giving the amount in question as loan to its sister concern, which
finding has not been specifically challenged in the present appeal, we are of
the consi-dered opinion that the conditions of section 36(1)(iii) of the
Act have been complied with and, therefore, the assessee-company was entitled
to full allowance of the amount of interest paid by it on borrowed capital.
Moreover, the Assessing Officer himself had not allowed the proportionate
amount of interest on the aforesaid loan during the relevant assessment year
when the said loan had been advanced by the assessee-company to its sister
concern. The Tribunal has rightly deleted the disallowance of proportionate
interest on this count.
Question
No. 2
18. It is not in dispute that the
assessee-company is engaged in the business of manufacture and production of
one of the items mentioned in the Eleventh Schedule at serial No. 1, i.e.,
beer, wine and other alcoholic spirit. In view of the specific provisions
contained in sub-section (2A) of section 32A of the Act, investment allowance
is not admissible in respect of the plant and machinery installed for the
purpose of manufacturing any of the items mentioned in the Eleventh Schedule.
No doubt, it is true that the plea of prohibition under the Eleventh Schedule
was not raised but being a pure question of law which does not involve any
investigation of fact, the Revenue has been permitted to raise this plea in the
present appeal. In view of the specific provisions, the assessee-company is not
entitled to any investment allowance in respect of the plant and machinery
installed for the manufacture of items mentioned in the Eleventh Schedule.
However, in respect of the telephone exchange installed in its fertilizer unit,
it would be entitled for investment allowance as the telephone exchange will
not be an office appliance but would fall under the term plant, as held by the
Karnataka High Court in the case of Electronics Research Industries (P.)
Ltd. (supra), with which we respectfully agree.
Question
No. 3
19. The assessment year involved in the present
appeal is 1990-91. The proviso to clause (ii) of sub-section (1) of
section 36 of the Act, which has been omitted by the Direct Tax Laws (Amendment)
Act, 1987, with effect from 1st April, 1989, reads as follows :
“Provided that the deduction in respect of bonus
paid to an employee employed in a factory or other establishment to which the
provisions of the Payment of Bonus Act, 1965 (21 of 1965), apply shall not
exceed the amount of bonus payable under that Act :
Provided further that the amount of the bonus
(not being bonus referred to in the first proviso) or commission is reasonable
with reference to—
(a) the pay of the employee and the conditions of
his service;
(b) the profits of the business or profession for
the previous year in question; and
(c) the general practice in similar business or
profession.”
The learned
counsel for the Revenue did not dispute this position.
19.1 Thus, after the omission from 1st April,
1989, the ex gratia payment towards bonus is an allowable deduction.
Question
No. 4
20. It is not in dispute that the
assessee-company had received interest on the deposits/advances made by it. It
was a running concern. The amount of interest has not been received by it on
account of delayed payment towards sales or an item relatable to its business.
Under section 14 of the Act, various heads of the income have been specified.
An item of income can fall under profits and gains of business and profession
as the assessee-company in the present case claims. However, if an item of
income does not fall under any of the heads enumerated in Head A to E mentioned
in section 14 of the Act, it would fall under the residuary head, i.e.,
income from other sources mentioned under Head F. Section 56 of the Act which
deals with the income from other sources is also to the same effect.
20.1 As held by the Apex Court in the case of Bihar
State Co-operative Bank Ltd. v. CIT [1960] 39 ITR 114 and S.G.
Mercantile Corpn. (P.) Ltd. v. CIT [1972] 83 ITR 700, where there is
a specific head for the income in question and a specific section providing for
the head, this residuary section cannot be called in aid. The Privy Council in
the case of CIT v. Basant Rai Takhat Singh [1933] 1 ITR 197 has
laid down that the residuary head does not come into operation until the
preceding heads are excluded. In the case of Nalinikant Ambalal Mody v. S.A.L.
Narayan Row, CIT [1966] 61 ITR 428, the Apex Court has affirmed the
proposition laid down by the House of Lords in Salisbury House Estate Ltd.
v. Fry (Inspector of Taxes) 15 TC 266 and has held that the residuary
head of income can be resorted to only if none of the specific heads is
applicable to the income in question and if a certain item of income is taxable
under one of the specific head, the charge under that head exhausts the
taxability of the income, and no part of such income can be brought to charge
again under the residuary head. The Apex Court in the case of CIT v. Govinda
Choudhury & Sons [1993] 203 ITR 8811, has held that the interest
can be assessed under the head income from other sources only if it cannot be
brought within one or other specific heads of charge.
20.2 In the case of Murli Investment Co. (supra),
the Rajasthan High Court has held that the Company was investing its surplus
fund and was deriving interest thereon instead of keeping that idle and the
income from such investment would be assessable only under section 56 of the
Act and not as business income. Similar view has been taken by the Hon’ble
Supreme Court in the case of Tuticorin Alkali Chemicals & Fertilizers
Ltd. (supra). The Apex Court has held as follows:—
“The basic proposition that has to be borne in
mind in this case is that it is possible for a company to have six different
sources of income, each one of which will be chargeable to income tax. Profits
and gains of business or profession is only one of heads under which the
company’s income is liable to be assessed to tax. If a company has not
commenced business, there cannot be any question of assessment of its profits
and gains of business. That does not mean that until and unless the company
commences its business, its income from any other source will not be taxed. If
the company, even before it commences business, invests the surplus funds in
its hands for purchase of land or house property and later sells it at profit,
the gain made by the company will be assessable under the head “Capital gains”.
Similarly, if a company purchases a rented house and gets rent, such rent will
be assessable to tax under section 22 as income from house property. Likewise,
a company may have income from other sources. It may buy shares and get
dividends. Such dividends will be taxable under section 56 of the Act. The
company may also, as in this case, keep the surplus funds in short-term
deposits in order to earn interest. Such interest will be chargeable under
section 56 of the Act.” (p. 179)
20.3 In the case of A.P. Industrial
Infrastructure Corpn. Ltd. (supra), the Andhra Pradesh High Court
has held that the interest income earned by keeping the surplus amount in the
bank during the interval between receipt and disbursement was to be treated as
income from business.
20.4 In the case of Tamil Nadu Dairy
Development Corpn. Ltd. (supra), the Madras High Court has taken the
similar view.
20.5 In the case of Govinda Choudhury &
Sons (supra), the Apex Court was considering a case where an
assessee which was engaged in the business of executing Government contracts,
received interest for delay in payment of amount due to its pursuant to the
award given by the arbitrator. The question was whether the amount of interest
should be treated as trading receipt or income from other sources. The Apex
Court has held as follows:—
“...We find it difficult to comprehend how the
interest receipts by the assessee can be treated as receipts which flow to him de
hors the business which is carried on by him. In our view, the interest
payable to him certainly partakes of the same character as the receipts for the
payment of which he was otherwise entitled under the contract and which payment
has been delayed as a result of certain disputes between the parties. It cannot
be separated from the other amounts granted to the assessee under the awards
and treated as “income from other sources”. The second question is therefore,
answered in favour of the assessee and against the Revenue.” (p. 884)
21. Admittedly, in the present case the
assessee-company had received interest on loans/advances made by it to its
debtors. The amount of interest is not relatable to any late payment of the
invoices/bills or compensation/damages. Thus, the amount of interest which it
has received cannot, by any stretch of imagination, be treated as income from
business but is to be treated under the head ‘Income from other sources’.
22. In view of the foregoing discussion, we
decide the first and the third question in the affirmative, i.e., in
favour of the respondent assessee-company and against the appellant; the second
question is decided partly in favour of the appellant and partly in favour of
the respondent and question No. 4 is decided in favour of the appellant. The
appeal is accordingly partly allowed. In view of the divided success, the parties
are directed to bear their own costs.
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