High Court Of Delhi
CIT vs. H.B. Stock Holdings Ltd.
Section 28(i), 36(1)(iii)
A.K. Sikri & Valmiki J. Mehta, JJ.
IT Appeal No. 328 of 2008
24th July, 2009
Counsel appeared :
Ms. P.L. Bansal with Ms. Anshul Sharma & Paras Chaudhary, for the Appellant : Santosh K. Aggarwal, for the Respondent
JUDGMENT
Valmiki J. Mehta, J. :
This appeal under s. 260A of the IT Act, 1961 (hereinafter ‘the Act’) is preferred by the Revenue against the order dt. 31st May, 2007 of the Income-tax Appellate Tribunal (Tribunal) whereby the Tribunal accepted the appeal filed by the assessee/respondent and set aside the orders of the AO and the CIT(A).
There are two issues in this appeal. The first issue pertains to disallowance of the loss of Rs. 5,64,90,487 by the AO which was suffered by the assessee on account of the share transactions. The AO disallowed it on the ground that the transactions were entered into with group concerns and the AO doubted the genuineness. The second issue pertains to disallowance of the claim of deduction of interest of Rs. 83,77,871 on the ground that the assessee had given interest-free advances amounting to Rs. 13.05 crores to its sister concern M/s Mount Finance Company (P) Ltd. The AO was, therefore, of the view that the expenditure was not incurred by the assessee wholly, exclusively and necessarily for the purpose of its business and, therefore, he disallowed the same.
On the first issue with respect to the loss in the share transactions, the counsel for the Revenue has urged that the transactions in question were not genuine and the AO was, therefore, right in disallowing these transactions. The counsel further urged that in case the Tribunal felt that the transactions were genuine, it should have arrived at a finding or remanded the matter back to the AO to examine the transactions because it was stated that the AO had not examined the transactions and had merely relied upon the report of the auditor of the assessee company that the accounts do not reflect a complete and true affairs of the company. The counsel for the appellant has also urged before this Court that the AO correctly disallowed the claim of the interest.
We have heard the counsel for the parties. On the issue with regard to the disallowance of Rs. 5,64,90,487, we find that the AO was not justified in relying upon the report of the auditor by which the auditor had said that the accounts do not reflect the true and complete affairs of the company. This is only a half truth. The fact of the matter is that the auditor of the assessee company has given such a remark in the auditor’s report because on account of a search and seizure operation carried out by the IT Department at the business premises of the assessee various records/books/documents were seized. Therefore, the auditor said that on the basis of the limited records, the report was being prepared and consequently they made the endorsement that they are not able to say that the accounts reflect the true and correct position. We note that in this regard the Tribunal has observed that it was a strange position indeed for the AO to simply accept the report of the auditor, because the seized material could have been examined by the AO and he was competent to form an opinion on the same as to the genuineness of the transactions which he unfortunately did not. The Tribunal rightly observed that on the one hand the AO kept the records with himself and on the other hand he blamed the assessee which was clearly a travesty of justice.
The learned counsel for the respondent during the course of the arguments has referred to the written submissions and the documents relied by him before the CIT(A) and which showed the genuineness of the share transactions of the assessee company and which documents showed that the transactions were entered into at market value, proof of the market quotations were filed, the transactions were through share brokers through the stock exchange. There is no allegation that the transaction is not at the market price and something over and above declared price had been recovered by the assessee. In fact, the AO applied unfairly the pick and choose policy because in respect of the transactions with the same party which resulted in profit, the same was brought to tax but when the loss was claimed the AO ignored the same on the ground that the same is sham. We note that in para 34 of the order of the Tribunal the Tribunal has also examined the transactions on the basis of pp. 22 to 30 of the paper book before it and has given its opinion as to the genuineness of the transaction. The contention for the Revenue that the Tribunal has, therefore, not applied its mind to the record and transactions are, therefore, clearly not correct. In fact, as stated above, even the CIT(A) had duly applied its mind to the transaction by reference to the record which was produced by the assesee.
On the second issue of the disallowance of the interest, we again find that the stand of the Department is misconceived. This is because it is a finding of fact recorded by both the CIT(A) and Tribunal that the loan which was given to the sister company was before the loan which was taken by the assessee company from the Standard Chartered Bank. The Tribunal has examined the copy of the account of M/s Mount Finance Company (P) Ltd. for the financial year 1st April, 1996 to 31st March, 1997 which revealed that the advance was given to M/s Mount Finance Company (P) Ltd. prior to the commencement of the relevant year and the amount which was borrowed from the Standard Chartered Bank was on or around 23rd July, 1996. Thus, in fact the Revenue is also incorrect in contending that there is a nexus between the loan given by the assessee company to its sister concern and the loan which it availed from Standard Chartered Bank. In fact, as on 31st March, 1996, the own funds of the assessee included share capital of Rs. 24.3 crores and reserves and surplus in the form of share premium money to the extent of Rs. 106.92 crores. Consequently, there were enough funds with the assessee company to give loan of Rs. 13,05,29,268 to its sister concern M/s Mount Finance Company (P) Ltd. and deduction for interest was allowable to the assessee under s. 36(1)(iii) of the Act. We also note that the counsel for the assessee has rightly relied upon the decision of the Supreme Court in the case S.A. Builders Ltd. vs. CIT (2006) 206 CTR (SC) 631 : (2007) 288 ITR 1 (SC) wherein the Supreme Court had said that a company is fully entitled to give a loan to its subsidiary company and which can be done for business expediency. To such a transaction, the IT Department can have no objection. We also note that the counsel for the respondent has also relied upon CIT vs. DCM Ltd. (2009) 177 Taxman 300 (Del) to the same effect.
In view of the above, no substantial question of law arises and the appeal is, therefore, dismissed.
[Citation : 325 ITR 316]
