Madras H.C : Assessee company is entitled for deduction towards interest income from Kailas Projects, an Association of Persons as per the provisions of section 86

High Court Of Madras

CIT, Chennai vs. Ideal Entertainment (P.) Ltd.

Section : 86,40(ba)

F.M. Ibrahim Kalifulla Amd M.M. Sundresh, JJ.

Tax Case (Appeal) No. 755 Of 2010

August 3, 2010

JUDGMENT

M.M. Sundresh, J. – The appeal has been filed by the revenue challenging the order passed by the Tribunal in ITA No. 1897/Mad./2008 whereby the order passed by the Commissioner of Income-tax (Appeals)-VI was confirmed. The revenue while filing this appeal has raised the following substantial question of law :—

“Whether on the facts and circumstances of the case, the Tribunal was right in holding that assessee company is entitled for deduction towards interest income from Kailas Projects, an Association of Persons as per the provisions of section 86.”

2. The facts in brief are as follows :—

The assessee was a member of an association of persons titled Kailas Project. The assessee received interest from the said association of persons and claimed the said amount towards exemption under section 86 of the Income-tax Act. However, the Assessing Officer has disallowed the claim of the assessee on the ground that the provisions of section 86 of the Income-tax Act can be made applicable only to the assessee who is not a company or co-operative society. Therefore, inasmuch as the assessee is a company, the Assessing Officer has held that the provisions of section 86 of the Income-tax Act are not applicable to it. However on appeal, the Commissioner of Income-tax (Appeals) has allowed the claim and deleted the additions made by the Assessing Officer. Not satisfied with the same, the revenue took the matter on further appeal before the Tribunal and the Tribunal on a consideration of section 86 and comparing the same with section 40(ba) of the Income-tax Act has concurred with the decision of the Commissioner of Income-tax (Appeals) by holding that a reading of section 86 would clearly show that there is no bar for the assessee to claim the benefits provided thereunder. Challenging the same, the revenue has come up on appeal by raising the substantial question of law referred above.

3. In order to appreciate the contentions of the learned counsel appearing for the appellant, it is useful to extract the provisions of section 86 of the Income-tax Act which is as follows :—

“Where the assessee is a member of an association of persons or body of individuals (other than a company or a co-operative society or a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any law corresponding to that Act in force in any part of India), income- tax shall not be payable by the assessee in respect of his share in the income of the association or body computed in the manner provided in section 67A :

Provided that,—

(a) where the association or body is chargeable to tax on its total income at the maximum marginal rate or any higher rate under any of the provisions of this Act, the share of a member computed as aforesaid shall not be included in his total income;

(b) in any other case, the share of a member computed as aforesaid shall form part of his total income :

Provided further that where no income-tax is chargeable on the total income of the association or body, the share of a member computed as aforesaid shall be chargeable to tax as part of his total income and nothing contained in this section shall apply to the case.”

4. A perusal of the above said provision would clearly show that in the case where the assessee is a member of association of persons, income-tax was not to be payable by the assessee in respect of his share in the income of the association or body in the manner provided under section 67A of the Act. The exclusion provided under the section that other than the company or the co-operative society or a society registered under the Societies Registration Act, 1860 would be made applicable only to the association of persons or a body of individuals and not to the member. In other words, if the association of persons or a body of individuals happened to be a company or a co-operative society or a society registered under the Societies Registration Act, then in such an eventuality the member, who is also an assessee is not entitled to get the benefits provided under section 86 of the Act.

5. Further, a reading of section 40(ba) of the Act would also make it clear that the share of the assessee under the income of association of persons shall not be taxable. Hence, a combined reading of the abovesaid provisions would make it clear that there is no bar for a private company like the assessee from getting the benefits of section 86 of the Act.

6. It is a well settled principle of law that in order to interpret a taxing statute, a literal interpretation will have to be given while interpreting the same. Unless the interpretation would lead to manifest in justice or absurdity such an interpretation cannot be given other than the literal interpretation. Therefore, considering the well settled principles of interpretation, we are of the opinion that the decision made by the Tribunal while confirming the order of Commissioner of Income-tax (Appeals) does not warrant any interference. Accordingly, we do not find any merit in the appeal. Hence, the appeal is dismissed and the substantial question of law raised is answered in favour of the assessee and against the revenue. No costs.

[Citation : 336 ITR 357]

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