Case Law Details

Case Name : Soham Securities Ltd. Vs ITO (ITAT Ahmedabad)
Appeal Number : ITA No. 2208/Ahd/2015
Date of Judgement/Order : 02/11/2018
Related Assessment Year : 2011-12
Courts : All ITAT (6332) ITAT Ahmedabad (434)

Soham Securities Ltd. Vs ITO (ITAT Ahmedabad)

Conclusion: Interest income earned by assessee engaged in money lending in a systematic manner had to be taxed as business income in spite of the fact that assessee was not having registration with RBI as NBFC.

Held: Assessee in the instant case had shown interest income under the head income from other sources on the advice of the consultant. As such, it was advised to assessee that it could not carry out money lending business in a systematic manner without having approval from the RBI as NBFC. Therefore, assessee classified interest income as income under the head from other sources. Assessee had claimed several expenses for running its money lending activity which were classified under the head business and profession. Consequently, there was income under the head income from other sources but there was loss under the head business and profession. Accordingly, AO held that assessee was not entitled to claim the set off of the loss shown under the head business and profession against the income from other sources on the ground that there was no business activity. It was held assessee has been carrying on the business of money lending in a systematic manner without having the registration with RBI as NBFC. Merely, the fact that assessee was not registered with RBI as NBFC, could not lead to draw an inference that assessee was not carrying out business activity. The registration with RBI as NBFC and business activity of the assessee, both were different aspects and could not be applied for holding that the assessee was not engaged in the business activity. Thus, the interest income of assessee should have been treated as income from business and profession.

FULL TEXT OF THE ITAT JUDGEMENT

These are cross appeals against each other have been filed at the instance of the Assessee and revenue against the appellate order of the Learned Commissioner of Income-Tax (Appeals)-2, Vadodara [“CIT(A)” in short] dated 22.05.2015 relevant to Assessment Year 2011-12.

2. First we take up assessee’s appeal in ITA No. 2208/Ahd/2015 for Asst. Year 2011-12. Assessee has raised the following grounds of appeal:-

1. The Ld. CIT (A) erred on facts and in law in confirming action of Assessing Officer in holding that the appellant has not carried out any business operations during the year.

2. The Ld. CIT (A) erred on facts and in law in not granting set off of business loss against incomes assessed under the head ‘income from other sources.

3. The Ld. CIT (A) erred on facts and in law in not granting deduction of bad debts written off of Rs. 3,87,793/-; professional fees of Rs. 8,94,140/-and depreciation of Rs. 3,39,668/- either under the head ‘income from business’ or under the head ‘income from other sources’.

4. The Ld. CIT (A) erred on facts and in law in making disallowance u/s 4A at Rs. 1,08,559/- and not restricting the same at Rs. 133/-

Your appellant craves leave to add, alter and/or amend all or any of grounds before the final hearing of appeal.”

3. The issue raised by assessee in this appeal is that ld. CIT(A) erred in holding that the assessee has not carried out any business operations during the year.

4. Briefly stated facts are that the assessee in the present case is a limited company and engaged in the business of trading in shares, stocks, debentures, bonds, fixed and other deposits including finance of short and long term deposits etc.

4.1 The assessee in the year under consideration has shown income from other sources amounting to Rs. 70,42,709/- as detailed under:

Sr. No. Particulars Amount
1 Bank interest 3,10,188/-
2 Other interest 66,17,003/-
3 Dividend income 3,597/-
4 Interest on Income Tax Refund 1,11,921/-
Total 70,42,709/-
(-) Exempted dividend income (-) 3,597/-
Taxable Income 70,39,112/-

4.2 The assessee has not shown any sales/income from operations in the year under consideration but has claimed expenses in its profit and loss account amounting to Rs. 68,34,897/- only. These expenses included the following:

Sr. No. Particulars Amount
1 Salary, Wages & Other Benefits 26,14,916/-
2 Administrative & General Expenses 35,24,952/-
3 Interest & Financial Expenses 3,39,668/-
4 Depreciation 3,35,361/-
Total 68,34,897/-

4.3 As a result, the assessee has shown loss of Rs. 60,51,522/- after making the suitable adjustment on account of depreciation claimed under the companies Act vis-à-vis under the Income Tax Act.

4.4 The assessee set off the business loss against the income from other sources and after such adjustment, the assessee has declared an income of Rs. 9,87,590/- in its Income Tax Return.

However, the AO during the assessment proceedings observed that the assessee has not carried out any business activity therefore it is not eligible for claiming the deduction on account of losses under the head business and profession arising from the claim of expenses as discussed above. Accordingly, the AO vide letter dated 28.02.2014 issued show-cause notice to the assessee.

4.5 The assessee in compliance to it vide letter dated 07.03.2014 submitted that all the expenses claimed in the profit and loss account were exclusively for the purpose of the business of the assessee.

It was also claimed that on the advice of the financial experts the income from interest was shown in the head income from other sources.

4.6 All the expenses claimed in the profit and loss account were having direct nexus to the interest income. Therefore, the same is eligible for deduction. As far as bad debts of Rs.3,87,793/- is concerned, the assessee has offered the impugned amount as income in the earlier years. The assessee also claimed that the depreciation was claimed as per the provision of section 32 of the Act therefore the same is eligible for deduction against the interest income.

4.7 The assessee also submitted that the professional charges were incurred by it in connection with the recovery of the principle amount from the parties to whom the advance was given on interest basis.

4.8 The assessee also submitted that there is no prohibition for setting off the business loss against the income from other sources for the year under consideration as per the provision of Section 71 of the Act.

However, the AO disagreed with the submission of the assessee by observing that there was no operation carried out during the year. Therefore, in the absence of any business activity there cannot be any claim of expenses in the profit and loss account. Accordingly, the AO held that the assessee adopted a colorable device to escape from the income tax liability on the interest income.

Accordingly, the AO disallowed the sum of Rs. 60,51,522/- and added to the total income of the assessee.

5. Aggrieved, assessee preferred an appeal to ld CIT(A). The assessee before the ld CIT(A) submitted that it was incorporated on 3rd July, 1995 for the purpose of stock broking activities as well as giving loans and advances for the purpose of interest income. Both the activities of the assessee were duly mentioned in the main object of its memorandum of association.

5.1 The assessee up to the A.Y. 2006-07 has been offering interest income under the head business and profession which was also duly accepted by the Revenue either u/s 143(1) or 143(3) of the Act.

5.2 There were scrutiny assessments u/s 143(3) of the Act pertaining to the A.Ys. 2003-04 & 2006-07 wherein, the interest income was accepted from the source of business and profession.

5.3 Subsequent to the A.Y. 2006-07 the auditor of the company advised to show the interest income under the head income from other sources as the assessee cannot carry out money lending business without getting it-self registered with RBI as NBFC. Therefore, the assessee on the advice of the auditor started offering interest income under the head income from other sources.

Similarly, the assessee was claiming expenses incurred in relation to such interest income under the head business and profession. As such, there was no income under the head business and profession but the expenses were claimed under the same head. Simultaneously, no expenses were claimed by the assessee against the interest income classified under the head income from other sources.

Secondly, there was loss under the business head and income under the head income from other sources which was set off against each other. This practice was followed by the assessee consistently which was also accepted by the Revenue u/s 143(1) of the Act. There was also no reopening on account of income escaping assessment u/s 147 of the Act.

In view of above, the assessee submitted that the interest income shown by it should be accepted as business income and accordingly, the loss on account of expenses claimed by it under the head business and profession should be adjusted against such business income.

5.4 Without prejudice to the above, the assessee also submitted that setting off losses under the head business and profession against the income computed under the head income from other sources was not inconsistent with the provision of Section 71 of the Act.

5.5 The assessee also submitted that the business activity of it was very much in existence as it has shown purchases of gold and silver bullion worth Rs.83,00,000/- which was lying in stocking trade in its balance sheet as on 31.03.2011. This activity of purchasing gold/silver bullion and showing as stocking trade was not disturbed by the AO in the assessment proceedings.

5.6 The assessee also claimed that if the mistake has been committed by it in the income tax return, then it was the duty of the assessing officer to set right the mistake committed by it. In this regard, the assessee relied on the Circular issued by CBDT No. 14(XL-35), dated 11-4-1955 and the judgment of Jurisdictional High Court in the case of S.R. Koshti vs. CIT reported in 276 ITR 165.

5.7 The assessee also claimed that merely classifying the interest income under the head income from other sources would not change the character of the interest income which is carried out in a systematic manner therefore the interest income should be treated as business and profession. There is direct nexus between the expenditure claimed by the assessee against such interest income therefore the same should be allowed deduction against such income.

5.8 Once, the income of the assessee has been treated as business income then the assessee is also eligible for deduction on account of bad debts amounting to Rs.3,87,793/- out of which a sum of Rs.3,05,642/- was offered to tax in the earlier years. The balance amount of Rs.82,151/- (3,87,793 – 3,05,642) will be allowed as deduction arising in the course of the business.

However, the ld CIT(A) disregarded the contention of the assessee and confirmed the order of the Assessing Officer by holding that it has not carried out any business activity. The relevant extract of the order is reproduced below:

4.3. I have considered the facts of the case, the submissions of the appellant and the AO’s observation. From the submissions made by the appellant, it is an admitted fact that the appellant had itself shown the income earned by way of interest under the head ‘income from other sources’. The reason behind this has also been explained by the appellant itself by stating that since it had been not registered as NBFC with RBI, hence, the interest income earned by it could not be assessed as business income and were to be assessed as income from other sources only. The appellant has relied upon the decisions of the ITAT Ahmedabad in the case of National Housing Finance Corporation Ltd. (supra) to the effect that interest income should still be taxed as business income. But, it is not acceptable in view of the fact that in this case, the assessee had itself offered the income under the head ‘income from business’, but the AO had assessed the interest income as income from other sources. In the present case, the appellant had itself shown the interest income under the head income from other sources and hence, the above mentioned decision is not applicable to the facts of this case.

4.3.1. The appellant’s other contention that since it had purchased gold and silver bullion worth Rs.83,00,000/- during the year and has shown it as stock in trade, hence it should be presumed to be carrying on the business, is also not acceptable in view of the fact that this is a solitary transaction reported by the appellant during this year. Until and unless the appellant does dealing in gold and silver bullion on sustained basis, it cannot be said to carrying out business in these commodities, Thus, it is held that the appellant has not carried out any business activity cluing the FY 2010-11.”

Being aggrieved by the order of ld CIT(A) assessee is in appeal before us.

6. The ld AR before us filed a Paper Book running from pages 1-83 and reiterated the submission as made before the ld CIT(A).

7. On the other hand, ld DR submitted that there was no business activity carried out by the assessee during the year under consideration. The ld DR also argued that the assessee itself has classified interest income under the head income from other sources. Therefore, the same cannot be treated as income under the head business and profession. The ld DR vehemently supported the order of authorities below.

8. We have heard the rival contentions and perused the materials available on record. The assessee in the instant case has shown interest income under the head income from other sources on the advice of the consultant. As such, it was advised to the assessee that it cannot carry out money lending business in a systematic manner without having approval from the RBI as NBFC. Therefore, the assessee classified interest income as income under the head from other sources.

8.1 It is undisputed fact that the assessee has claimed several expenses for running its money lending activity which were classified under the head business and profession. Consequently, there was income under the head income from other sources but there was loss under the head business and profession. Accordingly, the AO held that the assessee is not entitled to claim the set off of the loss shown under the head business and profession against the income from other sources on the ground that there was no business activity. The view taken by the AO was subsequently confirmed by the ld CIT(A).

8.2 From the preceding discussion, we note that certain undisputed facts as detailed under:

i. The assessee up to the A.Y. 2006-07 was showing interest income under the head business and profession which was duly accepted by the revenue either u/s 143(1) or 143(3) of the Act. As such, there was scrutiny assessment u/s 143(3) of the Act pertaining to the A.Y. 2003-04 & 2006-07 where revenue has accepted interest income as income under the head business and profession.

ii. Subsequent to the A.Y. 2006-07, the assessee has changed its method of disclosing the interest income on the advice of the consultant. Accordingly, the assessee classified interest income from other sources and claimed losses under the head business and profession on account of expenses. Accordingly, the assessee up to the A.Y. 2010-11 claimed the set off of business losses against the income from other source which was not disputed by the revenue.

From the above, it is clear that the stand of the assessee was accepted by the revenue in all the years as discussed above either the interest income was accepted as business income or the business loss was allowed to set off against the interest income. There was no material change in the facts and circumstances in the year under consideration. Therefore, in our considered view, the Revenue cannot take a different stand in the subsequent year. In this regard, we find support and guidance from the judgment of Hon’ble Supreme Court in the case of CIT vs. Excel Industries Ltd. reported in 358 ITR 295, wherein it was held as under:

28. Secondly, as noted by the Tribunal, a consistent view has been taken in favour of the assessee on the questions raised, starting with the assessment year 1992-93, that the benefits under the advance licences or under the duty entitlement pass book do not represent the real income of the assessee. Consequently, there is no reason for us to take a different view unless there are very convincing reasons, none of which have been pointed out by the learned counsel for the Revenue.”

8.3 Similarly, we are also of the view that principle of consistency should be applied in the given facts and circumstances as there were no change in comparison to the previous assessment year. In this connection, attention may please be invited to the decision given by the Hon’ble Supreme Court of India in the matter of Radhasoami Satsang v Commissioner of Income Tax reported in 193 ITR 321 (SC) wherein the Hon’ble Supreme Court has inter alia held as under:

“We are aware of the fact that, strictly speaking, res judi cata does not apply to income tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year. On these reasonings, in the absence of any material change justifying the Revenue to take a different view of the matter – and, if there was no change, it was in support of the assessee – we do not think the question should have been reopened and contrary to what had been decided by the Commissioner of Income-tax in the earlier proceedings, a different and contradictory stand should have been taken.

“Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted …”

8.4 In addition to the above, we also note that the assessee has been carrying on the business of money lending in a systematic manner without having the registration with RBI as NBFC. Merely, the fact that the assessee is not registered with RBI AS NBFC, cannot lead to draw an inference that the assessee is not carrying out the business activity. The registration with RBI as NBFC and business activity of the assessee, both are different aspects and cannot be applied for holding that the assessee is not engaged in the business activity. In this regard, we also find support and guidance from the order of ITAT Ahmedabad Benches in the case of International Housing Finance Corporation Ltd. in ITA No.868/Ahd/2004 vide order dated 05.08.2011 wherein it was held as under:

“5. We have carefully considered arguments of both the sides and perused the material placed before us. We find that the AO for assessing the income of the assessee under the head “Income from other sources” has given the following findings:

“The assessee company claims to be engaged in the business of housing finance (refer 18a of Form no. 3CD). However, the Chartered Accountants in his note specifically concluded that the assessee company has not been registered as a housing finance company. The Chartered Accountant has in fact clearly and categorically mentioned that the assessee company is not liable to carry on the business of housing finance. The relevant portion of the Chartered Accountants notes is reproduced below:

“….15. The company has carried on the business in the nature of financing & investments in violation of the norms of National Housing Bank. The Company’s application for registration as registered housing finance has been rejected by National Housing Bank. And hence the company has been prohibited to carry on the business activities and also prohibited from acceptance and renewal of Public Deposit. However, the company is still carrying on the business and has been accepting and renewing deposits in violation of section 29A of National housing Bank.

In view of the above, the assessee company’s claim regarding the business of housing finance does not hold good. The receipts need to be treated as “Income from other sources”. This view is further supported by the fact that the Chartered Accountant himself has concluded that the interest earned on the loans granted in earlier years and the deployment of the same falls as “income from fund management”. The company has also not prescribed to the norms laid down by National Housing Bank Act. The remark of the Chartered Accountants in this regard is reproduced below to highlight the same.

The remarks of the Chartered Accountant and the facts narrated above clearly indicate that the assessee company is not in the business of housing finance. The income received from the advances/loans can only be treated as “Income from other sources”. Accordingly, the receipts of the assessee company for “Income from other sources” are worked out as below:

Income from other sources
(Interest income, Service charges etc.) Rs.62,48,428/-
Less: Direct expenses (interest part) Rs. 15,61,546/-
Income from other sources Rs.46,36,882/-

Thus, an amount of Rs.46,86,882/- is added to the total income of the assessee company as “Income from other sources”. Penalty proceedings u/s.271(1)(c) of the IT Act are initiated separately for furnishing inaccurate particulars of income leading to concealment of income.”

From the above, it is evident that the only reason for the assessing the income under the head “Income from other source” was that the assessee company was not registered as a housing finance company- In our opinion, whether the assessee company is registered as a housing finance company or not is irrelevant for determining whether the assessee is carrying on the business of financing or not. If the assessee is carrying on the business of finance, despite not being registered, as a housing finance company, its income is to be assessed under the head “Income from business”. It is not disputed by the Revenue that the assessee was actually carrying on the business of financing, despite refusal of registration by the NHB. Once the business of finance was carried out by the assessee, it has to be assessed under the head “Income from business”.

We therefore, set aside the order of the authorities below and restore the matter back to the file of the AO. We direct him to assess the assessee’s Income from finance business under the head “Income from business” in accordance with law. Needless to mention that while assessing the income, he will allow adequate opportunity of being heard to the assessee.

6. Since we set aside the order of the AO for assessing the assessee’s income under the head “Income from business”, various grounds raised by the assessee against the disallowance needs no specific adjudication and we direct the AO to consider the allowability of assessee’s claim with regard to the expenditure under the head “Income from business” and determine the income under the head “Profit and Gains of the business” in accordance with law.”

8.5 We also note that if the assessee has made wrong claim in the income tax return that cannot be decided against the assessee. It was the duty of the revenue to set the right the mistakes committed by the assessee. In this regard, we rely on the judgment of Jurisdictional High Court in the case of S.R. Koshti vs. CIT(Supra) wherein, it was held as under:

“The supreme court has observed in numerous decisions, including Ramlal V. Rewa Coalfields Ltd. AIR 1962 SC 361, State of West Bengal v. Administrator, Howrah Munisipality AIR 1972 SC 749 and Babutmal Raichand Oswal v. Laxmibai R. Tarte AIR 1975 SC 1297, that the state authorities should not raise technical pleas if the citizens have a lawful right and the lawful right is being denied to them merely on technical grounds. The state authorities cannot adopt the attitude which private litigates might adopt.”

8.6 We also note that the genuineness of the expenses claimed by the assessee have not been doubted by the authorities below. Moreover, there is no issue regarding the genuineness/reasonableness of the expenses claimed by the assessee arising from the order of authorities below. Therefore, we are not inclined to adjudicate the same.

In view of above, we are of the view that the interest income of the assessee should have been treated as income from business and profession. Therefore, we set aside the order of ld. CIT(A) and direct the AO to treat the interest income of the assessee as income under the head business and profession.

8.7 As we have set aside the order of ld CIT(A) and directed the AO to treat the interest income of the assessee under the head business and profession, the other grounds raised by the assessee in its appeal do not require any separate/specific adjudication. Accordingly, we direct the AO to consider the allowability of the expenses claimed by the assessee under the head business and profession as per the provision of law.

8.8 We also note that the assessee has earned dividend income amounting to Rs. 3597/- only whereas, the CIT(A) has made the disallowance of the expenses in relation to the dividend income amounting to Rs. 1,08,559/- only. It is a settled law that the disallowance of 14A r.w.r 8D cannot exceed the amount of dividend income. In this regard we place our reliance on the order of Mumbai Tribunal in the case of Future Corporate Resources Ltd. Vs. DCIT reported in 167 ITD 33 wherein it was held as under:

“the assessee argued that it had earned meager dividend income of Rs. 24,138 as against which, the AO disallowed a sum of Rs. 3,36,28,000 which is more than the exempt income. The assessee further argued that disallowance u/s 14A cannot exceed amount of exempt income. The assessee relied upon case laws in support of its arguments. We find that the Hon’ble Delhi High Court in the case of Joint Investments (P.) Ltd. (supra) held that the window for disallowance is indicated in section 14A and is only to the extent of disallowing expenditure incurred by the assessee in relation to tax exempt income. This proportion or portion of the tax exempt income surely cannot swallow the entire amount as has happened in this case. We further notice that the Hon’ble Delhi High Court in the case of CIT v. Holcim India (P.) Ltd. [2015] 57 taxmann.com 28 has held that there can be no disallowance u/s 14A in the absence of exempt income. The rationale behind these judgments is that the amount of disallowance cannot exceed exempt income. In this case, on perusal of the facts, we find that the assessee has earned exempt income of Rs. 24,138, whereas the AO disallowed an amount of Rs Rs. 3,36,28,000. Therefore, considering the facts and circumstances of the case and also following the ratios of the case laws discussed above, we are of the view that disallowance u/s 14A cannot exceed the exempt income. Hence, we direct the AO to restrict disallowance u/s 14A to the extent of exempt income earned by the assessee.”

Accordingly we direct the AO to restrict the disallowance u/s 14A r.w.r. 8D of the Act to the extent of Dividend Income. In view of above the ground of appeal of the assessee is partly allowed.

In the result the appeal of the assessee is partly allowed.

Now coming to ITA No.2433/Ahd/2015 for Asst. Year 2011-12:

9. Revenue has raised following grounds of appeal:

“1. On the facts and in the circumstances of the case, and in law, the Ld. C.I.T. (A) erred in holding that balance expenses of Rs. 44,29,921/-are to be allowed as a deduction u/s.57(iii) of the Act in the computation of income of the assessee under the head income from other sources, without appreciating that the assessee has not carried out any business activity and that the assessee did not claim deduction u/s.57(iii) of the Act against income from other sources in the return of income.

2. On the facts and in the circumstances of the case, and in law, the Ld. C.I.T. (A) erred in applying the ratio of Hon’ble Gujarat High Court in the case of Smt. Veermati Ramakrishna 131 ITR 659 (Guj) without appreciating the facts of the present case is distinguishable from the case of Smt. Veermati Ramakrishna in as much as the assessee had claimed deduction u/s. 57(iii) of the Act, whereas in the present case, the assessee did not claim deduction u/s. 57(iii) of the Act against income from other sources in the return of income.”

10. At the time of the hearing, we observe that the tax effect in the appeal filed by the Revenue is less than Rs. 20 lacs. As per the Circular No. 3 of 2018 dated 11/07/2018 issued by CBDT recently all pending appeals filed by Revenue are liable to be dismissed/ withdrawn/ not pressed to reduce the litigation where the tax effect does not exceed the prescribed monetary limit, i.e., Rs.20 Lacs. The relevant extract of the circular is reproduced below:

“2. In supersession of the above Circular, it has been decided by the Board that departmental appeals may be filed on merits before Income Tax Appellate Tribunal and High Courts and SLPs/ appeals before Supreme Court keeping in view the monetary limits and conditions specified below.

3. Henceforth, appeals/ SLPs shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder:

S. No. Appeals/ SLPs in Income-tax matters Monetary Limit (Rs.)
1.  Before Appellate Tribunal 20,00,000
2.  Before High Court 50,00,000
3.  Before Supreme Court 1,00,00,000

The monetary limit for filing the appeals by the Revenue before the Tribunal has been increased to Rs. 20 Lacs. It is also clarified in the said Circular that the said monetary limit is applicable retrospectively even to the appeals pending before the Tribunal. The CBDT has also instructed that such pending appeals below this specified tax limit of Rs.20 lacs may be withdrawn / not pressed.

11. In the case on hand, it was noticed that the tax effect on the disputed issue raised by the Revenue is claimed to be less than Rs.20 Lacs. Therefore appeal of the Revenue is required to be dismissed in limine in terms of the above circular.

12. The ld. DR for the Revenue fairly agreed on the applicability of the CBDT Circular No. 3 of 2018. Accordingly, the appeal of the Revenue is dismissed as not maintainable. However, the Revenue is at the liberty to move the miscellaneous application to recall the order if the tax effect exceeds the threshold limit or the case of the Revenue falls in any of the exception provided in the aforesaid CBDT Circular in any manner. The MA shall be filed within the prescribed time. Hence the appeal of the Revenue is dismissed.

13. In the result, appeal of the assessee is partly allowed and appeal filed by the revenue is dismissed.

Order pronounced in the Court on 2nd November, 2018 at Ahmedabad.

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