2018 (4) TMI 497 - AT - Income Tax

Loss claimed on termination of a Hire Purchase Contract with a one Zen Global Finance Ltd. after allowing as bad debts - Held that - In the case of DIA v. Oman International Bank (2009 (2) TMI 54 - BOMBAY HIGH COURT) it has been held that after amendment to section 36(1)(vii) it is neither obligatory nor is there any burden on the assessee to prove that debt written off by him is indeed a bad debt as long as it is bonafide and is based on commercial wisdom or expediency. In the case of CIT v. Star Chemicals (Bombay) Limited (2008 (2) TMI 399 - BOMBAY HIGH COURT) it has been held that if assessee has written off debt as bad debt that would satisfy purpose of section 36(1)(vii). We find that the assessee after receiving payment of Rs. 25 lacs has rightly written off the balance outstanding amount of Rs. 2, 21, 92, 554/- in the books of account in December 2001 as loss on termination of contract. This view is supported by the ratio laid down in the decisions mentioned hereinbefore. Penalty u/s 271(1)(c) - Held that - Order of the Ld. CIT(A) confirming disallowance of depreciation of Rs. 34, 65, 465/- on leased assets has been set aside and the matter has been restored to the file of the AO for a de novo order. It has been held in K. C. Builders v. ACIT (2004 (1) TMI 7 - SUPREME Court) that where the additions made in the assessment order on the basis of which penalty for concealment was levied are deleted there remains no basis at all for levying the penalty for concealment and therefore in such a case no such penalty can survive and the same is liable to be cancelled. Similar is the position in case the order of the CIT(A) is set aside and the matter is restored to the file of the AO.

Summary

Issues Involved:

1. Disallowance of loss on termination of a hire purchase contract.
2. Disallowance of depreciation on leased assets.
3. Penalty under section 271(1)(c) of the Income Tax Act.

Detailed Analysis:

Issue 1: Disallowance of Loss on Termination of Hire Purchase Contract

The Commissioner of Income Tax (Appeals) [CIT(A)] confirmed the disallowance of Rs. 1,79,80,120 out of the total loss of Rs. 2,21,92,554 claimed by the assessee on the termination of a hire purchase contract with Zen Global Finance Ltd. (ZGFL). The assessee had entered into a hire purchase agreement whereby it provided plant and machinery costing Rs. 3,05,63,112 to ZGFL, which defaulted on payments. The assessee sold pledged shares to recover part of the dues and agreed to a settlement of Rs. 25 lacs with ZGFL, writing off the balance as a loss. The Assessing Officer (AO) disallowed the claim, considering it implausible for the assessee to settle for such a low amount and questioned the lack of efforts to recover the assets.

The CIT(A) allowed Rs. 42,12,434 as bad debt but confirmed the disallowance of the remaining Rs. 1,79,80,120, citing insufficient evidence of efforts to retrieve the leased machines. The Tribunal, however, found that the assessee had initiated legal proceedings and accepted the settlement in good faith, supported by the Supreme Court's decision in Dhanrajgirji Raja Narasingirji, which emphasized the assessee's right to decide how best to protect its interests. The Tribunal also referenced the Supreme Court's ruling in TRF Ltd. v. CIT, which stated that post-1989, it is sufficient for bad debt to be written off in the books. Consequently, the Tribunal deleted the disallowance of Rs. 1,79,80,120.

Issue 2: Disallowance of Depreciation on Leased Assets

The assessee claimed depreciation of Rs. 34,65,465 on leased assets, which the AO disallowed based on the assessment order for AY 2001-02, confirmed by the CIT(A). The CIT(A) relied on previous appellate orders and judicial precedents. However, the Tribunal noted that the issue had been set aside in the assessee's own case for AY 1996-97, where the ITAT directed the AO to re-examine the issue afresh, providing the assessee with a proper hearing and considering relevant materials. Following this precedent, the Tribunal set aside the CIT(A)'s order and directed the AO to re-examine the issue for the current assessment year.

Issue 3: Penalty under Section 271(1)(c)

The AO levied a penalty of Rs. 76,61,777 for disallowances including the loss on termination of the hire purchase contract and depreciation on leased assets. The CIT(A) upheld the penalty for the first two items but deleted it for the disallowance under section 14A. The Tribunal, having deleted the disallowance of the loss on termination and set aside the depreciation disallowance for re-examination, referenced the Supreme Court's decision in K.C. Builders v. ACIT, which held that if the basis for penalty is removed, the penalty cannot survive. Accordingly, the Tribunal set aside the penalty related to the disallowances.

Conclusion:

The appeal in ITA No. 6042/Mum/2008 was partly allowed, with the Tribunal deleting the disallowance of the loss on termination of the hire purchase contract and setting aside the disallowance of depreciation for re-examination. The appeal in ITA No. 1898/Mum/2011 was allowed, resulting in the cancellation of the penalty under section 271(1)(c).