2025 (5) TMI 824 - AT - Income Tax

Computing income by taking loss instead of returned loss - whether the loss declared in the ITR should be taken as a base for computing income or the loss worked/determined out/by the auditor appointed by the Revenue? - HELD THAT - Accepting the finding suitable to Revenue by the AO was strongly objected to. In case the loss had to be assessed as per the ITR then the additions/disallowance were required to be made based on the tentative Profit Loss accounts annexed with ITRs. Otherwise the auditor report should be taken as a whole for computing income. Pick and choose should not be done. DR did not able to answer the query raised by the Ld. Counsel. The reliance placed by the Ld. Sr. DR on the decision of the Hon ble Supreme Court in the case of Goetz India Ltd. is of no help as the same is held distinguishable on the facts. We find merit in the argument of the Ld. Counsel on the simple reasoning that the Revenue has to believe the audit report in toto or not as the pick and choose cannot go together. We do not find any infirmity in the finding of the CIT(A). We therefore decline to interfere with the finding of the CIT(A). Thus the ground raised by the Revenue fails. Disallowance of employees contribution in EPF and ECGI under section 36(1)(va) r.w.s.2(24)(x) and 43B - HELD THAT - As following the reasoning given by the Hon ble Supreme Court in the case of Checkmate Services P. Ltd. 2022 (10) TMI 617 - SUPREME COURT uphold the disallowance respectively in case these sums were not paid within the due date including grace period as per the law dealing with the PF fund and Group Insurance. We direct the AO to verify the disallowance again. Disallowance of interest on Government loans/ advances - auditor had pointed out that the assessee had never paid this interest but had claimed it as expenses on a yearly basis - CIT(A) deleted addition - HELD THAT - We are of the considered view that this issue is squarely covered by our decision in the assessee s own case 2025 (3) TMI 33 - ITAT DEHRADUN do not find any infirmity in the finding of the Ld. CIT(A) on this score deleted addition. Disallowance of shortage/shrinkage of stock of petroleum products sold from petrol pumps run by the assessee across Kumaon region of Uttarakhand - AO has disallowed the claim only on the reasoning that the same is more than the permitted limit by the Indian Country Corporation - HELD THAT - No other reasoning was mentioned by the AO while disallowing this claim. The hilly terrain and adverse weather have not been factored out by the AO. The disallowance is adhoc. Similar claims were neither disallowed nor were sustained by the AO/appellate authority including Tribunal in preceding or subsequent years. Therefore we do not find any infirmity in the finding of the Ld. CIT(A). We therefore decline to interfere with the finding of the Ld. CIT(A). Thus this ground raised by the Revenue fails accordingly. Unutilized fund received from the Government since 2006 - HELD THAT - We are unable to understand how the Govt. loan will become income after 10 years. DR has not brought anything on the record to demonstrate that either the nature of the said loan has been changed by the lender; UP Government or the appellant assessee is not required to show the same as liability. Here we not find any material on the record which supports the AO s stand particularly when the same is against the principle of consistency. No contradictory material has been brought on the record to demonstrate that the finding of the Ld. CIT(A) is not justified. We find merit in the finding of the Ld. CIT(A). We therefore decline to interfere with the finding of the Ld. CIT(A). Thus this ground raised by the Revenue fails accordingly. Disallowance of interest on earmarked fund - HELD THAT - The income has to be worked out as per the provisions of the Act. Admittedly the assessee is maintaining its books of accounts on mercantile system. There is no dispute on accrual of the interest. It is revenue in nature. No other expenses relatable to this income is required to be incurred separately after debiting each expenditure in the books of accounts. We therefore set aside the finding of the Ld. CIT(A) on this score. We thus uphold the taxability of the accrued interest Taxability of contract receipt on accrual basis - HELD THAT - After commencement of the project for which the fund is received the same is shown as income in the Profit Loss account. Since this amount was received only as a mobilization advance; therefore the same has not been shown as income. Such receipts have been shown as liability in the balance sheet since decades consistently which the Revenue has accepted in the past. Disturbing the consistent practice will affect the taxability in one year but will give cascading effect in other years which can not be modified/rectified either in the favour of the Revenue or the assessee due to limitation. Alternatively it has been argued by the Counsel that at most the income embedded in such contract receipts can be taxed instead of entire contract receipts. The gross receipts per se cannot be taxed as income. Disallowance of interest u/s 14A - HELD THAT - Since there is no exempt income (income not forming part of taxable income); therefore keeping in view the judicial pronouncements in this regard we decline to interfere with the finding of the Ld. CIT(A). Thus this ground raised by the Revenue fails accordingly.

Summary

1. ISSUES PRESENTED and CONSIDERED

The appeals by the Revenue for Assessment Years 2012-13 and 2013-14 raised the following core legal questions:

(i) Whether the loss declared in the Income Tax Return (ITR) or the loss determined by the auditor appointed by the Revenue should be taken as the base for computing income;

(ii) Whether employees' contributions to Provident Fund (PF) and Employees' Group Insurance (ECGI) should be disallowed under sections 36(1)(va), 2(24)(x), and 43B of the Income Tax Act due to delay in payment;

(iii) Whether interest on Government loans/advances debited to Profit & Loss account but not actually paid should be disallowed;

(iv) Whether shortage/shrinkage of petroleum stock at petrol pumps should be disallowed;

(v) Whether unutilized government funds lying idle for over a decade should be treated as income;

(vi) Whether accrued interest on earmarked government funds should be treated as taxable income;

(vii) Whether contract receipts received as mobilization advances should be taxed on accrual basis;

(viii) Whether disallowance under section 14A of the Act is justified in the absence of exempt income.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (i): Treatment of Loss Declared in ITR vs. Auditor's Loss

The Revenue challenged the acceptance of loss declared in the ITR (- Rs. 76,05,926/-) instead of the greater loss (- Rs. 96,68,009/-) determined by the auditor appointed by the Revenue. The appellant contended that the Assessing Officer (AO) selectively accepted adverse findings from the auditor's report while rejecting favorable findings, which is impermissible. The Revenue's reliance on the Supreme Court decision in Goetz India Ltd. was found distinguishable on facts.

The Tribunal emphasized that the Revenue must either accept the auditor's report in its entirety or reject it; partial acceptance is impermissible. The CIT(A)'s finding in favor of the assessee was upheld, rejecting the Revenue's ground.

Issue (ii): Disallowance of Employees' Contributions to PF and ECGI

The AO disallowed employees' contributions to PF and ECGI aggregating Rs. 76,22,211/- and Rs. 8,26,865/- respectively, on account of delay in payment, invoking sections 36(1)(va), 2(24)(x), and 43B. The Revenue relied on the Supreme Court ruling in Checkmate Services P. Ltd., which upheld disallowance for delayed payment.

The Tribunal agreed with the Revenue's submission, directing the AO to verify the delay and make disallowance accordingly, thereby partially allowing the Revenue's appeal on this issue.

Issue (iii): Disallowance of Interest on Government Loans/Advances

The AO disallowed interest of Rs. 50,50,442/- on government loans, reasoning that the interest was never paid though claimed as expense, and the loan was over 10 years old, predating the creation of Uttarakhand state.

The Tribunal referred to its prior decision in the assessee's own case, which held that under the mercantile system of accounting, interest payable on government loans must be recorded as expense regardless of payment. No evidence was produced to show waiver or conversion of interest-bearing loans to non-interest-bearing or grants. The principle of consistency in accounting was emphasized.

Accordingly, the Tribunal upheld the CIT(A)'s deletion of the disallowance, rejecting the Revenue's ground.

Issue (iv): Disallowance of Stock Shortage/Shrinkage of Petroleum Products

The AO disallowed Rs. 8,88,523/- on account of shortage exceeding the permitted limit by Indian Country Corporation, without considering the hilly terrain and adverse weather conditions. The disallowance was ad hoc, and similar claims were accepted in other years.

The Tribunal found no infirmity in the CIT(A)'s acceptance of the claim, rejecting the Revenue's disallowance.

Issue (v): Taxability of Unutilized Government Funds

The auditor noted unutilized government funds of Rs. 1,57,17,493/- shown as liability since 2006, and the AO taxed Rs. 82,40,612/- lying idle for a decade as income. The assessee explained part of the amount, which was accepted.

The Tribunal held that government loans do not become income merely due to passage of time, absent any change in nature or waiver by the government. The Revenue failed to produce contradictory evidence. The CIT(A)'s finding was upheld, rejecting the Revenue's ground.

Issue (vi): Taxability of Accrued Interest on Earmarked Funds

The assessee received specific government funds held as earmarked liabilities and earned accrued interest of Rs. 65,56,936/-, credited to earmarked fund accounts but not offered as income. The AO sought to tax this accrued interest.

The Tribunal held that under the mercantile system, accrued interest is revenue in nature and taxable even if not utilized, and the assessee's inability to use the funds does not exempt taxability. The CIT(A)'s contrary finding was set aside, and the accrued interest was held taxable.

Issue (vii): Taxability of Contract Receipts on Accrual Basis

The assessee received Rs. 1,32,8,610/- as mobilization advance for contract work, shown as liability until project commencement. The AO contended that under mercantile accounting, the amount should be taxed on accrual.

The Tribunal noted the consistent past practice of showing such receipts as liability and accepted the assessee's submission that only income embedded in the contract receipts can be taxed, not the gross amount. Disturbing this practice would cause cascading tax effects and violate consistency principles. The CIT(A)'s finding in favor of the assessee was upheld.

Issue (viii): Disallowance under Section 14A of the Act

The AO disallowed Rs. 25,16,884/- and Rs. 12,21,032/- under section 14A relating to expenses incurred to earn exempt income. The assessee had no exempt income during the relevant years.

The Tribunal, following judicial precedents, held that in absence of exempt income, such disallowance is not justified, upholding the CIT(A)'s findings.

3. SIGNIFICANT HOLDINGS

On the issue of loss determination, the Tribunal emphasized: "The Revenue has to believe the audit report in toto or not as the pick and choose cannot go together." This principle bars selective acceptance of audit findings.

Regarding delayed payment of employee contributions, the Tribunal upheld disallowance following the Supreme Court's ruling in Checkmate Services P. Ltd., affirming that such delays attract disallowance under sections 36(1)(va), 2(24)(x), and 43B.

On interest disallowance on government loans, the Tribunal held: "The appropriation of the loan here will not determine the allowability of interest expenditure as the AO has not commented on the fact that the appellant's balance-sheet has not have non-interest-bearing fund/surplus." It further stated that absence of waiver or conversion means interest expenses are allowable under mercantile accounting principles.

On taxability of accrued interest on earmarked funds, the Tribunal clarified: "Admittedly, the assessee is maintaining its books of accounts on mercantile system. There is no dispute on accrual of the interest... It is revenue in nature." This establishes that accrued income is taxable even if earmarked.

On contract receipts, the Tribunal recognized the principle of consistency and held that "Disturbing the consistent practice will affect the taxability in one year but will give cascading effect in other years which cannot be modified/rectified."

Finally, on section 14A disallowance, the Tribunal reiterated that in absence of exempt income, such disallowance is unwarranted.

In conclusion, the Tribunal partly allowed the Revenue's appeals, upholding disallowance of delayed employee contributions and accrued interest on earmarked funds, while rejecting other grounds including selective audit report reliance, interest on government loans, stock shortage disallowance, unutilized government funds taxability, contract receipt taxation, and section 14A disallowance.