2025 (5) TMI 1326 - AT - Income Tax

Disallowance of interest expenses u/s 36(1)(iii) - whether direct nexus established to the investment? - assessee has made non current investment in its subsidiary and it is having borrowed funds on which interest was paid - as submitted by the assessee that the funds were borrowed for the purpose of business and the investment was made in the group concern which was made out of the interest free funds available with the assessee in the shape of equity capital and reserves HELD THAT - In the instant case it is seen that though the AO has made disallowance under section 36(1)(iii) of interest and under section 37(1) towards the management fee for making such investment however both the disallowances were computed in terms of Rule 8D of the Income Tax Rules 1962. The provisions of Rule 8D(2) could only be invoked if the AO is satisfied that the assessee has incurred certain expenses to earn exempt income. It is an accepted position that in the instant case no exempt income is earned by the assessee company thus the action of the AO in computing the amount of disallowances u/s 36(1)(iii) of the Act in terms of the formula provided in Rule 8D(2) of the Rules is patently wrong. As seen that for making disallowance u/s 36(1)(iii) nexus has to establish between the borrowed funds and investment made. In the instant case the assessee has installed wind power plant with the funds borrowed from various financial institutions which had provided the finances in terms of the agreements according to which re-payment must be as per the repayment schedule provided under the agreement and the assessee has no right to make additional payments. Further when the assessee is having interest free funds and also cash reserves which were utilized for making investment in the group companies therefore provisions of section 36(1)(iii) cannot be invoke. As interest was incurred wholly and exclusively for the purpose of business and the Ld.Sr.DR has failed to controvert the findings given by the Ld.CIT(A). Thus we find that no infirmity in the order of the Ld.CIT(A) in deleting the disallowance made u/s 36(1)(iii) and 37(1) - Decided against revenue.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal in these appeals pertain primarily to the disallowance of certain expenses under the Income Tax Act, 1961. The issues are:

(a) Whether the disallowance of interest expenses under section 36(1)(iii) of the Act, made on the basis that the interest-bearing borrowed funds were used for making non-current investments in group concerns, was justified.

(b) Whether the disallowance of interest expenses under section 36(1)(iii) on a proportionate basis, computed by applying Rule 8D(2)(iii) of the Income Tax Rules, 1962, was legally sustainable.

(c) Whether the disallowance of expenses under section 37(1) of the Act, amounting to INR 15 lakhs and related to passive expenditure for making or maintaining investments, was justified.

(d) The applicability of section 14A of the Act and Rule 8D in the context of the assessee's investments and interest expenses, particularly given the absence of exempt income.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a) and (b): Disallowance of Interest Expenses under Section 36(1)(iii) and Application of Rule 8D(2)(iii)

Relevant Legal Framework and Precedents: Section 36(1)(iii) of the Income Tax Act disallows interest expenses on borrowed funds to the extent that such funds are used for making investments not related to the business. Rule 8D(2)(iii) of the Income Tax Rules provides a formula for computing disallowance of interest expenses where exempt income is earned, linking to section 14A of the Act which deals with expenditure incurred to earn exempt income.

Judicial precedents relied upon include the Hon'ble Supreme Court decisions in S.A. Builders Ltd. vs CIT (288 ITR 1), Munjal Sales Corporation Ltd., Hero Cycle (P) Ltd. vs CIT (379 ITR 347), and other High Court and Tribunal decisions which establish that interest disallowance under section 36(1)(iii) requires a clear nexus between borrowed funds and investments not related to business, and that interest free funds available can be presumed to finance non-business investments.

Court's Interpretation and Reasoning: The Assessing Officer (AO) disallowed interest expenses amounting to INR 1,89,40,151/- under section 36(1)(iii) on the ground that borrowed funds were used to make non-current investments in preference shares of a subsidiary company. The AO computed the disallowance by applying Rule 8D(2)(iii) of the Rules, which is linked to section 14A and exempt income.

The Commissioner of Income Tax (Appeals) [CIT(A)] found this approach flawed, noting that Rule 8D(2) can only be invoked if the assessee has incurred expenditure to earn exempt income. Since the assessee did not earn any exempt income, the application of Rule 8D was legally incorrect. The CIT(A) further observed that the assessee had substantial interest free funds (equity capital and reserves totaling over INR 85 crores) and sufficient cash flow, which were used to make the investment in the subsidiary. Hence, the borrowed funds were not directly used for making the investment, and the interest expense was incurred wholly and exclusively for the purpose of business, i.e., for financing the wind power plant operations.

The CIT(A) relied on the Supreme Court's ruling in S.A. Builders Ltd., which held that where funds are borrowed for business purposes and investments are made out of interest free funds, disallowance under section 36(1)(iii) is not warranted. The Tribunal concurred with this reasoning and upheld the CIT(A)'s deletion of the disallowance.

Key Evidence and Findings: The assessee's financial statements showed a large corpus of interest free funds and cash reserves. The loans were taken specifically for the installation of a 45 MW wind power plant, and the investment in the subsidiary was made from internal funds. The AO failed to establish a direct nexus between the borrowed funds and the investment.

Application of Law to Facts: The Tribunal found that the AO erred in applying Rule 8D and section 14A principles where no exempt income existed. The borrowed funds were used for business assets, and investments were made from interest free funds, making the interest expense allowable under section 36(1)(iii).

Treatment of Competing Arguments: The Revenue argued that the investment was large (INR 60 crores), and since interest was paid on borrowed funds, disallowance was justified. The assessee countered that the investment was from interest free funds, supported by cash flow and equity capital, and that the interest expense was wholly and exclusively for business purposes. The Tribunal accepted the assessee's arguments and rejected the Revenue's contentions.

Conclusion: The disallowance of interest expenses under section 36(1)(iii) and the computation of such disallowance using Rule 8D(2)(iii) were held to be unjustified and deleted.

Issue (c): Disallowance of Expenses under Section 37(1)

Relevant Legal Framework and Precedents: Section 37(1) allows deduction of any expenditure incurred wholly and exclusively for business purposes, unless specifically disallowed. The AO disallowed INR 15 lakhs as passive expenditure related to making or maintaining investments, computed by applying Rule 8D(2)(iii).

Court's Interpretation and Reasoning: The CIT(A) noted that the AO wrongly invoked Rule 8D, which pertains to section 14A and exempt income, to compute disallowance under section 37(1). The CIT(A) observed that making or maintaining investments does not automatically attract disallowance under section 37(1), particularly where no exempt income is earned and the investment is not capable of earning exempt income (e.g., dividend).

Key Evidence and Findings: The assessee's submissions clarified that no dividend or exempt income was earned or expected from the investments. The disallowance was therefore not justified.

Application of Law to Facts: The Tribunal agreed that the disallowance under section 37(1) was wrongly computed by applying Rule 8D and was not sustainable.

Treatment of Competing Arguments: The Revenue did not provide specific counterarguments on this point beyond the AO's original order. The Tribunal relied on the CIT(A)'s detailed reasoning and the absence of exempt income.

Conclusion: The disallowance of INR 15 lakhs under section 37(1) was deleted.

Issue (d): Applicability of Section 14A and Rule 8D

Relevant Legal Framework and Precedents: Section 14A read with Rule 8D is applicable when an assessee incurs expenditure to earn exempt income. The Supreme Court in CIT, Mumbai vs Walfort Share & Stock Brokers P. Ltd. and the Delhi High Court in Cheminvest Limited vs CIT have held that section 14A and Rule 8D are not applicable where no exempt income is earned.

Court's Interpretation and Reasoning: The AO's invocation of Rule 8D to compute disallowance under sections 36(1)(iii) and 37(1) was found to be legally incorrect in the absence of exempt income. The Tribunal upheld the CIT(A)'s finding that section 14A and Rule 8D are not applicable in this case.

Key Evidence and Findings: The assessee did not earn any exempt income during the relevant years.

Application of Law to Facts: The Tribunal applied the principles from the cited precedents to conclude that section 14A and Rule 8D could not be invoked.

Conclusion: The disallowance computed under Rule 8D was invalid and rightly deleted.

3. SIGNIFICANT HOLDINGS

The Tribunal's crucial legal reasoning is encapsulated in the following verbatim excerpt from the CIT(A)'s order (para 6.2):

"The AO made the disallowance u/s 36 & 37 of the Act but computed the value of disallowance using the methodology provided in Rule 8D of the IT Rules. It is worth to note that Rule 8D is associated with section 14A, thus applying the same to compute disallowance u/s 36(1)(iii) & 37 is totally inconceivable, unjustified and bad in law. For the sake of argument, if it is presumed that an addition was attracted, if otherwise sustainable in the eyes of law, the same could be only made with regard to direct expenses (interest expense in this case) which is directly relatable to be incurred not for the business purpose."

"The appellant company has borrowed funds for business as it has invested in a fellow subsidiary of the associated company conducting similar business and therefore interest is allowable as business expenditure."

"Since the appellant company has sufficient interest free fund, the presumption would be that investment is from interest free part of its composite kitty."

"In view of that facts of this case and the decisions relied upon by the appellant, I am of the view that the addition made by the AO on account of disallowance of interest amounting to Rs. 1,89,40,151/- is unjustified as the same is allowable business expenditure."

"Similarly, as regards disallowance of Rs. 15,00,000/- u/s 37(1), as discussed above, the same has been wrongly worked out by applying formula given in Rule 8D(2)(iii) thus by mixing up Rule 8D and Section 37 of the Act."

"Hence, the addition of Rs. 2,04,40,151/- which consists of Rs. 1,89,40,151/-on account of disallowance of interest and Rs. 15,00,000/- on account of passive expenditure for making or maintaining of investment made by the AO u/s 36(1)(iii) and u/s 37(1) of the Act respectively is bad in law and is therefore deleted."

Core principles established include:

- Disallowance of interest under section 36(1)(iii) requires a direct nexus between borrowed funds and non-business investments; mere investment in group concerns does not suffice if interest free funds are available and used for such investment.

- Rule 8D and section 14A are applicable only when exempt income is earned; their invocation in absence of exempt income is legally impermissible.

- Disallowance under section 37(1) cannot be computed by applying Rule 8D; passive expenditure related to investment maintenance is not automatically disallowable.

Final determinations on each issue were that the disallowances under sections 36(1)(iii) and 37(1), computed using Rule 8D and linked to section 14A, were unsustainable and rightly deleted by the CIT(A) and upheld by the Tribunal. The Revenue's appeals were dismissed for both assessment years 2015-16 and 2016-17.