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2009 (8) TMI 121

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..... . However, on appear to the CIT(A), the CIT(A) found that for the very same reason he passed for the asst. yr. 1999-2000, he deleted the addition. As the interest has not been fixed by the Government, therefore the actual interest amount that would be receivable from M/s Kerala Ceramics Ltd. was not quantifiable. Under the above circumstances, he was of the view that there was no incidence of interest income on loans. 4. On consideration of the rival submissions, we are of the view that on identical set of facts, the Cochin Bench of the Tribunal in the case of Kerala Minerals & Metals Ltd., particularly the Department appeal in ITA No. 708/Coch/2007, for the asst. yr. 2004-05, relied on the decision of Hon ble Supreme Court, in the case of CIT vs. Sarabhai Holdings (P) Ltd. (2008) 219 CTR (SC) 644 : (2008) 14 DTR (SC) 137 : (2008) 307 ITR 89 (SC) wherein it was held that interest for the asst. yr. 1979-80 had already been accrued- to the assessee and it cannot be wiped out later on by passing the resolution dt. 30th June, 1978 as observed in the Sarabhai Holding s case. Therefore, it is clearly applicable to the case present before us which is against the assessee and in favour .....

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..... ping assessment also, the AO has no case that there was any stipulation attached to the advance given by the assessee-company to M/s Kerala Ceramics Ltd. At the time of hearing it was made clear by the learned chartered accountant that the advance amount has been repaid by M/s Kerala Ceramics Ltd. without any interest. 7. The crucial point to be borne in mind is that on the last day of the previous year under reference, i.e., on 31st March, 1992, no condition or stipulation existed in the matter of interest relating to the advance of Rs. 124 lakhs. The question whether interest was to be levied at all or not, was yet to be decided by the Kerala Government. 8. In such circumstances, in the previous year relevant to the assessment year under appeal, no income by way of interest could be recognized. in the hands of the assessee-company attributable to the advance amount of Rs. 124 lakhs given to M/s Kerala Ceramics Ltd. Later on, it has been turned up that the advance as such was interest free. Anyhow, that post facto event need not influence the adjudication of the present case. What is to be looked into is whether any income by way of interest has accrued to the assessee as on 31st .....

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..... acts of that case are dramatically different from the present case under consideration. In para 13 reflected in p. 9 of the said common order of the Tribunal, there is a specific finding to the effect that interest rate mentioned in the agreement is at 13 per cent . In the above-mentioned case, there was a stipulation for payment of interest at 13 per cent. The decision to waive the said interest was taken only after the close of the previous year. It is in that context the Tribunal held, relying on the judgment of the Hon ble Supreme Court in the case of CIT vs. Sarabhai Holdings (P) Ltd. that the interest accrued till the last day of the previous year cannot be undone by a subsequent resolution waiving the levy of interest. The working result of an assessee is computed on closure of a particular previous year, on a particular date. What is important is the events that occurred during that particular previous year and not the events happened after the closure of the particular previous year. In that framework of the facts of that case, the Tribunal followed the judgment of the Supreme Court in the case of CIT vs. Sarabhai Holdings (P) Ltd. and held that the AO was justified in mak .....

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..... ate of commission in such a way as to make the income, which really accrued, to the assessee different from what had been entered in the books of account. That was not a case of a gift by the assessee to the managed companies but a portion of income, which had already accrued, but reduced further. The Court held that the assessee had in fact received only lesser amount in spite of the entries in the account books, and that lesser amount alone was taxable. The Court further observed that if income does not result at all, there cannot be a tax, even though in book-keeping, an entry is made about a hypothetical income , which does not materialize. While dealing in the above propos1tion, the Court observed that where income has, in fact, been received and is subsequently given up, in such circumstances it remains the income of the recipient, even though given up, the tax may be payable. The said observation by way of an obiter, alone supports-the proposition made out by the Revenue. But the Court was examining entirely another issue arid the Court has considered all the propositions now canvassed by the assessee. In the above case, the Court has held that where, however, the income can .....

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..... bunal: Whether on the facts and in the circumstances of the case, the AO is right in law to estimate an income of Rs. 18,60,000 by way of notional interest in the context of advance of Rs. 124 lakhs given by the assessee company to M/s Kerala Ceramics Ltd.? VIMAL GANDHI, PRESIDENT (AS THIRD MEMBER): 14th Aug., 2009 On account of difference of opinion between the learned Members of Tribunal, Cochin Bench, the following question has been referred to me: Whether on the facts and in the circumstances of the case, the AO is right in law to estimate an income of Rs. 18,60,000 by way of notional interest in the context of advance of Rs. 124 lakhs given by the assessee company to M/s Kerala Ceramics Ltd.? 2. The facts leading to the controversy are that assessee, owned by the Government of Kerala, had advanced Rs. 124 lakhs to M/s Kerala Ceramics Ltd., another Government company, on such terms and conditions which were to be decided by the Government of Kerala. The AO during the course of assessment proceedings of the assessee for asst. yr. 1992-93 found that no interest was charged on the above advance. He further noticed that there was no waiver of interest and accordingly held that the .....

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..... reckoned after recording a finding of fact whether income is to be recognized or not. In the present case, as already made clear, there was no stipulation regarding the payment of interest and no such stipulation was made till the close of the relevant previous year. So long as the parties do not agree upon such a condition, there is no occasion for anybody, to presume any income on a hypothetical basis. 5. The learned AM then examined the facts, which showed that no income was generated during the relevant previous year. The decision of the Hon ble apex Court in the case of Sarabhai Holdings (P) Ltd. relied upon by the learned JM was also distinguished. It was a case of subsequent waiver of interest, which had already accrued as per the agreement between the parties. So the decision relied upon by the learned JM was distinguished. The learned AM concurred with the view taken by the learned CIT(A). 6. On account of the above difference, the matter has been referred to me. I have heard both sides. The facts recorded in the proposed orders are not in dispute. I entirely agree that unless and until the terms and conditions of advance are known and agreed between the parties or throug .....

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