TaxTMI 
TaxTMI 
2024 (4) TMI 15
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....6 for the A.Ys. 1998-99, 1999-2000 and 2000-01 in the assessee's own case, dated 09.06.2023, wherein the order of the Hon'ble ITAT, Hyderabad has been upheld, in setting aside the issue of claim of bad debts to the file of the Assessing Officer for verification. 2.1 The learned CIT(A) failed to appreciate and follow the decision of the Hon'ble ITAT Hyderabad in ITA No. 500/Hyd/99 (A.Y. 1995-96), ITA No.294/Hyd/ 2001 (A.Y. 1997-98), ITA No. 471/Hyd/2002 (A.Y. 1998-99) and ITA No. 1049/Hyd/ 2002 (A.Y. 1999-2000) dated 26.07.2004 in the assessee's own case, wherein it was held that bad debts in respect of subscriptions defaulted by the prized subscribers can be claimed only to the extent of the funds introduced by the Foreman and that the subscriptions that is becoming bad in future point of time cannot be held to have become bad in the current year and hence bad debts can be allowed only to the extent of the funds put in by the Foreman during the year. 3. The ld. CIT(A) has erred in directing the AO to recompute the disallowance under section 14A without following the law contained in Explanation to Section 14A and to compute the amount of expenditur....
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....the previous year relevant for the assessment year 2015-16. Out of this, bad debts amounting to Rs..32,78,21,398/- pertain to the running chits and the balance bad debts of Rs..31,06,58,541/- pertain to the terminated chits. For and from the Asst. Year 1989-90 the conditions required for allowance of a bad debt under section 36(1) (vii) r.w.s. 36(2) of the Act are as under: (i) It must be a proper debt or a part there of (ii) It must be of revenue nature, Contra-distinguished from capital nature (iii) It must be written off as irrecoverable in the accounts of the assessee for the previous year. (v) (a) it must be taken into account in computing the income of the assessee of the previous year in which the amount of such debt or part thereof is written off or of an earlier previous year or (b) it must represent moneys lent in the ordinary course of business of banking or money lending which is carried on by the assessee. In order to claim a bad debt under section 36(1) (vii) of the Act, the assessee has to satisfy all the four conditions mentioned above, Otherwise, the assessee is not entitled to claim a bad debt under section 36(1) (vi....
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....tion. When these facts enunciated by Hon'ble Supreme Court were put forth before assessee, he contended that "the Supreme Court decision dealt with only the Constitutional validity of the central enactment on the Chit Funds Act and is not relevant to the issue. In the said case the Supreme Court was considering whether the parliament had power to legislate in respect of chit contracts under the concurrent list. It held that the pith and substance thereof is to be examined to determine whether it falls within the legislative competence of any particular legislature. It is further well settled that even if such legislation incidentally affects or deals with other aspects, its constitutionality have to be upheld on the principle of pith and substance. In the said decision, the Hon'ble Supreme Court has held that the relationship between the foreman as the organizer of the chit and the members of the chit fund were not that of the borrower and lender and that When a person joins the chit and agrees to make subscription in future, no debt is created against him in favour of the foreman or any other person. It held that even in the case of a prized subscriber who is required to make ....
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....f. The decision whether the debt has become bad or not has to be viewed dispassionately. The fact that the assessee had not taken steps by way of legal proceedings against the debtor would not automatically justify the finding that he would not be entitled to write off the amount as a bad debt. Honesty of the assessee is relevant. What is required to be seen is whether a bonafide assessment has been made by the assessee to the effect that realisation of the debt is not possible. Revenue cannot insist on any demonstrable and infallible proof that the debt has become bad debt. For the assessment years 1995-96 and 1997-98, the view taken by the first appellate authority was affirmed and Revenue's appeals on the issue of bad debts were dismissed. 18.1. Thus, the view taken by the Tribunal was that bad debts could be allowed to the extent of the instalments defaulted by the prized subscriber and written off as bad debt in the books by the assessee. But for the future instalments that are likely and yet to be defaulted no claim can be allowed. However, Tribunal was of the view that full facts and figures were not available and therefore, the matter was remanded back to the f....
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.... on its business. ......... 27. We are in respectful agreement with the view expressed by the Madras High Court as extracted supra. Therefore, we have no hesitation in answering this issue in favour of the assessee. 28. The last issue is that of the claim relating to commission on removed chits. Tribunal decided this issue in favour of the assessee. This was what the Tribunal held: 6.3. Tine of recognition of income from Commission on cancelled chits: This issue is involved in the assessee's appeals for assessment years 1998-99 and 1999-2000. The dispute is about time of accrual of the income by way of commission in respect of cases where defaulting non-prized subscribers who are removed from the chit and in whose place new subscribers are substituted. On a careful consideration of the issue, we find that from out of the amount that is payable to the defaulting subscriber consequent to his replacement by another person the company is entitled to deduct 9% as commission. This has nothing to do with the regular commission income of the assessee. Thus the stand of the assessee that the commission income accrues when the accounts have been finall....
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....ted chits, commission on cancelled chits, and royalty are allowed. The AO is directed to delete the additions made on these counts. 7. Aggrieved, the Revenue is in appeal before the Tribunal for the assessment years under consideration. 7.1 The ld. DR has submitted that the Hyderabad Benches of the Tribunal has held that bad debts in respect of subscriptions defaulted by the prized subscribers can be claimed only to the extent of the funds introduced by the Foreman and that the subscriptions that is becoming bad in future point of time cannot be held to have become bad in the current year and hence bad debts can be allowed only to the extent of the funds put in by the Foreman during the year and pleaded that the said order of the Hyderabad Benches may be followed. 8. On the other hand, the ld. Counsel for the assessee has submitted that by following the decision of the Hon'ble High Court of Hyderabad, Telangana in assessee's own case, the ld. CIT(A) has decided the issue in favour of the assessee and prayed following the same. 9. We have heard both the sides, perused the materials available on record and gone through the orders of authorities below including paper book ....
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....the Hon'ble Madras High Court in the case of Angammal v. R.Sankaranarayanan (AIR 1989 Madras 53) was referred to. In its judgment in the case of Shriram Chits & Investments (P) Limited v. Union of India & others (AIR 1993 SC 2063) the Hon'ble Supreme Court was considering the constitutional validity of an enactment and had no occasion to consider the relationship which arises between foreman and the prized subscriber when he defaults. The jurisdictional High Court judgment in straight on this point. 6.6 (ii) Whatever may be the interpretation placed by Courts on this issue, the CBDT has placed its interpretation on the issue. 6.6 (iii) The instructions issued by the Central Board of Direct Taxes vide Instruction No.1175 under Order F.No.21/78-IT (80) dated 16th May, 1978 read as under: "(a) If any person organizes Chit Funds and for this purpose brings the members together, administers the Chit Funds and thereby earns commission etc. profits made by such a person is income from business and if for any special reason there is loss then it is business loss. Normally, there should be no loss to the organiser unless he takes over the liability of some of the ....
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....tive of such circulars is to adopt a uniform practice and to inform the trade as to how a particular product will be treated for the purposes of excise duty. It does not lie in the mouth of the Revenue to repudiate a circular issued by the Board on the basis that it is inconsistent with a statutory provision. Consistency and discipline are of far greater importance than the winning or losing of court proceedings." 6.6 (v) The binding nature of the circular issued by the Board of Direct Taxes on the Revenue officials need not be reiterated. As the Central Board of Direct Taxes has placed its interpretation on the issue, the same has to be necessarily applied by all the income tax authorities though the interpretations may have otherwise been made by the courts and this proposition is laid down by the Hon'ble Supreme Court in the case of Collector of Central Excise v. Dhiren Chemical Industries (259 ITR 554 at 557) wherein it is held as follows: "We need to make it clear that regardless of interpretation that we have placed on the said phrase, if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretat....
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....o conceal taxable income or that this is a device for evasion of payment of tax. Only the legality of the claim under Section 36(1)(vii) and point of time of the claim are being disputed by the Revenue on the ground that this would lead to postponement of tax due to the government. Based on the foregoing discussion, we uphold the claim of the assessee and hold that the Revenue should follow the CBDT circular and take a view that the claim of the assessee is maintainable as bad debt. 17.2. Thus, Tribunal followed the decision of the jurisdictional High Court in the case of Goverdhan Upadhyan v. Aekelle Kameswar Rao 1996 (4) ALT 1. Thereafter, Tribunal referred to and followed instruction No.1175 dated 16.05.1978 issued by the CBDT which was later on clarified by the CBDT itself on 25.03.1992. As per the instructions of CBDT, if any person organised chit funds and brings the members together, administers the chit funds and thereby earns commission etc., profits made by such a person is income from business and if for any special reason, there is loss then it is business loss. Normally, there should be no loss to the organiser unless it takes over the liability of some of the....
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....which the debt had become bad debt. 17.4. With regard to the case of assessee, Tribunal noted that for the assessment years 1995-96 and 1997-98, the claim for bad debt was allowed by the first appellate authority ie., CIT(A) against which Revenue was in appeal. Tribunal did not find any infirmity in the orders of the first appellate authority as the assessee had given details of the claim which were examined by the assessing officer. Being a voluntary payment in discharge of a legal obligation, assessee would be entitled to have the amount deducted as a bad debt in the year of write off. The decision whether the debt has become bad or not has to be viewed dispassionately. The fact that the assessee had not taken steps by way of legal proceedings against the debtor would not automatically justify the finding that he would not be entitled to write off the amount as a bad debt. Honesty of the assessee is relevant. What is required to be seen is whether a bonafide assessment has been made by the assessee to the effect that realisation of the debt is not possible. Revenue cannot insist on any demonstrable and infallible proof that the debt has become bad debt. For the assessmen....
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....ach one of them contributes Rs.100 per month for 24 months and in the 2nd month of the chit one subscriber bids and takes Rs.2400 - the loss of Rs.960 - commission @ 5% Rs.120 i.e. Rs.1,320/- and defaults for four consequent months and there is no other defaulter, the money put in by the foreman is Rs.400 against Rs.1,320/- due from the defaulting subscriber. So against Rs.400 put in by the foreman due to legal requirements, at the end of 4 months, he is not entitled to write off Rs.1,320/- and claim the same as a bad debt. This is not permissible. In other words, the foreman in this case would be writing off a future possible liability of Rs.920 that may or may not arise. A loss may be claimed without bringing in funds. This factor is also explained in the Technical Guide on Accounting and Auditing for Chit Fund Business published by the Research Committee of the Institute of Chartered Accountants of India, New Delhi which at page 19 under the head Accounting Standard (AS) 4, Contingencies and Events occurring after the Balance Sheet date at para 3.11 and 3.12 read as follows: "3.11. In a Chit Fund Business, it is possible that some prized subscribers may not pay their in....
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....ticky and to the extent he has taken an honest decision for writing off the same in his books. In other words, bad debts can be allowed to the extent of the instalments defaulted by the prized subscriber, and written off as bad debt in the books by the assessee. But for the future instalments that are likely and yet to be defaulted, no claim can be allowed. The assessing officer cannot replace the judgment of the businessman. The facts that the assessee has written off as bad debt when prized subscribers defaulted for four consecutive months does not to our mind affect his claim as this is based on past experience of the assessee in his business and is in tune with the current RBI norms for NBFCs as well as for banking companies. These decisions have become a prudential norm in the financial sector. Thus there is nothing wrong in adopting this guideline or policy. 6.6 (xxi) We have to mention that this issue has not come up during the course of arguments of the case. If the assessee has made the claim as indicated above, no prejudice would be caused to him by setting aside the matter. Similarly no prejudice would be caused to revenue on this count as it can examine the cla....
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....the amount of any debt or part thereof which was established to have become a bad debt in the previous year was an allowable deduction while computing the income in terms of Section 28 of the Act. However, this was subject to sub- section (2) of Section 36. After the amendment, the requirement of establishing a debt as a bad debt has been done away with. Whereafter, the amount of any bad debt or part thereof, which is written off as irrecoverable in the accounts of the assessee for the previous year became an allowable exemption. 19.2. This provision, pre and post amendment with effect from 01.04.1989 was considered by the Supreme Court in TRF Limited (supra). Whereafter, it was held that after 01.04.1989 it is not necessary for the assessee to establish that the debt in fact has become irrecoverable. It is enough if the bad debt is written off as irrecoverable in the accounts of the assessee. 20. Before we proceed further it would be apposite to advert to sub-section (2) of Section 36 and Section 37 of the Act. 20.1. As per sub-section (2) of Section 36, in making any deduction for a bad debt or a part thereof, the provisions contained therein shall be a....
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....e of a grant of a loan to him from the common fund in the hands of the foreman, with the concessional facility of effecting repayment in instalments; this is subject to the stipulation that the concession is liable to be withdrawn in the event of default being committed in payment of any of the instalments. The chit subscriber at the time of subscription, incurs a debt which is payable in instalments. If a subscriber is permitted to withdraw the collected sum on his turn, without being bound to pay the future instalments, it would jeopardise the interest of all other subscribers, and the entire mechanism of the chit fund system would collapse. 11. A perusal of the provisions of Chapter V of the 1982 Act makes it clear that if a prized subscriber defaults in making payment of an instalment, the chit foreman has the right to recover the amount covering all future subscriptions from the defaulting subscriber as a consolidated amount. Section 32 of the 1982 Act empowers the foreman to recover the consolidated payment of all future subscriptions forthwith in the case of a default. Chapter V of the Chit Funds Act, 1982 prescribes the rights and duties of prized subscribers. Sect....
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....the payment under sub-section (2). (4) All consolidated payments of future subscriptions realised by a foreman shall be deposited by him in an approved bank mentioned in the chit agreement before the date of the succeeding instalment and the amount so deposited shall not be withdrawn except for payment of future subscriptions. (5) Where any property is obtained as security in lieu of the consolidated payment of future subscriptions, it shall remain as security for the due payment of future subscriptions." (emphasis supplied) 12. The object is to empower the foreman to recover the amount in a lump sum from a defaulting subscriber, so as to secure the interest of the other subscribers, and ensure smooth functioning of the chit fund. Such a provision would not amount to a penalty. 13. The relationship between the foreman and the subscribers in a chit fund transaction is of such a nature that there is a necessity and justification for making stringent provisions to safeguard the interest of the other subscribers, and the foreman. If a prized subscriber defaults in payment of his subscriptions, the foreman will be obliged to obtain the equivalent a....
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....ken into account in computing the income of the assessee of the previous year in which the amount of such debt or part thereof is written off or of an earlier previous year", or represents money lent in the ordinary course of the business of banking or money-lending which is carried on by the assessee; (iv) The assessee is obliged to prove to the AO that the case satisfies the ingredients of Section 36(1)(vii) as well as Section 36(2) of the Act. 23.1. However, Supreme Court has clarified that even if a claim for deduction under Section 36(1) is not allowed, the possibility of its exclusion under Section 37 cannot be ruled out in as much as the heads of expenditure that can be claimed as deduction are not exhaustive, that being the precise reason for existence of Section 37. Therefore, in a given case, even if the expenditure relates to business and the claim for its treatment under other provisions are unsuccessful, application of Section 37 is per se not excluded. 24. After a thorough consideration, we are of the view that decision of the Supreme Court in Khyati Realtors Private Limited (supra) does not really undermine or render the decision of the Tri....
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....me Court held that royalty paid for use of technical information or knowhow would be in the nature of revenue expenditure as no enduring benefit is acquired thereby. Supreme Court held as follows: 19. If the aforesaid factors are taken in isolation, probably the claim of the assessee may be justified. Distinction between capital and revenue expenditure with reference to acquisition of technical information and knowhow has been spelled out by this Court [Ed.: A few such cases are CIT v. Wavin (I) Ltd., (1998) 8 SCC 585; Jonas Woodhead & Sons Ltd. v. CIT, (1997) 10 SCC 119; and Alembic Chemical Works Co. Ltd. v. CIT, (1989) 3 SCC 329 (Alembic case discussed below).] as well as the High Courts in series of cases. Primary test which is adopted to differentiate between capital and revenue expenditure remains the same, namely, the enduring nature test. It means where the expenditure is incurred which gives enduring benefit, it will be treated as capital expenditure. In contradistinction to the cases where expenditure of concurrent and reoccurring nature is incurred and the latter would belong to revenue field. Technical information and know-how are intangible. They have differen....
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....cally, it by itself does not guarantee the renewal. Similarly, the parent company is always at liberty to not only cancel the license, but also grants such rights to any other organization. Further, the findings of the Apex Court in the above judgment that when the intellectual property right is not transferred, but permitted to be utilized for a particular period, would have to be treated as revenue expenditure, on application to the facts of this case, tilts the balance in favour of the assesses. Every expenditure incurred to acquire some right over intangible asset, cannot be ipso facto termed as capital expenditure. The nature of the assets, right, information or technical know-how that is transferred, must be such that without which the transferee could never commence the business. As rightly contented by the learned senior counsel appearing for the assessees, the benefit granted by the licensor is not enduring in nature in the present case. The assessing officer without appreciating the terms of the licence agreement and ascertaining the nature of the expenditure incurred by the assessee companies, disallowed the deduction of royalty payment and allowed the depreciation at 25....
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....d and had nothing to do with the type of additional commission receivable in case of substitution of a subscriber as in this case. The nature of income in both these cases are different. The further commission of 5% receivable from a defaulting subscriber consequent to his removal and substitution on a full and final settlement of a defaulting subscriber account is recognized as income on the finalization of the issues. This is not an unacceptable proposition. We agree with the submission of the learned counsel for the assessee, which are at para 4.11 of this order. In the result, this ground of appeal of the assessee is allowed. 28.1. Thus, according to the Tribunal, from out of the amount that is payable to the defaulting subscriber, subscription to his replacement by another person, the assessee is entitled to deduct 5% as commission. This commission amount has got nothing to do with the regular commission income of the assessee. Stand of the assessee that the commission income accrues when the accounts have been finally settled with the defaulting non-subscriber is the correct position. 29. We are in agreement with the view expressed by the Tribunal on this is....
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....ct has to be implemented and acted upon between the parties to the contract and that it could not be treated as a money lending business. The agreement entered into as per Section 6 provides for distribution of the chit amount. The foreman brings the subscribers together. The Act provides for payment of commission for the services rendered by the foreman and the foreman does not lend any money belonging to him. The foreman is responsible for regular collection of subscriptions from a widely scattered body of members. He has to conduct the draws or the auction and maintain accounts. He is under obligation to pay the prize amount on the due date whether or not all the members have paid their subscriptions. In case of defaults, he had often to make good the deficit out of his own resources. If the prized member defaults in his instalments, litigation follows to recover the amount. If the defaulter is a non-prized member, the foreman has to find out a suitable substitute or, in the alternative, has to take over the chit himself and continue the business. Noting the obligation of the foreman, the Apex Court pointed out, that the dominant purpose of the Act being to regulate the chit, co....
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.... the liabilities as relatable to non-prized subscribers. The assets side also contains receipt of interest and such other amount which can be transferred to fall under the caption of assets. In terms of the provisions thus prescribed in Section 24, the balance sheet and profit and loss account clearly showed the amount intimated by the company as against the default committed by the chit holders and the balance sheet was also audited by the Chartered Accountant qualified to act as Auditor under the Companies Act. In the context of the payment thus made, the question that arises herein is as to whether the activity of the assessee could be termed as falling under the status of a creditor that on the debt amount advanced, the same could be characterised as a debt for the purpose of treating it under Section 36(2) of the Chit Funds Act. 13. It is a settled position of law as held in [2010] 323 ITR 397 (SC) (TRF Limited vs. Commissioner of Income Tax) that after the amendment to Section 36(1)(vii) of the Income Tax Act, with effect from 01.04.1989, it is not necessary for an assessee to establish that the debt, in fact, has become irrecoverable and that it is enough if the bad....
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....II)/HO/Proposal under section 263/91-92/4101, dated November 15, 1991 on the above mentioned subject. 2. The issues raised by you have been carefully examined by the Board. In this regard, I am directed to say, that Board are of the view that Instruction No.1175 issued in consultation with M.O.L. cannot be withdrawn on the basis of decision of Punjab & Haryana High Court in case of soda Silicate & Chemical Works (supra). The Board's Instruction stands. 3. Regarding proceedings under Section 263 pending before the Commissioner of Income-tax Delhi-II, New Delhi, Board cannot issue any directions. Thanking you, Yours faithfully sd/- Under Secretary of the Government of India 16. Having regard to the specific observation of treating the unrecovered amount of the subscriber and the debts as bad debts, the Tribunal allowed the case of the assessee that the claim was to be construed as a bad debt, allowable as deduction under Section 36. In the background of the above facts, although we are inclined to dismiss the Revenue's appeal, the decision taken by the Commissioner of Income Tax (Appeals) in respect of the above-said claim merits t....
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.... Revenue's appeal, it clearly pointed out that it confirmed the view of the Commissioner of Income Tax (Appeals) as stated above that the claim is allowable not only as a bad debt, but could also be considered as a case of business loss under Section 28. The question raised before this Court thus is relatable to one part of the Tribunal's order as to whether the defaulted amount paid by the assessee could be treated as a bad debt. 19. It is not denied by the Revenue that the payment made in the course of the business had resulted in a loss of the chit amount which is also allowable under Section 28. Given the above-said fact, we have no hesitation in rejecting the Revenue's appeal on this question. 20. Learned counsel appearing for the Revenue brought to our attention the decision of the Bombay High Court dated 28.02.2012 in T.C.No.89 of 2011, wherein, the Bombay High Court had an occasion to consider the money paid by the stock broker on the default committed by its client. The Bombay High Court held that the liability to pay the brokerage may arise at a point of time anterior to the liability to pay the value of the shares transacted. Nevertheless, i....
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....nches of the Tribunal, vide its order in ITA Nos. 471 & 1049/Hyd/2002 remitted the issue of bad debts to the file of the Assessing Officer is concerned, we find that the ground raised by the Department is not correct for the reason that the Hyderabad Benches of the Tribunal, in principle, allowed the claim of bad debts and only for factual verification, remitted the matter to the Assessing Officer. Therefore, it cannot be said that the entire issue, on merits, has been remitted back to the file of the Assessing Officer. 14. Keeping in view of the decision of the Hyderabad Benches of the Tribunal, Hon'ble High Court of Hyderabad, Telangana vide its order dated 09.06.2023 as well as the judgement of the Hon'ble Madras High Court in assessee's own case (supra), the ground raised by the Department is dismissed. 15. In view of the above decision, similar ground raised by the Revenue in the assessment years 2017-18, 2018-19 & 2020-21 are also dismissed. 16. The next common ground raised in the appeals of the Revenue is with regard to the disallowance under section 14A of the Act. The brief facts and observations made in the appellate order are reproduced as under: 7.5.1....
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.... can only be triggered, if assessee seeks to square off expenditure against income which does not form part of total income under Act; Rule 8D only provides for a method to determine amount of expenditure incurred in relation to income, which does not form part of total income of assessee and it cannot go beyond what is provided in Section 14A. Thus, where no exempt income i.e., dividend, was earned in relevant assessment year by assessee, Section 14A cannot be invoked. Supreme Court dismissed Department's SLP in CIT (Central) 1 vs. Chettinad Logistics (P.) Ltd. [2018] 95 taxmann.com 250 (SC) dated 02.07.2018 through a summary order, on delay as well as merits. 7.5.5 The assessee has furnished details of dividend income received by it and the investment made details for the above impugned AYs. Accordingly, the AO is directed to rework the computation of disallowance u/s 14A u/r 8D and to restrict the same to the extent of dividend income earned by the assessee in the respective AYs, also taking into account the above stated jurisdictional ITAT decision in the case of Parry Agro Industries Limited in ITA No. 2372 & 2373/Chny/2017. If disallowance so arrived, in any part....