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Judgment
Chitra Venkataraman, J.—The only substantial question of law on which this Tax Case Appeal, filed against the order of the Tribunal, was
admitted is as to whether the Appellate Tribunal was right in holding that the exercise of power u/s 263 by the Commissioner of Income Tax was
erroneous. It is seen from the show-cause notice issued u/s 263 of the Income Tax Act dated 20.02.2009, that the assessee had claimed interest
of Rs. 5,29,72,918/- payable on the loans taken on a sum of Rs. 27,29,01,157/- and Rs. 6,00,00,000/- by way secured loan and unsecured loan
respectively. Since the assessee had given interest-free advance of Rs. 12,69,21,989/- to its subsidiary company, namely, Renowned Auto
Products Manufacturers Ltd., wherein the assessee had 83% share, the Commissioner held that the interest was not allowable u/s 36(1)(iii) to the
extent the borrowed funds not utilised for the purpose of business. Pointing out that the Assessing Officer had not examined the transaction of the
assessee with Renowned Auto Products Manufacturers Ltd. and whether the loan advanced was for the purpose of the assessee''s business, the
Commissioner called upon the assessee to show cause as to why the order of assessment should not be set aside or modified.
After hearing the assessee, the Commissioner passed an order directing the Officer to look into the aspect of commercial expediency which
compelled the assessee to advance a sum of Rs. 12,69,21,989/-. The Commissioner pointed out that the amount advanced was more than 46% of
its entire liability towards the secured loan. In his proceedings, the Commissioner pointed out that the company had acquired 83% of the shares of
Renowned Auto Products Manufacturers Ltd. in August 1996, by which time, the borrowing company had become a sick company, thereby
increasing the financial burden of the assessee company.
Referring to the proceedings before the Company Law Board, the Commissioner viewed that the company, in their own interest, infused funds
in the sick company and that the same had nothing to do with the protecting of either the income base or the asset base of the assessee company
or to further its own interest. The borrowing was made by the assessee company in its own name for investing it in Renowned Auto Products
Manufacturers Ltd. Referring to the decision reported in S.A. Builders Ltd. Vs. Commissioner of Income Tax (Appeals), Chandigarh and
Another, , the Commissioner held that the onus was on the assessee to show that the amount advanced in the sister concern was a commercial
expediency. Thus, the proceedings was confirmed with a direction to the Officer to examine whether the assessee had satisfied the test of
commercial expediency. Aggrieved by this, the assessee went on appeal before the Tribunal.
Pointing out that for the purpose of invoking jurisdiction u/s 263 of the Income Tax, the Commissioner has to have some material to enable him
to form a prima facie view that the order passed by the Officer was erroneous and was prejudicial to the interest of the Revenue, the Tribunal held
that the case on hand did not satisfy the twin conditions. The view of the Commissioner that the lending of the money to the sister concern was not
on account of commercial expediency, but only to divert funds was however negatived by the Tribunal by pointing out to the rehabilitation scheme
framed by the BIFR in the case of Renowned Auto Products Manufacturers Ltd., the sister Company. The Tribunal held that the advance was not
given by the company on its own, but was under the order of rehabilitation passed by BIFR. Since the assessee had acted prudently in its own
interest in the light of the investment made in the subsidiary company, the claim was allowable as a deduction. Thus the appeal of the assessee was
allowed. Aggrieved by this, the present appeal has been filed by the Revenue.
Learned Standing Counsel appearing for the Revenue pointed out that as the order of the Company Law Board order showed, when the
assessee company itself was not doing well, it was difficult to accept the contention of the assessee as to any commercial expediency in advancing
interest-free loan to the sister company; consequently, rightly, the Commissioner had exercised its jurisdiction u/s 263 of the Act. With the twin
conditions thus fulfilled and the error in the order of assessment thus causing prejudice to the interests of the Revenue, no exception could be taken
to the exercise of jurisdiction u/s 263 of the Act.
Per contra, learned counsel appearing for the assessee pointed out to the finding of the Tribunal as well as the orders of the BIFR, which put an
obligation on the assessee to pump in money to bring the sister concern out of its sickness. The assessee had acquired 83% of equity shares as
early as August, 1996 and only thereafter, the loan was given to the sister concern. He further pointed out that the sister concern is also in the same
line of business as that of the assessee company in manufacturing shock absorbers. Thus, as a commercial proposition, to extend its business, the
assessee had purchased 83% of shares in the sick company - sister concern and the assessee had advanced money to bail the sick company out of
its financial difficulties to advance its business purpose. Thus, there are no merits in the Tax Case Appeal.
Heard learned Standing Counsel appearing for the appellant and the learned counsel appearing for the Revenue and considered the material
placed on record.
In order to find out whether the issue on the amount given to the sister concern was a matter of consideration by the Officer at the original
assessment stage, this Court directed the learned Standing Counsel appearing for the Revenue to get the assessment records. Accordingly, the
same were produced today before this Court. It is seen from the records produced that there is no discussion at all on this aspect. Even though the
balance sheet clearly pointed out that the loan was advanced to the sister concern, the issue on the borrowed money given to the sister concern
being not a subject matter of consideration by the Assessing Officer, apart from taking other facts into consideration, namely, the order of the
Company Law Board, the Commissioner of Income Tax exercised his jurisdiction u/s 263 of the Act. As far as this aspect is concerned, the
assessment records disclose that there was no consideration by the Assessing Officer on this issue of loan given by the assessee to the sick
company. Going by this factual aspect, we do not find any justifiable ground to hold that there was no error in the order of the Assessing Officer to
justify the invoking of the jurisdiction u/s 263 of the Act. Thus, on this, we agree with the submission of the learned Standing Counsel appearing for
the Revenue that invoking of the jurisdiction in this case cannot be faulted with.
It is no doubt true that Section 263 of the Income Tax Act could not be invoked to correct a mistake or error in the order passed by the
Assessing Officer. However, when the question as to whether there was any commercial expediency on the loan given by the assessee to the sister
concern was not considered at all by the Assessing Officer, no exception could be taken to the exercise of jurisdiction of the Commissioner of
Income Tax (Appeals) u/s 263 of the Act. Consequently, we agree with the Revenue on this aspect.
However, on merits, on the basis of materials, once the Tribunal had come to the conclusion that the loan advanced was on account of
commercial expediency as well as in the orders of the BIFR, we do not find any ground to disturb the said finding. Rightly, the Revenue had not
raised any question of law on this. Even though on the aspect of jurisdiction, the Revenue succeeds, yet, the further question on the merits being a
pure question of fact and rightly not raised, we do not find, any useful purpose would be achieved in setting aside the order of the Tribunal and
further remanding the matter. In the circumstances, except for holding that the Revenue is justified in its plea in invoking jurisdiction u/s 263 of the
Act, we do not think, the order calls for any interference to remand the matter.
In the decision reported in S.A. Builders Ltd. Vs. Commissioner of Income Tax (Appeals), Chandigarh and Another, the Apex Court pointed
out that in considering the question as to whether the amount advanced was a measure of commercial expediency, the authorities and the Courts
should examine the purpose for which the assessee advanced the money and what the sister concern did with the money. The Apex Court further
observed that in considering the question that the borrowed amount was not utilized by the assessee in its own business but had been advanced as
interest free loan to its sister concern is not relevant, what is relevant is whether the amount was advanced as a measure of commercial expediency
and not from the point of view whether the amount was advanced for earning profits. The Revenue does not dispute the fact that the advancing of
funds by the assessee into the sister concern was in terms of the BIFR''s order. That being the case, no useful purpose would be served by again
directing a remand on the merits of the claim of the assessee. In the circumstances, the Tax Case is allowed only for statistical purposes. No costs.