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ACIT, Circle-37(l), Room No.401, N-Block, Vikash Bhawan, IP Estate, New Delhi Vs. Dr. Ram Narayan Kalra, Prop Kalra Hospital, J-1/1611A, Rajouri Garden, New Delhi
August, 17th 2015
            IN THE INCOME TAX APPELLATE TRIBUNAL
                   DELHI BENCH 'F', NEW DELHI
      BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER
                             AND
                SHRI C.M.GARG, JUDICIAL MEMBER

                              ITA No. 4476/Del/2012
                             Assessment Year: 2008-09

           ACIT,                          Vs.   Dr. Ram Narayan Kalra,
           Circle-37(l), Room No.401,           Prop Kalra Hospital,
           N-Block, Vikash Bhawan,              J-1/1611A,
           IP Estate, New Delhi                 Rajouri Garden,
                                                New Delhi
                                                PAN:AAPK4470H
           (Appellant)                          (Respondent)

                               ITA No. 3281/Del/2012
                           Assessment Year: 2007-08
            DC IT                       Vs. Dr. R. N. Kalra,
            Circ1e-37(l), Room No.401,      Prop Kalra Hospital,
            N-Block, Vikash Bhawan,         A-5, A-6, Kirti Nagar,
            IP Estate, New Delhi            New Delhi
                                            PAN :AATPL4470H
             (Appellant)                    (Respondent)


                Appellant by  :       Sh. Vikram Sahary, Sr. DR
                Respondent by :       Sh. Gautam Jain, CA


                                Date of Hearing : 29.06.2015
                         Date of pronouncement : 14.08.2015


                                        ORDER
PER J. SUDHAKAR REDDY, ACCOUNTANT MEMBER
     These are the appeals filed by the revenue directed against the order of
the ld CIT(A)-XXVIII, New Delhi dated 29.06.2012 for the Assessment Year
2008-09.
2.   Fact in brief:- The assessee is a practicing doctor. The Assessing Officer
passed an order u/s 143(3) on 31.12.2010 determining the total income of the
                                     Page 2 of 12
                                                    ITA No. 4476/Del/2012 & ITA No. 3281/Del/2012
                                                                         Assessment Year: 2008-09



assessee as Rs.3,95,20,506/-, inter alia, disallowing claim of depreciation of
Rs.18,61,470/- on certain medical equipments, disallowing interest on the
grounds that interest bearing funds were diverted for non business purposes,
and disallowing Conversion charges and regularization charges paid to
Municipal Corporation of Delhi on the ground that these were capital
expenses. Further web-site development charges claimed as revenue expenses
was also disallowed. Certain other disallowances were also made. We are not
concerned with those disallowance the present appeal. The assessee carried the
matter in appeal. The first appellate authority granted part relief.
3.    Aggrieved with the relief granted by the first appellate authority, the
revenue has filed this appeal on the following grounds for the Assessment
Year 2008-09.
      "1. "Whether on the facts and circumstances of the case, the Ld. CIT(A) has
      erred in deleting the addition of Rs.18,11,964/- made on account of
      proportionate notional interest on diversion of interest bearing loan
      amounts for non business purposes.
      2. "Whether on the facts and circumstances of the case, the Ld. CIT(A) has
      erred in deleting the disallowance relating to 'Conversion Charges paid to
      MCD as revenue expenditure, ignoring the fact that the expenses towards
      'Conversion Charges' and 'Regularization Charges' were meant for utilizing
      the property for use other than it was actually allotted and to provide
      benefits of enduring nature and therefore, cannot be hold as revenue
      expenditure,
      3. Whether on the facts and circumstances of the case, the Ld. CIT(A) has
      erred in holding that the 'Website development expenses' is revenue in
      nature ignoring the facts that development of a website gives benefits of
      enduring nature.
      4. Whether on the facts and circumstances of the case, the Ld. CIT(A) has
      erred in deleting the disallowances of claims of depreciations of
      Rs.12,31,360/- and Rs.18,61,470/- despite the facts that the alleged
      suppliers of medical equipments in their statement recorded in response to
      summons u/s.131 turned out to be kabadis and denied to have supplied
      the medical equipments to the assessee. "
      5. That the grounds of appeal are without prejudice to each other. "
4.    We have heard Sh. Vikram Sahay, ld Sr DR on behalf of the revenue and
Shri Gautam Jain, ld counsel for the assessee. On a careful consideration of
the rival contention and on a perusal of the papers available on records, as well
                                        Page 3 of 12
                                                       ITA No. 4476/Del/2012 & ITA No. 3281/Del/2012
                                                                            Assessment Year: 2008-09

as the orders of the authorities below, we hold as follows.
5.    Ground No.1 is against the deletion of addition of Rs.18,11,964/- being
interest paid. The AO made this disallowance on the grounds that the assessee
has diverted interest bearing funds for non business purposes. The first
appellate authority dealt with the issue at Page 14 of his order. Reliance was
placed on the decision of the Hon'ble Bombay High Court in the case CIT Vs.
Reliance Utilities and Power Limited (2009) 313 ITR 340 (Bob) for the
proposition that when interest free funds as well as interest bearing funds are
available the presumption would arise that interest free loans or investment
would have been made out of interest free funds available with or generated by
the company. The Investments In question are as follows:-
      "a. Kalra Hospital Private Limited (For Shares)         20,99,700.00
      b. SBL Plastics Private Limited                         25,00,000.00
      c .Lars Medicare Private Limited (For Shares)           5,00,000.00
      d. Max Fun Build Mart Private Limited                   1,00,00,000.00
                                                              1,50,99,700.00




6. The ld CIT(A) held as follows:- "On a perusal of the same, it shall be observed that the amount invested in the shares of Kalra Hospital Private Limited are way back in 1998-99 which clearly evidences that no investment has been made out of any loans in the current year. That advance to Lars Medicare Private Limited was made in previous year and interest was earned out of the same except for a small sum of Rs.5.00 lacs which were used to acquire shares and the balance loan was returned in current year. Copy of ledger account placed on record clearly proves that the funds were invested in last year out of the accruals of previous year. For the balance two investments, it is pertinent to note here that appellant had a bank balance in the form of FLC account (deposit account linked to current account where in excess funds in current account are temporarily parked for earning interest) amounting to Rs. 1,80,50,000/- as on 1.4.2007. The amount invested in other Companies has been made out of the bank balance appearing which is part of the Capital and accrued earnings of the appellant which as on the beginning of the year stood at Rs. 5.23 cr which evidences that the appellant had sufficient funds of its own to make these investments. The appellant is running a proprietary entity and all his business and personal investments are reflected in the financial statements prepared. Copy of Dena Bank Current/ Saving Bank Accounts showing clearly the source of the funds which are basically from the opening bank balance and routine business transactions is placed on record. That further on the perusal of the ledger account of SBL Plastics Private Limited, it shall be observed that Page 4 of 12 ITA No. 4476/Del/2012 & ITA No. 3281/Del/2012 Assessment Year: 2008-09 the amount of Rs 25 lacs has been invested in shares on 27.03.2008 i.e. just few days before the close of the financial year. That the assessing officer has invariably calculated interest hypothetically for whole year without going in the actual details of the transaction and period of transaction. That since no element of interest is involved and the investments have been made out of capital accruals of the past, the Assessing Officer has erred in addition in the form of notional interest on the above investments. That it is clear from the above facts that there is no nexus between the loan funds being invested. The details of the loans that the appellant had advanced and are appearing in the Balance Sheet as at 31.03.2008. The assessee has given Rs.500000/- to M/ s Kumar Rexines Stores on 20.03.2007. The amount was given out of the profits earned by the assessee. The details of Investment of Rs.15099700/ - are as follows: - Name Amount Given When Shares- Kalra Hospital Pvt. Ltd. 2099700.00 Before 2001 Shares- Lars Medicare Pvt. Ltd. 500000.00 01.03.2007 SBL Plastics Pvt. Ltd. 2500000.00 07.03.2008 Max Fund Buildmart Pvt. Ltd. 10000000.00 April, 2007 Total 15099700.00 On a perusal of the same, it shall be observed that none of the advances have been paid out of any borrowed funds and some of them have been made in the earlier years. That the appellant had invested in shares where the intent was not to earn interest but an appreciation of capital and hence the concept of applying any notional interest is uncalled for. That it is also submitted that the appellant has been reflecting handsome profits for the last several years and most of the investments have been made out of previous incomes and savings. That the appellant had a bank balance of Rs.2.06 Crores at the beginning of the year which was sufficient to cover whatever investments that he had made. That it is further brought to your notice that the appellant has not raised any loan which has been utilized for giving any further loan. The Assessing Officer has quoted a number of decided cases to support his claim, the facts of which are different from appellant facts. In a similar case Bombay High Court in the case of Commissioner of Income Tax Vs Reliance Utilities and Power Limited [2009J 313 ITR 340 (Bom) held that if there were funds available both interest free and overdraft and/ or loans taken, then presumption would arise that investment would be out of interest free funds generated or available with the Company, if the interest free funds were sufficient to meet the investments. The interest was deductible. In the case of appellant, the funds available at the beginning of the year were invested and no loan funds were raised or used. The loans taken in earlier years have been Page 5 of 12 ITA No. 4476/Del/2012 & ITA No. 3281/Del/2012 Assessment Year: 2008-09 utilized for the specific use and there is no nexus available or proved by the Assessing Officer to justify the claims of notional interest disallowance. That the subject has been discussed in detail by the Hon'ble Supreme Court in the case of S.A. Builders Limited v CIT (A) and others [2007J 288 ITR 1 (SC). That the Hon'ble Apex Court in this case while deciding the case in favour of the assessee has opined that "The assessee borrowed the funds from the banks and lent some of it to its sister concern (a subsidiary) on interest free loan. The test in such a case is whether this was done as a measure of commercial expediency. To claim a deduction, it is enough to show that the money is expended, not of necessity and with a view to direct and immediate benefit, but voluntarily and on grounds of commercial expediency and to facilitate the carrying on the business. The High Court as well as the Tribunal and other Income Tax authorities should have approached the question of allow ability of interest on the borrowed funds from this angle." However in our case commercial expediency is proved beyond doubt as the investments are not made to its sister concern or subsidiary but to third parties and the assessing officer has nowhere doubted the commercial expediency. That the above two cases coupled with the fact that funds were available with the appellant at the beginning of the year which were own funds and not loaned funds, the disallowance of notional interest needs to be deleted. That it is further submitted that the Assessing Officer was in such a haste to make the disallowance that he has made the same twice i.e. once under para 6 of the impugned assessment order and again in para 8 of the same order without realizing that the same figures are being considered twice and the resultant disallowance has also been made twice. That the Assessing Officer has nowhere established that the loans were utilized by the assessee other than those for business purpose of the assessee and the fact that the assessee had sufficient bank balance coupled with his total accumulated capital as at the beginning of the year clearly proves that the investment/ advances were made out of own capital and no interest bearing funds were used. I have carefully considered the finding of the Assessing Officer and submission of the appellant. It is evident that the investments have been made out of capital accruals of the earlier years the Assessing Officer is not justified in making addition of notional interest on the above investments. There is no nexus between the loan funds being invested. The Assessing Officer has not established that the loans were utilized by the appellant for other than those for business purpose of the appellant. He had sufficient bank balance coupled with his total accumulated capital at the beginning of the year clearly proves that the investment/advances were made out of own capital and no interest bearing funds were used. In view of the above discussion and the case laws cited by the appellant, the notional interest added by the Assessing Officer to the tune of Rs.Rs.60000/- is deleted. Appeal on this ground is allowed. " Page 6 of 12 ITA No. 4476/Del/2012 & ITA No. 3281/Del/2012 Assessment Year: 2008-09 7. The ld DR could not controvert the factual contention made by the assessee before the first appellate authority. Before the ld CIT(A) it has been clearly brought out with evidence that the investments were not made out of borrowed funds. The ld CIT(A) accepted these factual contention and in the absence of any contrary evidence we find no infirmity in the same. In any event the presumption as laid down by Hon'ble Bombay High Court in the case of Reliance Utilities and Power Ltd (supra) is squarely applicable in this case. Share in Kalra Hospital Pvt. Ltd. and Lara medicines Pvt. Ltd. were purchased in the earlier year and investment in SBL Plastics was made at the fag end of the year. The assessee has sufficient interest free funds to cover the investments. Thus we uphold this finding of the ld CIT(A) and dismiss ground No.1 of the revenue. 8. Ground No.2 is on the issue whether conversion charges paid to MCD is revenue expenditure or capital expenditure. The first appellate authority is dealt with the issue at Page 18 to 20 of this order. 9. The 'C' Bench of the ITAT Delhi in ITA No.5158/Del/2012 for the Assessment Year 2008-09 order dated 08.02.2013 in the case of the DCIT Vs. Haldiram Products Pvt. Ltd, considered the jurisdictional high court decision in the case of CIT Vs. J.K. Synthetics Ltd (2009) 309 ITR 371 (Delhi) as well as the judgement of the Hon'ble Supreme Court in the case of Bikaner Gypsums Ltd. Vs. CIT (1991) 187 ITR 39 (SC) and in para 10 held as follows:- "10. In the present case, the assessee had paid amounts for one time conversion charges and for parking charges at the two outlets, the benefits of which might accrue to the assessee for indefinite period of time yet these were incurred to enable the profit making structures to work more efficiently leaving the source or the profit making structure untouched and moreover, the expenditure were in the nature of levies/taxes paid by an assessee to a government authority for making available the required infrastructure to run the business efficiently and effectively. Therefore, on the facts & circumstances of the case and following Judicial pronouncements, we do not find infirmity in the order of Ld. CIT(A). We are of the considered opinion that Ld. CIT(A) had rightly deleted the additions." 10. The Tribunal had held that the onetime conversion charges and parking Page 7 of 12 ITA No. 4476/Del/2012 & ITA No. 3281/Del/2012 Assessment Year: 2008-09 charges paid to MCD are allowable as revenue expenses. The contention of the assessee is that payment of conversion charges to MCD does not result in creation of a new asset. As the order of the first appellate authority is in consonance with proposition laid down in the above referred Tribunal's order, we uphold the same and dismiss ground No.2 of the revenue. 11. Ground No.3 is on the issue as to whether "Website Development Expenses" are in the nature of revenue expenses or capital expenses. The jurisdictional High Court in the case of Commissioner of Income-tax IV 3 Vs. India-visit.com Private Limited (219 CTR 603), held that the expenditure on website development is allowable as revenue expenditure. Respectfully following the view taken therein we uphold the order of the ld CIT(A) and dismiss this ground of revenue. 12. Ground No.4 is on the issue of disallowance of the claim of depreciation. The assessee during the year claimed to have purchased life saving medical equipments. Depreciation was claimed on the same. The AO recorded the statement from the suppliers of this medical equipment and came to conclusion that the purchases are bogus, for the various reasons given in his order. He disallowed the claim of the assessee. 13. On appeal the first appellate authority granted relief. The main ground on which the first appellate authority granted relief was that the assessee had obtained finance from the reputed agencies i.e. G.E. Capital Services India and has also obtained insurance from United India Insurance Co. Ltd. and that the assessee had declared substantial income/ revenue from the use of these equipment and hence the existence of the equipment cannot be denied. Aggrieved the revenue is in appeal before us. 14. The ld DR pointed out that the bills produced as evidence of purchase of the medical equipment were obtained by the assessee were from Kabariwalas, who dealt with old vehicles and old machinery and machine parts, motor parts, tractor parts, iron and steel scrap and electrical parts etc. He took us to the pages of the paper book filed by the assessee, where the copies of various, invoices and bills were placed and pointed out that, life saving sophisticated Page 8 of 12 ITA No. 4476/Del/2012 & ITA No. 3281/Del/2012 Assessment Year: 2008-09 medical equipment, cannot be under any stretch of imagination, be purchased from such parties, who deal with scrap and second hand machineries etc. He referred to the statements recorded from the persons who have issued these bills and submitted that these persons had denied supply of these equipments. Referring to Page 66 of the paper book he submitted that it is only a deal term sheet of M/s GE Capital Services India was placed on record and that there is no signature or any other authentication on this deal term sheet and that this cannot be taken, under any circumstances, as evidence of the existence of the machines. Specifically he relied on replies of some of the suppliers which are at Page 3 and Page 5 of the assessment order. He pointed out that the so called suppliers have stated that they receive cheques and after deducting nominal commission, they return the cash to the person who gave the cheque. He argued that the purchases are bogus purchase. He vehemently contended that the order of the first appellate authority is perverse and hence the same should be reversed. 15. The ld counsel for the assessee on the other hand pointed out that, the AO in his order dated 29.12.2009 for the Assessment Year 2006-07, had not denied the existence of the machinery. He referred to Para 7.1 at Pg 6 of this order and pointed to the comment of the AO that it is possible that the assessee had purchased old equipment, and obtained loan from GE Capital Service India. He argued that the equipment has been refinanced by the GE Capital Service India and this could have been possible, had no equipment existed at all. He further submitted that M/s. United India Insurance Company Ltd. has insured these equipments, proving the existence of the equipment. He further pointed out that the assessee had disclosed substantial income which was earned by these machinery and equipment during the year and had paid taxes on the same. He argued that the suppliers had issued bills evidencing supply of the equipment and payments were made through Account Payee cheques and there is no evidence to state that the money came back to the assessee. He argued that all the evidence that a purchaser of equipment can possibly was produce. On the statement recorded from the suppliers, he Page 9 of 12 ITA No. 4476/Del/2012 & ITA No. 3281/Del/2012 Assessment Year: 2008-09 submitted that the statements were recorded behind the back of the assessee and in the absence of cross examination, these cannot be relied upon as evidence. He pointed out that the assessee sought cross examination when the matter travelled to the ld CIT(A). He submitted that it is the suppliers who only know as to why they have denied the supplies of these equipments when they have issued bills and took payment through a/c payee cheques. He pointed out that these suppliers have never stated that the cash was withdrawn after encashing the cheques and that it was returned to the assessee. He submitted that the statement was not specific to the assessee. He argued that neither the existence of the machinery nor the value thereof can be disputed. He prayed for relief.
16. In reply the ld DR pointed out that the assessee have never asked for cross examination of the supplies and under those circumstances it is well settled, that lack of cross-examination, does not result in the statements recorded not having evidentiary value. He pointed out that these parties from whom the assessee stated that it had acquired life saving medical equipment, had admitted that they have en-cashed cheques and returned the cash to the persons giving the cheque after deducting the commission. He further submitted that there was neither proof of installation nor any evidence that GE Capital having inspected the machinery. He prayed that the finding of the AO be restored. The ld counsel for the assessee joined the issue and submitted the statement was a general statement and not specific and that the assessee did seek cross examination. 17. Rival contentions heard. On a careful consideration of the fact and circumstances of the case, perusal of papers on record and orders of the authorities below, we hold as follows. The receipts evidencing purchase of medical equipment are at Pages 58 to 64 of the paper book. These bills are from dealer of second hand goods and machineries. A perusal of these bills, prima facie do not inspire confidence that these equipment were in fact sold by these persons to the assessee. Golden Trader and Everest Trading companies dealt with old machinery, vehicles and spare parts. In the statement given to Page 10 of 12 ITA No. 4476/Del/2012 & ITA No. 3281/Del/2012 Assessment Year: 2008-09 the AO, the factum of sale has been denied by these parties. The statements are evidence against the assessee. The assessee has sought cross-examination of these parties before the ld CIT(A). He contended as follows, before the ld CIT(A) vide submission dated 12.03.2010:- "That since the learned Assessing Officer has relied on the statements recorded, it is submitted that the appellant ought to have made available the copies of the alleged statement obtained surreptitiously behind the back of the assessee and relied upon by him and ought to have offered a opportunity to examine the persons who have made the statement It is submitted that the assessee is legally entitled to the copies of the statement if the same was proposed to be used against the assessee in a damaging in the interest of natural justice. Instead the Learned Assessing Officer had, in pursuance of his preconceived decision failed to provide time and opportunity to the appellant to examine the so called '"witnesses" whose statement was recorded by him. Thai it shall not be out of place to mention that as per the assessment order itself, the statements were recorded on 19.11.2009 but the show cause to the appellant was issued on 15.12.2009 i.e. almost after a month which could clearly evidence that the Learned Assessing Officer had pre decided to make this uncalled for and unjustified addition." 18. The same submission were made before the Assessing Officer in the remand proceeding in the written submission dated 22.07.2011 at Para 8 &9. Similar submission were made by the assessee in its letter dated 17.10.2011 before the ld CIT(A). 19. In remand report dated 03.11.2011 the AO at Para 3 stated as follows:- "3. It is most humbly submitted that for re-examination of the bills of the fixes assets purchases, summons were issued to the concerned suppliers but no compliance has been made till date. As the date of time-baring i.e., 31.12.2011 is very near, it is not possible to pursue the case and garner the requisite facts. Rejoinder letter is also very detailed and needs lot of time for rebuttal. 4. Therefore you are most humbly requested to extend the time limit for submitting remand report. As time-barring date is closer, you are kindly requested to extend the time limit upto 20.01.2011 for submitting the remand report." 20. Similar report was given on 16.03.2012 by the AO to the ld CIT(A). Thus the argument of the ld counsel for the assessee that these statements have no evidentiary value as no opportunity to cross examine has been provided, has force. The evidentiary value of these statements has to be viewed from this Page 11 of 12 ITA No. 4476/Del/2012 & ITA No. 3281/Del/2012 Assessment Year: 2008-09 angle. The suppliers are the revenues witnesses and even if they are not, if the revenue has to rely on their statements, then it should give the assessee an opportunity for cross examination. In coming to this conclusion we rely on the following case laws:- "i) 125 ITR 713 (SC) Kishnichand Chellaram vs. CIT ii) 288 ITR 345 (Del) CIT vs. SMC Share Broker Limited iii) 293 ITR 43 (Del) CIT vs. S. M. Aggarwal v) 295 ITR 105 (Del) CIT vs. Dharam Pal Prem Chand Limited v) 322 ITR 396 (Del) CIT vs. Ashwani Gupta vi) 303 ITR 95 (Del) CIT vs. Pradeep Kumar Gupta" 21. The assessee has shown revenue generated from these equipment during the financial year 2005-06 to 2007-08. This proves both existence as well as use of these equipment. Refinanced has been obtained from GE Capital service on these equipments. United India Insurance Corporation which is a Public Sector Company has insured these machineries. These are corroborative evidences. As already stated the machineries have been put to use and substantial receipts have been shown by the assessee. The AO in his order, concluded that the assessee may have acquired second hand machines. The fact that these Golden Traders and Everest Trading Corporation dealt with old machinery and they have in their bills stated that they received crossed a/c payee cheques for the sale is to be considered. These cheques have been encashed by them. Vat and CST has been charged on the bills. The total denial by the suppliers in the statement before the AO is contrary to the documentary evidence. We could have had conclusive evidence, if these parties were cross- examined by the assessee. The AO at Page 6 of this order made the following observation "merely taking loan on any equipment, does not mean that these equipments purchase are new. It is possible that the assessee has acquired old equipment to obtain loan from GE Capital." These points to the acceptance of existence of the of the machinery De-hors the statement, the claim of the assessee has to be upheld though we are not at all convinced with the bills. 22. Taking an overall view of the matter, we hold that the existence and use of these equipment cannot be denied as we have to ignore the statements recorded from the suppliers for the reason that no cross examination was Page 12 of 12 ITA No. 4476/Del/2012 & ITA No. 3281/Del/2012 Assessment Year: 2008-09 provided to the assessee and the other evidence is in favour of the claim of the assessee. 23. The issue before us disallowance of depreciation. Depreciation can be allowed u/s 32 if the following precondition and fulfilled. a) The Plant and Machinery must be owned by the assessee; b) The Plant and Machinery must be used for the purpose of the business of the assessee during the year. 24. The existence of the asset is accepted by us, though the source of acquisition is under a cloud. The fact that the equipments have been used is proved by the receipt of substantial income on these equipment. Hence both the conditions for grant of depreciation have been fulfilled. Thus depreciation has to be granted on these assets. Thus we uphold the order of the ld CIT(A) and dismiss this ground of the revenue. 25. In the assessment year 2007-08 the only issue is denial of depreciation. In view of our discussion and our conclusion on this issue for Assessment Year 2008-09, this ground of revenue is dismissed as in the earlier assessment year. 26. In the result both the appeals are dismissed. Order pronounced in the Open Court on 14th August, 2015. -Sd/- -Sd/- (C.M. GARG) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated:14th August, 015 AKK Copy forwarded to: - l. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY By Order, ASSISTANT REGISTRAR
 
 
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