CIT vs. M/s Kudu Industries (P&H High Court)

DATE: July 31, 2015 (Date of pronouncement)
DATE: November 16, 2015 (Date of publication)
AY: 2009-10
FILE: Click here to download the file in pdf format
S. 36(1)(iii): In a case where advances for non-business purposes are made from mixed funds, neither the AO nor the assessee can claim that the funds have come from a particular source and so the disallowance should be worked out on the basis of the average interest rate

The Assessing Officer held that in respect of the advances given for non-business purposes, interest is to be disallowed on a proportionate basis since all the funds of the assessee are placed in a common kitty and it is not possible to separate the borrowed funds from the assessee’s own funds. The Assessing Officer accordingly computed the interest at 11.5% in respect of the advances to the two parties and added the same back to the income of the respondent/assessee. The CIT (Appeals) upheld this order. The Tribunal set aside the order of the CIT (Appeals) in this regard. On appeal by the department to the High Court HELD dismissing the appeal:

The judgment of this Court in Commissioner of Income Tax-I, Ludhiana vs. M/s Abhishek Industries, Ludhiana [2006] 286 ITR 1 (P&H) does not deal with the question of the rate of interest to be applied in cases where the assessee has mixed funds available with it. We also agree with the Tribunal’s view that where mixed funds are diverted towards interest free advances the disallowance should be made up to the level of the average cost of debt to the assessee. There is no justification in taking into consideration the rate of interest in respect of any particular transaction where under an assessee avails advances on interest. An assessee may avail several advances from the same lender or from different lenders and at varying rates of interest. In the absence of anything to indicate that the interest free advance was made only from a particular corresponding advance received by the assessee, the advance made by the assessee would obviously be from the common pool of money. Money lying in a common pool has no identity. The various amounts advanced to the assessee get merged into a common pool. There is no justification then either for the assessee or for the department to take into consideration the rate of interest in respect of a particular advance or advances to the assessee. The only logical approach is to take into consideration the average interest rate at which the assessee has availed of the advances.

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