Dear Pramodji,
First of all, we write OFF a debit balance in an account; but ifit's a credit balance that's no longer payable, we write it BACK.It's important to understand the linguistic semantics in play herein order to keep confusion at bay.A query exactly similar to yours will be raised when we are facedwith a situation where an assessee has had some amount he owed tothe bank on account of a C/C limit written off by the bank inpursuance of a rehabilitation package to nurse the ailing unit backto health. The interest component in the C/C account will without adoubt be treated as deemed profits chargeable to tax u/s 41. Thesine qua non for taxing receipts under section 41 is that at somepoint of time in the past, the amount sought to be taxed should havebeen allowed to the assessee as an expenditure in the computation ofhis taxable income. Since this test is met, interest would betaxable u/s 41.But what about the principal amount itself? The capital of abusiness consists of owner's equity and the debt fund comprising ofC/C limits, term loans, etc. If some portion of the debt fund isn'tDebt anymore because the lender has waived it or like in your case,the borrower being unable to discharge it, has unilaterally decidedhe's not going to pay back this amount, then in that situation, whatwould be the treatment of the amount in the borrower's hands? Inthis year's Budget, the government waived loans owed to it by thefarmers. Would that amount be taxable in the farmer's hands? No,because the farmers' income isn't taxable anyway. But what would bethe status of such receipts in a non-agriculturist's hands?Let's examine this issue in the context of Section 41. We use a C/Climit to meet our working capital needs. We buy raw materials andincur other direct and indirect expenses by issuing cheques out ofour C/C account in the bank. Since all those purchases and expensesare Profit and Loss items and as such are claimed by us, in asituation of the unit turning sick and the bank waiving some portionof the loan, how can we say it isn't a cessation of tradingliability in terms of Section 41? The C/C limit certainly was inthe nature of a trading liability in the sense that we used it tobuy goods we trade in.You haven't mentioned what use the broker-assessee put the loans to?Since he was merely a broker, he can't have acquired any fixedassets, not to a substantial extent anyway. So presumably most ofthose borrowed funds were deployed in the day-to-day running of hisbusiness. Apparently, besides being a broker, he did proprietaryshare trading of his own and needed some additional money to pumpinto the market. And the fact that he pledged shares with thecreditors makes this a case similar to a C/C limit where the stockswe buy with the bank's funds are hypothecated back to the bank. Sothose loans he owed his clients were clearly in the nature oftrading liabilities because the debit aspect of those transactionsgot reflected in the P & L account and not the Balance Sheet. Whenyou take a term loan, say a loan to buy machinery, the debit aspectfinds its place in the Balance Sheet. So upon a waiver of such aterm loan by the lender, could this amount be brought to tax u/s 41(1)? Absolutely not. We shall discuss a case below that I believewould settle this issue.In Mahindra & Mahindra Ltd. v. CIT [2003] 261 ITR 501/128 Taxman 394(Bom.) the assessee had obtained a loan from a foreign company forthe purchase of machinery. For some reason or the other, the foreignlender waived the loan later. The AO wanted to tax the amount ofloan waived in the assessee's hands u/s 41(1). The Court ruled outthe applicability of Section 41(1) on the grounds that the assesseehad never claimed any deduction in respect of such loan at any timein the past. The assessee had invested the amount of loan in thiscase in buying Tools and Dies that constituted its fixed assets.Since the Tools & Dies were assessee's fixed assets, and not itsstock-in-trade, section 41(1) could not be invoked, the Bombay HCsaid.Now, had the Tools & Dies constituted the assessee's stock-in-trade,it is clear the decision of the Bombay HC would have been differentand the amount of loan waived would very well have been held to betaxable u/s 41(1) as a remission of a trading liability.So to me it seems the AO does have a case when he seeks to tax thoseloans your client has unilaterally written back as being no longerpayable. Section 41(1) in my view admits of waiver of loans thatconstituted our trading liabilities, i.e. loans with which weacquired the things we trade in.You've said that some of those loans had become time-barred. We havehad cases in the past where the courts have ruled that in case ofwrite back of time-barred debts, Section 41 couldn't be invoked.This is because this is neither cessation nor remission of a tradingliability. A unilateral write back by the borrower doesn't amount tocessation—a liability ceasing to exist—or remission—waiver by thecreditor. Upon a debt becoming time-barred, the debtor loses hisright to enforce the debt through a court of law, but the liabilityas such doesn't cease to exist, the courts have ruled. But with theaddition of Explanation 1 to Section 41(1) w.e.f 01.04.1997, thosejudgements have been rendered ineffectual.To conclude, let me reiterate: "An allowance or deduction in anearlier year" is the very soul of Section 41(1). To know whetherthis has happened in your case, you would need to track the user ofthe funds within the business—where did the assessee spend thoseamounts? You said "that is not the case here"—are you sure there'sno nexus in the books of account between a claim of an expense andthe utilization of those loans? The burden of proof, however, that adeduction or allowance has been allowed to the assessee in the pastis on the revenue and not on the assessee, the Delhi HC said inSteel & General Mills Co. Ltd. v. CIT [1974] 96 ITR 438 (Delhi).If the AO is able to prove that a deduction or allowance has beengranted to the assessee in respect of those loans and you aren'table to counter it, the amounts written back on account of loans nolonger payable would constitute your income u/s 41(1).Another Section that comes to mind is Section 56. It's been quite awhile since the Gift Tax reincarnated itself in its new avatar inSection 56 of the I T Act. Gifts of money exceeding Rs 50k inaggregate are taxable in the recipient's hands. If I were the AO, Iwouldn't hesitate to invoke Section 56 in a case where I see loansfrom people not related to the assessee being written back onaccount of being no longer payable. Who knows the whole thing may bea façade. The loan was a mere smoke-screen; you never intended topay it back and the lender never intended to get it back from you.It was a gift of money from the very beginning camouflaged as a loanand hence taxable u/s 56!All the best,CA Sanjeev Bedi--- In
ICAI_CIRC_MEERUT_CA@yahoogroups.com, PRAMOD GOENKA wrote:>>> Dear Sanjeev ji;>> This is a query directed to you personally since I believe you areexperienced/learned enough to answer this. That does not excludeothers from giving their views on the issue; rather it is welcome.>> A person is a share broker (with membership of one of theexchanges) and runs business under the name of a proprietoryconcern. Before 2001, he took loans from many of his clients. Tomany of his creditors, he gave shares as security for loan taken bytranferring the shares to their demat account. Some of the creditorswere totally unsecured. In 2001, the share market crashed, and thevalue of the shares held by the broker/creditors came down. Thecreditors started asking for their money which the broker was unableto pay. Some of the creditors went to court and other appropriateforum from recovery of their money, but most of the creditors didnot do so.>> Now, in 2006, the broker decided that he is not going to be ableto pay back to his creditors. He therefore, wrote off all the loanswhere there were no court cases and which had been barred bylimitation by transferring the loans to his capital accountdirectly. In some cases, where the loans were secured by shares, thestock of shares (to the extent pledged to each individual creditor)was adjusted against the loans. Some other assets, that had lost allits value like junk shares and certain deposits were againtransferred directly to capital account. Thus, the broker did notsurrender the loans written off for taxation nor did he claim anydeduction for written off assets. The case pertains to theassessment year 2006-07 and is under scrutiny.>> The assessing officer wants to tax the loans written off. Can hedo so ? Under what section ? One section that comes to mind issection 41 - ceasation of liability. But that section requires aprior claim of some loss/expenditure and its subsequent ceasation.That is not the case here.>> Please guide me.>> Thanks a lot.>> CA. Pramod Goenka
