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2000 DIGILAW 94 (KER)

Novel Distributing Enterprises v. Deputy Commissioner of Income Tax

2000-02-10

G.SIVARAJAN

body2000
Judgment :- G. SIVARAJAN, J. Both these cases relate to the deduction of interest under s. 40(b)(iv) of the IT Act, 1961 (in short the "Act"). The assessment year concerned is 1993-94 in both these cases. Petitioners in both these cases claim deduction of interest paid to the partners both in respect of the capital account and also the current account. The assessing authority disallowed the claim for deduction of interest in respect of the current account on the ground that the partnership deed did not authorise payment of interest in respect of current account. Petitioners took up the matter in revision before the CIT under s. 264 of the Act but the same was rejected against which petitioners filed review petition which was also rejected. The orders impugned are Exts. P1, P3 and P5 in both cases. Learned counsel appearing for the petitioners submits that though there is no specific authorisation in regard to payment of interest on current account, the firm had paid interest on current account of partners and the partners have included the said sum in their return and paid tax also. Counsel, in such circumstances, submits that it must be deemed that there was authorisation for the payment of interest on current account also. He accordingly submitted that authorities were not justified in disallowing payment of interest on current account deposit. I have heard Sri George K. George, A.C.G.S.C. for taxes. He submitted that petitioners did not satisfy the requirement of sub-cl. (iv) of cl. (b) of s. 40 of the Act as the partnership deed did not authorise payment of interest on current account also. I have considered the rival contentions. Clause 10 of the partnership deed which deals with payment of interest states that "the net profit, or loss after making 18 per cent interest on the capital contribution of the partners, for each year shall be shared. ...." Since the petitioners have no case that interest relates to the capital contribution the said amount cannot be allowed as a deduction in view of the provisions of sub-cl. (iv) of cl. (b) of s. 40 of the Act. The fact that the assessee-firm has paid interest on current account and recorded in the books of account and further that the partners have included the said amount in their individual returns and paid tax will not alter the situation. (iv) of cl. (b) of s. 40 of the Act. The fact that the assessee-firm has paid interest on current account and recorded in the books of account and further that the partners have included the said amount in their individual returns and paid tax will not alter the situation. The authorities can act only in accordance with the provisions of s. 40(b) of the Act. In this, case the first respondent had rejected the claim for deduction of interest paid on current account only because there was no provision in the partnership deed enabling such payment.In the circumstances, there is no merit in these original petitions and they are accordingly dismissed.