To,
The Deputy Commissioner of Income Tax,
Circle 4(1), Bengaluru.
Subject: Response to the notice u/s 142(1) (questionnaire) in the scrutiny assessment proceedings u/s 143(2) for Assessment Year 2021-22 — M/s Northwind Traders Pvt Ltd, PAN AABCN1234K.
Ref: Scrutiny proceedings u/s 143(2) r/w s.142(1), A.Y. 2021-22 | Assessee: M/s Northwind Traders Pvt Ltd | PAN: AABCN1234K | DIN of impugned notice as above.
Respected Sir/Madam,
1. At the outset, the assessee, M/s Northwind Traders Pvt Ltd (PAN AABCN1234K), through its authorised representative, respectfully acknowledges the notice u/s 142(1) issued in the course of the scrutiny proceedings u/s 143(2) for Assessment Year 2021-22, and submits this response in seriatim to the queries raised, together with the supporting documents annexed hereto.
2. The assessee is a private limited company engaged in trading activity, which has maintained regular books of account, duly audited, and has filed its return of income for A.Y. 2021-22 within the prescribed time. The books, vouchers and the audited financial statements have been produced/are produced herewith for the learned Assessing Officer's verification. The assessee respectfully submits that each of the proposed additions/disallowances flagged in the questionnaire is liable to be dropped for the reasons set out ground-wise below, and that nothing herein is to be construed as an admission of any liability.
3. The submissions on the three issues are made in the order of their strategic significance and the quantum involved. The aggregate of the three proposed items is set out, by way of an explicitly-summed line-item list and not by way of any self-computed tax, as follows:
| (a) Proposed addition u/s 68 | Rs 66,94,844 |
| (b) Proposed disallowance u/s 40A(2)(b) | Rs 12,80,000 |
| (c) Proposed disallowance u/s 14A r/w Rule 8D | Rs 3,60,000 |
| Aggregate of proposed items | Rs 83,34,844 |
The assessee respectfully submits its detailed defence on each item hereunder.
1.1 The assessee respectfully submits that the impugned sum of Rs 66,94,844 is a bona fide unsecured loan received from a single, fully-identified lender — whose name, PAN and complete address are recorded in the loan confirmation at Annexure G1-A and whose name the authorised representative will read into the record at the hearing — which is duly recorded in the regular books of account and was received wholly through normal banking channels by way of account-payee RTGS/NEFT credit, no part of it in cash. The receipt is reflected, transfer-for-transfer, in the assessee's bank statement (Annexure G1-E) and in the corresponding debit in the lender's bank statement (Annexure G1-D).
1.2 The settled position in law, as laid down by the Hon'ble Supreme Court in Kale Khan Mohammad Hanif v. CIT, is that the onus u/s 68 on the assessee is to explain the nature and source of a sum credited in its books; once a satisfactory explanation supported by material is furnished, the onus shifts to the Revenue. The assessee respectfully submits that this onus is not treated as an open-ended or future burden: it stands discharged on the present record, and on the very material annexed to this response, on each limb the section requires — (i) identity, (ii) creditworthiness reconciled to the precise quantum, and (iii) genuineness, including the immediate source of the lender's funds and the documented commercial terms and occasion of the advance. The assessee is conscious that an unverified paper trail is not, of itself, a complete discharge; it has therefore done two things that a paper trail alone does not. First, it has carried the explanation beyond its own books and beyond the lender's books to the rung above the lender — evidencing where the lender's funds themselves came from, with no cash leg at any point (paragraph 1.6). Second, it does not offer but produces the lender in person for examination (paragraph 1.8), so that the one step a documentary discharge cannot itself supply — the creditor's sworn confirmation under examination — is placed within the learned AO's reach on this very record and is not left to the AO's election to summon.
1.3 Identity: The lender is a named, PAN-holding individual assessed to tax, whose loan confirmation on letterhead (Annexure G1-A) and PAN (Annexure G1-B) are annexed. Creditworthiness — reconciled to quantum: The lender's income-tax return acknowledgement and computation for the relevant year (Annexure G1-C) and the lender's audited balance sheet / statement of affairs are annexed, the latter disclosing a closing capital and net worth that exceeds the advance of Rs 66,94,844 and discloses, in addition, the specific liquid balances out of which the advance was funded. The reconciliation at Annexure G1-G ties those returned figures and disclosed balances, rupee for rupee, to the quantum advanced, so that capacity is not asserted in the abstract but demonstrated from the lender's own audited net worth and identified liquid sources. Genuineness: The two bank statements (Annexures G1-D and G1-E) establish the movement of funds entirely through banking channels, and the lender's ledger, the interest provided thereon and the tax deducted at source on that interest are reflected in the books (Annexure G1-F).
1.4 The assessee respectfully relies on CIT v. Orissa Corporation (P) Ltd, wherein the Hon'ble Supreme Court held that where the assessee furnishes the identity, PAN and confirmations of its creditors and the Department neither examines them nor pursues the summons it issues, the addition u/s 68 cannot be sustained. The assessee is alive to the submission that the protection in Orissa Corporation operates where the Department has itself summoned and failed to follow through, and meets it directly: the assessee does not rest on the AO declining to summon, but removes the occasion for any such election by producing the lender in person at the hearing (paragraph 1.8), so that the creditor is genuinely before the enquiry and examinable on this record whether or not a summons issues. Having placed the lender's identity, PAN, ITR, audited net-worth reconciliation, the traced immediate source of the lent funds, the written terms and the complete banking trail on record, and having physically produced the lender, the assessee submits that the explanation is satisfactory and complete, that the onus has shifted to the Revenue, and that no addition can be sustained save on contrary material brought on record after such examination — of which there is none.
1.5 The decision in CIT v. P. Mohanakala, on which the Revenue may seek to rely, is respectfully distinguishable: it sustains an addition only where the explanation is unsatisfactory and the surrounding circumstances and human probabilities show the credits are not genuine. The assessee submits that the apparent here is the real, and that the test of human probabilities affirmatively supports this credit, because every circumstance that ordinarily renders a credit suspect is answered on this record by a positive, documented fact rather than by assertion. The advance is not interest-free: it carries interest at the rate stated on the face of the loan confirmation (Annexure G1-A), on which tax has been deducted at source and reflected in the books (Annexure G1-F) — a TDS footprint that an accommodation entry does not ordinarily leave. It is not without terms: the confirmation records the date of the advance, the rate, the security position and a definite repayment schedule (Annexure G1-A read with Annexure G1-I). It is not a round, inexplicable sum: the precise figure of Rs 66,94,844 is reconciled in Annexure G1-I to a specific, documented working-capital requirement of the assessee, so that the exactness of the figure is the signature of a real computed requirement, not of contrivance. And it is not funded out of thin air: the lender's own funding source is traced one step further (paragraph 1.6). On these facts the prudent-lender objection answers itself — a lender who advances against a written instrument bearing interest, on a recorded repayment schedule, with TDS suffered, to a tax-assessed company for an identified business purpose, behaves as a lender, not as a conduit.
1.6 Immediate source of the lender's funds (source-of-source), traced one rung beyond the lender: The assessee does not leave the antecedents of the lender's funds to inference, nor does it confine the trail to its own banking leg. It places on record at Annexure G1-H the lender's own evidenced explanation of the immediate source of the sum advanced, supported by the specific instrument that generated those funds — the maturity proceeds, sale realisation or withdrawal from the lender's established and separately-disclosed balances, as documented therein — and traces that instrument to the matching credit entry in the lender's bank statement (Annexure G1-D) which immediately precedes and funds the outward transfer to the assessee. The chain is thus shown one step above the lender, and not merely at the assessee's own leg, with no cash deposit or unexplained transfer at any rung. The assessee further submits that, the lender being produced in person, the learned AO need not rely on the assessee's account of a third party's affairs at all: any residual question on the lender's funding credit — including any enquiry the AO may wish to pursue u/s 133(6) or u/s 131 into the lender's bank records — can be put to the lender directly at the examination the assessee is facilitating, and the lender is in a position to answer it from his own records.
1.7 Commercial terms and occasion of the advance, as recorded — not as promised: The assessee submits that the advance is a documented borrowing whose terms appear on the face of the instrument now annexed, and are not reserved to some future expansion of it. The loan confirmation (Annexure G1-A) records, as at the date of the advance, the stipulated rate of interest, the security position of the advance, and the repayment schedule agreed; and Annexure G1-I sets out the legitimate working-capital requirement of the assessee that occasioned the borrowing and reconciles the precise figure of Rs 66,94,844 to the documented quantum of that requirement. The assessee submits that an advance so dated, so priced, so secured-or-recorded-as-unsecured-on-stated-terms, and so reconciled to a real business need answers the businessman's-standpoint and human-probabilities enquiry squarely in the assessee's favour, the terms being verifiable on the instrument itself and confirmable from the lender in person.
1.8 Production of the lender — produced, not merely offered: The assessee submits that it has not confined itself to a documentary discharge. It produces the named lender in person for examination, and undertakes to ensure the lender's attendance — in person or through video conferencing under the faceless scheme — on the date of hearing and on any summons the learned AO may issue u/s 131, so that the lender may confirm the loan, the terms, the source of his funds and his creditworthiness on oath and be cross-examined. This production is unconditional and is made to corroborate, not to complete, a discharge the assessee submits is already effected on the documentary record at paragraphs 1.3 to 1.7. The assessee respectfully submits that, the lender being named, assessed to tax, reconciled to quantum, evidenced as to the immediate source of his funds one rung up, contracted on written terms and now physically produced, the explanation is satisfactory on the record as it stands; should the learned AO wish to test it, the assessee invites and will facilitate that examination forthwith, and no inference adverse to the assessee can be drawn from a creditor who is present and examinable.
1.9 It is, accordingly, most respectfully submitted that the nature and source of the credit of Rs 66,94,844 stand fully explained on the present record, that the lender's identity, creditworthiness (reconciled to quantum), the immediate source of his funds traced one rung beyond him with no cash leg, and the written commercial terms and occasion of the advance are all established and open to verification by the personal examination of the lender now produced, that the ingredients of s.68 are not attracted, and that the proposed addition deserves to be dropped in its entirety.
- G1-A — Loan confirmation/agreement from the named lender on letterhead: name, PAN, address, amount, mode (banking channel), date, stipulated interest rate, security position, repayment schedule and outstanding balance.
- G1-B — PAN of the lender.
- G1-C — Lender's ITR acknowledgement, computation and audited balance sheet / statement of affairs showing net worth exceeding the advance and the liquid balances funding it.
- G1-D — Lender's bank statement: the immediate-source credit and the outward transfer to the assessee, traced to the instrument at G1-H.
- G1-E — Assessee's bank statement: receipt through banking channel, matched transfer-for-transfer to the lender's debit.
- G1-F — Lender's ledger in the assessee's books, interest provided, and TDS deducted with challan/return particulars.
- G1-G — Reconciliation tying the lender's returned income, audited net worth and liquid balances, rupee for rupee, to the loan quantum.
- G1-H — Lender's evidenced explanation of the immediate source, with the source instrument and matching bank credit — the chain one rung above the lender, no cash leg.
- G1-I — Statement of the working-capital requirement occasioning the advance, reconciling the exact quantum, read with the written terms in G1-A.
2.1 The assessee respectfully submits that the payment of Rs 12,80,000 to the specified related concern was made wholly and exclusively for the purposes of the business, against services/goods actually rendered/supplied, and is supported by a written agreement/work order recording scope, specification, volume, credit and delivery terms and the agreed consideration, invoices and proof of payment through banking channels (Annexures G2-A to G2-C). The expenditure is genuine and its actual incurrence is not in dispute.
2.2 The disallowance u/s 40A(2)(b) is permissible only to the extent the expenditure is found excessive or unreasonable having regard to the three matters the section enumerates — (i) the fair market value of the goods/services, (ii) the legitimate needs of the business, and (iii) the benefit derived by or accruing to the assessee. The assessee submits that the payment withstands scrutiny on each of these three limbs, and addresses them severally so that no limb is left unanswered. As to fair market value, the consideration is at arm's length and at rates at or below those obtaining between unrelated parties for like goods/services. The assessee is conscious that a quotation procured for the purpose proves an asking price and not a realised market price; it has therefore NOT rested fair market value on quotations. It places on record, as its primary fair-market evidence, contemporaneous completed unrelated-party transactions: (a) the assessee's own purchases of the same goods/services from unrelated parties during the same year, at the same specification and matched volume, at rates equal to or higher than the rate paid to the related concern (Annexure G2-F, internal comparables supported by the corresponding third-party invoices); and (b) where available, completed third-party invoices (not mere quotations) from the relevant trade for like goods/services in the same period (Annexure G2-D). A rate-reasonableness working is at Annexure G2-G.
2.3 Like-for-like comparability, and the answer to the "normalisation adjusts away the genuine premium" objection: The internal comparables at Annexure G2-F are matched, on the face of the working and by reference to the underlying unrelated-party invoices, for the very factors on which dissimilarity might be urged — identical or substantially similar specification/grade, comparable volume/quantity, and comparable credit and delivery terms. Critically, the working does NOT normalise away any sister-concern premium so as to manufacture parity; on the contrary, it demonstrates that the related-concern rate is at or below the unrelated-party rate even BEFORE any adjustment for the additional commitments the related engagement carried (continuity of supply, the agreed volume commitment and the turnaround the assessee's operations required), so that the comparison understates, rather than overstates, the reasonableness of the price. The result therefore does not depend on any contested adjustment exercised by the assessee's CA: it is established on the unadjusted unrelated-party rate itself, which the learned AO can verify against the third-party invoices annexed.
2.4 The legitimate needs of the business and the benefit derived — and why the assessee's own market evidence does not negate benefit: Lest the Revenue shift from price to the other two limbs, the assessee meets them affirmatively and head-on, including the contention that, by pleading it could buy the same thing from the market at comparable rates, the assessee admits the related engagement furnished no incremental benefit. That contention is respectfully misconceived. The market-rate evidence (Annexure G2-F) goes only to fair market value — it establishes that the assessee paid NO premium over the market rate. The benefit limb is answered separately: the related engagement supplied not merely the goods/services at market rate but, in addition and at no premium, the assured continuity of supply, the committed volume and turnaround, and the credit accommodation particularised in Annexure G2-A read with Annexure G2-H — commitments that an arm's-length spot purchase at the same unit rate would not have furnished. The benefit therefore lies precisely in obtaining, at the market rate and no more, an assured and continuous supply on committed terms; receiving full value at no premium is the antithesis of an excessive payment.
2.5 The assessee respectfully relies on Upper India Publishing House (P) Ltd v. CIT, wherein the Hon'ble Supreme Court held that a payment to a related party can be disallowed only to the extent it is excessive or unreasonable having regard to fair market value and the legitimate needs of the business, and that reasonableness is to be judged from the businessman's standpoint and not by the subjective view of the Revenue. Judged from that standpoint, and tested against the contemporaneous unrelated-party transactions and the business-need material now on record, the payment was a commercially prudent one made for the legitimate needs of the assessee's business, productive of a real benefit, and not excessive on any limb.
2.6 Crucially, and as a matter of law, the burden of demonstrating excessiveness rests on the Revenue. This follows from the very structure of s.40A(2): the provision permits disallowance only of so much of the expenditure as is excessive or unreasonable having regard to fair market value, the legitimate needs of the business and the benefit derived, which necessarily requires the Assessing Officer first to determine the fair market value of the goods/services and to record a finding of the excess over it before any sum can be disallowed; absent such a determination of fair market value and a recorded finding of excessiveness, the section confers no jurisdiction to disallow, so the initial burden to demonstrate excessiveness lies on the Revenue, consistent with the businessman's-standpoint test in Upper India Publishing House (P) Ltd v. CIT relied on above. The assessee is mindful that the existence of the relationship casts on it the initial burden of placing reasonableness material on record; it has therefore NOT left the AO to estimate in a vacuum but has itself placed contemporaneous completed unrelated-party transactions for the identical good/service at matched volume (Annexure G2-F), supporting external transaction evidence (Annexure G2-D) and the business-need/benefit material (Annexure G2-H) on record, thereby discharging its initial burden on all three statutory limbs. On this record the questionnaire discloses no comparable instance, no fair-market benchmark, no finding on legitimate needs or benefit, and no finding of excessiveness supported by material; the proposed disallowance is therefore bereft of the jurisdictional foundation the section demands.
2.7 It is, accordingly, most respectfully submitted that no excess over fair market value has been shown to exist, that the engagement met the legitimate needs of the business and yielded a benefit (assured continuous supply on committed terms at no premium) the spot market did not, that no part of the Rs 12,80,000 is liable to disallowance on any of the three statutory limbs, and that the proposed disallowance of Rs 12,80,000 be dropped in its entirety.
- G2-A — Agreement/work order with the related concern: scope, specification, volume commitment, credit/delivery terms, continuity/turnaround obligations and agreed consideration.
- G2-B — Invoices raised by the related concern and the corresponding ledger.
- G2-C — Proof of payment through banking channels and TDS deducted thereon.
- G2-D — Contemporaneous completed third-party invoices (not quotations) for like goods/services in the same period.
- G2-F — Internal comparables: the assessee's own completed unrelated-party purchases at the same specification and matched volume, at rates equal to or higher than the related-concern rate — shown before any adjustment.
- G2-G — Rate-reasonableness working benchmarking the consideration to the completed unrelated-party transactions.
- G2-H — Statement of the legitimate business need and the benefit in fact derived (assured continuity, committed volume/turnaround, credit accommodation).
3.1 The assessee respectfully submits that it earned NO exempt income whatsoever during the previous year relevant to A.Y. 2021-22 — not a rupee of dividend, share of profit from a firm/LLP, exempt long-term capital gain, or any other exempt receipt. This is not a bare assertion: it is borne out by the return of income and the computation (Annexure G3-C), by the Annual Information Statement (AIS) and Form 26AS for FY 2020-21 reflecting no exempt receipt (Annexure G3-E), and by the schedule of investments with the certified statement that none yielded any exempt income during the year (Annexure G3-B). The settled law, as laid down by the Hon'ble Delhi High Court in Cheminvest Ltd v. CIT, is that where no exempt income is earned during the relevant year, no disallowance u/s 14A read with Rule 8D can be made. On this short ground alone, proven on the record, the proposed disallowance is unsustainable and deserves to be deleted.
3.2 The assessee further submits that A.Y. 2021-22 falls squarely PRIOR to the amendment to s.14A introduced by the Finance Act 2022 (which seeks to permit disallowance even in the absence of exempt income). The Hon'ble Delhi High Court in PCIT v. Era Infrastructure (India) Ltd has held that the said amendment is prospective and does NOT apply to assessment years up to 2021-22. The assessee respectfully submits that this is the view of the Delhi High Court, which the assessee respectfully commends, and that, the question being one of the temporal operation of a substantive amendment rather than of any local fact, the ratio in Era Infrastructure is entitled to be followed in this jurisdiction in the absence of any contrary decision of the jurisdictional High Court; a charge to disallowance is governed by the law as it stood for the assessment year in question, which for A.Y. 2021-22 is the pre-amendment law. Without prejudice, even if the prospectivity question were treated as open, the disallowance still fails on the independent grounds at paragraphs 3.1 and 3.3.
3.3 Without prejudice to the above, the disallowance is also bad for want of the satisfaction the law requires before Rule 8D can be invoked, and this objection does not depend on the assessee's view of the prospectivity question. The assessee respectfully relies on Maxopp Investment Ltd v. CIT, wherein the Hon'ble Supreme Court held that disallowance u/s 14A turns on the dominant purpose of the expenditure and that the AO must record dissatisfaction with the assessee's own computation, having regard to the accounts, before invoking Rule 8D. The assessee submits that this precondition is not satisfied on the record on two grounds, the first of which holds whichever construction of the s.14A amendment the learned AO adopts. First, and independently of the prospectivity contest, the satisfaction Maxopp requires is a satisfaction reached on an examination of the assessee's accounts and reasons — a recorded application of mind to the assessee's own computation — and the substitution of the Rule 8D(2) formula for that examination is impermissible: a disallowance arrived at by a mechanical application of the formula, without a recorded, accounts-based dissatisfaction, is bad for that reason alone, and this objection is wholly neutral as to whether the amendment is prospective or clarificatory. Secondly, and on the law as it stood for A.Y. 2021-22, there being no exempt income there is no expenditure "in relation to" exempt income to which any dissatisfaction can attach, so the very subject-matter of the disallowance is absent. This analysis is consistent with the ICAI Guidance Note on Tax Audit (s.44AB) at paragraphs 40.6–40.7, which records that Rule 8D(1) requires the AO, having regard to the accounts, first to record dissatisfaction with the assessee's claim before the Rule 8D(2) mechanism can be applied, and that the disallowance cannot exceed the total expenditure claimed.
3.4 Further and without prejudice, the investments capable of yielding exempt income were made wholly out of the assessee's own and interest-free funds (share capital and free reserves), which comfortably exceed the quantum of such investments, as is evident from the audited balance sheet (Annexure G3-A) and the funds-flow working (Annexure G3-D). In these circumstances, the presumption that the investments came from own funds applies, and no interest disallowance under Rule 8D(2)(ii) is warranted; nor is any administrative disallowance under Rule 8D(2)(iii) sustainable in the absence of a recorded, accounts-based dissatisfaction lawfully entertainable on these facts.
3.5 It is, accordingly, most respectfully submitted that, on the independent grounds above — no exempt income on the record (Cheminvest); the prospective operation of the FA-2022 amendment, the substantive charge for A.Y. 2021-22 being governed by the pre-amendment law (Era Infrastructure); the impermissibility of substituting the Rule 8D(2) formula for a recorded, accounts-based dissatisfaction (Maxopp, a ground neutral to the prospectivity contest); and the own-funds presumption — the proposed disallowance of Rs 3,60,000 u/s 14A r/w Rule 8D be dropped in its entirety.
- G3-A — Audited balance sheet showing own funds (share capital + free reserves) exceeding the investments capable of yielding exempt income.
- G3-B — Schedule of investments with a certified statement of nil exempt income for the year.
- G3-C — Computation of income and the return schedule evidencing nil exempt income.
- G3-D — Funds-flow / source-of-investment working showing use of own / interest-free funds.
- G3-E — AIS and Form 26AS for FY 2020-21 corroborating no exempt receipt during the year.
In the premises and for the reasons set out ground-wise above, it is most humbly and respectfully prayed that the learned Assessing Officer be pleased to:
(a) accept the assessee's explanation that the unsecured loan of Rs 66,94,844 is a genuine credit with identity, creditworthiness (reconciled to quantum), the immediate source of the lender's funds (traced one rung beyond the lender, with no cash leg) and the written commercial terms and occasion of the advance all established on the record, examine the named lender who is hereby produced in person for examination u/s 131, and drop the proposed addition u/s 68 in its entirety;
(b) hold that the payment of Rs 12,80,000 to the related concern is genuine and justified on each of the three statutory limbs — fair market value (no premium over the contemporaneous unrelated-party rate), the legitimate needs of the business, and the benefit derived (assured continuity, committed volume/turnaround and credit accommodation obtained at no premium) — that no excess has been shown on the record, and accordingly drop the proposed disallowance u/s 40A(2)(b);
(c) hold that, no exempt income having been earned in the year (as proven on the return, AIS and 26AS), the substantive charge for A.Y. 2021-22 being governed by the pre-amendment law, the Rule 8D(2) formula not being a substitute for a recorded accounts-based dissatisfaction, and A.Y. 2021-22 being prior to the Finance Act 2022 amendment, the disallowance of Rs 3,60,000 u/s 14A r/w Rule 8D is unsustainable and drop the same in its entirety;
(d) grant the assessee an opportunity of personal hearing (including through video conferencing under the faceless scheme) before any adverse view is taken on any of the above issues, and the liberty to file such further documents and submissions, and to have the lender examined, as may be called for; and
(e) pass the assessment order accepting the returned income, and refrain from initiating any penalty proceedings, the additions/disallowances being unsustainable.
The assessee craves leave to add to, alter, amend or withdraw any of the foregoing submissions, and undertakes to furnish any further particulars the learned Assessing Officer may require. All of the above is submitted without prejudice to one another.