Wednesday 1 April 2020

Interest paid on borrowing for acquiring house deductible under section 24(b) & under section 48 as altogether covered by different heads of income i.e. income from ‘house property’ and ‘capital gains’


It is almost a settled law, being upheld by the several High Courts and co-ordinate Benches of the ITAT that interest forms part of the cost of capital assets. In the following cases, it is very much clear that if the property is purchased from borrowed funds then consideration for the purchased amount, the interest on borrowed fund also has to be paid. The amount of interest paid by the assessee constitutes the actual cost to the assessee for that property. To exclude the interest amount from the actual cost of the assets/property would lead anomalous result. The interest amount should be definitely added to the actual cost of the property.

Interest paid  on the borrowing made for acquiring Capital Asset (House Property)  is part of the cost of acquisition and therefore eligible for indexation and deduction from the Sale Consideration  for computation of capital gains. 
Assessee took loans of Rs. 2,80,000/- on 01.07.1995 and paid the balance amount from her own source. The assessee incurred interest expense of Rs. 3,93,898/- during the loan tenure since 01.07.1995 to 31.03.2009 and this interest was capitalized. No deduction under section 24 (b) was claimed in the ITRs filed for the various years. It was held that there is a consistent view among various Hon’ble High Courts and which has been consistently followed by the various Benches of the Tribunal that the assessee is entitled to include interest as part of the cost of the assets while computing the capital gains under section 48 of the Act. In the absence of any contrary authority brought to our notice, the Assessing Officer is directed to allow the interest expenses of Rs.3,93,898/- paid to LIC Housing Finance Ltd. Subject to appropriate indexation while computing capital gains under section 48 of the Act. (Related Assessment Year : 2010-11) – [Parwati Devi Totlani v. ITO - Date of Judgement : 28.02.2020 (ITAT Jaipur)]


Housing loan interest can be included in cost in capital gain computation - Assessee is entitled to include interest in the capital cost while computing capital gains under section 48 of the Act
Ld. Assessing Officer was of the opinion that interest of Rs. 63,98,540/- on the housing loan paid by the assessee, for the period starting from the date of purchase and ending on the date of sale of property could not be allowed as cost of acquisition/improvement. As per ld. Assessing Officer interest expenditure incurred during the period of construction alone could be considered as part of cost. According to him, thereafter it took the character of revenue expenditure. Though, the assessee relied on the decision of Co-ordinate Bench in the case of CIT v. C. Ramabrahamm (2013) 57 SOT 0130, ld. Assessing Officer did not accept the claim of the assessee. He reworked the capital gain excluding the interest on housing loan from the cost of acquisition/cost of improvement. It was held that the Co-ordinate Bench has clearly held that an assessee is entitled to include interest in the capital cost while computing capital gains under section 48 of the Act. Judicial discipline requires us to follow the order of a coordinate Bench unless it could be demonstrated that the view taken was contrary to a provision of law. The ld. Commissioner of Income Tax (Appeals) in the case before us had followed the decision of Coordinate Bench. We cannot therefore interfere with the order of the ld. Commissioner of Income Tax (Appeals). In the result, the appeal of the Revenue stands dismissed. (Related Assessment Year : 2011-12) – [ITO v. Smt. R. Aishwarya - Date of Judgement : 06.01.2020 (ITAT Chennai)]

Amount of interest paid by the assessee constitutes the actual cost to the assessee for that property and the interest amount should be added to the actual cost of the property
It was held that if the property is purchased from borrowed funds then consideration for the purchased amount, the interest on borrowed fund also has to be paid. The amount of interest paid by the assessee constitutes the actual cost to the assessee for that property. To exclude the interest amount from the actual cost of the assets/property would lead anomalous result. The interest amount should be definitely added to the actual cost of the property. (Related Assessment Year : 2013-14) [Gayatri Maheshwari v. ITO (2017) 187 TTJ 33 (ITAT Jodhpur)]

Assessee is entitled to claim deduction under section 24(b) and under section 48 as both provisions are altogether different
The assessee borrowed funds for purchasing a house. The interest paid on the said loan was claimed as a deduction under section 24(b). When the house was sold, the interest paid on the said loan was treated as “cost of acquisition” and claimed as a deduction under section 48 in computing the capital gains. The Assessing Officer held that as the interest had been allowed as a deduction under section 24(b), it could not allowed again in computing capital gains. The CIT(A) allowed the claim. On appeal by the department to the Tribunal, HELD dismissing the appeal:

Deduction under section 24(b) and computation of capital gains under section 48 are altogether covered by different heads of income i.e., income from ‘house property’ and ‘capital gains’. Neither of them excludes the other. A deduction under section 24(b) is claimed when the assessee computes income from ‘house property’, whereas, the cost of the same asset is taken into consideration when it is sold and capital gains are computed under section 48. There is no doubt that the interest in question is an expenditure in acquiring the asset. Since both provisions are altogether different, the assessee is entitled to include the interest at the time of computing capital gains under section 48. (Related Assessment year : 2007-08) [ACIT v. C.Ramabrahmam - Date of pronouncement : 31.10.2012 (ITAT Chennai)]


In the case of CIT v. Sri Hariram Hotels (P) Ltd. (2010) 229 CTR 455 : 188 Taxman 170 (Kar), the Hon’ble Karnataka High Court has held as under:‑
“7 We are unable to agree with the arguments advanced by the learned counsel for the revenue for the simple reason on facts that even the Commissioner of Income-tax (Appeals) has held that interest had accrued as on 31.03.2003 and therefore, the Tribunal is justified in granting the relief to the assessee Since the property has been purchased out of the loan borrowed from the Directors and any interest paid thereon is to be included while calculating the cost of acquisition of the asset. Therefore, question No. 1 has to be answered against the revenue.”

The Madras High Court in the case of CIT v. K. Raja Gopala Rao observed as under:
 “4. Here, there can be no doubt that the cost of acquisition to the assessee was not merely the amount that he had paid to the vendors but also the cost of the borrowing made by him for the purpose of paying the vendor and obtaining the sale deed... Without the money borrowed, the assessee would not have been in a position to buy the property... Payment of consideration for the sale indisputably having been made with the borrowed funds, the borrowing directly related to the acquisition and, interest paid thereon would form part of the cost of acquisition. – [CIT v. K. Raja Gopala Rao (2001) 252 ITR 459 (Mad)]

The Karnataka High Court in the case of CIT v Maithreyi Pai observed as under:
"Mr. Bhat, however, submitted that section 48 should be examined independently without reference to section 57. Section 48 provides for deducting from the full value of consideration received the cost of acquisition of the capital asset and the cost of improvements, if any. The interest paid on borrowings for the acquisition of a capital asset must fall for deduction under section 48. – [CIT v Maithreyi Pai (1985) 152 ITR 247 (Kar)]

In CIT v. Mithilesh Kumari, the Hon'ble High Court has held as under:-
"(13) We are in respectful agreement with the observations of the Calcutta and the Bombay High Court in the decisions referred to above. In the present case, we find that the assessed in order to purchase the land had not only to borrow the amount of Rs. 95,000 which was the consideration for the purchase of the land but also had to pay interest of Rs. 16,878 on the amount borrowed by her. The amount of Rs. 95,000 plus the interest paid by the assessed constitutes the actual cost to the assessed of the land. The fact that the amount of Rs. 95,000 was paid by the assessed to the vendor and the amount of interest of Rs. 16,878 was paid to a different person, namely, her mother-in-law, does not make any difference so far as the assessed is concerned in respect of the actual cost of the land to her. It will not also make any difference whether the interest was paid on the date of the purchase or whether it is paid subsequently. To exclude the interest amount from the actual cost of the assets would lead to anomalous results. Supposing she had purchased the land for Rs. 1,00,000 by raising a loan of that amount and had paid interest of Rs. 20,000 on the said loan and had sold the land for Rs. 1,20,000 It would be unreasonable to hold under such circumstances by excluding the interest amount from the actual cost of the land that she had made a capital gain of Rs. 20,000 when, as a matter of fact, she had not made any profit at all by the transaction. Applying the said observations of the Calcutta and the Bombay High Courts to the present case, we hold that the Tribunal was right in additing the interest amount of Rs. 16,878 towards the actual cost of the land."[CIT v. Mithlesh Kumari (1973) 92 ITR 9 (Del)]


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