Nirav Modi's interest-free loans, gifts under I-T scanner
TNN|
Updated: Feb 26, 2018, 11.44 AM IST
Interest free loans, cumulatively running into several hundred crores, which Nirav Modi obtained from firms in which he was a partner, will come under the scanner of the income tax department. In addition, they will also examine the genuineness of gifts, which he received from relatives based overseas.
Information is being sought from tax and regulatory authorities of countries such as Mauritius, Singapore, Cyprus and New Jersey. According to I-T officials, it is typical for a jewellery company to receive advances from overseas customers against orders placed by them. The jewellery is subsequently manufactured and exported. At times, orders are cancelled. The refunds made to customers result in a foreign exchange loss (owing to currency fluctuations). Such loss is then claimed as a business deduction by the jewellery company.
However, when it comes to firms in which Modi was a partner, the advances received from overseas customers were diverted to him, largely as interest-free loans. Being in the nature of loans, the funds were not taxable in Modi's hands. If these transactions are found to be a sham (and in the nature of mere accommodation entries), the loans could be treated as unaccounted money in the hands of Nirav Modi, who will be subject to heavy penalties and prosecution.
Litigation relating to tax assessments for the financial years 2005-06 up to 2009-10 for the partnership firm, Diamond "R" Us, in which Nirav Modi was a partner, has been disposed of by the Income Tax Appellate Tribunal (ITAT), which adjudicates I-T disputes.
In November last year, the ITAT disposed of a matter, relating to financial years 2008-09 and 2009-10, during which Diamond "R" Us had given an interest-free loan of Rs 92 crore to Modi. The I-T officials had held that the firm had borrowed funds and at the same time had given interest-free loans to its partner. Borrowed funds, under I-T laws need to be utilised 'wholly and exclusively' for the purpose of the business. Thus, a proportionate interest amount of nearly Rs 10 lakh was denied in the hands of the firm. The ITAT in its order of November 17, has asked the I-T officials to re-compute this figure of Rs 10 lakh after looking at various accounting entries such as the opening balance in the partner's account.
For earlier years, the I-T officials have cast doubts on the genuineness of the transactions and have pointed out that the advances received from customers were not utilised for the purpose of the business. During assessment of the financial year 2005-06, I-T officials noticed that the firm did not have any accumulated profits or reserves. Nor were any effective purchases or sales made. Advances received from customers were not lying in its bank account but were diverted for Modi's personal use. An amount of Rs 27 crore was given to Rohin Trust for purchase of property, they pointed out. During the financial year 2006-07, there was a similar diversion of funds and Nirav Modi withdrew nearly Rs 27 crore from his capital account.
The foreign exchange loss, arising on refunds to customers in these two years was Rs 30.78 lakh and Rs 65 lakh, respectively. The ITAT had to decide on the narrow issue of whether such loss should be allowed as a deduction in the hands of the firm. The tribunal held that the foreign exchange loss is in the course of business operations and not in the nature of cost of funds. Thus, use of such advances by Modi was not relevant to the issue in appeal, and claims made by Diamond "R" U were allowed. However, I-T sleuths are likely to dig deeper into transactions, to determine if the practise of obtaining advances from customers was just a garb to hide money laundering activities.
Information is being sought from tax and regulatory authorities of countries such as Mauritius, Singapore, Cyprus and New Jersey. According to I-T officials, it is typical for a jewellery company to receive advances from overseas customers against orders placed by them. The jewellery is subsequently manufactured and exported. At times, orders are cancelled. The refunds made to customers result in a foreign exchange loss (owing to currency fluctuations). Such loss is then claimed as a business deduction by the jewellery company.
However, when it comes to firms in which Modi was a partner, the advances received from overseas customers were diverted to him, largely as interest-free loans. Being in the nature of loans, the funds were not taxable in Modi's hands. If these transactions are found to be a sham (and in the nature of mere accommodation entries), the loans could be treated as unaccounted money in the hands of Nirav Modi, who will be subject to heavy penalties and prosecution.
Litigation relating to tax assessments for the financial years 2005-06 up to 2009-10 for the partnership firm, Diamond "R" Us, in which Nirav Modi was a partner, has been disposed of by the Income Tax Appellate Tribunal (ITAT), which adjudicates I-T disputes.
In November last year, the ITAT disposed of a matter, relating to financial years 2008-09 and 2009-10, during which Diamond "R" Us had given an interest-free loan of Rs 92 crore to Modi. The I-T officials had held that the firm had borrowed funds and at the same time had given interest-free loans to its partner. Borrowed funds, under I-T laws need to be utilised 'wholly and exclusively' for the purpose of the business. Thus, a proportionate interest amount of nearly Rs 10 lakh was denied in the hands of the firm. The ITAT in its order of November 17, has asked the I-T officials to re-compute this figure of Rs 10 lakh after looking at various accounting entries such as the opening balance in the partner's account.
For earlier years, the I-T officials have cast doubts on the genuineness of the transactions and have pointed out that the advances received from customers were not utilised for the purpose of the business. During assessment of the financial year 2005-06, I-T officials noticed that the firm did not have any accumulated profits or reserves. Nor were any effective purchases or sales made. Advances received from customers were not lying in its bank account but were diverted for Modi's personal use. An amount of Rs 27 crore was given to Rohin Trust for purchase of property, they pointed out. During the financial year 2006-07, there was a similar diversion of funds and Nirav Modi withdrew nearly Rs 27 crore from his capital account.
The foreign exchange loss, arising on refunds to customers in these two years was Rs 30.78 lakh and Rs 65 lakh, respectively. The ITAT had to decide on the narrow issue of whether such loss should be allowed as a deduction in the hands of the firm. The tribunal held that the foreign exchange loss is in the course of business operations and not in the nature of cost of funds. Thus, use of such advances by Modi was not relevant to the issue in appeal, and claims made by Diamond "R" U were allowed. However, I-T sleuths are likely to dig deeper into transactions, to determine if the practise of obtaining advances from customers was just a garb to hide money laundering activities.
(This article was originally published in The Times of India)
