DCIT CIRCLE 2(1), TRICHY vs. THE LAKSHMI VILAS BANK LTD., KARUR

3. CIT(A) erred in treating the letters received from the AO to the CIT(A) as enhancement petition, without appropriate application of his mind.

4. He erred in not following the decision of the Appellate Authorities in the appellant’s own case for the earlier years, in respect of the addition made towards depreciation on investments.

5. He failed to appreciate that the claim made by the appellant u/s.36(1)(viia) is in accordance with Rule 6(ABA) of the Income-tax Act and that the Calcutta High Court in PCIT, Jalpaiguri Vs UttarbangaKshetriyaGramin Bank had favour of the appellant.

6. He also failed to appreciate that the appellant had computed the deduction U/s.36(1)(viia) in a scientific manner and that the method of computation had accepted by the Department in all the earlier years.

7. He failed to appreciate that the computation on deduction U/s.36(1)(viii) been worked out in a scientific manner and that the same had been accepted by Department in all the earlier years.

8. The appellant submits that though the principle of resjudicata does not apply to income-tax proceedings, the rule of consistency applies.

9. He erred in considering the letters dated 22.11.2017 and 04.02.2017 filed by the AO, as an enhancement petition without giving copies of the same to the appellant.

10. It further submits that the claim for TDShad been made as per 26AS and that the CIT(A) should have allowed this claim.

11. He also failed to appreciate that the interest u/s. 244A has been reduced, without giving any opportunity to the appellant and that, therefore, is not valid in Law.

12. The appellant, therefore, prays that the: (i) total income in the revised return may be adopted; (ii) addition sustained by the CIT(A) may be deleted; and (iii) interest reduced u/s. 244A may be refunded. & 899/Chny/2019 - 3 - The grounds raised by the revenue read as under:

1. The order of the learned CIT(A) against the facts and circumstances of the case.

2. On the facts and circumstances of the case, the CIT(A) has erred in deleting the addition madetowards Ex-gratia Payments made by the assessee to its employees holding that which is in the nature of business expenditure?

3. On the facts and circumstances of the case, the learned CIT (A) has erred allowing the claim on Ex-gratia payment without considering the fact that provisions of Sec.37(1) clearly stipulates that it does not cover the expenditure which is in the nature covered u/s. 30 to 36 and Bonus is covered u/s. 36 (1)(ii).

4. On the facts and circumstances of the case, the learned CIT(A) has erred in not considering the fact that payment in contravention of any other act (Bonus Act in this case) is not an allowable deduction while deciding Ex-gratia payment issue.

5. On the facts and circumstances of the case, the Hon'ble CIT(A) has erred while deciding the issue on interest accrued on NPAs by holding Rule 6EA(a) as non-compliant with Sec 43 D as no amendment in line with the changes in RBI's guidelines has been made.

6. On the facts and circumstances of the case, the CIT(A) failed to appreciate the fact, the Assessing Officer charged interest only on those Non-performing assets which fall und the category of more than 90 days and less than 180 days old levied interest for the period of 180 days only.

7. On the facts and circumstances of the case, the CIT(A) failed to see that no rural debt written off can be claimed u/s 36(1)(viia) if its value is less than the provision made u/s 36(1)(viia) and also failed to appreciate the fact that the debts written off filed by the assessee contains some rural debts also.

8. On the facts and circumstances of the case, the CIT(A) has erred in deleting the disallowance of provision for bad and doubtful debts u/s 36(1)(viia) of the Act quoting the census 2001.

9. On the facts and circumstances of the case, the learned CIT(A) has erred in the issue u/s 36(1)(viia) by considering partly allowed. The CIT(A) has not considered as rural branches, as the population of each of the branches exceeded 10,000 as per the Census of 2011 are to be excluded from the definition of ‘rural branches’ and the quantum of “Aggregate Average Rural Advances are to be re-worked.

2. As is evident, the subject matter of assessee’s appeal is (i)Computation of Deduction u/s 36(viia) and enhancement made therein; (ii) Computation of deduction u/s 36(1)(viii); (iii) Withdrawal of interest u/s 244A; (iv) Enhancement of Income on depreciation on investments & (v) TDS Credit. The assessee is also aggrieved by the fact that revised return as filed on 21.03.2014 was not considered by the lower authorities. & 899/Chny/2019 - 4 - The subject matter of revenue’s appeal is (i) Ex-gratia payments; (ii) Interest accrued on NPAs; (iii) Rural Debts advances while computing deduction u/s 36(1)(viia) and adoption of Census of 2001.

3. The Ld. AR placed on record issue-wise chart and advanced arguments. The same has been controverted by Ld. Sr. DR. Having hears rival submissions and after perusal of case records, our adjudication would be as under.

4. The assessee being resident corporate assessee is engaged in banking business. The assessee filed return of income on 29.09.2012 admitting income of Rs.105.97 Crores which was later on revised to claim deduction of wage arrears for Rs.35.26 Lacs. However, revised return has not been taken cognizance of while framing the assessment which is one of the grievances of the assessee. We find that the assessee has revised its return of income on 21.03.2014 in accordance with law and therefore, the cognizance of the same was to be taken by the authorities below. The Ld. AO is directed to examine the claim of the assessee with respect to payment of wage arrears for Rs.35.26 Lacs as claimed in the revised return.

5. Ex-gratia payments: 5.1 The assessee claimed deduction of ex-gratia payment for Rs.137.17 Lacs. The same was paid to employees in addition to salary and bonus. The same was stated to be paid to maintain better employer&employee relationship. However, the Ld. AO disallowed the same on the ground that it was merely an appropriation of profits and had no co-relation with the incentive paid by the bank to its employees. It was also alleged that the assessee had circumvented the provisions of Bonus Act and distributed bonus to the employees who were not eligible & 899/Chny/2019 - 5 - under the Act. Such payments cannot be allowed u/s. 37(1) of the Act in the grab of business expediency.Accordingly, the amount was disallowed and added back to the income of the assessee. 5.2 The Ld. CIT(A) allowed the same by following the decision of Hon’ble High Court of Madras in TCA No.897 of 2013 and MP No.1/2013. Aggrieved, the revenue is in further appeal before us. 5.3 The position noted by Ld. CIT(A) remain uncontroverted before us and therefore, no infirmity could be found in the impugned order, in this regard. The corresponding grounds raised by the revenue stand dismissed.

6. Interest Accrued on Non-performing Accounts: 6.1 As per the RBI guidelines as well as under Indian Companies Act, the assessee was required to maintain books of accounts on mercantile basis. However, the provisions of section 43D clause (a) provides that income by way of interest in respect of bad and doubtful debts shall be chargeable to tax in the previous year in which it is credited by these banks to its Profit & Loss account or in the year in which it has actually been received by the assessee. As per Rule 6EA of Income Tax Rules, if no interest was being paid by the borrower for 6 months, such sticky account was to be treated as bad and doubtful account which is referred to as non-performing account (NPA). The RBI has also issued guidelines for classification of accounts as NPAs. There was no conflict between the RBI guideline for recognizing NPAs and Rule 6EA of the Income Tax Rules till 31.03.2004. However, subsequently, RBI lowered the limit for recognizing the account as NPA from 180 days to 90 days. In another words, from AY 2005-06 onwards, an account of a borrower may be treated as NPA as per RBI guidelines but it may not be classifiable as & 899/Chny/2019 - 6 - bad and doubtful account as per Rule 6EA of the Income Tax Act which has retained such period at 180 days. Therefore, Ld. AO held that the income was to be recognized as per Rule 6EA. In other word, interest need to be offered to tax on accrual basis for those NPAs which, as per RBI guidelines would be NPA but not as per Rule 6EA. In the absence of any such details available on record, Ld. AO estimated income on such NPAs at Rs.88.42 Lacs and added the same to the income of the assessee. 6.2 The Ld. CIT(A) allowed this ground as covered matter in assessee’s own case by the decisions of this Tribunal for AYs 1997-98, 1998-99, 2000-01, 2002-03, 2004-05, 2006-07 and 2009-10. Aggrieved, the revenue is in further appeal before us. 6.3 The Ld. Sr. DR has submitted that the decision as relied upon by Ld. CIT(A) is in the context of Indian Bank and not in assessee’s case. However, the same would not materially alter the position that the issue has already been decided by the Tribunal in assessee’s favor. Further, we find that this issue is covered in assessee’s favor by the decision of this Tribunal in The Karur Vysya Bank Ltd. (ITA Nos. 2325- 36/Mds.2016 29/03/2017)also. Therefore, we find no reason to interfere in the impugned order, in this regard. The corresponding grounds raised by the revenue stand dismissed.

7. Deduction u/s. 36(1)(viia) 7.1 The assessee was eligible to claim deduction u/s 36(1)(viia) for provision for doubtful debts on rural advances. In terms of Rule 6ABA, Ld. AO held that deduction has to be worked out on the average advances made by rural branches during the month in a financial year. The deduction is available for the provision for bad and doubtful debts & 899/Chny/2019 - 7 - made in respect of advances made by the rural branch in each month during the year. The assessee claimed deduction to the extent of Rs.51.55 Crores as follows: (a) 7.5% of the Profits before allowing deduction under 12,27,58,497 Chapter VI-A (b) 10% of aggregate average advances made by rural 42,59,53,583 branches (c) Total of (a) and (b) 54,87,12,080 (d) Provision made for Bad and Doubtful Debts by the Bank NPA Rs. 45,43,09,975 Floating Provision Rs. 6,12,00,000 Total Provision claimed to be made 51,55,09,975 (h) Least of (c) or (d) claimed as deduction u/s. 36(1)(viiia) 51,55,09,975 7.2 However, Ld. AO revised the same by taking aggregate average of rural branch advances disbursed during the year and computed deduction of Rs.13.44 Crores as under: (a) Aggregate average rural advances disbursed during this 15,17,36,890 year [Rs. 15,54,64,914 – Rs. 37,28,024] (As the population of Uthmarkoil is above 10,000, the average rural advances disbursed to this branch is disallowed) (b) Deduction allowable on aggregate rural advances 1,51,73,689 [@ 10% of (a)] (c) 7.5% of Gross Total Income before deduction under Chapter 11,92,51,831 VIA {after deduction under 36(1)(viii)} 7.5% (Rs. 164,03,06,140- Rs. 5,02,81,724) = 7.5% (159,00,24,416) (d) Total of (b) and (c) 13,44,25,520 (e) Provision made for Bad and Doubtful Debts by the Bank 51,55,09,975 (f) Least of (d) or (e) allowable as deduction u/s. 36(1)(viia) 13,44,25,520 7.3 During appellate proceedings, Ld. AO proposed enhancement. Accepting the same, Ld. CIT(A) directed Ld. AO to compute deduction in accordance with the earlier order of Tribunal in assessee’s own case. At the same time, it was also noted that this matter was covered inassessee’ favor by the decision of Hon’ble Calcutta High Court in PCIT & 899/Chny/2019 - 8 - V/s UttarbangaKshetriyaGramin Bank (256 Taxman 72) and also by Tribunal’s decision in Karur Vysya Bank whereinsimilar matter was decided in assessee’s favour. 7.4 The second limb of enhancement was identification of rural branches. The Ld. AO opined that census of 2011 was to be used as per which some more rural branches would be seen to have population exceeding 10000 and hence, not to be consideredin the computation. The Ld. CIT(A), following Mumbai Tribunal order in Citizen Credit Co- operative Bank Ltd. and the decision of Hon’ble Kerala High Court in South Indian Bank Ltd. rejected the enhancement and directed AO to identify rural branches in terms of these decisions. The cited decision of Mumbai Tribunal has followed the decision of Hon’ble Kerala High Court. 7.5 Aggrieved, the assessee as well as revenue is in further appeal before us. 7.6 So far as the computation of deduction is concerned, we find that this issue in now covered in assessee’ favor by the decision of Hon’ble High Court of Madras in the case of CIT V/s City Union Bank Ltd. (TCA No.961 of 2010 dated 07.03.2022) wherein Hon’ble Court concurred with principles laid down by Hon’ble Calcutta High Court in PCIT V/s UttarbangaKshetriyaGramin Bank (256 Taxman 72) wherein it was held that the assessee is entitled to deduction on average aggregate rural advances as computed u/r 6ABA and rejected the contentions of the department that the deduction should be allowed only on the average aggregate rural advances disbursed during the year. Respectfully, following the same, the assessee’s corresponding grounds stands allowed. & 899/Chny/2019 - 9 - 7.7 So far as second limb is concerned, we find that the meaning of rural branch has been elaborated by Hon’ble High Court of Karnataka in State Bank of Mysore V/s ACIT (53 Taxmann.com 253) as under: - (ia) 'ruralbranch' means a branch of a scheduled bank (or a non-scheduled bank) situated in a place which has a population of not more than ten thousand according to the last preceding census of which the relevant figures have been published before the first day of the previous year' 8. In respect of any provision for bad and doubtful debts made by the scheduled Bank, an amount not exceeding 71/2 percentage of the total income computed before making any deduction under this clause and Chapter VI A and an amount not exceeding 10% of the aggregate average advances made by the rural branches of such bank computed in the prescribed manner are allowed as deduction. It is clear from the said provision that, the distinction has been made between the branches situated in the rural areas and the branches situated outside the rural areas. In respect of rural area, branches have to cater to the requirements of the poor and under privileged section of the society. The chances of recovery by the national bank being weaker by 10% to the aggregate average, advances made in those rural branches is given deduction towards bad and doubtful debts. The Legislature has defined what is "rural branch", as it is clear from the Explanation. They have fixed the population of not more than 10,000 as determining the rural branch and that population of 10,000 should be according to the last preceding census of which the relevant figures have been published before the first day of previous year. Therefore, this benefit of 10% of the aggregate average advances made by the rural branches of the bank is extended to the small population, living in the villages which is less than 10,000. If the population of such village is more than 10,000, then the said benefit of 10% deduction is not available. Hence, we keep this object of the Legislature in mind, then interpret with the word rural branch. The word used is 'published' before the first day of previous year. If in the Census it is found that the population of a particular village has crossed 10,000 then the scheduled Bank pertains to that village would not be entitled to the deduction of 10,000 to the aggregate average advances towards bad and doubtful debts. The Census figure would be available with the Census Department. It is not possible for the common man or the bank to know what is the Census figure. Therefore, the said provision stipulates that Census figure has to be published. Therefore, it is only after publication of the Census figures one may be able to decide whether it is a rural branch as defined under the Act or not. The last stipulated population necessarily would be with reference to particular date. That day is also prescribed as that date before first day of the previous year. Once the publication of census is made before the first day of the previous year, then the said information is in public domain. Therefore, on that basis one could find whether a branch is a rural branch or not. It is no doubt true that the Census Department initially publishes a provisional population total. Probably calling objections from the public and after considering those objections, publishes final population total. The Legislature has used the words "bad and doubtful debts" and the words "provisional" and "final" conspicuously missing in the said words. The word published has to be understood as final population as contended by the learned counsel appearing for the assessee. If other words are added it would amount to re-writing which is impermissible in law. & 899/Chny/2019 - 10 -

Keeping in mind the object, before the bank is entitled to the said benefit all that is to be seen is whether in that village where the rural branch is situated population is less than 10,000 or exceeding 10,000. Census is conducted once in ten years. After conclusion of the Census, provisional figure will be published and then final publication is made. If from the date of provisional population totals being published it has crossed the 10,000 limit as prescribed under the Law, then it does not satisfies the requirements of the rural branch and consequently assessee would not be entitled to the benefit granted to the rural branches. The publication of the final population total is only a formality. If after provisional population total shows more than 10,000 and in the final population total figure shown is less than 10,000 then it will make difference. But in both the provisional population total and the final population total if figure is mentioned above 10,000 it makes no different in the instant case. It is not the case of the assessee though the provisional figure mentioned is above 10,000 and in the final population total it has gone below 10,000. Therefore, provisional population total cannot be acted and in that view of the matter the Tribunal was justified in upholding the order passed by the assessing authority where they have acted on the Census figures of 2001 as reflected in the provisional population totals and denied the benefit to the assessee. We do not find any error committed by the authorities. In that view of the matter, the substantial question of law is answered in favour of the revenue and against the assessee. We do not see any merit in these appeals. Accordingly, appeals are dismissed. The Special Leave Petition of the assessee against the same has already been dismissed by Hon’ble Supreme Court which is reported as 79 Taxmann.com 65. In terms of ratio of this decision, it was held that to ddetermine status of a bank as a 'rural branch' for allowing benefit of deduction u/s 36(1)(viia), even provisional figures of census data available on first day of relevant financial year can be taken into consideration and if figure shown in provisional population total in a village exceeds 10,000, then bank would not satisfy requirement of rural branch and consequently, would not be entitled to benefit granted to rural branch. Therefore, we direct Ld. AO to classify rural branches in terms of this decision. The assesseeis directed to supply the requisite data. The ground of the department stand allowed to that extent. 7.8 In one of the grounds, the assesseehas assailed the enhancement made by Ld. CIT(A) on the ground that the same was accepted by Ld. CIT(A) without application of mind. This plea is without any substance & 899/Chny/2019 - 11 - since adequateopportunityof hearing has been given to the assessee and further, the power of first appellate authority is co-extensive with the power of Ld. AO, Therefore, the ground raised by the assessee stand dismissed.

8. Deduction u/s. 36(1)(viii) 8.1 The assessee claimed such deduction of Rs.650 Lacs. The same was claimed in the business segment of infrastructure, agricultural and housing loan. The assessee, as per computations made in earlier years,computed the deduction as under: - Business segment As on 31/03/2012 (in lakhs) Total business Income Infrastructure 35050.51 5581.74 Agriculture 7675.52 861.62 Housing loan 19115.84 2154.88 Total 61841.87 8598.24 Expenses attributable to the above segments Total average business 2109801.86 Cost of funds (7.85% as on 7.85% 31/03/2012) Operating expenses 29371.08 Less: other income 15792.55 Net operating income 13578.53 Net operating income to total (13578.53 / 0.64% 2109801.86)x100 business Cost applicable 7.85%+0.64% 8.49% Expenditure related to above 5252.57 activities Profit from the above activities 3345.67 & 899/Chny/2019 - 12 - 20% of the profit 669.13 8.2 However, the same was not acceptable to Ld. AO who held an opinion that the profits derived from eligible business was to be computed before making deduction under this clause. The assessee deducted other income from operating expenses. It would be absurd to assume that to earn other income, there would be no operating expenses. Therefore, it would be more appropriate to apportion the proportionate ratio of entire expenses and deductions that are allowed for calculation of total profit. Therefore, the claim was revised as under: - 1 Average total business of the bank (total of 5,14,77,23,75,500 balance sheet) sheet) 6,18,41,87,000 2 Average eligible business 3 Cost of fund as per bank 7.85% 4 Interest expenditure on the eligible business 48,54,58,680 5 Total operating expenses 2,93,71,08,000 6 Provision for bad debts - 7 Total expenses (5+6) 2,93,71,08,000 Prop. Operating expenses towards the eligible 8 12,29,56,698 business (2/1)*7 9 Total expenditure towards eligible business 60,84,15,378 (4+8) 10 Total interest income from the eligible business 85,98,24,000 as per assessee 25,14,08,622 11 Profit from the eligible business (10-9) 5,02,81,724 12 20% of the profit 13 Provision Created 6,50,00,000 14 Provision claimed 6,50,00,000 15 Allowable 5,02,81,724 Upon further appeal, Ld. CIT(A) confirmed the computations against which the assessee is in further appeal before us. 8.3 It is the plea of Ld. AR that similar methodology has been followed by the assessee in earlier years which has been accepted by the revenue and this is the first year in which such deduction has been & 899/Chny/2019 - 13 - revised. We are of the considered opinion that though the res judciata is not applicable to Income tax proceedings, however, rule of consistency would demand that accepted position is not to be disturbed, facts being remaining the same. Therefore, accepting the plea of Ld. AR, we direct Ld. AO to compute this deduction as accepted by the revenue in earlier years. This ground stand allowed for statistical purposes.

by the assessee stand allowed for statistical purposes.

10. The assessee’s ground qua interest u/s 244A is consequential and would not require any specific adjudication. Regarding TDS credit, it would be suffice to direct Ld. AO grant TDS credit in accordance with law. Conclusion

11. The appeal of the assessee as well as the appeal of revenue stand allowed for statistical purposes.

Order pronounced on 19th August, 2022.