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Income Tax Appellate Tribunal, VISAKHAPATNAM BENCH, VISAKHAPATNAM
Before: SHRIV. DURGA RAO, HON’BLE & SHRI D.S. SUNDER SINGH, HON’BLE
IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRIV. DURGA RAO, HON’BLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, HON’BLE ACCOUNTANT MEMBER ITA No. 298/VIZ/2017 (Asst. Year: 2010-11) The Kanaka Mahalakshmi vs. ACIT, Circle-1(1), Cooperative Bank Ltd, Visakhapatnam. 49-34-22, Main Road, Akkayyapalem, Visakhapatnam. PAN No. AACFT 6489 J (Appellant) (Respondent)
Assessee by : Shri S. Rama Rao – Advocate. Department By : Shri P.S. Murthy – Sr.DR Date of hearing : 03/08/2018. Date of pronouncement : 05/08/2018. O R D E R PERV. DURGA RAO, JM:
This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-1, Visakhapatnam, dated 20/03/2017 for the Assessment Year 2010-11. 2. Facts of the case in brief are that assessee is a co-operative bank, filed its return of income by declaring total income of Rs.81,77,030/-. Case of the assessee was selected for scrutiny and after following due procedure, assessment was completed
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143(3) of the Income Tax Act, 1961 (for short, the “Act”) on 31/03/2013 by determining total income at Rs. 85,04,630/-. Subsequently, the Assessing officer noted that the assessee had claimed 1/5th of cost of acquisition as expenditure under sec. 35DD amounting to Rs. 57,81,212/-. As per the provisions of section 35DD, only an assessee, who is an Indian company is eligible for this deduction. As the assessee is not an Indian company, deduction under sec. 35DD could not be allowed. As this is a mistake, the Assessing Officer issued a notice under sec. 154 on 21/03/2014 proposing to rectify the same. In response to the notice, the assessee has submitted that as per section 44DB, the assessee has to be treated as company for the purpose of section 35DD and the claim allowable to a company, are to be allowed to the assessee also being a Co-operative bank. Alternatively, it was submitted that the assessee is eligible for deduction under sec. 32 of the act. The Assessing Officer has considered the explanation and rejected the same by observing that as per section 35DD, only Indian companies are eligible to make claim. As the assessee is not an Indian Company, not eligible to make claim under sec. 35DD(1) of the Act. The Assessing Officer further observed that the assessee is registered under the A.P. State Mutually Aided Co-operative Society Act,
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1995 and is not registered with the Registrar of Companies, therefore, assessee is not eligible for deduction under sec. 35DD of the Act, assessee being a cooperative bank. Accordingly, the Assessing Officer has rectified the order passed under sec. 143(3) dated 31/01/2013 and disallowed claim of the assessee of Rs.57,81,212/- under sec. 35DD of the Act, by order dated 18/01/2016. 3. On appeal before the ld. CIT(A), it was submitted that there is no mistake apparent on record, therefore, the Assessing Officer cannot rectify the order passed under sec. 143(3) of the Act by invoking section 154 of the Act. 4. Alternatively, it was submitted that assessee may be allowed claim under sec. 32(1)(ii) of the Act. 5. The ld. CIT(A) after considering the explanation of the assessee has observed that assessee has made a claim under sec. 35DD of the Act on account of acquisition of Palakollu Cooperative Bank. Apparently, the provisions of section 35DD are applicable only to the Indian Companies and the assessee being a co-operative society, engaged in banking activity, and not being an Indian Company would not be prima-facie eligible for deduction under sec. 35DD of the Act, therefore, he confirmed the action of the Assessing officer for invocation of section 154 of the Act.
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On being aggrieved, assessee carried the matter in appeal before this Tribunal. 7. Ld. counsel for the assessee has submitted that the order passed by the Assessing officer under sec. 154, dated 18/01/2016 is beyond the scope of section 154 and the ld. CIT(A) wrongly confirmed the same by upholding the order of the Assessing officer. 8. It is further submitted that as per section 44DB, the assessee is eligible to claim deduction under section 35DD and therefore, whether assessee is eligible under section 35DD are not, the Assessing Officer has to examine the provisions of section 35DD as well as 44DB, this exercise cannot be done under section 154 of the Act. Therefore, the same is beyond the scope of section 154 and prayed that order passed by the ld. CIT(A) may be reversed. He relied on the following decisions:- 1) Hindustan Lever Ltd. Vs. JCIT (284 ITR 42) 2) Mepco Industries Ltd. Vs. CIT & another (319 ITR 208)
Alternatively, it is submitted that assessee is eligible for claim under section 32 of the Act, in case deduction is not allowed under section 35DD of the Act.
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On the other hand, ld. Departmental Representative by pointing out section 35DD submitted that Indian Company is only eligible to make claim, therefore, assessee is not an Indian Company, not eligible to make clam, hence, it is a mistake apparent on record committed by the Assessing Officer in allowing benefit under section 35DD, the same can be rectified under section 154 of the Act. He further submitted that section 44DB is a special provision for computing the deduction in the case of business organisation of cooperative banks, if at all assessee wants to make a claim, he can make under section 44DB and not 35DD. 11. So far as alternative submission in respect of claim made under section 32 is concerned, ld. Departmental Representative has submitted that the assessee neither acquired the goodwill nor commercial right, therefore, this claim has not been considered under section 32 of the Act. 12. We have heard both the sides, perused the martial available on record and gone through the orders of the authorities below. 13. The assessee (acquirer) is a cooperative bank registered under the Cooperative Societies Act and filed its return of income for the year under consideration, wherein it has claimed 1/5th of cost of acquisition of Palakollu Cooperative Bank as expenditure
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under section 35DD, amounting to Rs.57,81,212/-, same is allowed by the Assessing Officer under section 143(3) dated 31/03/2013. Subsequently, the Assessing Officer noticed that as per the provisions of section 35DD, only assessee who is an Indian Company is eligible for deduction, as the assessee is not Indian Company, deduction under section 35DD needed to be disallowed and notice under section 154 was issued and after considering the explanation given by the assessee, he rectified the order passed under section 143(3) dated 31/03/2013 and disallowed claim made under section 35DD dated 08/01/2016. On appeal, ld.CIT(A) confirmed the order of the Assessing Officer by observing that the assessee is not an Indian Company and therefore, prima-facie, there is a mistake apparent on record committed by the Assessing Officer in allowing claim originally made under section 143(3) of the Act and the same is rectified subsequently in accordance with the provisions of section 154 of the Act. 14. The first objection raised by the ld. counsel for the assessee is that the order passed by the Assessing Officer is not within the purview of section 154 of the Act. In this case, the assessee has claimed expenditure under section 35DD, the same is allowed by
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the Assessing Officer. It is relevant to mention here the provisions of section 35DD, are extracted as under: - 35DD. [1] where an assessee, being an Indian Company, incurs any expenditure, on or after the 1st day of April, 199, wholly and exclusively for the purposes of amalgamation or demerger of an undertaking, the assessee shall be allowed a deduction of an amount equal to one-fifth of such expenditure for each of the five successive previous years beginning with the previous year in which the amalgamation or demerger takes place. [2] No deduction shall be allowed in respect of the expenditure mentioned in sub-section[1] under any other provision of this Act.
On plain reading of the above, it is very clear that assessee company being an Indian company can only make a claim under section 35DD of the Act. The Income Tax Act, 1961 has defined what is an Indian company, as per section 2(26), Indian company means a company formed and registered under the companies Act 1956. 16. In the present case, the assessee is not an Indian Company and not registered under the Companies Act, 1956 it is only a Cooperative Bank, therefore, primfa-facie assessee is not eligible for claim of expenditure under section 35DD of the Act. The Assessing Officer by allowing claim of the assessee under section 35DD has committed a mistake apparent on record. The Assessing Officer has applied inapplicable provisions to the assessee’s case i.e. 35DD allowed the claim made by the assessee
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on face of it, there is a mistake apparent on record. Therefore, same can be rectified under section 154 of the Act. The ld. CIT(A) by considering the entire facts and circumstances of the case, confirmed the rectification order passed by the Assessing Officer by holding that the order passed by the Assessing Officer is within the scope of section 154 of the Act. We find that ld. CIT(A) correctly confirmed the order of the Assessing Officer. 17. So far as case law relied on in the case of Hindustan Liver Ltd. (supra) is concerned, the Hon'ble Calcutta High Court has held that whether provision of law is right or wrong is a debatable issue and cannot be resolved by exercise of power under section 154 of the Act. In the instant case, the assessee made a claim under section 35DD, the Assessing Officer has to see whether claim is eligible or not, but without examining, allowed the same. Therefore, by considering again rectification order under section 154 of the Act is passed. Therefore, the case law relied on by the assessee has no application to the facts of the present case. So far as another case law relied on in the case of Mepco Industries Ltd. (supra) relates to whether subsidy received by the assessee is to be treated as a revenue receipt or a capital receipt. Under these circumstances, the Hon'ble Supreme Court has held that the Government grants different types of subsidies to the
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entrepreneurs, nature of the subsidy has to be examined on the facts of each case. This exercise cannot be undertaken under section 154. Further, this is a case of change of opinion, therefore, the Department has erred in invoking section 154 of the Act. In the present case, the Assessing Officer has allowed claim of the assessee on the basis of inapplicable provisions of the Act, therefore, facts of the case in hand are different than the facts of judgment of the Hon'ble Supreme Court, therefore the same has no application in the present case. 18. So far as another submission with regard to section 44DB that refers 35DD, therefore his claim has to be considered under section 35DD. The assessee has not made any claim under section 44DB, therefore the same cannot be considered. The ld.CIT(A) has observed that allowance of brought forward losses and unabsorbed depreciation are to be dealt with a specific provision of IT Act and not by RBI guidelines. As per sub-section (7) of section 72AB, the accumulated losses would have been entitled to carry forward and set off under the provisions of section 72. Similar is the case with the unabsorbed depreciation. Therefore, the main condition which needs to be fulfilled is that the said loss should have been allowable in the hands of Palakollu Bank (Amalgamated bank) as per the provisions of the Act. The
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entitlement as to allowance of such loss in the hands of Palakollu Bank or its eligibility otherwise to be carried forward under the provisions of section 72 was not proved. Therefore, once this condition is not fulfilled the acquirer bank is not eligible to carry forward the said losses/unabsorbed depreciation as per the provisions of section 72AB of the Act. The same is rightly disallowed by the Assessing Officer. The ld. CIT(A) further observed that the issue of RBI guidelines with regard to amortization of losses it is settled principle that the specific provisions of Income Tax Act override the general provisions of cooperative societies Act /RBI guidelines and confirmed the order of the Assessing Officer. Before us, the assessee has not filed any material to substantiate that the losses /unabsorbed depreciation of the amalgamation company ascertained as per provisions of section 72AB of the Act. Therefore, we find that the ld. CIT(A) rightly confirmed the order of the Assessing Officer by observing that the entitlement of allowance of such losses in the hands of the said bank (amalgamated bank) or its eligibility to be carried forward under the provisions of section 72 was not proved. Therefore, we find that the ld. CIT(A) rightly considered the issue and confirmed the order of the Assessing Officer.
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So far as another argument raised by the assessee is that liability undertaken by the assessee by paying over and above the asset value has to be considered as payment for acquiring commercial rights. This aspect has been considered by the ld.CIT(A) and observed that the assessee has not paid any consideration for acquisition of Palakollu Bank and only has taken accumulated losses. He further observed that the assessee has not shown any amounts towards the goodwill in the depreciation schedule. The ld. CIT(A) by following the judgment of the Hon'ble Supreme Court in the case of CIT Vs. Smifs Securities Ltd. [348 ITR 302 (SC)] has considered and observed that the amount paid in excess to the net asset acquired would constitute goodwill and on which depreciation can be considered. He also considered the decision of the ITAT Hyderabad Bench in the case of SKS Micro Finance Ltd., in turn which is followed the above Supreme Court judgement and observed that the excess price paid over and above the value of the net asset was held to be goodwill. We find that the assessee has not paid any consideration to acquire the Palakollu Bank, the assessee has not shown any depreciation schedule in the amounts towards goodwill /commercial rights. Therefore, it cannot be considered that the assessee has acquired goodwill/commercial rights. Therefore, we find no infirmity in the
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order passed by the ld. CIT(A). In the similar circumstances, the coordinate bench of the Tribunal in the case of Visakhapatnam Cooperative Bank in ITA Nos. 444, 445, 449 & 450/2012, ITA No. 726/2013 & ITA No. 2 & 38/2014, dated 30/09/2016 considered the same issue in the similar facts and decided against the assessee. The ld. CIT(A) has considered the same and decided against the assessee. Thus, we find no infirmity in the order of the ld. CIT(A). Thus, this alternative ground raised by the assessee is dismissed. So far as other case-laws relied on the by the assessee are concerned, we have gone through the same and find that they have no relevancy to the facts of the present case. Thus, this appeal raised by the assessee is dismissed. 20. In the result, appeal filed by the assessee is dismissed. Order Pronounced in open Court on this 05th day of Sep., 2018.
Sd/- sd/- (D.S. SUNDER SINGH) (V. DURGA RAO) Accountant Member Judicial Member Dated : 05th September, 2018. vr/-
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Copy to: 1. The Assessee–The Kanaka Mahalakshmi Cooperative Bank Ltd,49-34-22, Main Road, Akkayyapalem, Visakhapatnam. 2. The Revenue – ACIT, Circle-1(1), Visakhapatnam. 3. The Pr.CIT-1, Visakhapatnam. 4. The CIT(A)-1, Visakhapatnam. 5. The D.R.,Visakhapatnam. 6. Guard file. By order
(VUKKEM RAMBABU) Sr. Private Secretary, ITAT, Visakhapatnam.