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Income Tax Appellate Tribunal, “B” Bench, Mumbai
Before: Shri Pramod Kumar & Shri Ravish Sood
A.Y 2012-13 and A.Y 2013- 14 – ITA No. 3151 & 3149/Mum/2018 1 DCIT-3(2)(2), Mumbai Vs. The New India Assurance Co. Ltd.
IN THE INCOME TAX APPELLATE TRIBUNAL “B” Bench, Mumbai Before Shri Pramod Kumar, Vice President and Shri Ravish Sood, Judicial Member ITA Nos.3151 & 3149/Mum/2018 (Assessment Years: 2012-13 & 2013-14) Dy Commissioner of Income-tax-3(2)(2) M/s The New India Assurance Co. Ltd. 6th Floor, Aaykar Bhavan, M.K Road, New India Assurance Building, Vs. Mumbai – 400 020 87, M G Road, Fort, Mumbai -400 001
PAN – AAACN4165C (Appellant) (Respondent)
Appellant by: Shri Rahul Raman, CIT D.R Respondent by: Shri Farrokh V. Irani, A.R Date of Hearing: 11.08.2020 Date of Pronouncement: 11.08.2020 O R D E R PER RAVISH SOOD, JM The present appeals filed by the revenue are directed against the respective orders passed by the CIT(A)-9, Mumbai, dated 16.03.2018 and 19.03.2018 for Assessment Years 2012-13 and 2013-14, respectively, which in turn arises from the assessment orders passed u/s 143(3) of the Income-tax Act, 1961 (for short “Act”), dated 23.03.2015 and 07.03.2016 for the aforementioned years. As the issues involved in the captioned appeals are inextricably interlinked or in fact interwoven, therefore, we shall dispose off the same by way of a consolidated order. We shall first take up the appeal of the revenue for A.Y 20112-13, wherein the impugned order has been assailed before us on the following grounds :
“1. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) was justified in holding that the profit on sale of investments has to be taxed as Income from Capital Gain and not income from other sources. 2. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in holding that income of Rs. 639,06,24,962/- is exempt u/s 10(38) of the I.T Act, 1961.
A.Y 2012-13 and A.Y 2013- 14 – ITA No. 3151 & 3149/Mum/2018 2 DCIT-3(2)(2), Mumbai Vs. The New India Assurance Co. Ltd.
Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in not appreciating that the amount of disallowance u/s 14A of the I.T Act, 1961 has to be computed as per Rule 8D of I.T Rules, 1962 when the computation of the assessee was not found to be correct and as held by the order of the Hon’ble High Court in the case of M/s Godrej & Boyce Manufacturing Co. Ltd.
Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in holding that the premium paid by the assessee on purchase of Government Securities, on Amortisation, was allowable as Revenue Expenditure without appreciating the fact that there is no provision for amortization of such premium in the I.T Act, 1961.
Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in holding that the premium paid by the assessee on purchase of Government Securities, on Amortisation, was allowable as Revenue Expenditure without appreciating the fact that such premium paid is capital in nature and hence not allowable u/s 37 of I.T Act, 1961.
Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in holding that the provisions of Section 115JB of the I.T Act, 1961 are not applicable in the case of the assessee.
The appellant prays that the order of CIT(A) on the above ground be set aside and that of the Assessing Officer be restored.
The appellant craves leave to amend or alter any ground or add a new ground which may be necessary.”
Briefly stated, the assessee company which is engaged in the business of general insurance had e-filed its return of income for A.Y 2012-13 on 28.09.2012, declaring its total income at Rs. Nil and claiming a refund of Rs. 89,44,57,032/-. Subsequently, the assessee filed a revised return of income on 28.03.2013 declaring a loss of Rs. 551,46,41,969/-. Thereafter, the assessee filed another revised return of income on 23.05.2013, declaring the same amount of loss. The return of income filed by the assessee was processed as such u/s 143(1) of the Act. Subsequently, the case of the assessee was selected for scrutiny assessment u/s 143(2) of the Act.
The A.O after making certain additions/disallowances assessed the income of the assessee company vide his order passed u/s 143(3), dated 23.03.2015 at Rs. 152,12,31,353/-, as under:
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Sr. No. Particulars Amount 1. Profit on sale of investments claimed as exempt Rs. 639,06,24,962/- u/s 10(38) 2. Disallowance of expenditure u/s 14A r.w.r Rs. 13,05,70,512/- 8D(2)(iii). 3. Amortization of Premium on Securities Rs 8,34,44,847/- 4. Deemed Income u/s 69B Rs. 8,15,000/- 5. Foreign Dividend accounted net of foreign taxes Rs. 34,94,170/- 6. Impairment provision written back Rs. 10,88,950/- 7. Disallowance of reinsurance commission paid for Rs. 42,58,34,881/- non-deduction on tax at source
Further, the ‘book profit’ u/s 115JB was reworked by the A.O at a loss of Rs. 168,80,77,488/-
Aggrieved, the assessee assailed the assessment order before the CIT(A). After deliberating on the contentions advanced by the assessee the CIT(A) partly allowed the appeal.
The revenue being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. At the very outset of the hearing of the appeal it was submitted by the ld. Authorized representative (for short “A.R”) for the asseseee, that all the issues raised by the revenue in the present appeal were squarely covered in favour of the assessee by the orders of the Hon’ble High Court of Bombay and that of the coordinate benches of the Tribunal in the assessee’s own case for the preceding years. In order to drive home his said claim the ld. A.R took us through a ‘Chart’ wherein the complete details as to how the issues involved in the present appeal were claimed to be covered by the orders passed in its own case for the preceding years was stated. Further, the ld. A.R took us through the copies of the orders of the Hon’ble High Court of Bombay in the assessee’s own case for A.Y 2006-07 and A.Y 2005- 06; copies of the orders of the tribunal in its own case for the preceding years viz. A.Y 2011-
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12, A.Y 2010-11, A.Y 2009-10, A.Y 2008-09, A.Y 2007-08, A.Y 2006-07 and A.Y 2005-06; CBDT Instruction F.No. 153/24/2006-TPL, dated 21.02,2006; and CBDT Circular No. 6/2016, dated 29.02.2016.
Per Contra, the ld. Departmental representative admitted that the issues involved in the present appeal were covered in favour of the assessee. However, the ld. D.R supported the order of the Assessing Officer.
We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as the judicial pronouncements pressed into service by them. Insofar the Grounds of appeal Nos. 1 & 2 are concerned, we find, that the revenue has therein assailed the order of the CIT(A) to the extent he had observed that the profit on sale of investments was rightly claimed by the assessee as exempt u/s 10(38) of the Act. On a perusal of the assessment order, we find, that the A.O had observed that neither in Sec. 44 nor in Rule 5 of the ‘First schedule’ it was mentioned that the profit on sale of investments being in the nature of Long Term Capital Gain (for short “LTCG”) would be exempt u/s 10(38) of the Act. As such, the A.O backed by his aforesaid conviction had declined the assessee’s claim for exemption of the profit on sale of investments of Rs. 639,06,24,962/- u/s 10(38) of the Act, and had added back the same to the returned loss of the assessee. We find that the issue as to whether or not the profit on sale of investments is exempt u/s 10(38) of the Act is squarely covered by the order of the Hon’ble High Court of Bombay in the assessee’s own case for A.Y 2006-07, viz. The Pr. Commissioner of Income- tax-3 Vs. The New India Assurance Co. Ltd. [ITA No. 1025 of 2015, dated 05.03.2018]. In fact, we find that the ITAT, “G” Bench, Mumbai, while disposing off the appeal of the assessee for the immediately preceding year i.e A.Y 2011-12 in ITA No. 5116/Mum/2016, dated 06.11.2019, respectfully following the aforesaid judgment of the Hon’ble High Court, had observed, that the CIT(A) was right in law and the facts of the assessee in allowing the assessee’s claim of exemption u/s 10(38) on the profit on sale of investments. The Tribunal while concluding as hereinabove had observed as under:
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“5. On hearing both the sides and perusing the orders of the Tribunal in assessee’s own case and the decision of the Hon'ble High Court in assessee’s own case, we find that the issue is squarely covered by the decision of the Hon'ble Bombay High Court in Income Tax Appeal No.1025 of 2015, dated 05.03.2018 wherein the question as to whether the Tribunal was justified in law in allowing the exemption to the assessee u/s. 10 of the Act came up before the Hon'ble Bombay High Court and the Hon'ble High Court held as under: -
“2 Revenue urges the only following reframed question of law, for our consideration:
“Whether on the facts and in the circumstance of the case and in law, the Tribunal was justified in law in allowing exemption to the assessee u/s. 10 of the I.T. Act, 1961?”
3 The impugned order of the Tribunal dismissed the Revenue's Appeal from the order dated 12th November, 2012 of the Commissioner of Income Tax (Appeals) [CIT(A)], who held that Respondent is entitled to the benefit of Section 10 (38) of the Act in respect of the sale of investments being long term capital gains. The proceedings before the Tribunal leading to the impugned order dated 27th October, 2014 emanated from the reopening notice dated 17th March 2011, seeking to reopen the assessment completed under Section 143(3) of the Act on 31st December, 2017.
4 The impugned order of the Tribunal dismissed the Revenue's appeal by following the decision of this Court in General Insurance Corporation v/s. DCIT 342 ITR 27. In the above case, this Court held on an identical facts that General Insurance Corporation (supra) is entitled to the benefit of exemption under Section 10(38) of the Act.
5 The grievance of the Revenue before us is that:
(a) the impugned order of the Tribunal has ignored the decision of its Co-ordinate Bench in respect of Assessment Year 2004-05 which held that diminution or appreciation of any value of assessment will not be taken into account while computing the total income of the Respondent-Assessee;
(b) The impugned order ignores the binding decision of the Apex Court in GIC v/s. CIT 240 ITR 139; and
(c) An identical question in case of GIC v/s. CIT (ITXA No.201 of 2011) has been admitted on 25th February, 2013. Thus, this question requires admission.
6 Mr. Suresh Kumar draws our attention to the order dated 29th July, 2011 passed by the Tribunal in respect of the same Respondent for the Assessment Year 2004-05. The above decision arose from a Revision under Section 263 of the Act of an Assessment Order. The aforesaid decision arose out of writing off Investments while determining the income of the Assessee. It did not even remotely deal with the issue of exemption under Section 10(38) of the Act i.e. sale of investment as long term capital gain. Thus, it can have no application to the facts of the present case. Further, the decision of the Apex Court in GIC (supra), relied upon by the Revenue also does not deal with the claim for exemption under Section 10(38) of the Act and would have no application to the present facts. The Revenue was unable to point out the manner in which the above decision of the Apex Court applies to the present facts.
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7 Mr. Suresh Kumar, next submits that on an identical issue in GIC v/s. CIT (ITXA No. 201 of 2011) this Court has admitted the following question on 25th February, 2013 as substantial question of law as under:
“Whether on the facts and in the circumstance of the case and in law the Tribunal was justified in holding that profit on sale of investments are not liable to be taxed in the hands of the assessee in the year under appeal?” Therefore, he submits that the question as formulated be admitted.
8 The issue raised in the above question in GIC [ITX No.201 of 2011 (supra)] is not with regard to the exemption claimed under Section 10(38) of the Act as in the present proceedings. The question on which the above appeal has been admitted, is whether profits on sale of investments are liable to be (included) taxed in the hands of the assessee i.e. profits on sale of investments being liable to be tax. It does not deal with the benefit of exemption under Section 10(38) of the Act. The question as raised herein proceeds on the basis that even if sale of investments is liable to be taxed, yet to the extent it relates to long term capital gain falling under Section 10(38) of the Act, the exemption would be available. Thus, the question arising for our consideration in this appeal is different from the question on which the appeal of the GIC in ITX No. 201 of 2011 (Supra) was admitted.
Moreover, we find that this Court in General Insurance Corporation (supra) had also relied upon the communication dated 21st February, 2006 of the CBDT to the Chairman of the Insurance Regulatory and Developing Authority. In the above communication, it has been clarified that exemption available to any other assessee under clause 10(38) relating to long term capital, would also be available to a person carrying on nonlife Insurance business. Mr. Suresh Kumar very fairly states that the CBDT communication dated 21st February, 2006 addressed by the CBDT to the Chairman, IRTA, as well as the decision of this Court in GIC (supra) would be binding upon the Revenue.
In view of the above, the question as framed does not give rise to any substantial question of law.”
Respectfully following the said decision, we uphold the order of the Ld.CIT(A) and reject the grounds raised by the Revenue.”
As the facts and he issue involved in the present appeal before us remains the same, we thus respectfully follow the aforesaid order of the Tribunal in context of the issue under consideration in the assessee’s own case for A.Y 2011-12 in ITA 5116/Mum/2016, dated 06.11.2019. Accordingly, finding no infirmity in the view taken up the CIT(A) in context of the aforesaid issue under consideration, we uphold the same. The Grounds of appeal Nos.1 & 2 are dismissed. 8. We shall now advert to the grievance of the revenue that the CIT(A) had erred in not
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appreciating that the amount of disallowance u/s 14A of the I.T Act, 1961 has to be computed as per Rule 8D of I.T Rules, 1962. Briefly stated, the assessee had claimed the following income as exempt u/s 10(38) of the Act: Sr. No. Particulars of Income Amount 1. Interest on tax free bonds Rs. 2,58,46,321/- 2. Interest on Tax Free Securities/Bonds u/s 10(15)(iv)(h) Rs. 94,17,163/- 3. Dividend u/s 10(34) Rs. 339,26,96,410/- 4. Profit on Sale of investments u/s 10(38) Rs. 639,06,24,962/- Total Rs. 981,85,84,856/-
In the course of the assessment proceedings, the assessee was called upon to explain as to why disallowance of expenditure incurred for earning of the exempt income may not be worked out as per Sec.14A r.w. Rule 8D. In reply, it was submitted by the assessee that as it was a wholly owned Government of India undertaking into general insurance business, whose income was computed as per the provisions of Sec. 44 of the Act r.w Rule 5 of the ‘First Schedule’, therefore, the provisions of Sec. 14A were not applicable in its case. Alternatively, without prejudice to its aforesaid claim, the assessee on a proportionate basis attributed an amount of Rs. 2,10,53,225/- i.e part of the expenses incurred by the Investment Department towards earning of the exempt income. However, the A.O rejected the aforesaid claim of the assessee and worked out the disallowance u/s 14A r.w Rule 8D at Rs. 13,05,70,512/-. On appeal, the CIT(A) relying on the orders passed by the Tribunal and also that of his predecessor in the assessee’s own case for the preceding years concluded, that the provisions of Sec. 14A were not applicable in the case of the assessee company, as the same being a General Insurance Company was governed by the provisions of Sec. 44 of the Act. As such, the CIT(A) vacated the disallowance of Rs. 13,05,70,512/- worked out by the A.O u/s 14A r.w Rule 8D.
The revenue being aggrieved with the deletion of the disallowance u/s 14A r.w Rule 8D of Rs. 13,05,70,512/-, has carried the matter in appeal before us. It was submitted by the ld. A.R that the issue was squarely covered by the order of the Tribunal in the assessee’s own
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case for A.Y 2011-12 in ITA No. ITA 5116/Mum/2016, dated 06.11.2019. Also, it was submitted by the ld. A.R that the issue that the provisions of Sec. 14A were not applicable in the case of the assessee was decided by the Tribunal in the assessee’s own case for A.Y 2000-01 to 2010-11 (copies placed on record). We have perused the order passed by the Tribunal while disposing off the appeal of the assessee for A.Y 2011-12 in ITA No. 5116/Mum/2016, dated 06.11.2019, and find the aforesaid claim of the ld. A.R in order. The Tribunal while disposing off the appeal of the assessee for the immediately preceding year i.e A.Y 2011-12 in ITA No. 5116/Mum/2016, dated 06.11.2019, had after relying on the view taken by a coordinate bench while disposing off the assessee’s appeal for A.Y 2010-11, had observed, that the provisions of Sec. 14A has no applicability in the cases of General Insurance Companies, which are governed by the special provisions laid down in Sec. 44 of the Act. It was observed by the Tribunal in context of the issue under consideration, as under:
Coming to the Ground No.3 of the grounds of appeal the Ld. Counsel for the assessee submits that this issue also decided by the Tribunal in assessee’s own case in the earlier Assessment Years right from A.Y. 2000-01 to 2010-11 wherein it has been held that the provisions of section 14A r.w. Rule 8D have no application to the assessee an insurance company. Referring to the order passed by the Tribunal for the A.Y. 2010-11 in ITA.No. 5013/Mum/2015 dated 28.03.2018, Ld. Counsel for the assessee submits that identical issue came up before the and the Tribunal dismissed the appeal of the Revenue following the earlier year’s orders of the Tribunal wherein it has been held that no disallowance u/s. 14A of the Act can be made.
Ld. DR fairly submitted that this issue has been decided in assessee’s favour in earlier years. However, he supports the order of the Assessing Officer.
Heard both sides, perused the orders of the Authorities below and the decision of the Tribunal in assessee’s own case. We observe that the Tribunal while disposing of the appeal of the Revenue for the A.Y. 2010-11 in ITA.No. 5013/Mum/2015 dated 28.03.2018, held as under: “15. The issue raised in ground No.3 is against the deletion of disallowance under section 14A read with rule 8D without appreciating the fact that the assessee was given the benefit of exemption under section 10 of the Act.
The Ld. A.R., at the outset, submitted that the issue involved in the present ground is covered in favour of the assessee by the decision of the Tribunal in the earlier years. and therefore prayed before the Bench that by following the same, this ground may be decided in favour of the assessee.
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The Ld. D.R. appeared to be fairly agreed to the contention of the Ld. A.R.
We have perused the decisions of the Tribunal in ITA No.3562/M/2007 and ITA No.3180/M/2009 for A.Y. 2006-07 & 2007- 08 wherein the Tribunal has decided the issue in favour of the assessee. The relevant extract is reproduced as under:
“11. In Ground no. 3, the assessee has challenged the disallowance of Rs.16 lakhs made u/s 14A on estimated basis. It has been admitted by both the parties that 7 ITA NO.5116/MUM/2016 (A.Y: 2011-12) The New India Assurance Co. Ltd provision of section 14A has no applicability in the cases of General Insurance Company, which are governed by specific provision laid down in section 44, as held by various decisions of the Tribunal including that, in assessee's own case for the A.Y. 2000-01 & 2003-04 and in the case of other General Insurance Corporation of India specifically in ITA No. 3554/Mum/2011, for A.Y. 2007-08. In view of the aforesaid submissions and also on the perusal of various decisions of the Tribunal including that of the assessee, we find that it has been consistently held that, provision of section 14A is not applicable in the cases of Insurance company which are governed by section 44, because it is non obstante provision wherein the income is to be computed as per P&L account prepared under the Insurance Act 1938. Section 14A contemplates exception for deduction allowable under the act, whereas section 44 creates special application of provision of computation of profit as per the Insurance Act. Thus, no disallowance u/s 14A can be made and accordingly, ground no. 3 is allowed in favour of the assessee.”
We, therefore, following the above decision of the Tribunal, dismiss the ground raised by the Revenue.
Respectfully following the said decision, we uphold the order of the Ld.CIT(A) and reject Ground No.3 of the Revenue’s appeal”
As the facts and the issue in context of the aforesaid issue under consideration had not witnessed any change during the year before us, we thus respectfully follow the aforesaid view taken by the Tribunal in the assessee’s own case for A.Y 2010-11 in ITA No. 5116/Mum/2016, dated 06.11.2019. Accordingly, finding no infirmity in the order of the CIT(A), who in our considered view had rightly vacated the disallowance of Rs. 13,05,70,512/- made by the A.O u/s 14A r.w Rule 8D, uphold his order to the said extent. The Ground of appeal No. 3 is dismissed.
We shall now take up the grievance of the revenue that the CIT(A) has erred in holding that the premium paid by the assessee on purchase of Government Securities on Amortisation was allowable as revenue expenditure, without appreciating the fact that there was no provision for amortization of such premium under the Income-tax Act. Briefly stated,
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the assessee had claimed an amount of Rs. 8,34,44,847/- as an amortization of the premium paid on purchase of investment securities amortized over the residual period of the securities as an admissible expense. On being called upon to justify its aforesaid claim of expense, it was inter alia submitted by the assessee that wherever the securities considered held to maturity were purchased and any premium was paid on purchase of such securities, the amount of premium was amortized over the residual period of security as per the regulations of IRDA. It was further submitted by the assessee, that wherever the premium of held to maturity securities was amortized over the residual period of such securities, the loss at the time of maturity of such security was not claimed at that time. However, the aforesaid reply of the assessee did not find favour with the A.O. Relying on the view taken by his predecessor while framing the assessments in the case of the assessee for the preceding years viz. A.Y 2005-06, A.Y 2006-07, A.Y 2007-08, A.Y 2009-10, A.Y 2010-11 and A.Y 2011-12 the A.O observed, that the premium paid on the securities would form part of the cost of acquisition and the deduction for the same was to be allowed only on the sale/maturity of the said securities. Accordingly, the A.O treating the amortized premium of Rs. 8,34,44,847/- as being in the nature of a capital expenditure, disallowed the same u/s 37(1) of the Act. On appeal, the CIT(A) referring to the orders passed by the Tribunal in the assessee’s own case for the preceding years viz. A.Y 2004-05, A.Y 2005-06, A.Y 2006-07 and A.Y 2007-08 observed, that involving identical facts the issue was decided in favour of the assessee. Accordingly, the CIT(A) drawing support from his aforesaid observations deleted the disallowance of amortization of premium on securities amounting to Rs. 8,34,44,847/-.
Aggrieved, the revenue has assailed before us the deletion of the disallowance of amortization of premium on securities amounting of Rs. 8,34,44,847/- by the CIT(A). The ld. A.R submitted that the aforesaid issue was squarely covered by the order passed by the Tribunal in the assessee’s own case for the immediately preceding year i.e A.Y 2011-12 in ITA No. 5116/Mum/2016, dated 06.11.2019 in favour of the assessee. Apart from that, it was submitted by the ld. A.R that the said issue was also decided by the Tribunal in the assessee’s favour while disposing off its appeals for the earlier years i.e A.Y 2005-06 to A.Y
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2010-11 (copies placed on record). Per contra, the ld. D.R relied on the assessment order. 12. We have perused the order passed by the Tribunal while disposing off the appeal of the assessee for A.Y 2011-12 in ITA No. 5116/Mum/2016, dated 06.11.2019, and find that the aforesaid issue is squarely covered in favour of the assessee. The Tribunal while disposing off the appeal of the assessee for the immediately preceding year i.e A.Y 2011-12 in ITA No. 5116/Mum/2016, dated 06.11.2019, had after relying on the view taken by the coordinate bench while disposing off the assessee’s appeal for A.Y 2010-11, had observed, that the premium paid by the assessee on purchase of government securities was liable to be amortized and was rightly claimed by the assessee as a revenue expenditure. The Tribunal while concluding as hereinabove had observed as under :
“13. Heard both sides and perused the orders of the Authorities below. On a perusal of the order of the Tribunal we observe that the Tribunal decided this issue in favour of the assessee observing as under: -
“20. The issue raised in ground No.4 (4.1 & 4.2) is against the decision of the Ld. CIT(A) holding that the premium paid by the assessee on purchase of government securities was allowable as revenue expenditure on amortization.
The Ld. A.R. submitted that the issue raised by the Revenue is covered by the decisions of the Tribunal in the earlier years right from A.Y. 2004-05 to 2007-08 and therefore the present issue should be decided in the light of the ratio laid down by the Tribunal in favour of the assessee.
The Ld. D.R. fairly agreed to the argument of the Ld. A.R.
After perusing the decision of the Tribunal in ITA No.3562/M/2007 and ITA No.3180/M/2009, we find that the issue is squarely covered in favour of the assessee in assessee’s own case. The operative part thereof is reproduced as under:
“16. We have heard the rival submissions and also perused the relevant finding given in the impugned orders. The assessee in the course of carrying of its insurance business, is required to invest its fund in specific debts securities of government or PSU bonds or other securities in accordance with the Insurance Act, 1938 and IRDA regulations. The assessee has purchased securities at a price which was slightly higher than the face value of the security because of accumulated interest on such securities According to the terms of issue of the securities, the assessee was to get only the face value at the time of redemption or maturity. IRDA regulation prescribes, the accounting principle for preparation of financial statement, whereby the assessee is required to prepare the financial statements in the manner provided in the said regulation. The said regulation read with relevant rules given in the schedules therein, provides that debts
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securities including, Government securities shall be considered as "held to maturity" and shall be measured at historical cost subject to amortization. This IRDA regulation are binding on the 9 ITA NO.5116/MUM/2016 (A.Y: 2011-12) The New India Assurance Co. Ltd insurance companies. The Tribunal in the case of Tata AIG General Insurance Company Ltd. has dealt this precise issue in detail after analyzing the relevant provision and the decision of the Hon'ble Supreme Court and observed and held as under:-
"7. On a careful consideration of the facts and the rival contentions, we are of the view that the amortization claim cannot be considered as 'an expenditure or allowance within the meaning of rule 5(a) of the First Schedule. As held by the Supreme Court in the case 01 Indian Molasses Co. (Private) Ltd. vs CIT, West Bengal (1959)37 ITR 66:(SC), spending in the sense paying out or away of money is the primary meaning of expenditure. Expenditure is what is paid our or away and is something which is gone irretrievably Expenditure, which is deductible for income tax, is one which is towards a liability actually existing at the time, but the putting aside of money which may become expenditure on the happening of an event is not expenditure. If this meaning is to be given to the word 'expenditure" occurring in rule 5(a) the amortization claim cannot be considered as expenditure and, therefore, cannot be added back to the balance of the profits. In General Insurance corporation of India vs. CIT (1999) 240 ITR 139 (SC) the Supreme Court held that even if an item of debit is considered as an expenditure, it should further be such an expenditure contemplated in sections 30 to 43A and, therefore, unless there was a specific prohibition for such an allowance, the departmental authorities would not be justified in adding back the amount under rule 5(a)., Therefore, even if the debit for amortization is considered as an expenditure, there is no specific prohibition against allowing such an expenditure under the provisions of sections 30 to 43B. The words "expenditure or allowance...Which is not admissible under the provisions of sections 30 to 438" appearing in the sub-rule has been explained by the Supreme Court to mean that 10 ITA NO.5116/MUM/2016 (A.Y: 2011-12) The New India Assurance Co. Ltd there should be a specific prohibition against the expenditure or allowance in which case alone the Assessing Officer can add back the same to the balance of profits. It is common ground that there is no such specific prohibition against, the allowance of the expenditure in the above sections of the Act. It may be noted that though rule 5(a) of the First Schedule considered by the Supreme Court in the above judgment was slightly different, but the words "any expenditure or allowance which is not admissible under the provisions of section 30 to 43A" were present and the same words being present in the amended sub-rule, they have to be given the same meaning as was given by the Supreme Court. Therefore, even if the debit for amortization is considered as an expenditure or allowance, there being so specific prohibition against the expenditure or allowance in section 30 to 438, the departmental authorities were not justified in adding back the amount of the balance of the profits. The judgment of the Supreme Court in the case of General Insurance Corporation of India (supra) takes care of all the arguments advanced on behalf of the Revenue. We, therefore, delete
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the addition of Rs. 1,91,33,945/- and allow the first ground."
Since, no contrary decision have been brought to our notice, therefore, respectfully following the same, we hold that such an amortization claimed by the assessee as revenue expenditure is allowable. Accordingly, assessee’s ground no.5 is treated as allowed. 24. Following the decision of the Tribunal, we hold that the premium paid by the assessee on purchase of government securities is liable to be amortized and amortization claimed by the assessee is revenue expenditure and is allowable. The ground raised by the Revenue is dismissed.
Respectfully following the said decision, we uphold the order of the Ld.CIT(A) and reject Ground Nos. 4 & 5 of the Revenue’s appeal.”
As the facts and issue pertaining to deletion of the disallowance of amortization of premium on securities by the CIT(A) remains the same as were therefore before the Tribunal in the assessee’s own case for the immediately preceding year i.e A.Y 2011-12, we respectfully follow the same. Accordingly, finding no infirmity in the vacation of the disallowance of amortization of premium on securities amounting to Rs. 8,34,44,847/- by the CIT(A), we uphold his order to the said extent. The Grounds of appeal Nos. 4 and 5 are dismissed.
We shall now take up the claim of the revenue that the CIT(A) was in error in holding that the provisions of Sec. 115JB of the Act were not applicable in the case of the assessee. Briefly stated, the A.O in the course of the assessment proceedings called upon the assessee to explain as to why the provisions of Sec. 115JB may not be applied in its case for computing the ‘book profit’. In reply, it was inter alia submitted by the assessee that being a General Insurance Company its income was to be computed as per Sec. 44 of the Act, and Rule 5 contained in the ‘First Schedule’. However, the A.O rejected the aforesaid claim of the assessee and worked out its ‘book profit’ under Sec. 115JB of the Act. On appeal, the CIT(A) observed that the issue was decided in favour of the assessee by the Tribunal while disposing off the appeals in the assessee’s own case for the preceding years, viz. A.Y 2004-05, A.Y 2005-06, A.Y 2006-07 and A.Y 2007-08. Accordingly, the CIT(A) decided the issue in favour of the assesee and directed the A.O to compute the assessee’s income under the normal provisions of the Act.
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Aggrieved with the aforesaid direction of the CIT(A), the revenue has carried the matter in appeal before us. The ld. A.R submitted that the aforesaid issue had been decided by the Hon’ble High Court of Bombay in the assessee’s own case in Pr. Commissioner of Incpome-tax-3 Vs. M/s The New India Assurance Co. Ltd. [ITA No. 1108 of 2015; dated 16.04.2019] (copy placed on record). Further, as submitted by the ld. A.R, the issue was squarely covered by the orders passed by the Tribunal while disposing off the appeals in the assessee’s own case for the preceding years viz. A.Y 2004-05 to A.Y 2010-11 (copies placed on record). Apart from that, it was submitted by the ld. A.R that the issue was also recently decided by the Tribunal while disposing off the appeal of the assessee for the immediately preceding year i.e A.Y 2011-12 in ITA No. 5116/Mum/2017, dated 06.11.2019 (copy placed on record).
We have perused the order passed by the Tribunal in the assessee’s own case for the immediately preceding year i.e A.Y 2011-12 in ITA No. 5116/Mum/2017, dated 06.11.2019 and are in agreement with the claim of the ld. A.R that it was therein held by the Tribunal that the provisions of Sec. 115JB of the Act were not applicable in the case of the assessee company. On a perusal of the aforesaid order of the Tribunal we find that it was therein observed as under:
“15. The last issue in Ground No. 6 of grounds of appeal is, whether the provisions of section 115JB have application to the assessee an insurance company and we observe that the Tribunal decided this issue in favour of the assessee for A.Y. 2010-11 observing as under: -
“29. The issue raised in ground No.6 by the Revenue is against the decision of Ld. CIT(A) upholding that the provision of section 115JB of the Act are not applicable to the assessee.
The Ld. A.R., at the outset, submitted that the issue is covered in favour of the assessee by the decision of the coordinate bench of the Tribunal in the own case of the assessee for A.Y. 2004-05 to 2007-08 and therefore following the said decision the issue raised by the Revenue should be dismissed.
The Ld. D.R. fairly agreed to the argument of the Ld. A.R.
We have perused the material on record and the decisions of the co-ordinate bench of the Tribunal for the earlier years i.e. from A.Y. 2004-05 to 2007-08. On sample basis, we would like to quote the operative part from ITA No.3562/M/2007 and others for A.Y. 2004- 05 and others which is as under:
“18. Besides this, the assessee has raised additional ground that the provisions of section
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115JB has no application to the assessee.
Before us, learned counsel submitted that this issue is squarely covered by various decisions of the Co-ordinate Benches in the case of General Insurance Corporation and other decisions. Ld. DR also admitted that this issue is covered by various decisions of the Tribunal as filed by the assessee.
After considering the decisions in the case of General Insurance Corporation and other decisions filed by the learned counsel, we find that the issue of non-applicability of MAT u/s 115JB to the General Insurance Company has been upheld. Even otherwise also the provision of MAT will only come into play, only when assessee prepares its P&L account in accordance with part (II) and part (III) of Schedule (VI) of the Companies Act. Since the assessee’s P&L account is prepared in accordance with Insurance Act 1938, as specifically provided in Section 44 read with First schedule, therefore, the provision of section 115JB will not apply in case of assessee. This has been held in the case of General Insurance Corporation in ITA No.3554/Mum/2011 order dated 05.02.2012 and ITA 12 ITA NO.5116/MUM/2016 (A.Y: 2011-12) The New India Assurance Co. Ltd No.8824/Mum/2011 order dated 15.01.2014. Thus the additional ground raised by the assessee is allowed.”
Following the decision of the coordinate, we hold that the accounts of the insurance company are prepared in accordance with the Insurance Act, 1938 as has been provided under section 44A read with First Schedule and therefore, the provisions of section 115JB do not apply to the assessee’s case. Accordingly, the ground raised by the Revenue is dismissed.”
Respectfully following the said decision, we uphold the order of the Ld.CIT(A) in holding that the provisions of section 115JB have no application to the assessee. Ground No.6 of the Revenue’s appeal is dismissed.”
As the facts and the issue involved in the present appeal remains the same as were there before the Tribunal in the aforementioned case, we therefore respectfully follow the same. Accordingly, we find no infirmity in the view taken by the CIT(A) that the provisions of Sec. 115JB would not be applicable in the case of the present assessee. The Ground of appeal No. 6 is dismissed.
As the Grounds of appeal Nos. 7 & 8 are general in nature, the same are dismissed as not pressed.
Resultantly, the appeal of the revenue for A.Y 2012-13 in ITA No. 3151/Mum/2018 is dismissed.
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A.Y 2013-14 ITA No. 3149/Mum/2018
We shall now take up the appeal of the revenue for A.Y 2013-14. The revenue has assailed the impugned order on the following grounds of appeal before us :
“1. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) was justified in holding that the profit on sale of investments has to be taxed as Income from Capital Gain and not income from business.
Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in holding that income of Rs. 907,55,94,005/- is exempt u/s 10(38) of the I.T Act, 1961.
Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in not appreciating that the amount of disallowance u/s 14A of the I.T Act, 1961 has to be computed as per Rule 8D of I.T Rules, 1962 when the computation of the assessee was not found to be correct and as held by the order of the Hon’ble High Court in the case of M/s Godrej & Boyce Manufacturing Co. Ltd.
Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in holding that the premium paid by the assessee on purchase of Government Securities, on Amortisation, was allowable as Revenue Expenditure without appreciating the fact that there is no provision for amortization of such premium in the I.T Act, 1961.
Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in holding that the premium paid by the assessee on purchase of Government Securities, on Amortisation, was allowable as Revenue Expenditure without appreciating the fact that such premium paid is capital in nature and hence not allowable u/s 37 of I.T Act, 1961.
Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in holding that the provisions of Section 115JB of the I.T Act, 1961 are not applicable in the case of the assessee.
The appellant prays that the order of CIT(A) on the above ground be set aside and that of the Assessing Officer be restored.
The appellant craves leave to amend or alter any ground or add a new ground which may be necessary.”
Briefly stated, the assessee company had e-filed its return of income for A.Y 2013-14 on 28.11.2013, declaring its total income at Rs. Nil. Subsequently, the assessee filed a revised return of income on 09.06.2014 declaring a loss of Rs. 94,06,18,248/-. Thereafter, the case of
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the assessee was selected for scrutiny assessment u/s 143(2) of the Act.
The A.O after making certain additions/disallowances assessed the income of the assessee company vide his order passed u/s 143(3), dated 29.02.20116 at Rs. 870,72,56,878/-, as under:
Sr. No. Particulars Amount 1. Profit on sale of investments claimed as exempt Rs. 907,55,94,005/- u/s 10(38) 2. Disallowance of expenditure u/s 14A r.w.r Rs. 14,87,79,556/- 8D(2)(iii). 3. Amortization of Premium on Securities Rs 7,16,49,143/- 4. Deemed Income Rs. 2,69,13,000/- 5. Foreign Dividend Rs. 28,89,154/- 6. Addition on account of non-deduction of TDS on Rs. 32,20,50,271/- Reinsurance Commission
Further, the ‘book profit’ u/s 115JB was reworked by the A.O at Rs. 662,35,00,272/-.
Aggrieved, the assessee assailed the assessment order before the CIT(A). After deliberating on the contentions advanced by the assessee the CIT(A) partly allowed the appeal.
The revenue being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. At the very outset of the hearing of the appeal it was submitted by the ld. Authorized representative (for short “A.R”) for the asseseee, that all the issues involved in the present appeal remained the same as were there before us in the appeal of the revenue for the immediately preceding year i.e A.Y 2012-13 in ITA No. 3151/Mum/2018. The said claim of the counsel for the assessee was not controverted by the ld. D.R. As the facts and the issues involved in the present appeal are the same as were there before us in the appeal of the revenue for A.Y 2012-13 in ITA No. 3151/Mum/2018, therefore, our order therein passed shall
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apply mutatis mutandis for disposal of the present appeal.
Resultantly, the appeal filed by the revenue is dismissed.
Both the appeals of the revenue i.e ITA No. 3151/Mum/2018 for A.Y 2012-13 and ITA No. 3149/Mum/2018 for A.Y 2013-14 are dismissed in terms of our aforesaid observations.
Order pronounced in the open court on 11/08/2020.
Sd/- Sd/- (Pramod Kumar) (Ravish Sood) VICE PRESIDENT JUDICIAL MEMBER मुंबई Mumbai; िदनांक 11.08.2020 P.S Rohit आदेश की �ितिलिप अ�ेिषत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��थ� / The Respondent. 3. आयकर आयु�(अपील) / The CIT(A)- 4. आयकर आयु� / CIT 5. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाईल / Guard file. स�ािपत �ित //True Copy// आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, मुंबई / ITAT, Mumbai