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M/s DCB Bank Ltd. 2 & 785/Mum/2018 ORDER
PER N.K. PRADHAN, AM
The captioned cross appeals, filed by the Revenue and the assessee, are directed against the order of the Commissioner of Income Tax (Appeals)-6 (in short ‘CIT(A)’), Mumbai are arise out of the assessment order passed u/s 143(3) of the Income Tax Act 1961, (the ‘Act’). Assessment Year: 2014-15 (The Revenue’s appeal) 2. The 1st ground of appeal
On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition made by the AO on account of broken period interest relying on the decision of the Hon’ble Supreme Court in the case of CIT v. City Bank in Civil Appeal 1549 of 2006, order of the Hon’ble Bombay High Court in the case of American Express International Banking Corporation v. CIT (258 ITR 601) and the decision of the Tribunal in the case of Dena Bank in ITA No. 3476/M/2000 dated 10.04.2014.
3. Briefly stated, the facts are that the assessee-Bank has claimed Rs.12,51,36,527/- by debiting it as broken period interest to the P&L account. In response to a query raised by the AO to explain why the said broken period interest should not be disallowed as the amount needs to be considered as part of cost price of the securities acquired, the assessee relied on the decision in American Express International Banking Corporation v. CIT 258 ITR 601, CIT v. Citibank NA 264 ITR 18 and CIT v. Standard Chartered Bank (Civil Appeal No. 1529 of 2006) and M/s DCB Bank Ltd. 3 & 785/Mum/2018 stated that broken period interest is accounted by it in its books of accounts as per RBI guidelines and the same should be allowed as revenue expenditure. However, the AO was not convinced with the above explanation of the assessee for the reason that any claim of deduction from interest on securities held under HTM category cannot be sustained because the assessee is in no position of realizing interest on securities. Further, the AO observed that the above amount claimed by the assessee for deduction is not shown to have been expended for the purpose of realizing the interest and are, therefore, not allowable as deductible expenditure. Therefore, the AO holding that the broken period interest as part of cost price of securities acquired by the assessee-bank, made a disallowance of above sum of Rs.12,51,36,527/-.
4. In appeal, the Ld. CIT(A) followed the order of his predecessor-in- office for AY 2011-12 and 2012-13 and his own order for AY 2013-14, deleted the above disallowance made by the AO.
Before us, the Ld. DR relies on the order of the AO. On the other hand, the Ld. counsel of the assessee submits that the broken period interest is accounted by the assessee-bank as per RBI guidelines and all investments/securities are stock-in-trade for the purpose of income tax and this fact had been accepted by the Income Tax Authorities in the past. Further, HTM securities are also held as stock-in-trade (i.e. trading assets) and not as investments for the purpose of income tax. Relying on the decision in the case of American Express International Banking Corporation v. CIT 258 ITR 601 (Bom), CIT v. Citibank NA (Civil Appeal No. 1549 of 2006) (SC), CIT v. Bank of Rajasthan Ltd. 316 ITR 391 (Raj)
M/s DCB Bank Ltd. 4 & 785/Mum/2018 and the order of the Tribunal in assessee’s own case for AY 2010-11, the Ld. counsel submits that the addition made by the AO on the above be deleted.
We have heard the rival submissions and perused the relevant materials on record. In the case of Citibank NA (supra), the Hon’ble Supreme Court observed that the broken period interest is allowable expenditure and held as under :
In the present case, the Department brought to tax such amount u/s 28 right from the inception. Therefore, the Tribunal was right in coming to the conclusion that the judgment in Vijaya Bank Ltd.’s case [1991] 187 ITR 541 (SC) did not apply to the facts of the present case. We find that the assessee's method of accounting does not result in loss of tax/revenue for the Department. That, there was no need to interfere with the method of accounting adopted by the assessee bank. That, the judgment in the case of Vijaya Bank Ltd. [1991] 187 ITR 541 (SC), had no application to the facts of the case. That, having assessed income under section 28, the Department ought to have taxed interest for the broken period interest received and the Department ought to have allowed deduction for the broken period interest paid.
Since the tax effect is neutral, the method of computation adopted by the assessee and accepted by the Revenue cannot be interfered with. We agree with the view expressed by the Bombay High Court in American Express (supra) that the facts of the present case, the judgment in Vijaya Bank Ltd. (supra) would have no application. For the reasons given above, the question posed before us is answered in the affirmative i.e. in favour of the assessee and against the revenue.”
M/s DCB Bank Ltd. 5 & 785/Mum/2018 Again the above view has been confirmed by the Hon’ble Supreme Court in CIT v. Standard Chartered Bank (Civil Appeal No. 1529 of 2006). The ratio laid down in the above decisions is squarely applicable to the present case. Following the same, we uphold the order of the Ld. CIT(A) and dismiss the 1st ground of appeal
7. The 2nd ground of appeal On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition made by the AO on account of depreciation on leased assets without appreciating the fact that Revenue has filed appeal before the Hon’ble ITAT in the assessee’s case for the AY 2010-11 to 2013-14 on a similar issue, which are pending for adjudication.
8. The assessee has claimed depreciation of Rs.14,14,582/- on leased assets. The AO observed that the leased assets were purchased and leased during the financial year (FY) relevant to the assessment year (AY) 1996-97, 1997-98, 1998-99 and 1999-2000. No new assets were purchased for leasing purpose during the year under consideration. Following the assessment order for earlier years, the AO disallowed the above sum of Rs.14,14,582/-.
9. In appeal, the Ld. CIT(A) following the order of his predecessor-in- office for AY 2011-12 and AY 2012-13 deleted the above addition of Rs.14,14,582/- made by the AO.
10. Before us, the Ld. DR relies on the order of the AO whereas the Ld. counsel relies on the order of the Ld. CIT(A).
M/s DCB Bank Ltd. 6 & 785/Mum/2018 11. We have heard the rival submissions and perused the relevant materials on record. It is found that the assessee has claimed depreciation on leased assets in respect of assets given on lease in the earlier years. The same issue arose before the Tribunal in assessee’s own case for AY 2010-11. The Tribunal held that the assessee-Bank is the owner of leased assets and allowed depreciation in the case of finance lease as well as sale & lease back assets. The relevant extract of para 10 of the Tribunal order is reproduced below: “After having examined all the transactions which have been impugned before us, we are of the opinion that the assessee is entitled for the claim of depreciation under all the three circumstances, i.e. Sale lease back genuineness of transaction and asset having been put to use. We therefore, allow ground No. 1 of the assessee’s appeal and dismiss both the grounds of the department’s appeal.” Facts being identical, we follow the above order of the Co-ordinate Bench and confirm the order of the Ld. CIT(A). Thus the 2nd ground of appeal is dismissed.
In the result, the appeal filed by the revenue is dismissed. Assessment Year: 2014-15 (The assessee’s appeal) 13. The ground of appeal filed by the assessee reads as under: The appellant submits that the facts and circumstances of the case, the Ld. CIT(A) erred in disallowing expenses of Rs.41,14,887/- u/s 14A of the Income Tax Act, 1961 read with Rule 8D of the Income Tax Rules, 1961.
M/s DCB Bank Ltd. 7 & 785/Mum/2018 14. During the course of assessment proceedings the AO observed that the assessee has tax-free investments and it maintains consolidated accounts. In response to a show cause to explain why disallowance u/s 14A r.w. Rule 8D should not be made, the assessee filed a reply dated 18.11.2016 stating that the bank has earned exempt income amounting to Rs.7,26,19,398/- during the year under consideration and it has disallowed 1% of the above exempt income amounting to Rs.7,26,194/- as administrative expenditure related to exempt income u/s 14A and it has not incurred any expenditure directly related to the exempt income. Further, it was stated before the AO that the bank has interest-free funds which are more than the tax-free investment and then presumption would be that tax-free investment made out of the interest-free funds. Thus, it is stated that the assessee-bank has own funds of Rs.1153.95 crores whereas tax-free investments are Rs.164.39 crores as on 31.03.2014. Relying on the decision in the case of CIT v. Reliance Utilities & Power Ltd. 313 ITR 340 (Bom) and CIT v. HDFC Bank Ltd. 366 ITR 505 (Bom), it is stated that no disallowance under Rule 8D(2)(ii) of the Income Tax Rules, 1962 (the Rules) is called for. Further, it was stated before the AO that if the tax-free investments are as stock-in-trade, then no disallowance could be made u/s 14A. In this regard, reliance was placed on the decision in CIT v. India Advantage Securities Ltd. (ITA No. 1131/33). The AO was convinced with the above explanation of the assessee regarding disallowance under Rule 8D(2)(i) and 8D(2)(ii). However, he was not convinced with the explanation of the assessee regarding disallowance under Rule 8D(2)(iii) and made a disallowance of M/s DCB Bank Ltd. 8 & 785/Mum/2018 Rs.33,88,693/-, after reducing the suo motu disallowance of Rs.7,26,194/- made by the assessee from the Rule 8D(2)(iii) disallowance of Rs.41,14,887/- arrived at by him.
In appeal, the Ld. CIT(A) agreed with the reasons given by the AO and confirmed the above disallowance made by the AO.
Before us, the Ld. counsel of the assessee relies on the decision in Pr. CIT v. Moonstar Securities Trading & Finance Co. (P.) Ltd. of Delhi High Court in ITA No. 81 & 83 of 2018 dated 24.01.2018 and submits that the AO cannot straightway proceed to reject amount offered by assessee for disallowance as expenditure in relation to exempt dividend income in terms of section 14A, without adducing any reason or explanation for such rejection. In that case, the assessee claimed exempt dividend income and offered suo motu disallowance in terms of section 14A for expenditure incurred in relation to earning dividend income. The AO rejected the disallowance offered by assessee and enhanced the same by invoking rule 8D. The Hon’ble High Court held that the AO merely proceeded to reject such amount as expenditure and straightaway applied rule 8D without adducing any reasons and unless AO rejected the explanation or the rationale, which induced the assessee to offer particular amount as expenditure with some reasoning, the mere rejection per se cannot be accepted. Subsequently, the Hon’ble Supreme Court dismissed the SLP filed by the revenue against the above order of the High Court on merits and held that “where High Court upheld Tribunal’s order holding that AO could not straight away reject expenditure offered for disallowance u/s 14A and apply Rule 8D