THE RAJASTHAN STATE CO-OP. BANK LTD.,JAIPUR vs. DCIT, JAIPUR

Bank of Rajasthan deriving income from Banking business. The income

of assessee co-operative Bank was exempt u/s 80P(2) of I.T. Act, 61 in

all the earlier year(s) and from this assessment year 2007-08, the entire

income from Banking business of assessee Bank became taxable on

withdrawal of exemption by insertion of section 80P(4) by Finance Act,

2006 w.e.f 1-4-07. The original assessment was completed u/s 143(3)

at an income of Rs. 32,94,27,120/- making disallowance of Rs.

1,18,99,651/- on account of transfer to statutory Reserve out of carried

forward account of provision for expenses treating the same as taxable

u/s 41 of I.T.Act, 1961 and disallowance of Rs. 1,00,21,000/- out of

contribution to PAC Managers salary. The assessee bank filed appeal

against the said addition/disallowance and ld. CIT(A)-1, Jaipur vide

order dated 16.8.2010 in appeal No. 587/09-10 deleted both

addition/disallowance. The department filed appeal against the said

appeal order before ITAT, Jaipur Bench which appeal was decided vide

order dated 22-7-11 (ITA No. 1277/JP/2010). The Coordinate Bench

confirmed the order of CIT(A) in respect to the deletion of disallowance

3 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax of PAC Manager’s salary but the issue in respect to transfer to statutory

Reserve out of carried forward account of provision for expenses was

restored back to the file of A.O. The relevant findings of the Coordinate

Bench are contained at para 2.9 of its order which reads as under:

“2.9 It is well settled law that entries in the books of accounts are not conclusive. One has to ascertain the taxability on the basis of the provisions of Income Tax Act. Crediting the amount in the balance sheet will not decide the issue that such credits cannot be added to the income. The Hon’ble Apex Court in the following cases have held that book entries are not conclusive. 1. Kedarnath Jute Mfg. Co. Ltd. Vs. CIT, 82 ITR 363 (SC) 2. CIT vs. Indian Discount Co. Ltd. 75 ITR 191 (SC) 3. Satluj Cotton Mills Ltd. Vs. CIT, 116 ITR 1 (SC) 4. CIT vs. Tuticorin Alkali Chemicals & Fertilizers Ltd., 227 ITR 172 SC 5. CIT Vs. Shoorji Vallabhdas & Co., 46 ITR 144 (SC) 6. CIT vs. Triveni Engineering & Industries Ltd., 181 Taxman 5 (Del.) Thus the issue is not to be decided simply on the basis that the entries have been made in the balance sheet and not in the P & L A/c. We are not having sufficient details to decide the issue before us as to whether the amount could have been added or not and therefore, we restore back the issue on the file of the A.O. The AO will ascertain the nature of the provisions which has been written back during the year and will also ascertain as to whether such provision was added back in the year in which such provision was credited in the balance sheet. Thus this

4 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax issue is restored back on the file of the AO and AO will decide as to whether provision written back was included in expenses claimed in the year in which such provision created. If it was claimed then amount written back will be income.”

2.1 The AO in accordance with above said directions of the

Coordinate Bench took up the proceedings and vide impugned order

under appeal has recorded following facts after necessary examination:

i. Statutory reserve of Rs. 80,99,16,594.12/- as on 01.04.2006 has

increase to Rs. 82,41,83,630.49/-. The increase in the amount of

statutory reserve is contributed by transferred of Rs. 1,18,99,651/- from

carried forward provisions written back in the relevant financial year by

transferring the said amount to the statutory reserve account.

ii. The provisions for establishment of Rs. 1,18,99,651/- comprises

provisions for establishments expenses of Rs. 1,12,02,831.40/-

(provision for establishment expenses of Rs. 30,00,000/- for the period

ending on 31.03.2004, Rs. 40,00,000/- for the period ending on

31.03.2005 and Rs. 40,00,000/- for the period ending on 31.03.2006)

balance amount of Rs. 2,02,831/- pertains to the period prior to F.Y

2003-04. Rs. 6,96,819/- relates to provision for expenses like water,

postage, telephone etc. included with expenses under respective head

and debited to Profit and Loss Account for the F.Y. 200-06.

5 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax iii The above amount of provisions for establishment expenses are

included with the expenditure of salary and allowance and provident

fund, for example, provision for establishment expenses Rs. 40,00,000/-

is included with salary expenses total of Rs. 2,87,07,784.56/- and

coupled with other expenses total Rs. 5,51,08,851.53/- is debited to

profit and loss account for the period ending on 31.03.2006 under head

‘salaries and allowances and provident fund’.

iv Provisions for establishment expenses made in different years

and provision for other expenses are debited to profit and loss account

to the respective years.

v. From the entries made in the books account relating to provisions

for establishment expenses have been claimed as expenditure in the

profit and loss account.

vi. It is evident from the computation of income mentioned supra as

well as from the reply of the assessee that provisions for establishment

expenses claimed as expenditure in the profit and loss account have not

been added back for the computation of income.

vii. In the F.Y. 2006-07 the assessee bank realized that the said

brought forward provisions for establishment expenses to the extent of

Rs. 1,18,99,651/- is no longer required the said amount was transferred

to Statutory Reserve.

6 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax

2.2 The AO thereafter held that ‘it is concluded that provision for

establishment expenses and other expenses to the extent of Rs.

1,18,99,651/- has been claimed and allowed as expenditure in the profit

& loss account in preceeding assessment years. The provisions for

expenses have not been added back in the computation of income.

Therefore, the transfer of liability of expenses (provision for

establishment expenses and other expenses totaling Rs 1,18,99,651)

directly to reserve amounts to cessation of liabilities of expenses and is

taxable as income in the year in which it is transferred to reserve’.

Thus the AO reconfirmed the addition of Rs. 1,18,59,651/- by invoking

Section 41 (1) of I.T. Act, 1961.

2.3 Being aggrieved, the assessee again carried the matter in appeal

before CIT(A)-II, Jaipur who vide her appeal order dated 22-1-2013

dismissed the appeal of assessee and the relevant findings are

contained at para 7 of her order which reads as under:-

“It is not disputed by the appellant that the provisions totaling to Rs. 1,18,99,651/- were not added back in the Computations of Income of the returns filed for earlier assessment years. It is also not disputed that the provisions were debited in the P & L account, therefore the conclusion in the assessment order of taxing the Provisions totaling to Rs. 1,18,99,651/- because they have been transferred to Reserve in the year under consideration is upheld as Hon’ble ITAT direction was only

7 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax to confirm whether the provisions were added back to income in earlier years or not. The answer is No they had not been added back. The addition of Rs. 1,18,99,651/- is thus upheld.’’

submitted that the addition has been made by AO and sustained by ld.

CIT(A) by invoking provisions of Section 41(1) of I.T. Act, 1961. It was

submitted that the provision of Section 41(1) have application only if:-

(i) an allowance or deduction had been made, in the computation of profits and gains of a business or profession, in the assessment for any year in respect of loss, expenditure or trading liability incurred by the assessee, and (ii) Subsequently during any previous year the assessee had obtained, whether in cash or in any other manner whatsoever, any amount in respect of such loss or expenditure or some benefit in respect of such trading liability by way of remission or cessation thereof.

3.1 It was submitted that the undisputed facts of the case are that

assessee Bank has carried forward Reserves and provisions under

various heads created from the profits of the earlier years, amongst

them the assessee co-operative Bank as on 1-4-06 had brought forward

statutory Reserve of Rs. 80,99,16,594 and brought forward provision

under the head ‘Provision for Establishment’ (expenses) of Rs.

1,18,99,651/-. The assessee Bank on finding that the said brought

forward provision under the head provision for expenses is no longer

8 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax required and so it transferred the same to Statutory Reserve Fund in

this year.

3.2 It was submitted that the entire income of assessee Apex Co-

operative Bank was exempt u/s 80P(2)(a)(i) since commencement of

I.T. Act and became taxable for and from A.Y. 2007-08 by virtue of

Section 80P(4) inserted by Finance Act, 2006. The assessee in

computation of income filed with return of each of assessment year

prior to A.Y. 2007-08 put a note which reads as under and also

reproduced on page-4 of impugned assessment order:-

“The income from banking business is wholly exempt u/s 80P (2)(1) of the Income Tax Act, 1961 and as such it has not been considered necessary to disturb and add back the items of P & L account in conformity with Income-Tax Act/I.T. Rules, 1962 including appropriation of profit in reserve/funds.”

3.3 It was submitted that the assessment for most of the years were

completed u/s 143(3) and copies of returns along with computation of

income and copies of assessment order for A.Y 2004-05, 2005-06,

2006-07 were herewith submitted wherein return of income filed by the

assessee accepted which means acceptance of above note appended to

the computation of income and all disallowable expenses/deductions

etc. deemed to have been considered and added and as resultant

9 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax income would have been exempt, exercise of adding them in

assessment was not done. The reply of assessee filed by assessee

before A.O. reproduced in para 6.1, 6.2 & 6.3 of assessment order is

considered in para 8.2 of assessment order and observation of ld. AO

thereon are as under:-

“The contention of the assessee is not correct because the assessee has not followed the discipline of accounting as well as computation of income. Such as transfer to reserve is made out of the profit but the assessee has transferred the amounts to reserve from liabilities for expenses and which has been allowed as expenditure. They have never being declared as income of the assessee for the relevant assessment year.’’

There are many provisions under the Income Tax Act where the income is exempted but they have to get their accounts audited and filing of return of income is necessary. They cannot be exonerated from the liability from filing of return of income or getting their account audited merely by informing the department that their income is totally exempt and no tax liability would arise, therefore, a note to this effect is sufficient compliance for non maintenance of books of accounts or getting the accounts audited and not filing of return of income.”

However the issue raised by ld. AO equally applies to ld. AO also who

passed assessment order(s). The ld. AO is also duty bound to make

assessment in conformity of law and when even on proper disclosure ld.

AO. adopted the same way of computation of income as assessee

followed and did not choose to do exercise of adding back the

provisions which are clearly disallowance under I.T. Act, 1961, the fault

cannot be found with assessee only. In these facts and circumstances

10 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax of the case it is to be taken that the provisions for said expenses made

in accounts were deemed to have been disallowed like it has been

deemed by A.O. that depreciation has been allowed. On these facts of

the case it cannot be concluded that assessee claimed provisions of

expenses in P& L A/c and the same were allowed in assessment. In

view of this, the provisions of Section 41(1) cannot be applied to

assessee when part of carried forward provision for expenses was

written back in this year in accounts and transferred to Statutory

Reserve Fund.

3.4 It was submitted that the scope of section 41(1) is to bring to tax

any loss, expenditure or trading liability allowed in an earlier

assessment but which is recouped by remission or cessation of such

liability in a later year. It is clear that deduction in an earlier year is the

primary condition for jurisdiction under section 41(1). Even an unilateral

entry vide explanation 1 with effect from the assessment year 1997-

1998 would attract liability under section 41(1), so that any credit to the

profit and loss account or even a proprietor’s account or reserves by

squaring up the liability should attract tax under section 41(1) as long

as the amount had been allowed as a deduction in computation of

taxable income. The allowance or deduction in respect of loss

expenditure or expressly not allowable income is determined and

11 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax cannot be inferred or concluded while exempt income is determined as

in the later case their addition is not material as even thereafter

resultant sum income will be exempt.

3.5 It was submitted that the findings of Ld. CIT(A) that it is not

disputed by appellant that the provisions of expenses totaling to Rs.

1,18,99,651/- debited in the P&L A/c were not added back in the

computation of income of the returns filed for earlier assessment years

is not correct as assessee Bank is constantly claiming that the notes

given in the computation statement and resultant assessments made it

is to be taken that provisions for expenses made in account were

deemed to have been disallowed. It was also constantly claimed that

the allowance or deduction envisaged in Section 41(1) means that the

same were made while computing taxable income but when whole

income of assessee Bank is exempt than there cannot be inferred any

allowance or deduction having been made while computing exempt

income. Thus the order of Ld. CIT(A) is on misappreciation of facts and

contentions made by assessee Bank. The order of Ld. CIT(A) thus

suffers from infirmity by which said addition was upheld.

3.6 It was finally submitted that on these facts of the case and

position of law, the conclusion of Ld. CIT(A) and Ld. A.O. that

provisions of expenses were claimed by assessee Bank in its P & L A/c

12 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax in earlier years and same were allowed is wrong, unwarranted and bad

in law and, therefore the addition of Rs. 1,18,99,651/- upheld by Ld.

CIT(A) is also wrong. The addition of Rs. 1,18,99,651/- made in the

income of assessee Bank by invoking Sec. 41(1) of I.T. Act, 61 deserves

to be deleted.

available on record. The principle contention raised by the ld. AR is that

the assessee’s income from its banking business was wholly exempt u/s

80P(2) of the Act in the earlier years (prior A.Y 2007-08) and by way of

a note to the computation of income filed with return of each of the

prior assessment years, it has stated that “as income from its banking

business is wholly exempt u/s 80P(2) of the Income Tax Act, it has not

been considered necessary to disturb and add back items of profit and

loss account in conformity with the Income Tax Act/Income Tax Rules

including appropriation of profit in reserve funds”. It was submitted

13 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax that the assessment for most of the prior years were completed u/s

143(3) wherein the return of income filed by the assessee was accepted

including the acceptance of the above said note appended to the

computation of income. It was submitted that by way of said note to

the computation of income, all disallowable expenses/deductions etc.

were deemed to have been considered and added back to the

computation of income and as resultant income would have been

exempt u/s 80P(2), exercise of adding all disallowable

expenses/deductions etc. in assessment was not done.

5.1 In order to appreciate the said contentions raised by the ld. AR, it

would be relevant to refer to the provisions of section 41(1) of the Act

which reads as under:-

(1) Where an allowance or deduction has been made in the

assessment for any year in respect of loss, expenditure or trading

liability incurred by the assessee (hereinafter referred to as the first-

mentioned person) and subsequently during any previous year,-

(a) the first-mentioned person has obtained, whether in cash or in

any other manner whatsoever, any amount in respect of such loss or

expenditure or some benefit in respect of such trading liability by way

of remission or cessation thereof, the amount obtained by such person

14 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax or the value of benefit accruing to him shall be deemed to be profits

and gains of business or profession and accordingly chargeable to

income-tax as the income of that previous year, whether the business

or profession in respect of which the allowance or deduction has been

made is in existence in that year or not”

5.2 Here it would be relevant to the decision of the Hon’ble Gujarat

High Court in case of CIT vs. Bharat Iron and Steel Industries 199

ITR 67 wherein the Hon’ble High Court has held as under:

“The key words in section 41(1) are 'the assessee has obtained,

whether in cash or in any other manner whatsoever, any amount in

respect of such loss or expenditure or some benefit in respect of such

trading liability by way of remission or cessation thereof. It is the

obtaining in 'cash or in any other manner whatsoever, any amount... or

some benefit in respect of such trading liability...' which is contemplated

by the Legislature when it used the words 'has obtained'. Section 41(1)

introduces a fiction by which an allowance or deduction which has been

made in the assessment for any year in respect of loss, expenditure or

trading liability incurred by the assessee, and subsequently, during any

previous year the assessee has obtained, whether in cash or in any

other manner whatsoever any amount in respect of such loss or

15 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax expenditure or some benefit in respect of such trading liability by way

of remission or cessation thereof, the amount obtained by him or the

value of benefit accruing to him, shall be deemed to be profits and

gains of the business or profession and, accordingly, chargeable to

income-tax as income of that previous year, whether the business or

profession in respect of which the allowance or deduction has been

made is in existence in that year or not. The fiction is an indivisible one.

It cannot be enlarged by importing another fiction, namely, that if the

amount was obtainable or receivable during the previous year, it must

be deemed to have been obtained or received during that year.”

5.3 Applying the same analogy to the first limb of section 41(1) which

talks about “any allowance or deduction made in the assessment for

any year in respect of loss, expenditure or trading liability incurred by

the assessee”, it means the actual deduction which has been

claimed/made in the computation of income and thereafter upheld in

the assessment order for the relevant assessment year. The same

cannot be extended to include any loss, expenditure or trading liability

deemed to have been claimed and allowed to the assessee. Extending

the said analogy further, it cannot be said that certain expenditure

though claimed initially in the profit/loss account were deemed to have

16 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax been disallowed either in the computation of income by the assessee or

subsequently by the AO in the assessment order. Further, the note to

the computation of income is totally silent about nature and quantum of

provisions for administrative expenses which has been made subject

matter of section 41(1) of the Act. Unless and until there is one to one

correlation between the expenses disallowed earlier and benefit

obtained now by way of reversal of such provision for expenses, it

cannot be held that the provisions of section 41(1) are not applicable.

Therefore, the above said contention of the ld AR in respect of deemed

disallowance of the provisions of expenses by way of a note in the

computation of income and hence, not applicability of section 41(1)

cannot be accepted.

Now coming to the 2nd contention raised by the ld. AR that 5.4

allowance and deduction in respect of loss or expenditure in the context

of section 41(1) can only be inferred if taxable income is determined

and it cannot be inferred or concluded while exempted income is

determined as in the later case the addition is not material as resultant

income will be exempt u/s 80P(2) of the Act. In other words, the

contention of the AR is that the emphasis on allowance/deduction in

section 41(1) means that the same are made while computed taxable

17 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax income but when whole income of assessee bank is exempt then they

cannot be inferred any allowance/deduction having made while

computing exempt income.

5.5 We have given a careful consideration to the said contention

raised by the ld. AR but we are unable to accept the same. Section

41(1) talks about allowances/deductions which has been made in the

assessment for any year in respect of loss, expenditure or trading

liability incurred by the assessee. The said allowance/deduction u/s

41(1) has not been made subject to deduction under Chapter-VIA of

the Act as claimed ld. AR. If the contention raised by the ld. AR is

accepted, then it leads to the situation where no allowance or deduction

will have be claimed by the assessee and further, in such

circumstances, provisions of section 41(1) cannot be invoked where an

assessee is eligible for deduction under Chapter-VI-A of the Act. In our

view, the said contention of the ld AR will make section 41(1) infructous

in such cases.

5.6 Now coming to chapter VI-A which contains Section 80P wherein

the assessee’s income was held eligible for deduction prior to the

impunged assessment year. Section 80P(1) provides that “wherein the

18 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax case of the assessee being Co-operative Society, the gross total income

includes any income referred in section (2), they shall be deducted, in

accordance with and subject to provisions of this section, the sum

specified in sub-section (2), in computing the total income of the

assessee.” The emphasis, therefore, is on the income which is included

in gross total income of the assessee. In this regard, Section 80 AB of

the Act provides necessary guidance which reads as under:-

“Where any deduction is required to be made or allowed under any section included in this Chapter under the heading “C-Deductions in respect of certain incomes” in respect of any income of the nature specified in that section which is included in the gross total income of the assessee, then, notwithstanding anything contained in that section, for the purpose of computing the deduction under that section, the amount of income of that nature as computed in accordance with the provisions of this Act (before making any deduction under this Chapter) shall alone be deemed to be the amount of income of that nature which is derived or received by the assessee and which is included in his gross total income.”

5.7 In light of above discussions, it is clear that the income that is

eligible for deduction under section 80P has to be computed in

accordance with the provisions of Act and which includes section 41(1)

of the Act. Therefore, firstly the income has to be computed taking into

consideration the provisions of section 41(1) of the Act and thereafter,

the deduction under Section 80P has to be determined. It may so

happen that the whole of the income so computed in accordance with

the provisions of the Act is held eligible for deduction under section 80P

19 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax of the Act however, the same cannot be a basis to hold that provisions

of section 41(1) are not applicable. There could also be situations

where the business which is eligible for section 80P is no more in

existence and the assessee has obtained some benefit, provision of

section 41(1) continues to apply. Similarly, where the assessee

continues to carry on the same business but in the later years, it is not

eligible for section 80P due to amendment in the law as has happened

in the instant case, it cannot be held that the provisions of section 41(1)

are not applicable. The provisions of the Act, therefore, have to be

read harmoniously and in such a manner that none of the provisions are

rendered infructuous. In light above discussions, we do not see any

infirmity in the order of the AO who has rightly followed the directions

of the Coordinate Bench and the order of the ld. CIT(A) which is hereby

confirmed. The ground taken by the assessee is thus dismissed.

In the result, appeal filed by the assessee is dismissed.

Order pronounced in the open court on 17/04/2017.

Sd/- Sd/- ¼dqy Hkkjr ½ ¼foØe flag ;kno½ (Kul Bharat) (Vikram Singh Yadav) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member

Tk;iqj@Jaipur fnukad@Dated:- 17/04/2017.

20 ITA No.266/JP/2013 M/s The Rajasthan State Co-operative Bank Ltd Vs. Assistant Commissioner of Income Tax *Ganesh आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant-The Rajasthan State Co-operative Bank 1. izR;FkhZ@ The Respondent- A.C.I.T. 2. 3. vk;dj vk;qDr@ CIT vk;dj vk;qDr@ CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File {ITA No. 266/JP/2013} 6.

vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत