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Income Tax Appellate Tribunal, PUNE BENCH “B”, PUNE
आदेश / ORDER
PER SUSHMA CHOWLA, JM:
Both the appeals filed by assessee are against separate orders of CIT(A)-1, Nashik, both dated 01.04.2016 relating to different assessment years i.e. 2010-11 against levy of penalty under section 271(1)(c) of the Income-tax
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Act, 1961 (in short ‘the Act’) and for assessment year 2012-13 against order passed under section 143(3) of the Act.
Both the appeals relating to same assessee were heard together and are being disposed of by this consolidated order for the sake of convenience.
Both the appeals filed by assessee were filed after delay of 14 days. The assessee has individually filed affidavits in both the appeals and in view of the reasons mentioned, we find merit in the plea of assessee and the delay of 14 days in filing the appeals late before the Tribunal is condoned.
The assessee in ITA No.1560/PUN/2016, relating to assessment year 2010-11 has raised the following grounds of appeal:- On facts and circumstances of the case and in law, 1. Without considering the facts and circumstances of the case, the learned Assessing Officer has erred in levying the penalty under section 271(1)(c) of the Act of Rs.4,30,220/- and the Commissioner of Income tax (Appeals)– 1, Nashik has erred in confirming the same. 2. The order imposing penalty under section 271(1)(c) of the Income Tax Act 1961, dated 01.04.2016 of the Assessing Officer and confirmation of the same by the Commissioner of Income Tax (Appeals)-1, Nashik, in case of assessee is bad in law.
In assessment year 2010-11, the appeal is filed against penalty levied under section 271(1)(c) of the Act.
On perusal of record and after hearing both the learned Authorized Representatives, we find that the Assessing Officer while recording satisfaction for initiating penalty proceedings has held the assessee to have filed inaccurate particulars of its income and also concealed its income and hence, penalty
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proceedings were initiated against the assessee. Though in the penalty order, penalty has been levied for the sole reason for furnishing inaccurate particulars of income but since the satisfaction recorded by the Assessing Officer is on both the limbs of said section 271(1)(c) of the Act, we find that the satisfaction recorded by Assessing Officer is not proper. In this regard, we place reliance on the ratio laid down by the Hon’ble Bombay High Court in CIT Vs. Shri Samson Perinchery (2017) 392 ITR 4 (Bom), wherein it was held that where there is no proper satisfaction for initiating penalty proceedings and in the absence of proper show cause notice to the assessee, there is no merit in levy of penalty. Accordingly, we hold that penalty levied under section 271(1)(c) of the Act against improper satisfaction cannot stand in the eyes of law and the same is held to be invalid and bad in law. The grounds of appeal raised by assessee are thus, allowed.
Now, coming to the appeal in ITA No.1561/PUN/2016, relating to assessment year 2012-13, wherein the following ground of appeal has been raised:- 1. The learned Deputy Commissioner of Income Tax, Circle – 1, Nashik has erred in making addition of Rs.16,53,350/- under pretext of section 36(i)(viia) r.w.s. 36(2)(v) of the Income Tax Act, 1961 and Commissioner of Income Tax has erred in confirming the same.
The issue raised in the present appeal is against claim of deduction on account of provision for bad and doubtful debts under section 36(1)(viia) of the Act, wherein the authorities below had restricted the addition to the extent of provision made in the books of account and not the amount which has been claimed as deduction on account of aforesaid provision made.
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We find that the issue stands covered by the order of Tribunal in the case of Shri Mahalaxmi Co-op. Bank Ltd. Vs. ITO in ITA No.1658//PN/2011, relating to assessment year 2008-09, order dated 29.10.2013. The Tribunal had held that deduction on account of provision made for bad and doubtful debts under section 36(1)(viia) of the Act is to be restricted to the extent of provision made in the books of account and not to the extent of amount claimed in the Profit and Loss Account. The relevant findings of Tribunal are vide paras 10 to 14, which read as under:- “10. A bare perusal of aforesaid section clearly brings out that the deduction specified therein is in “respect of any provision for bad and doubtful debts made by……..” an eligible assessee. The presence of the aforesaid expression in the section supports the plea of the Revenue, which is to the effect that the deduction allowable under Section 36(1)(viia) of the Act is in respect of the provision “made” by the assessee. In our considered opinion, the judgement of the Hon’ble Punjab & Haryana High Court in the case of State Bank of Patiala (supra) clearly covers the controversy in favour of the Revenue and belies the interpretation sought to be canvassed by the assessee. In the case before the Hon’ble High Court, assessee-bank had originally filed its return of income for assessment year 1985-86 claiming deduction under Section 36(1)(viia) of the Act at Rs.1,90,36,000/-. After filing of the return the provisions of Section 36(1)(viia) of the Act were amended by Finance Act, 1985 whereby deduction was enhanced to 10% of the profit or 2% of the aggregate average advances made by rural branches of the bank, whichever was higher. On account of the amended provisions, assessee filed a revised return of income on 24.04.1986 enhancing the claim for deduction from Rs.1,90,36,000/- to Rs.1,94,21,000/-. The Assessing Officer restricted the deduction under Section 36(1)(viia) of the Act to Rs.1,90,36,000/- only and disallowed the balance on the ground that in the books of account pertaining to the relevant assessment year, assessee had made a Provision for bad and doubtful debts of Rs.1,90,36,000/- only. The assessee argued that the Provision of Rs.1,90,36,000/- was made in the Balance-Sheet finalized on 14.02.1985 which was as per the unamended provisions of Section 36(1)(viia) of the Act and that in view of the amendment of Section 36(1)(viia) of the Act permitting higher claim of deduction, the assessee could not have possibly made the higher Provision in the Balance-Sheet finalized on a prior date, but it made up the shortfall by making an adequate Provision in the Balance-Sheet of the subsequent assessment year. On this basis, it was sought to be made out that there was substantial compliance with the requirement of law of making Provision for bad and doubtful debts and therefore assessee justified the claim of deduction for the complete amount of Rs.1,94,21,000/- and not restricted to Rs.1,90,36,000/-. The CIT(A) as well as the Tribunal negated the plea of the assessee and accordingly, the matter was carried before the Hon’ble Punjab & Haryana High Court. The Hon’ble High Court referred to the provisions of Section 36(1)(viia) of the Act and observed that “…..the deduction allowable under the above provisions is in respect of the provision made” and further went on to hold that “…..making of a provision for bad and doubtful debts equal to the amount mentioned in this section is must for claiming such deduction.” In view of the aforesaid judgement of the Hon’ble
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Punjab & Haryana High Court, in our view, the position sought to be canvassed by the assessee deserves to be repelled. We reproduce hereinafter the relevant portion of the order of the Hon’ble High Court, which reads as under :- “5. Sec.36(1)(viia) of the Act as applicable to the asst. yr. 1985-86, reads as under : “in respect of any provision for bad and doubtful debts made by a scheduled bank [not being a bank approved by the Central Government for the purposes of cl.(viiia) or a bank incorporated by or under the laws of a country outside India] or a non-scheduled bank, an amount not exceeding ten per cent of the total income (computed before making any deduction under this clause and Chapter VI-A) or an amount not exceeding two per cent of the aggregate average advances made by the rural branches of such bank, computed in the prescribed manner, whichever is higher.” 6. A bare perusal of the above shows that the deduction allowable under the above provisions is in respect of the provision made. Therefore, making of a provision for bad and doubtful debts equal to the amount mentioned in this section is a must for claiming such deduction. The Tribunal has rightly pointed out that this issue stands further clarified from the proviso to cl.(vii) of s.36(1) of the Act, which reads as under : “Provided that in the case of an assessee to which cl.(viia) applies, the amount of the deduction relating to any such debt or part thereof shall be limited to the amount by which such debt or part thereof exceeds the credit balance in the provision for bad and doubtful debts account made under that clause.” 7. This also clearly shows that making of provision equal to the amount claimed as deduction in the account books is necessary for claiming deduction under s. 36(1)(viia) of the Act. The Tribunal has distinguished various authorities relied upon by the assessee wherein deductions had been allowed under various provisions which also required creation of reserve after the assessee had created such reserve in the account books before the completion of the assessment. It has been correctly pointed out that in all those cases, reserves/provisions had been made in the books of account of the same assessment year and not of the subsequent assessment year. 8. In the present case, the assessee has not made any provision in the books of account for the assessment year under consideration, i.e., 1985-86, by making supplementary entries and by revising its balance sheet. The provision has been made in the books of account of the subsequent year. 9. We are, therefore, satisfied that the Tribunal was right in holding that since the assessee had made a provision of Rs.1,19,36,000 for bad and doubtful debts, its claim for deduction under s. 36(1)(viia) of the Act had to be restricted to that amount only. Since the language of the statute is clear and is not capable of any other interpretation, we are satisfied that no substantial question of law arises in this appeal for consideration by this Court.”
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In view of the aforesaid interpretation of Section 36(1)(viia) of the Act by the Hon’ble Punjab & Haryana High Court, the orders of the lower authorities deserve to be upheld inasmuch as the assessee has not made a Provision for bad and doubtful debts in the books of account equal to the amount of deduction sought to be claimed under Section 36(1)(viia) of the Act, and therefore, in our view, the lower authorities were justified in restricting the deduction to Rs.50,00,000/-, being the amount of Provision actually made in the books of account. 12. The learned counsel for the assessee has cited certain decision in support of his proposition that the claim of deduction under Section 36(1)(viia) of the Act is not linked to making of a Provision in the account books. At the outset, we may observe that the decisions relied upon by the assessee are of various Benches of the Tribunal and not of any High Court. Therefore, the judgement of the Hon’ble High Court in the case of State Bank of Patiala (supra), which is contrary to the decisions of the Tribunal relied upon by the assessee; and being solitary judgement of a High Court, is required to be applied, having regard to the established norms of judicial discipline. For the said reason, we refrain from discussing each of the decisions of the Tribunal relied by the assessee before us. 13. The other plea of the assessee was that the contents of the CBDT Circular dated 26.11.2008 (supra) is contrary to the provisions of Section 36(1)(viia) of the Act and therefore the same should be disregarded. In our view, the following explanation in respect of Section 36(1)(viia) of the Act rendered by the CBDT in Circular dated 26.11.2008 (supra) by way of para 2(iii)(b) as under :- “(b) The deduction for provision for bad and doubtful debts should be restricted to the amount of such provision actually created in the books of the assessee in the relevant year or the amount calculated as per provisions of section 36(1)(viia), whichever is less.” is in line with the interpretation of the section rendered by the Hon’ble Punjab & Haryana High Court and cannot be said to be contrary to the provisions of the Act. Therefore, the reliance placed by the lower authorities on the CBDT Circular dated 26.11.2008 (supra) cannot be faulted. 14. Before parting, we may refer to the decision of the Hon’ble Supreme Court in the case of Catholic Syrian Bank Ltd. (supra) relied upon by the assessee and also the decision of our co-ordinate Bench in the case of Jaysingpur Udgaon Sahakari Bank Ltd. (supra). We have carefully perused the said decision and found that the issue before the Hon’ble Supreme Court in the case of Catholic Syrian Bank Ltd. (supra) was quite different; and, in any case none of the observations of the Hon’ble Supreme Court run contrary to the pronouncement of the Hon’ble Punjab & Haryana High Court in the case of State Bank of Patiala (supra) to the effect that making of a Provision for bad and doubtful debts equal to the amount mentioned in Section 36(1)(viia) of the Act is must for claiming such deduction. Therefore, the judgement of the Hon’ble Supreme Court in the case of Catholic Syrian Bank Ltd. (supra) does not help the assessee in the present controversy before us. Further, even in the case of Jaysingpur Udgaon Sahakari Bank Ltd. (supra), the Tribunal has merely set-aside the matter for adjudication afresh back to the file of the Assessing Officer and it does not contain any positive finding with respect to the controversy before us.”
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The issue raised in the present appeal is squarely covered by the order of Tribunal in Shri Mahalaxmi Co-op. Bank Ltd. Vs. ITO (supra) and following the same parity of reasoning, we find no merit in the ground of appeal raised by assessee and the same is dismissed.
In the result, appeal of assessee for assessment year 2010-11 is allowed and for assessment year 2012-13 is dismissed.
Order pronounced on this 11th day of December, 2018.
Sd/- Sd/- (ANIL CHATURVEDI) (SUSHMA CHOWLA) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक Dated : 11th December, 2018. GCVSR आदेश की प्रयतलऱपप अग्रेपषत/Copy of the Order is forwarded to : 1. अऩीऱाथी / The Appellant; 2. प्रत्यथी / The Respondent; 3. आयकर आयुक्त(अऩीऱ) / The CIT(A)-1, Nashik; 4. The Pr.CIT-1, Nashik; ववबागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, ऩुणे “फी” / DR 5. ‘B’, ITAT, Pune; 6. गार्ड पाईऱ / Guard file. आदेशािुसार/ BY ORDER, सत्यावऩत प्रतत //True Copy// वररष्ठ तनजी सधिव / Sr. Private Secretary आयकर अऩीऱीय अधधकरण ,ऩुणे / ITAT, Pune