BOMBAY MERCANTILE CO-OPERATIVE BANK LTD,MUMBAI vs. DCIT 1(1)(2), MUMBAI

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ITA 1468/MUM/2017Status: DisposedITAT Mumbai30 August 2018AY 2013-145 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal restored the grounds of appeal back to the Assessing Officer (AO). The AO was directed to decide the issue after the decision of the Hon'ble Bombay High Court, applying the provisions of Section 158A.

What were the facts?

The assessee filed a declaration under Section 158A(1) of the Income Tax Act, stating that identical questions of law were pending before the Bombay High Court. The assessee also referred to previous ITAT orders where similar issues were restored to the AO.

What were the issues?

Whether the ITAT should apply the ratio decidendi of a High Court decision pending before it, and whether the matter should be restored to the AO based on a declaration under Section 158A.

Which sections of the Income-tax Act were involved?

Section 158A,Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “B” BENCH, MUMBAI

For Appellant: Shri W Hasan, AR

आयकर अपीलीय अधिकरण “B” न्यायपीठ म ुंबई में। IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, MUMBAI श्री महावीर स िंह, न्याययक दस्य एविं श्री रसमत कोचर लेखा दस्य के मक्ष । BEFORE SRI MAHAVIR SINGH, JM AND SRI RAMIT KOCHAR, AM Aayakr ApIla saM./ (inaQa-arNa baYa- / Assessment Year 2013-14) Bombay Mercantile Co-operative Bank Ltd. …… (ApIlaaqaI- / Appellant) Zain Rangoonwala Bldg, 78, Mohammad Ali Road, Mumbai-400 003 Vs. Dy. Commissioner of Income Tax …… (p`%yaqaaI- / Respondent) Circle 1(1)92), Mumbai, Aayakar Bhavan, M.K. Road, Mumbai-400 020 स्थायी लेखा िं./PAN No. AAAAB2359J अपीलाथी की ओर े / Appellant by : Shri W Hasan, AR प्रत्यथी की ओर े / Respondent by : Shri DG Pansari, DR ुनवाई की तारीख / Date of hearing: 30-08-2018 घोषणा की तारीख / Date of pronouncement : 30-08-2018 AadoSa / O R D E R PER MAHAVIR SINGH, JM:

This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-2, Mumbai [in short CIT(A)], in appeal No. CIT(A)-2/IT-247/2014-15 dated 23.12.2016. The Assessment was framed by the Dy. Commissioner of Income Tax-Circle-1(1)(2), Mumbai (in short ‘DCIT’/ AO) for the A.Y 2013-14 vide order dated 13.02.2016 under section 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’).

2.

At the outset, the learned Counsel for the assess drew our attention to the declaration filed under section 158A(1) of the Act and claimed that identical question of law is pending before Hon’ble Bombay High Court. The relevant application reads as under: - Bombay mercantile co-operative Bank Ltd. AY 2013-14 Form No.8 Declaration under section 158A(1) of the Income- tax Act, 1961 to be made by an assessee claiming that identical question of law is pending before the High Court or the Supreme Court I, DR. M. SHAH ALAM KHAN, son of Shri MOHD ZAHEER being the Managing Director of Bombay Mercantile Co-operative Bank Ltd. do hereby declare

1.

That the following question(s) of law are pending in in the case of Bombay Mercantile Co-operative Bank Ltd. before the Hon'ble Bombay High Court in appeal u/s 260A in respect of the assessment years 2006-07 & 2007-08, A copy of the statement of the case and the question(s) of law referred to the High Court are enclosed. Please see Annexure Al. Annexure A2, Annexure A3, Annexure A4.

2. That the said question(s) of law are identical with the question(s) of law arising in the case of Bombay Mercantile Co-operative Bank Ltd. in respect of the assessment years 2013-14 which is pending before Hon’ble ITAT, Mumbai. (Please see Annexure B).

3.

That if the Hon'ble ITAT, Mumbai agrees to apply to the case referred to in paragraph 2 above the final decision on the questions of law in the case referred to in paragraph I above, the assessee mentioned in paragraphs I and 2 above, shalt not raise the said question(s) of law in the case referred to in paragraph 2 above in appeal before any appellate authority or for a reference before the High Court under section 256 or the Supreme Court under section 257 or in appeal before the Supreme Court tinder section 261..”

3. In view of the above, the learned Counsel for the assessee drew our attention to the following grounds: - “

1. On the facts and iii the circumstances of the case and in law the learned CIT (A) erred in confirming the addition of Rs. 1,60,07,715/- on account of Amortization of Depreciation without applying the ratio decidendi of the decision of the Hon'ble Bombay High Court in the case of Commissioner of Income Tax-2, Mumbai v/s HDFC Bank Ltd. in the INCOME TAX APPEAL No.250 of 2012.

2. On the facts and in the circumstances of the case and in law the learned CIT (A) erred in continuing the addition of Rs. 19,62,258/- on account of Amortization of premium on investment without applying the ratio decidendi of the decision of the Hon’ble Bombay High Court in the case of Commissioner of Income Tax-2, Mumbai v/s HDFC Bank Ltd. in the INCOME TAX APPEAL No.250 of 2012.”

4.

The learned Counsel for the assessee specifically drew our attention to Tribunal’s order in for AY 2011-12, 829 & 210/Mum/2016 for AY 2010-11 & 2008-09 1619Mum/2015 for AY 1986-87 1620/Mum/2015 for AY 1997-98 1621/Mum/2015 for AY 2009- 10 vide order dated 13.12.2017, wherein Tribunal has considered exactly identical issue and restore the matter back to the file of the AO with directions by observing in Para 5 as under: - “5. We find that the identical ground is sole ground in ITA No.1621/Mum/2015 for AY 2009-10 & ITA No. 829/Mum/2016 for AY 2010-11. The Ld. AR has pleaded on similar lines to apply the provisions of Section 158A to the same. Hence, the matter is restored back to Ld. AO with similar directions including completion of necessary formalities in this regard. Resultantly, these two appeals also stands allowed for statistical purposes.”

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