DCB BANK LTD,MUMBAI vs. ACIT CIR 2(3), MUMBAI

The first grounds of appeal

After considering the rival submission and on perusal of material placed before us including the order of the Tribunal (supra) in assessee’s own case, we find that the issue stands covered in favour of the assessee. For the sake of ready reference, we reproduce the findings of the Tribunal order as under: “17. We find that the matter in the assessment years mentioned hereinabove travelled upto the Tribunal and the Tribunal by a consolidated order mainly in and 4892/M/03 and ITA No. 3620/M/01 alongwith other appeals order dated 20.3.2013 has held at para-34 as under:

The assessee carried the matter before the Ld. CIT(A) but without any success.

Before us, the Ld. Counsel for the assessee straightaway drew our attention to the decision of the Hon’ble High Court of Bombay in the case of HDFC Bank Ltd. 366 ITR 505 wherein question No. B read as under: (B) Whether the Income-tax Appellate Tribunal was correct in law in holding that the broken period interest is allowable as a deduction, in spite of the hon'ble Supreme Court's decision in the case of Vijaya Bank Ltd. v. Addl. CIT [1991] 187 ITR 541(SC) and the Rajasthan High Court's decision in the case of CIT v. Bank of Rajasthan Ltd. [2009] 316 ITR 391? 11.1. The Hon’ble High Court answered the question as under: Even as far as question (B) is concerned, we find no infirmity in the orders passed by the Commissioner of Income-tax (Appeals) or the Income-tax Appellate Tribunal. In deciding this issue, the Commissioner of Income-tax (Appeals) and the Income-tax Appellate Tribunal have merely followed the judgment of this court in the case of American Express International Banking Corporation v. CIT reported in 5 I.T.A. No. 5706 /M um /20 15 and 24 9/M um/2 016 [2002] 258 ITR 601 (Bom). On going through the said judgment, we find that question (B) reproduced above and projected as substantial by Mr. Suresh Kumar is squarely answered by the judgment of this court in the case of American Express International Banking Corporation (supra). In view thereof, we do not find that even question (B) gives rise to any substantial question of law that needs to be answered by this court.

Resultantly, the appeal of the revenue is dismissed. .

The only issue raised by the assessee is against the confirmation of disallowance of Rs.7,15,836/- by the ld.CIT(A) as made by the AO under section 14A r.w.r.8D of the Act and Rules respectively.

Brief facts of the case are that the AO during the course of assessment proceedings, observed that the assessee has earned exempt income of Rs.3,93,500/- and suo motto disallowed only Rs.22,302/- as expenses relating to earning exempt income. The AO was not convinced with the same and issued show cause notice to the assessee as to why the disallowance should not be worked out in terms of the provisions of section 14A read with rule 8D of the Rules and accordingly disallowed an amount of Rs.7,37,488/- comprising of Rs.6,72,098/- under rule 8D(2)(ii) of the Rules and Rs.65,390/- under rule 8D2(iii) of the Rules and added the same to the total income of the assessee after allowing the deduction therefrom of suo-motu 6 /M um /20 15 and 24 9/M um/2 016 disallowance of Rs.22,303/- and accordingly, added a sum of Rs.7,15,186/- to the total income of the assessee. In the appellant proceedings, the ld. CIT(A) upheld the disallowance after considering the contentions of the assessee by observing as under (5.2 of appellate order): “5.2 I have carefully considered the facts of the case and the submissions of the ld. AR I have also gone through he decision relied on by the AO and ld. AR. I find that the same issue had come up for consideration before the ld. CIT(A)-6 in appellant’s own case for the immediately preceding AY 2010-11. The submissions made by the appellant is also similar. After duly considering the submission of the appellant, the Lf. CIT(A) in appeal No. CIT(A)-6/IT-108/Rg-2(3)/12-13 dated 21.10.2013 has held after detailed discussion in para 5.3, 5.4 and 5.5 that disallowance has to be computed as per rule 8D. In doing so, he has relied on the decision of the Hon’ble Bombay High Court in the case of Godrej and Boyce Mft co.Ltd (supra) that rule 8D is applicable from AY-2008-09 onwards. However, he allowed claim of Rs.5,27,908/- disallowed under rule 8D(2)(i). No such disallowance has been made by the AO in this year i.e. disallowance under rule 8D(2)(i) is nil. Hence, following the above decision of the ld. CIT(A)-6 for AY 2010-11, the disallowance is upheld and the ground is dismissed.”

We have carefully considered the rival contentions and perused the material placed before us including the orders of authorities below. The ld. AR submitted that on the issue of disallowance under section 14A r.w.r 8D, no satisfaction has been recorded by the AO which is mandatory and are to be recorded with reference to the claim of the assessee as to how the said claim is not correct and liable to be rejected. The ld. AR also by relying on the decisions of the Hon’ble Bombay High Court in the case of Godrej & Boyce Mfg. Co. Vs DCIT (2010) 328 ITR 81 submitted that provisions of section 14A 7 /M um /20 15 and 24 9/M um/2 016 r.w.r 8D can not be invoked without recording the satisfaction by the AO as to how the claim of the assessee is wrong having regards to the accounts of the assessee and thus the recording of satisfaction by the AO is a pre- condition for the same. Alternatively, the ld.AR submitted that the assessee’s own interest free funds are for more than the investments yielding the tax free income and therefore the provisions of section 14 and rules 8D 2(ii) were wrongly invoked. The second alternative plea of the ld. AR was that all the investments in securities yielding the tax free income was held as stock in trade and therefore no disallowance was called for .

On the other hand, the ld.DR while opposing the arguments of the ld. AR submitted that the AO has duly recorded due satisfaction while involving the provisions of section 14A r.w.r.8D.The ld DR submitted that it is mandatory to apply the provisions of section 14A rule 8D from AY 2008-09 and the was correctly applied by the AO and affirmed by the CIT(A). The ld. DR further stated that even if the shares are held as stock in trade the dividend income was exempt and disallowance has to be made. 17. Having considered the rival submissions and on perusal of the record, we find that the AO has not recorded the satisfaction as to how the claim of the assessee is wrong with reference to the books of account of the assessee. We are therefore convinced with the submissions of the assessee on this score and are in agreement with the arguments of the ld.AR that for the