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Income Tax Appellate Tribunal, MUMBAI BENCH “F” MUMBAI
Before: SHRI OM PRAKASH KANT & SHRI RAHUL CHAUDHARY
This appeal has been preferred by the Revenue against order dated 14.08.2023 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2012-13, raising following grounds:
1. (i) "Whether on the facts and in circumstances of the case and in law, the Ld. CIT(A) erred in holding that depreciation on investment viz. Available for Sale(AFS), Held for Trading (HFS) & Held to viz. Available for Sale(AFS), Held for Trading (HFS) & Held to viz. Available for Sale(AFS), Held for Trading (HFS) & Held to maturity (HTM) is allowable deduction" maturity (HTM) is allowable deduction" (ii) "Whether on the facts and in circumstances of the case and in "Whether on the facts and in circumstances of the case and in "Whether on the facts and in circumstances of the case and in law, the Ld. CIT(A) erred in deleting the disallowance of law, the Ld. CIT(A) erred in deleting the disallowance of law, the Ld. CIT(A) erred in deleting the disallowance of depreciation on investment without verifying from the records of depreciation on investment without verifying from the records of depreciation on investment without verifying from the records of bank, the purpose for which they were purchased by the bank and bank, the purpose for which they were purchased by the bank and bank, the purpose for which they were purchased by the bank and its nat its nature whether they are in nature of stock in trade or ure whether they are in nature of stock in trade or investments". investments". (iii) "Whether on the facts and in circumstances of the case and in "Whether on the facts and in circumstances of the case and in "Whether on the facts and in circumstances of the case and in law, the Ld. CIT(A) erred in deleting the disallowance of law, the Ld. CIT(A) erred in deleting the disallowance of law, the Ld. CIT(A) erred in deleting the disallowance of depreciation on investment without verifying whether entire depreciation on investment without verifying whether entire depreciation on investment without verifying whether entire investment are held to meet SLR purposes or not. estment are held to meet SLR purposes or not.
At the outset, the Ld. counsel for the assessee raised At the outset, the Ld. counsel for the assessee raised At the outset, the Ld. counsel for the assessee raised an issue that in this case impugned assessment order has been passed by that in this case impugned assessment order has been passed by that in this case impugned assessment order has been passed by the Assessing Officer located at Hyderabad and therefore, in view of the Assessing Officer located at Hyderabad and therefore, in view of the Assessing Officer located at Hyderabad and therefore, in view of the decision of the Hon’ble Supreme Court in the case of PCIT v. n of the Hon’ble Supreme Court in the case of PCIT v. n of the Hon’ble Supreme Court in the case of PCIT v. ABC Papers Ltd. 447 ITR 1 (SC), t ABC Papers Ltd. 447 ITR 1 (SC), the appeal before ITAT before ITAT should have been filed before the Hyderabad Bench of the Tribunal and not been filed before the Hyderabad Bench of the Tribunal been filed before the Hyderabad Bench of the Tribunal before the Mumbai Bench, Bench, therefore, same should be dismissed. therefore, same should be dismissed.
3. The Ld. Counsel Counsel for the assessee also relied on the decision of for the assessee also relied on the decision of the Co-ordinate Bench of the Tribunal in ordinate Bench of the Tribunal in the case of Union Bank of the case of Union Bank of India(erstwhile corporation bank erstwhile corporation bank) in for in ITA No. 3090/M/2020 for assessment year 2007 assessment year 2007-08.
We have heard rival submission of the parti We have heard rival submission of the parties and perused the es and perused the relevant material on record. In the case of Union Bank of India relevant material on record. In the case of Union Bank of India relevant material on record. In the case of Union Bank of India erstwhile corporation bank (supra), the Tribunal has dismissed the erstwhile corporation bank (supra), the Tribunal has dismissed the erstwhile corporation bank (supra), the Tribunal has dismissed the appeal of the Revenue with the liberty to approach the concerned appeal of the Revenue with the liberty to approach the concerned appeal of the Revenue with the liberty to approach the concerned bench of the ITAT having jurisdiction ove bench of the ITAT having jurisdiction over the Assessing Officer. r the Assessing Officer. The relevant finding of the Tribunal is reproduced as under: The relevant finding of the Tribunal is reproduced as under: The relevant finding of the Tribunal is reproduced as under:
“2. At the outset before us, Ld. Counsel for the assessee filed an At the outset before us, Ld. Counsel for the assessee filed an At the outset before us, Ld. Counsel for the assessee filed an application under Rule 29 of the ITAT Rules raising the issue that application under Rule 29 of the ITAT Rules raising the issue that application under Rule 29 of the ITAT Rules raising the issue that Assessing Officer who passed the ori Assessing Officer who passed the original assessment order is ginal assessment order is situated in Mangalore falling under the jurisdiction of the Karnataka situated in Mangalore falling under the jurisdiction of the Karnataka situated in Mangalore falling under the jurisdiction of the Karnataka High Court and therefore, in view of the decision of the Hon’ble High Court and therefore, in view of the decision of the Hon’ble High Court and therefore, in view of the decision of the Hon’ble Supreme Court in the case of ABC Papers Ltd. [2022] 447 ITR 1 (SC) Supreme Court in the case of ABC Papers Ltd. [2022] 447 ITR 1 (SC) Supreme Court in the case of ABC Papers Ltd. [2022] 447 ITR 1 (SC) the jurisdiction of the ITAT the jurisdiction of the ITAT or the High Court would depend on the seat or the High Court would depend on the seat of the Assessing Officer who passed the said assessment order. He of the Assessing Officer who passed the said assessment order. He of the Assessing Officer who passed the said assessment order. He submitted that correct jurisdiction over the appeal lies before ITAT submitted that correct jurisdiction over the appeal lies before ITAT submitted that correct jurisdiction over the appeal lies before ITAT Bangalore Bench and this appeal is not maintainable before Mumbai Bangalore Bench and this appeal is not maintainable before Mumbai Bangalore Bench and this appeal is not maintainable before Mumbai Bench of ITAT. The Counsel for the assessee referred to the decision AT. The Counsel for the assessee referred to the decision AT. The Counsel for the assessee referred to the decision of the Hon’ble Bombay High Court in the case of Peter Vaz v. CIT Hon’ble Bombay High Court in the case of Peter Vaz v. CIT Hon’ble Bombay High Court in the case of Peter Vaz v. CIT (2016) 436 ITR 616 (Bombay (2016) 436 ITR 616 (Bombay) and submitted that assessee has ) and submitted that assessee has raised a ground by way of application under Rule 27 of the Income raised a ground by way of application under Rule 27 of the Income raised a ground by way of application under Rule 27 of the Income-tax Appellate Tribunal Rules, 1963 (in short ‘the Rules’) which involve ppellate Tribunal Rules, 1963 (in short ‘the Rules’) which involve ppellate Tribunal Rules, 1963 (in short ‘the Rules’) which involve challenge of the jurisdiction of the Assessing Officer in preferring this challenge of the jurisdiction of the Assessing Officer in preferring this challenge of the jurisdiction of the Assessing Officer in preferring this appeal, which goes to the root of the matter, therefore application appeal, which goes to the root of the matter, therefore application appeal, which goes to the root of the matter, therefore application under Rule 29 might be admitted. The Ld. Couns under Rule 29 might be admitted. The Ld. Counsel further submitted el further submitted that the decision of Hon’ble Supreme Court in ABC papers (supra) has that the decision of Hon’ble Supreme Court in ABC papers (supra) has that the decision of Hon’ble Supreme Court in ABC papers (supra) has been further followed by the Hon’ble Supreme Court in the case of been further followed by the Hon’ble Supreme Court in the case of been further followed by the Hon’ble Supreme Court in the case of MSPL Ltd. [2023] 454 ITR 280. Accordingly, the Ld. Counsel submitted MSPL Ltd. [2023] 454 ITR 280. Accordingly, the Ld. Counsel submitted MSPL Ltd. [2023] 454 ITR 280. Accordingly, the Ld. Counsel submitted that the Mumbai Bench of the T that the Mumbai Bench of the Tribunal has no jurisdiction to hear the ribunal has no jurisdiction to hear the impugned appeal and the president ITAT does not have power to impugned appeal and the president ITAT does not have power to impugned appeal and the president ITAT does not have power to transfer this appeal to Bangalore Bench of ITAT in view of decision of transfer this appeal to Bangalore Bench of ITAT in view of decision of transfer this appeal to Bangalore Bench of ITAT in view of decision of Hon’ble Bombay High Court in the case of MSPL Ltd in the writ Hon’ble Bombay High Court in the case of MSPL Ltd in the writ Hon’ble Bombay High Court in the case of MSPL Ltd in the writ petition (L) No. 3865 petition (L) No. 3865 of 2020, thus appeal need to be dismissed as non of 2020, thus appeal need to be dismissed as non maintainable.
We have heard rival submission of the parties on the issue We have heard rival submission of the parties on the issue We have heard rival submission of the parties on the issue raised under Rule 29 of the ITAT Rules. In view of the decision of the raised under Rule 29 of the ITAT Rules. In view of the decision of the raised under Rule 29 of the ITAT Rules. In view of the decision of the Hon’ble Bombay Court in the case of Peter Vaz (supra) the Hon’ble Bombay Court in the case of Peter Vaz (supra) the Hon’ble Bombay Court in the case of Peter Vaz (supra) the ground raised in application under Rule 29 of the Rules is admitted. raised in application under Rule 29 of the Rules is admitted. raised in application under Rule 29 of the Rules is admitted. 3.1 We find that the Hon’ble Supreme Court in the case of ABC We find that the Hon’ble Supreme Court in the case of ABC We find that the Hon’ble Supreme Court in the case of ABC Papers Ltd. (supra) held that appeal against every decision of the ITAT Papers Ltd. (supra) held that appeal against every decision of the ITAT Papers Ltd. (supra) held that appeal against every decision of the ITAT shall lie only before the High Court within whose ju shall lie only before the High Court within whose jurisdiction the risdiction the Assessing Officer passed the assessment order is situated, even if the Assessing Officer passed the assessment order is situated, even if the Assessing Officer passed the assessment order is situated, even if the case or the cases of assessee are transferred invoking power u/s 127 case or the cases of assessee are transferred invoking power u/s 127 case or the cases of assessee are transferred invoking power u/s 127 of the Act, the High Court within whose jurisdiction the Assessing of the Act, the High Court within whose jurisdiction the Assessing of the Act, the High Court within whose jurisdiction the Assessing Officer has passed the order , sha Officer has passed the order , shall continue to exercise jurisdiction of ll continue to exercise jurisdiction of the appeal and this principle is applicable even if the transfer is u/s the appeal and this principle is applicable even if the transfer is u/s the appeal and this principle is applicable even if the transfer is u/s 127 of the Act for same assessment year(s). The same principle lies for 127 of the Act for same assessment year(s). The same principle lies for 127 of the Act for same assessment year(s). The same principle lies for the filing appeal before the ITAT. In the case in hand, the Assistant the filing appeal before the ITAT. In the case in hand, the Assistant the filing appeal before the ITAT. In the case in hand, the Assistant Commissioner of Income mmissioner of Income-tax, Circle 2, Mangalore, has passed the tax, Circle 2, Mangalore, has passed the assessment order, hence the appeal lies before the Bangalore Bench. assessment order, hence the appeal lies before the Bangalore Bench. assessment order, hence the appeal lies before the Bangalore Bench. Further, the Hon’ble Bombay High Court in the case of MSPL Ltd. Further, the Hon’ble Bombay High Court in the case of MSPL Ltd. Further, the Hon’ble Bombay High Court in the case of MSPL Ltd. (supra) held that the President of ITAT has no power to trans (supra) held that the President of ITAT has no power to trans (supra) held that the President of ITAT has no power to transfer the appeals from Bench at one headquarter to bench at another appeals from Bench at one headquarter to bench at another appeals from Bench at one headquarter to bench at another headquarter, and this appeal can’t be transferred to Bangalore Bench headquarter, and this appeal can’t be transferred to Bangalore Bench headquarter, and this appeal can’t be transferred to Bangalore Bench .
3.2 In view of the above, we are of the opinion that the appeal of In view of the above, we are of the opinion that the appeal of In view of the above, we are of the opinion that the appeal of the Revenue is not maintainable in present form be the Revenue is not maintainable in present form before the ITAT, fore the ITAT, Mumbai Bench. The Revenue is at liberty to approach the concerned Mumbai Bench. The Revenue is at liberty to approach the concerned Mumbai Bench. The Revenue is at liberty to approach the concerned Bench of the ITAT having jurisdiction over the Assessing Officer at Bench of the ITAT having jurisdiction over the Assessing Officer at Bench of the ITAT having jurisdiction over the Assessing Officer at Mangalore, if so advised. The period of limitation in filing the appeal Mangalore, if so advised. The period of limitation in filing the appeal Mangalore, if so advised. The period of limitation in filing the appeal shall accordingly be considered by shall accordingly be considered by the concerned Bench keeping in the concerned Bench keeping in view the fact that ITAT Rules have been interpreted by the Hon’ble view the fact that ITAT Rules have been interpreted by the Hon’ble view the fact that ITAT Rules have been interpreted by the Hon’ble Bombay High Court recently, which has been further upheld by the Bombay High Court recently, which has been further upheld by the Bombay High Court recently, which has been further upheld by the Hon’ble Supreme Court in MSPL Ltd. (supra).” eme Court in MSPL Ltd. (supra).” 4.1 We may also note that the Hon’ble Supreme Co We may also note that the Hon’ble Supreme Co We may also note that the Hon’ble Supreme Court in the case of PCIT v. ABC Papers Ltd. (supra) has held the territorial of PCIT v. ABC Papers Ltd. (supra) has held the territorial of PCIT v. ABC Papers Ltd. (supra) has held the territorial jurisdiction of the Tr jurisdiction of the Tribunal is determined by the situs ibunal is determined by the situs of the Assessing Officer which in this appeal is Hyderabad and therefore, Assessing Officer which in this appeal is Hyderabad and therefore, Assessing Officer which in this appeal is Hyderabad and therefore, the present appeal filed by the Dy. Commissioner of Income-tax at the present appeal filed by the Dy. Commissioner o the present appeal filed by the Dy. Commissioner o Mumbai is not maintainable in present form. The Revenue is it Mumbai is not maintainable in present form. The Revenue is it Mumbai is not maintainable in present form. The Revenue is it liberty to file the appeal before the concerned bench of the ITAT liberty to file the appeal before the concerned bench of the ITAT liberty to file the appeal before the concerned bench of the ITAT having jurisdiction over the Assessing Officer at Hyderabad if so having jurisdiction over the Assessing Officer at Hyderabad if so having jurisdiction over the Assessing Officer at Hyderabad if so advised. The period of limitation in filing th advised. The period of limitation in filing the appeal shall e appeal shall accordingly be considered by the Co accordingly be considered by the Co-ordinate Be ordinate Bench. With the above observation the appeal of the Revenue is dismissed as not above observation the appeal of the Revenue is dismissed as not above observation the appeal of the Revenue is dismissed as not maintainable.
In the result, the appeal of the Revenue is dismissed. In the result, the appeal of the Revenue is dismissed. In the result, the appeal of the Revenue is dismissed.