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Income Tax Appellate Tribunal, “F” BENCH, MUMBAI
Before: SHRI N.K. BILLAIYA & SHRI PAWAN SINGH
PER N.K. BILLAIYA, AM: is the appeal by the Revenue preferred against the order of the Ld. CIT(A)-24, Mumbai dated 14.08.2013 pertaining to assessment year 2007-08 and ITA No. 6922 and 6980/M/2013 are the cross appeals by the Revenue and the assessee preferred against the very same order of the Ld. CIT(A)-24, Mumbai dated 14.8.2013 pertaining to assessment year 2009-10. All these appeals were heard together as it was agreed by the representatives of both sides that the issues involved are covered either in favour of the assessee or in favour of the Revenue by the earlier orders of the Tribunal in assessee’s own case or otherwise. For the sake of convenience, these appeals were heard together and disposed of by this consolidated order.
ITA No. 6921/M/2013 – A.Y. 2007-08
The grievance of the Revenue read as under:
“On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in directing to allow deduction u/s. 36(1)(viia) of I.T. Act before setting of brought forward losses without appreciating the facts that deduction is to allowed on total income and not on business income”.
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2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in directing to calculate the interest u/s. 24A of the I.T. Act, 1961 by relying on the ITAT decision in the case of Interest Tax/04 & 05/M/2010 dated 13.5.2011 for A.Y 1999-2000 and 2000-01 in its own case without appreciating that the case law relied upon by ITAT differs on the facts of the case and the Hoin’ble Supreme Court has in civil appeal No. 4366 of 2012 distinguished the decision in Sandvik Asia”.
At the very outset, the Ld. Counsel for the assessee stated and the Departmental Representative agreed that this issue has been decided by the Tribunal, Chennai Bench in favour of the assessee and against the Revenue in the case of Indian Overseas Bank vide ITA No. 1147/Mds/2008. We find that similar issue was considered by the Tribunal (supra) at para-6 on page-5 of its order and at para-9 on page-7, the Tribunal observed as under:
“ Since, the definition of Section 2 begins with the term unless context otherwise requires which means that the definition provided u/s. 2 of the Income Tax Act, 1961 are not exclusive. Moreover, as per Sec. 2(45) of the Income Tax Act, 1961 the income of the assessee is to be computed as per the manner prescribed in this Act. The purpose of total income u/s./ 36(1)(viia) of the Income Tax Act, 1961 is for computing the deduction for computation of business income as per the provisions of Sec 28 to 43D of the Income Tax Act, 1961. Therefore, the term total income referred in Clause (viia) of Sub-section 1 of Sec. 36 of the Income Tax Act, 1961 is used for the purpose of statutory deduction available for business income”. and finally at para-10 on page-9 the Tribunal held as under:
“We are of the view that while computing the statutory deduction under Clause (viiia)of Sub-section 1 of Section 36 of 4 Union Bank of India the Income Tax Act, 1961, the total income would be the business income of the assessee before deducting the deduction under this Clause and deductions under Chapter 6A of the Income Tax Act, 1961. Therefore the brought forward losses would not be deducted while computing the total income for the purpose of Sec. 36(1)(viia). Since, the deduction is available only for computing the business income under this Clause, therefore the total income also refers the income of the assessee from profit and gain from a business and shall not include the income other than the business income.”
Respectfully following the findings of the Tribunal (supra), we decline to intefere with the findings of the Ld. CIT(A). Ground No. 1 is dismissed.
The issues raised vide ground No. 2 have been decided by the Tribunal in assessee’s own case in A.Y. 1988-89 and 2001-02 in & 574/M/2013. The findings of the Tribunal can be found at para-6 on page-4 and the same reads as under:
“We have carefully considered the rival submissions. As rightly pointed out by the assessee Hon’ble Delhi High Court rightly explained that the amount refunded by the Revenue has to be adjusted towards interest payable to the assessee and the balance, if any, shall be adjusted towards tax. On this principle there is no contrary decision placed before us, we therefore agree with the plea of the assessee and direct the Assessing Officer accordingly”.
Respectfully following the same, we direct the AO accordingly.
In the result, the appeal filed by the Revenue is dismissed. – A.Y. 2009-10 – Assessee’s appeal
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The grievance of the assessee is two fold. Ground No. 1 relates to the disallowance made u/s. 14A r.w. Rule 8D of the Act and ground No. 2 relates to the claim made by the assessee u/s. 36(1)(viii) of the Act.
In so far as ground No. 1 is concerned, an identical issue was considered by the Tribunal in assessee’s own case in assessment year 2008-09 in & 4842/M/2013. The issue finds placed at para-5 on page-2 of its order and at para-11, the Tribunal restored the matter to the file of the AO with the direction to examine this issue afresh. Respectfully following the findings of the Co-ordinate Bench in assesee’s own case (supra), we direct the AO to decide the issue in line with the directions given by the Tribunal in assessment year 2008-09. Ground No. 1 is treated as allowed for statistical purpose.
In so far as Ground No. 2 is concerned, an identical issue was considered by the Tribunal in assesee’s own case in A.Y. 2008-09 in & 4842/M/2013. The issue find placed at para-12 on page-5 of the order of the Tribunal and after considering the facts and the submissions, the Tribunal at para-15 of its order on page-8 held as under:
“Accordingly, we set aside the order of Ld. CIT(A) on this issue and restore this matter to the file of the AO for his reconsideration. The assessee is directed to cull out the interest income actually earned from out of eligible advances. From the gross interest income so culled out, the assessee is directed to deduct the cost of funds and expenses on a reasonable basis and then work out the deduction u/s. 36(1)(viii) of the Act. The assessee is also directed to furnish all the explanations and information to the AO in order to enable him to satisfy himself with the workings furnished by the assessee. Accordingly, after
6 Union Bank of India affording necessary opportunity of being heard to the assessee, the AO may take appropriate decision on this issue in accordance with the law. Respectfully following the findings of the Co-ordinate Bench, we direct accordingly. Ground No. 2 is also treated as allowed for statistical purpose.
In the result, the appeal filed by the assessee is treated as allowed for statistical purpose. - A.Y. 209-10 – Revenue’s appeal
The grievance of the Revenue read as under:
“1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing deduction for bad debts written off of Rs.3,58,44,30,906/- without appreciating the facts of the case.
2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the loss on revaluation of trading derivatives of Rs. 94, 43,13,989/ - without appreciating the facts of the case.
3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing deduction u/ s 80LA of 1. T.Act, 1961 of Rs.10, 19,67,746/ - without appreciating that assessee failed to file audit report with the return and further erred in directing A. 0 to call for details to allow claim for above deduction at the appellate stage.
4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing deduction u/ s 36(1)(viii) of 1. T.Act, 1961 and erred in considering the eligible advances as term loans of Rs.39237.64 crores as per balance sheet without appreciating the fact that the A.O has rightly estimated the eligible advances @50% of above amount.
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5. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in restricting deduction u/ s 36(1)(viia) of 1. T.Act, 1961 to the extent of provision made in books for bad and doubtful debts of Rs. 7,29,89,35,155/ - instead of the eligible amount as per the said section.
Issues raised vide ground No. 1were also there in assessment year 2008-09 and the Tribunal has considered identical issue in & 4842/M/13. The issue find placed at para-16 on page-8 of the Tribunal’s order and at para-17, the Tribunal’s finding read as under:
“We notice that the Tribunal has allowed identical claim in the assesee’s own case in A.YT 2007-08, vide its order dated 18.1.2003 passed in & 6349/M/2010. We notice that the Tribunal has followed the decision rendered by the Hon’ble Supreme Court in the case of Catholic Syrian Bank (343 ITR 270) and also in the case of CIT Vs Karnataka Bank Ltd (2012)( 349 ITR 705). We also notice that the new Explanation 2, which covers both rural and non-rural advances, has been inserted u/s. 36(1)(vii) of the Act by the Finance Act, 2013 w.e.f. 1.4.2014 only and hence it cannot have retrospective effect, since it affects substantive rights of the assessee. Accordingly, we are of the view that there is no reason to interfere with the decision of Ld. CIT(A) on this issue”.
Respectfully following the findings of the Co-ordinate Bench, we do not find any reasons to interfere with the findings of the Ld. CIT(A). Ground No. 1 is dismissed.
Issues raised vide ground No. 2 were also before the Tribunal in A.Y. 2007-08 which were considered in & 6349/M/2010 and the findings of the Tribunal is given at para-17 on page-6 of the order wherein the Tribunal has followed the decision of the Co-ordinate Bench in assesee’s own case for A.Y. 1997-98 in ITA
8 Union Bank of India No. 2590/M/01. We find that while deciding the issue in favour of the assessee the Tribunal has followed the findings of the Hon’ble Supreme Court in the case of UCO Bank 240 ITR 355. Respectfully following the findings of the Co-ordinate Bench in the light of the ratio laid down by the Hon’ble Supreme Court (supra), we decline to interfere. Ground No. 2 is dismissed.
Issues raised vide ground No. 3 are identical to the issues considered by the Tribunal in assesee’s own case in A.Y. 208-09 in & 4842/M/2013. The Tribunal has considered a similar issue at para-19 on page-10 of its order wherein the Tribunal has followed the decision of the Hon’ble Delhi High Court in the case of CIT Vs Web Comerce India Pvt. Ltd. 179 Taxmann 310 and held that since the assessee has filed the Audit report before finalization of assessment order, the Ld. CIT(A) was justified in directing the AO to allow the claim.
Respectfully following the findings of the Tribunal in assesee’s own case (supra) ground No. 3 is dismissed.
Grievance raised vide ground No. 4 are similar to the grievance raised by the asesee in wherein we have restored the matter to the file of the AO following the decision of the Co-ordinate Bench. For similar reasons the issue raised by the Revenue also go back to the file of the AO to be decided afresh in line with the decision taken in assessee’s appeal. Ground No. 4 is treated as allowed for statistical purpose.
Grievance raised vide ground No. 5 have been decided against the assessee and in favour of the Revenue by the Tribunal in assessee’s own case in & 4842/M/2013 for A.Y. 2008-
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9. The Tribunal has considered this issue at para-21 on page-10 of its order and at para-23 the Tribunal held as under:
“Since the decision rendered by the Tribunal in A.Y. 2005- 06 is a later decision and since the Tribunal has followed the decision rendered by Hon’ble Punjab & Haryana High Court, we are inclined to follow the same. Accordingly, we set aside the order of the Ld. CIT(A) on this issue and restore that of the AO. “ 16. However, before us, the Ld. Counsel for the assessee placed the decision of the Tribunal Ahmedabad Bench in the case of DCIT Vs Sarvodaya Sahakari Bank Ltd. in (Ahd) of 2011. It is the say of the Ld. Counsel that this issue need to be decided afresh in the light of the findings of the Tribunal Ahmedabad Bench. We find force in the contention of the Ld. Counsel. We accordingly set aside the issue to the file of the AO. The AO is directed to decide the issue afresh in the light of the decision of the Tribunal, Ahmedabad Bench in the case of Sarvodaya Sahakari Bank Ltd (supra). This ground is treated as allowed for statistical purpose.
In the result, the appeal filed by the Revenue in is partly allowed for statistical Purpose and ITA No. 6921/M/13 is dismissed and the appeal filed by the assessee in ITA No. 6980/M/13 is treated as allowed for statistical purpose.