Income Tax Appellate Tribunal - Mumbai
Dcit 2(3)(1), Mumbai vs Dcb Bank Ltd, Mumbai on 24 November, 2017
आयकर अपीऱीय अधिकरण, मुंबई न्यायपीठ "डी" मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL "D" BENCH, MUMBAI BEFORE HON'BLE S/SHRI JOGINDER SINGH (JM), AND RAJESH KUMAR,(AM) I.T.A. No.5706/Mum/2015 (निर्धारण वर्ा / Assessment Year:2011-12) DCB Bank Limited Asstt. Commissioner of Income (Formerly Devp. Credit Bank Ltd) Tax, Circle 2(3), Room No.552, 6th floor, Peninsula Business Park, th बनाम/ 5 floor, Aayakar Bhavan, Tower A, Senapati Bapat Marg, Vs. M K Road, Lower Parel, Mumbai-400020 Mumbai-400013 I.T.A. No.249/Mum/2016 (निर्धारण वर्ा / Assessment Year:2011-12) Dy. Commissioner of Income DCB Bank Limited Tax, Circle 2(3)(1), Room No.552, (Formerly Devp. Cr. Bank Ltd) 5th floor, Aayakar Bhavan, th बनाम/ 6 floor, Peninsula Business Park, M K Road, Vs. Tower A, Senapati Bapat Marg, Mumbai-400020 Lower Parel, Mumbai-400013 अपीऱाथी की ओर से / Assessee by : Shri Satish Mody प्रत्यथी की ओर से/ Revenue by : Shri Saurabh Deshpande PAN : AAACD1461F सुनवाई की तारीख /Da te o f He a r in g : 31.10.2017 घोषणा की तारीख /Da te o f Pro n ou n ce me nt : 24.11.2017 आदे श / O R D E R PER RAJESH KUMAR, A. M:
These cross-appeals are directed against the order 5.10.2015 passed by the ld.CIT(A)-6 for the assessment year 2011-12. 2
I.T.A. No.5706/Mum/2015 and 249/Mum/2016 I.T.A. No.249/Mum/2016
2. The first grounds of appeal taken by the revenue is in general nature, therefore, dismissed as not pressed.
3. In the second ground, the revenue raised the issue of allowing depreciation on leased out assets, when the related transactions were purely financial transactions.
4. At the outset, the ld.AR submitted that the issue raised by the revenue in second ground of appeal stands covered by the decision of the co-ordinate Bench in assessee's own case in ITA No.615/Mum/2014 (AY-2010-11) order dated 4.11.2015 and therefore by applying the same analogy, the issue be decided in favour of the assessee and the ground raised by the revenue be rejected.
5. The ld.DR fairly agreed with the contentions raised by the assessee.
6. 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 ITA Nos. 3006/M/01 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:3
I.T.A. No.5706/Mum/2015 and 249/Mum/2016 "After having examined all the transactions which have been impugned before us, we are of the opinion that the assessee is entitled for the claim of depreciation under all the three circumstance i.e. Sale lease back, genuineness of transaction and asset having being put to use. We, therefore, allow ground No.1 of the assessee's appeal and dismiss both the grounds of the department's appeals."
11. As the AO has followed the findings given in earlier assessment year and as the disallowance have been deleted by the Tribunal in earlier assessment years vide its order (supra), we do not find any reason to interfere with the findings of the Ld. CIT(A). Ground No. 1,2 & 3 are accordingly dismissed." We are , therefore, maintaining consistency with the earlier year by following the same precedent as laid down by the Co-ordinate Bench of the Tribunal in assessee's own case (supra) by dismissing the ground raised by the revenue.
7. The grounds of appeal no.3 taken by the revenue is with regard to the holding of broken period interest as not a part of the cost of securities and should not have been allowed as deduction.
8. We also find that the issue raised by the revenue is covered in favour of the assessee by the decision rendered by the Tribunal in assessee's own case in ITA No.820/Mum/2014 (AY-2010-11) vide order dated 4.11.2015 and therefore the ld.AR prayed that by applying the said decision, the issue be decided in favour of the assessee and the ground raised by the revenue be rejected.
9. The ld.DR fairly agreed with the contentions raised by the assessee. 4
I.T.A. No.5706/Mum/2015 and 249/Mum/2016
10. After considering the rival submissions 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 by the decision in ITA No.820/Mum/2014, dated 4.11.2015 by following the decision of the jurisdictional High Court rendered in the case of American Express International Banking Corporation reported in 258 ITR 601(Bom). The relevant part of the judgment is reproduced below (ITA No.820/M/2014, para 9.2 to 12) :
"9.2. After considering the detailed submissions made by the assessee, the AO was of the opinion that on identical set of facts, the department has not accepted the claim in the case of HDFC Bank , therefore, the same is also not accepted in the case of the assessee. Broken period interest was added to the total income of the assessee.
10. The assessee carried the matter before the Ld. CIT(A) but without any success.
11. 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/Mum/2015 and 249/Mum/2016 [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.
12. As the issue has been decided in favour of the assessee and against the Revenue, we set aside the findings of the Ld. CIT(A) and direct the AO to delete the addition of Rs. 11,50,42,776/- in the light of the decision in the case of HDFC Bank (supra). Ground No. 2 is accordingly allowed"
12. Resultantly, the appeal of the revenue is dismissed. ITA No.5706/Mum/2015.
13. 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.
14. 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 I.T.A. No.5706/Mum/2015 and 249/Mum/2016 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."
15. 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 I.T.A. No.5706/Mum/2015 and 249/Mum/2016 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 .
16. 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 8 I.T.A. No.5706/Mum/2015 and 249/Mum/2016 invocation of provisions of section 14A r.w. rule 8D is not mandatory unless and until the AO has recorded his satisfaction. The case of the assessee finds support from the decision of the Honb'le High Court rendered in Godrej and Boyce(supra), wherein it has been held that for invocation of provisions of section 14A, the AO has to record satisfaction. We, therefore, respectfully following the ratio laid down in the above decision by the jurisdiction High Court , set aside the order of the ld. CIT(A) and direct the AO to delete the addition. Resultantly, the appeal of the assessee stands allowed.
18. In the result, the appeal of the revenue is dismissed and that of assessee is allowed.
Order pronounced in the open court on 24th Nov, 2017.
Sd sd (JOGINDER SINGH) ( RAJESH KUMAR) Judicial Member Accountant Member मुंबई Mumbai; ददन ुंक Dated : 24.11.2017 Sr.PS:SRL:
आदे श की प्रतिलऱपि अग्रेपिि/Copy of the Order forwarded to :
1. अपीऱाथी / The Appellant
2. प्रत्यथी / The Respondent
3. आयकर आयुक्त(अपीऱ) / The CIT(A)
4. आयकर आयुक्त / CIT - concerned
5. ववभागीय प्रतततनधि, आयकर अपीऱीय अधिकरण, मुुंबई / DR, ITAT, Mumbai
6. गार्ड फाईऱ / Guard File आदे श नस र/ BY ORDER, True copy उि/सह यक िुंजीक र (Dy./Asstt. Registrar) आयकर अिीऱीय अधिकरण, मुुंबई / ITAT, Mumbai