THE DCIT CIR 3(1), MUMBAI V. M/S. ICICI BANK LTD (IN RESPECT OF M.S, ICICI LTD. MRGED WITH M.S, ICICI BANK LTD), MUMBAI

ITA 1111/MUM/2008

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3563 (ITAT-MUMBAI)
• Duration Of Justice: 8 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 27-09-2012
• Assessment Year: 1996-1997
• Appeal Filed On: 14-02-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RUPINDER BRAR
• Keywords: Depreciation; Rectification of order; Bad and doubtful debts
• Section: 40A(3); 14A; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI RAM LAL NEGI (JM) I.T.A. NO. 1111/MUM/2008 (ASSESSMENT YEAR 1996 - 1997) DY. CIT, CIRCLE 3(1) MUMBAI VS. M/S. ICICI BANK LTD. (IN RESPECT OF M/S. ICICI LTD. MER GED WITH M/S.ICICI BANK LTD.) LAXMI COMMERCIAL CENTRE, BEHIND NABARD BANK, 2 ND FLOOR, BANDRA - KURLA COMPLEX, BANDRA(E), MUMBAI - 51. ( APPELLANT ) .. ( RESPONDENT ) PAN NO.AAACT1398K ASSESSEE BY : MS. AARTI VISSANJI DEPARTMENT BY : MS. RUPINDER BRAR DAT E OF HEARING : 24.02.2016 DATE OF PRONOUNCEMENT : 02 .03.2016 O R D E R PER B.R. BASKARAN , AM : - THE REVENUE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 19.11.2007 PASSED BY LD CIT(A) - XXVII, MUMBAI FOR ASSESSMENT YEAR 1996 - 97. THE REVE NUE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN DELETING THE PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE ACT. 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE IS A BANKING COMPANY. THE AO LEVIED A PENALTY OF RS.245.68 CRORES U/S 271(1 )(C) OF THE ACT AGAINST VARIOUS ITEMS OF DISALLOWANCES. IT APPEARS THAT THE PENALTY AMOUNT CAME TO BE REDUCED TO RS.196.69 CRORES UPON PASSING OF A RECTIFICATION ORDER DATED 23.3.2007 BY THE AO U/S 154 OF THE ACT. THE LD CIT(A) DELETED THE PENALTY AND HE NCE THE REVENUE HAS FILED THIS APPEAL BEFORE US. 3. AT THE TIME OF HEARING, THE LD A.R SUBMITTED THAT THE ADDITIONS, ON WHICH THE PENALTY WAS LEVIED, CAN BE GROUPED AS UNDER: - 2 M/S. ICICI BANK LTD. ITA NO. 1111/MUM/2008 (A) DISALLOWANCES VOLUNTARILY MADE BY THE ASSESSEE IN THE RETURN OF INCOM E. (B) FRESH CLAIM FOR DEDUCTIONS MADE ONLY DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE AO. (C) DISALLOWANCES DELETED BY THE APPELLATE AUTHORITIES. THE LD A.R SUBMITTED THAT THE LD CIT(A) HAS RIGHTLY DELETED THE PENALTY IN RESPECT OF DISALLOWAN CES VOLUNTARILY MADE BY THE ASSESSEE IN ITS RETURN OF INCOME. SHE FURTHER SUBMITTED THAT THE ASSESSEE HAD PUT FORTH CERTAIN ADDITIONAL CLAIMS BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS, SINCE THEY WERE NOT ORIGINALLY CLAIMED IN THE RETURN O F INCOME. SHE SUBMITTED THAT THE REJECTION OF ADDITIONAL CLAIMS SO MADE DOES NOT GIVE RISE TO CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. SHE FURTHER SUBMITTED THAT CERTAIN OTHER DISALLOWANCES MADE BY THE AO, O N WHICH THE PENALTY WAS LEVIED, HAVE SINCE BEEN DELETED BY THE APPELLATE AUTHORITIES. ACCORDINGLY SHE SUBMITTED THAT THE ORDER OF LD CIT(A) DESERVES TO BE CONFIRMED. 4. WE HEARD LD D.R AND PERUSED THE RECORD. THE VARIOUS ADDITIONS, ON WHICH THE IMP UGNED PENALTY WAS LEVIED, COULD BE GROUPED AS PER THE CLASSIFICATION SUGGESTED BY LD A.R: - (A) DISALLOWANCES VOLUNTARILY MADE BY THE ASSESSEE IN THE RETURN OF INCOME: - DISALLOWANCE MADE U/S 40A(3) READ WITH RULE 6D - RS.5,01,889 (B) FRESH CLAIM FOR DEDUCTIONS MADE ONLY DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE AO: - (A) GUEST HOUSE EXPENSES - 6,64,883 (B) EXCESS CLAIM OF DEPRECIATION - 107,88,30,748 (C) WRITE BACK OF BAD DEBTS - 76,87,54,375 (D) WRITE OFF INVESTMEN TS - 7,04,09,054 (C) DISALLOWANCES/ENHANCEMENT OF ADDITION DELETED BY THE APPELLATE AUTHORITIES: - (A) DISALLOWANCE U/S 14A OF THE ACT. - 50,29,662 (B) DEPRECIATION CLAIMED ON LEASED ASSETS - 205,30,36,918 3 M/S. ICICI BANK LTD. ITA NO. 1111/MUM/2008 (C ) DISALLOWANCE U/S 80M - 29,87,61,925* (* REOPENING SET ASIDE BY HONBLE HIGH COURT) 5. THE PENALTY U/S 271(1)(C) OF THE ACT IS LEVIED BY THE ASSESSING OFFICER, IF HE IS SATISFIED THAT ANY PERSON HAS CONCEALED THE PARTICULARS OF HIS INCO ME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. VOLUNTARY DISALLOWANCE MADE U/S 40A(3) OF THE ACT IN THE RETURN OF INCOME FILED BY THE ASSESSEE DOES NOT LEAD TO SUCH KIND OF DEFAULTS . IN RESPECT OF ADDITIONAL CLAIMS PUT FORTH BY THE ASSESSEE DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS ALSO, IN OUR VIEW, DO NOT LEAD TO DEFAULTS PRESCRIBED IN SEC. 271(1)(C) OF THE ACT, SINCE THE REJECTION OF THE SAME DOES NOT ALTER THE RETURNED INCOME. FURTHER THE ADDITIONS GROUPED IN CLAUSE (C) ABOVE, HAS SINCE BEE N DELETED THE APPELLATE AUTHORITIES AND HENCE THE BASIS FOR LEVYING PENALTY U/S 271(1)(C) NO LONGER SURVIVES. 6. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT THE LD CIT(A) WAS JUSTIFIED IN DELETING THE IMPUGNED PENALTY AND ACCORDINGLY UPHOLD HIS O RDER. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 02 . 0 3.2016. SD/ - SD/ - (RAM LAL NEGI) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 02 / 0 3 /20 16 SR. P.S SSL COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUM BAI