United Bank of India, Kolkata V. A.C.I.T., Cir -6, Kolkata, Kolkata

ITA 1178/KOL/2007

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1333 (ITAT-KOLKATA)
• Duration Of Justice: 10 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2003-2004
• Appeal Filed On: 04-05-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MD USMAN
• Section: 115JB

Judgement Text

1 ITA NO. 1178/KOL/2007 ASSESSMENT YEAR: 2003-2004 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 1178/KOL./2007 ASSESSMENT YEAR: 2003-2004 UNITED BANK OF INDIA,.............................. ...........................APPLICANT 16, OLD COURT HOUSE STREET, KOLKATA-700 001 [PAN: AAACU 5624 P] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ..........RESPONDENT CIRCLE-6, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE, FOR THE ASSESSEE MD. USMAN, CIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : OCTOBER 12, 2017 DATE OF PRONOUNCING THE ORDER : OCTOBER 12, 2017 O R D E R PER SHRI P.M. JAGTAP, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-VI, KOLKATA DA TED 28.02.2007 WAS EARLIER DISPOSED OF BY THE TRIBUNAL VIDE ITS ORDER DATED 19.06.2013. THERE WAS, HOWEVER, A MISTAKE IN THE SAID ORDER IN NOT AD JUDICATING THE ADDITIONAL GROUND RAISED BY THE ASSESSEE AND A MISC ELLANEOUS APPLICATION, THEREFORE, WAS FILED BY THE ASSESSEE SEEKING RECTIF ICATION OF THE SAID ORDER. THE SAID APPLICATION WAS ALLOWED BY THE TRIB UNAL VIDE ITS ORDER DATED 28.07.2017 PASSED IN M.A. NO. 55/KOL/2017 AND THE ORDER DATED 19.06.2013 WAS RECALLED FOR THE LIMITED PURPOSE OF ADJUDICATING THE ADMISSIBILITY OF THE ADDITIONAL GROUND AND DECIDING THE ISSUE RAISED THEREIN ON MERIT. ACCORDINGLY, THE CASE HAS BEEN HE ARD ON THIS LIMITED ISSUE. 2 ITA NO. 1178/KOL/2007 ASSESSMENT YEAR: 2003-2004 2. THE ADDITIONAL GROUND RAISED BY THE ASSESSEE REA DS AS UNDER:- FOR THAT ON THE FACTS OF THE CASE, COMPUTATION OF BOOK PROFIT UNDER SECTION 115JB IS NOT APPLICABLE TO THE ASSESSEE-BANK, THEREFORE, THE WHOLE COMPUTATION UND ER SECTION 115JB IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 3. AS THE ISSUE RAISED BY THE ASSESSEE IN THE ADDIT IONAL GROUND IS PURELY A LEGAL ISSUE AND ALL THE RELEVANT FACTS FOR ADJUDICATION THEREOF ARE AVAILABLE ON RECORD, WE HAVE ADMITTED THE ADDITIONA L GROUND RAISED BY THE ASSESSEE. THE LD. D.R. HAS NOT ALSO RAISED ANY OBJE CTION IN THIS REGARD. 4. THE LD. REPRESENTATIVES OF BOTH THE SIDES HAVE A LSO AGREED THAT THE ISSUE INVOLVED IN THE ADDITIONAL GROUND RAISED BY T HE ASSESSEE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F THIS TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2009-10 RENDERED VIDE ITS ORDER DATED 30.12.2015 PASSED IN ITA NOS. 1916 & 113/KOL/2013. A COPY OF THE SAID ORDER IS ALSO PLACED ON RECORD AND PERUSAL OF THE S AME SHOWS THAT A SIMILAR ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN F AVOUR OF THE ASSESSEE VIDE PARAGRAPHS NO. 3.2 & 3.3, WHICH READ AS UNDER: - 3.2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND WE F IND THAT THIS ISSUE IS SQUARELY COVERED BY THE CO-ORDINATE BENCH DECISION OF THIS TRIBUNAL IN THE CASE OF UCO BANK- VS.- DCIT IN ITA NO. 1768/KOL/2009 DATED 27.11.2015 FOR THE ASST YEAR 20 02-03. THE TRIBUNAL WHILE RENDERING THIS JUDGEMENT DULY APPREC IATED THE RELEVANT PROVISIONS OF SECTION 211 OF COMPANIES ACT , 1956, INSERTION OF EXPLANATION 3 TO SECTION 115JB OF THE I.T. ACT. 1961, WITH EFFECT FROM 1.4.2013, RELEVANT PROVISIONS OF S ECTION 2(5) OF THE COMPANIES ACT, 1956, DEFINITION OF 'COMPANY' UN DER BANKING REGULATION ACT, 1949, DEFINITION OF 'COMPANY' UNDER COMPANIES ACT, 1956, NOTES TO CLAUSES TO FINANCE ACT, 2012 ON THE SUBJECT OF MINIMUM ALTERNATE TAX (MAT) WHILE INTRODUCING EXPLA NATION 3 TO SECTION 115JB OF THE I.T. ACT, 1961, INTENTION B EHIND INTRODUCTION OF MAT PROVISIONS. CIRCULAR NO. 762 DA TED 18.2.1998 ON THE SUBJECT OF MAT, THE MEMORANDUM EXPLAINING TH E PROVISIONS IN THE FINANCE (NO.2 ) BILL, 1996 ON THE SUBJECT OF MAT AND RELEVANT RULES OF LEGAL INTERPRETATION. THE TRI BUNAL ALSO PLACED RELIANCE ON THE FOLLOWING DECISIONS:- * SURANA STEELS P. LTD VS DCIT REPORTED IN (1999) 237 ITR 777 (SC); 3 ITA NO. 1178/KOL/2007 ASSESSMENT YEAR: 2003-2004 * STATE BANK OF HYDERABAD VS DCIT REPORTED IN (20 13) 33 TAXMANN.COM 312 (HYDERABAD- TRIBUNAL) VIDE ORDER D ATED 7.9.2012; *MAHARASHTRA STATE ELECTRICITY BOARD VS JCIT REPORT ED IN (2002) 82 ITD 422 (MUMBAI TRIBUNAL) VIDE ORDER DATED 6.8.2 001; *KERALA STATE ELECTRICITY BOARD VS DCIT REPORTED I N (2010) 329 ITR 91 (KER); * INDIAN BANK VS ADDL CIT IN ITA NO. 469/MDS /2010 DATED 3.8.2011 FOR ASST YEAR 2000-01, * KURUNG THAI BANK VS JCIT REPORTED IN (2012) 49 S OT 12 (MUMBAI TRIBUNAL); * UNION BANK OF INDIA VS ACIT IN ITA NO. 4702 TO 4 706/ ALUM/2010 FOR THE ASST YEARS 2002-03 TO 2006-07; * ICICI LOMBARD GENERAL INSURANCE CO LTD VS ACIT R EPORTED IN 2012- TIOL-690-ITAT-MUMBAI IN ITA NO. 2398/MUM./200 9 DATED 10.10.2012 FOR THE ASST. YEAR 2003-04; * BANK OF INDIA VS ADDL. CIT REPORTED IN 2014 (5) T MI 929 IN ITA NO. 1498/MUM./2011 DATED 9.4.2014 (MUMBAI TRIBUNAL) . IT WAS HELD BY THIS TRIBUNAL THAT THE PROVISIONS O F SECTION 115JB OF THE ACT ARE NOT APPLICABLE IN THE CASE OF THE ASSESSEE BANK AND FURTHER HELD THAT THE AMENDMENT BROUGHT IN SECTION 115JB OF THE ACT READ WITH EXPLANATION 3 THEREON BY THE FINANCE ACT 2012 IS APPLICABLE ONLY WITH EFFECT FROM ASST YEAR 2013-14 ONWARDS IN LINE WITH THE NOTES TO CLAUSES OF FINANCE ACT 2012 . 3.3. RESPECTFULLY FOLLOWING THE CO-ORDINATE BENCH D ECISION OF THIS TRIBUNAL IN THE CASE OF UCO BANK (SUPRA), WE ALSO H OLD ACCORDINGLY. HENCE THE GROUND NO. 2 RAISED BY THE ASSESSEE IN TH IS REGARD IS ALLOWED. 5. AS THE ISSUE INVOLVED IN THE PRESENT CASE AS WEL L AS THE MATERIAL FACTS RELEVANT THEREIN ARE SIMILAR TO A.Y. 2009-10, WE RESPECTFULLY FOLLOW THE ORDER OF THE TRIBUNAL FOR A.Y. 2009-10 AND HOLD THAT THE MAT PROVISIONS OF SECTION 115JB ARE NOT APPLICABLE IN T HE CASE OF THE ASSESESE FOR THE YEAR UNDER CONSIDERATION. THE ADDITIONAL GR OUND OF THE ASSESSEES APPEAL IS ACCORDINGLY ALLOWED. 4 ITA NO. 1178/KOL/2007 ASSESSMENT YEAR: 2003-2004 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH DAY OF OCTOBER, 2017. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 12 TH DAY OF OCTOBER, 2017 COPIES TO : (1) UNITED BANK OF INDIA, 16, OLD COURT HOUSE STREET, KOLKATA-700 001 2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-6, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) CIT(APPEALS)-VI, KOLKATA (4) CIT- , KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/DDO, INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.