The Deputy Commissioner of Income tax, Jammu V. M/s. Jammu & Kashmir Bank Ltd., Srinagar

ITA 206/ASR/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2211 (ITAT-AMRITSAR)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 04-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Non-deduction of tax; Capital expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.206(ASR)/2013 ASSESSMENT YEAR: 2008-09 PAN :AAACT6167G DEPUTY COMMISSIONER OF INCOME TAX, VS. JAMMU & KAS HMIR BANK LTD; CIRCLE-1, JAMMU. SRINAGAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.TARSEM LAL, DR RESPONDENT BY:SH.R.K.GUPTA, CA DATE OF HEARING: 23/05/2013 DATE OF PRONOUNCEMENT:28/05/2013 ORDER PER BENCH ; THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER O F THE CIT(A), JAMMU, DATED 14.01.2013 RELATING TO ASSESSMENT YEAR 2008-09. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT(A) WAS RIGHT IN DELETING THE DISALLOWANCES MADE U/S 40(A )(IA) OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF PROCESSING CHA RGES PAID TO SBI WHEN THE PROCESSING CHARGES PAID ARE FOR MANA GING THE ACCOUNT AND THE PROCESSING CHARGES FOR THE CREDIT FACILITIES OF FOOD CREDIT ACCOUNT SQUARELY FALL WITHIN THE AMBI T OF FEES FOR TECHNICAL SERVICES U/S 194J OF THE INCOME TAX ACT , 1961. ITA NO.206(ASR)/2013 2 2. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT( A) WAS RIGHT IN DELETING THE DISALLOWANCES MADE U/S 40(A)( IA) OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF CLEARING HOUSE C HARGES WHEN THE DECISION OF HONBLE APEX COURT IN THE CASE OF CIT VS. BHARTI CELLULAR LTD; RELIED UPON IS DISTINGUISHABLE FROM THE PRESENT CASE AS SOME AMOUNT OF HUMAN INTERVENTION I S INVOLVED IN CLEARING OF CHEQUES BY THE CLEARING HOUSE AND A S SUCH THE ACTIVITY CONSTITUTES TECHNICAL SERVICES. 3. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT( A) WAS RIGHT IN TREATING THE BARI BRAHMANA BRANCH AS ELIGI BLE FOR DEDUCTION U/S36(1)(VIIA) WHEN THE BRANCH IS LOCATED IN BARI BRAHMANA TOWN HAVING POPULATION OF 31,616/- AS PER THE DIGEST OF STATISTICS FOR 2002-03 PUBLISHED BY THE GOVERNMENT OF J & K. 4. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT( A) WAS RIGHT IN ALLOWING 100% DEPRECIATION ON WOODEN PARTI TIONS AS THEY ARE PERMANENT STRUCTURES FIXED FOR DIVIDING SP ACES IN THE OFFICE FOR THE STAFF TO WORK AND NOT SUSCEPTIBLE TO DISMANTLING. IN ALL MODERN OFFICES, IT IS USUAL TO HAVE SUCH WOO DEN PARTITIONS WHICH ARE NOT SHIFTED OR RELOCATED AT REGULAR INTER VALS AND THEY ARE ALWAYS FIXED AT A PARTICULAR LOCATION. 5. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT( A) WAS RIGHT IN DELETING THE DISALLOWANCES MADE U/S 40(A)( IA) OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF NON DEDUCTION OF TAX ON INTEREST PAID TO JAMMU DEVELOPMENT AUTHORITY WHEN J AMMU DEVELOPMENT AUTHORITY IS A TAXABLE ENTITY ASSESSED AS LOCAL AUTHORITY AND IT WAS THE LIABILITY AND RESPONSIBIL ITY OF THE ASSESSEE BANK TO DEDUCT TDS ON INTEREST PAYMENTS. 6. THE APPLICANT CRAVES LEAVE TO ADD ANY ONE OR MORE G ROUNDS OF APPEAL. 2. IN GROUND NO.1 OF THE REVENUE, THE BRIEF FACTS ARE THAT THE AO MADE A DISALLOWANCE OF RS.87,67,358/- U/S 40(A)(IA) OF THE I.T.ACT, 1961 FOR NON ITA NO.206(ASR)/2013 3 DEDUCTION OF TAX AT SOURCE U/S 194J ON PROCESSING C HARGES PAID TO STATE BANK OF INDIA IN RESPECT OF CREDIT FACILITIES OF FOOD CR EDIT ACCOUNT OF FOOD CORPORATION OF INDIA. AS PER A.O. THE PAYMENTS MADE TO SBI ARE FOR RENDERING MANAGERIAL SERVICES. IT HAS BEEN STATED B Y THE A.O. THAT FEES FOR TECHNICAL SERVICES AS APPEARING IN SECTION 194J HA S THE SAME MEANING AS GIVEN TO THE EXPRESSION IN EXPLANATION 1 TO S.9(1)( VII). IN THE SAID EXPLANATION FEES FOR TECHNICAL SERVICES MEANS ANY CONSIDERATION FOR RENDERING ANY MANAGERIAL, TECHNICAL AND CONSULTANC Y SERVICES. 3. BEFORE THE LD. CIT(A), THE ASSESSEE SUBMITTED TH E WRITTEN SUBMISSIONS, WHICH WERE CONSIDERED BY THE LD. CIT(A ) AND DELETED THE DISALLOWANCE SO MADE. THE DECISION OF THE LD. CIT(A ) AT PAGE 5 IS REPRODUCED FOR THE SAKE OF CLARITY AS UNDER: I HAVE CAREFULLY CONSIDERED THE ISSUE. THE A.O. H AS CONSIDERED THE SERVICES AS MANAGERIAL SERVICES WHEREAS THE COUNSE L OF THE APPELLANT IS OF THE VIEW THAT PROCESSING CHARGES ARE INTEGRAL P ART OF INTEREST AND NO TAX WAS REQUIRED TO BE DEDUCTED ON THESE PAYMENTS. 2. IN FACT THE PROCESSING CHARGES WAS COLLECTED FR OM THE FCI BY SBI BEING THE PROCESSOR OF THIS LOAN AND IT NEVER CAME TO THE APPELLANTS ACCOUNT. THE APPELLANT GOT THE NET OF PROCESSING CHARGING I.E. INTEREST EXCLUSIVELY. THE APPELLANT HAD NO OC CASION TO DEDUCT TDS AS THERE WAS NO OUTFLOW OF EXPENSE. BECAUSE OF AC COUNTING TREATMENT THE CONFUSION AROSE AND TDS WAS REQUIRED TO BE MAD E ON THE PAYMENT OF SO CALLED PROCESSING CHARGES. I FEEL THAT ASSES SEE HAS TO SUCCEED ON THIS ISSUE. NEITHER PROVISIONS OF SECTION 194A NOR THAT OF SECTION 194J OF THE INCOME TAX ACT, 1961 ARE ATTRACTED. AS PER SECTION 2(28A) OF THE ACT INTEREST MEANS INTEREST PAYABLE IN ANY M ANNER IN RESPECT OF ANY MONEY BORROWED OR DEBIT INCURRED (INCLUDING A DEPOSIT, CLAIM OR ITA NO.206(ASR)/2013 4 OTHER SIMILAR RIGHT OR OBLIGATION) AND INCLUDES SE RVICE FEE OR OTHER CHARGES IN RESPECT OF MONEY BORROWED OR DEBT INCUR RED OR IN RESPECT OF ANY OTHER CREDIT FACILITY WHICH HAS BEEN UTILIZED, PROCESSING CHARGES HAS BEEN DEDUCTED BY SBI FROM THE GROSS INTEREST P AID I.E. THE PROCESSING CHARGES HAS BEEN DEDUCTED BY SBI. ACCOR DINGLY, THE PAYMENT OF RS.87,67,358/- IS NOT ATTRACTED FOR DI SALLOWANCE U/S 40(A)(IA) OF THE INCOME TAX ACT, 1961. THUS, THIS DISALLOWANCE MADE BY A.O. IS HEREBY DELETED. 4. THE LD. DR, MR. TARSEM LAL ARGUED THAT THERE WAS A HUMAN INTERVENTION IN THE SERVICES RENDERED BY SBI AND TH EREFORE, THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. BHART I CELLULAR LTD; WHICH IS DISTINGUISHABLE, CANNOT BE APPLIED IN THE PRESENT F ACTS AND CIRCUMSTANCES OF THE CASE. HE, THEREFORE, PRAYED TO REVERSE THE ORDE R OF THE LD. CIT(A). 5. THE LD. COUNSEL FOR THE ASSESSEE, MR. R.K.GUPTA, RELIED UPON THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) AND THE ORD ER OF THE LD. CIT(A). HE ARGUED THAT THE PROCESSING CHARGES ARE COLLECTED FR OM THE FCI BY SBI AND NET OF PROCESSING CHARGES WHICH IS INTEREST, IS RECEIVE D BY THE ASSESSEE. THEREFORE, SUCH PROCESSING CHARGES ARE NOTHING MORE THAN INTEGRAL PART OF THE INTEREST AND NO TAX IS REQUIRED TO BE DEDUCTED AT S OURCE ACCORDINGLY. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. AS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE MR. R .K.GUPTA, CA THAT PROCESSING CHARGES ARE PART OF THE INTEREST, AS DEF INED IN SECTION 2(28A) OF THE ACT, WHICH STATES THAT INTEREST MEANS INTERE ST PAYABLE IN ANY MANNER IN RESPECT OF ANY MONEY BORROWED OR DEBT INCURRED INCL UDING A DEPOSIT, CLAIM ITA NO.206(ASR)/2013 5 OR OTHER SIMILAR RIGHT OR OBLIGATION AND INCLUDES S ERVICE FEE OR OTHER CHARGES IN RESPECT OF MONEY BORROWED OR DEBIT INCURRED OR I N RESPECT OF ANY OTHER CREDIT FACILITY WHICH HAS BEEN UTILIZED. ACCORDINGL Y, NEITHER PROVISIONS OF SECTION 194A NOR THAT OF SECTION 194J OF THE ACT AR E ATTRACTED. THUS, THE ACTION OF THE AO IS TOTALLY AGAINST THE FACTS, UNLA WFUL & NEEDS TO BE ANNULLED. IN THE FACTS AND CIRCUMSTANCES OF THE PRE SENT CASE, WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT PROCESSING CHARGES ARE INTEGRAL PART OF INTEREST AND NO TAX IS REQUIRED TO BE DEDUCTED ON T HESE PAYMENTS. ACCORDINGLY, THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT, ARE NOT ATTRACTED AND THE LD. CIT(A) HAS RIGHTLY DELETED THE DISALLOW ANCE AND WE FIND NO INFIRMITY IN HIS ORDER. THUS, GROUND NO.1 OF THE RE VENUE IS DISMISSED. 7. AS REGARDS GROUND NO.2 OF THE REVENUE, THE BRIEF FACTS ARE THAT THE AO MADE A DISALLOWANCE OF RS.12,89,857/- U/S 40(A)(IA) OF THE INCOME TAX ACT, 1961 FOR NON-DEDUCTION OF TAX AT SOURCE ON MICR CHA RGES PAID TO CLEARING HOUSES BY VARIOUS BRANCHES OF THE BANK. 7.1. BEFORE THE LD. CIT(A), THE ASSESSEE MADE SUBMI SSIONS WHICH WERE CONSIDERED BY THE LD. CIT(A) AND WHO DELETED THE DI SALLOWANCE BY HOLDING AS UNDER: I HAVE CAREFULLY CONSIDERED THE ISSUE. THE AO HAS N OT BROUGHT ON RECORD ANY BASIS ON WHICH HE IS OF THE VIEW THAT T AX IS REQUIRED TO BE DEDUCTED ON MICR CHARGES. MICR CHEQUE CLEARING (MI CR STANDS FOR MAGNETIC INK CHARACTER RECOGNITION WHICH MEANS THA T THE MACHINE ITA NO.206(ASR)/2013 6 RECOGNIZES NUMERIC DATA PRINTED WITH MAGNETIC CHAR GED INK) IS BEING DONE WITH THE HELP OF ULTRAVIOLET RAYS WHICH SCANS THE GENUINENESS OF CHEQUES. IT APPEARS THAT NO HUMAN INTERVENTION IS REQUIRED IN MICR CLEARING OF CHEQUES BY QYA OF EXAMINING TECHNICAL DATA, ANALYZING THEM AND MAKING THEM USEFUL FOR SUBSEQUENT USE. IN FACT, MICR CLEARANCE OF CHEQUE CAN BE POSSIBLE BY A MECHANIZ ED SYSTEM ONLY AND NOT THROUGH HUMAN INTERVENTION KEEPING IN VIW THE PROCESSING OF BULK CHEQUES. THEREFORE, FOLLOWING THE PRINCIPLE LAID D OWN BY HONBLE SUPREME COURT IN THE CASE OF CIT VS. BHARTI CELLUL AR LTD. (201) 234CTR (SC) 146, I AM OF THE CONSIDERED OPINION TH AT NO TAX IS REQUIRED TO BE DEDUCTED ON MICR CHARGES AND THE AO IS NOT JUSTIFIED IN HOLDING THAT IN MICR CHARGES, TECHNICAL SERVICE S ARE ATTRACTED. ACCORDINGLY, THE PROVISIONS OF SECTION 40(A)(IA) ARE NOT ATTRACTED. THUS, THIS GROUND OF APPEAL OF THE APPELLANT IS A LLOWED. 7.2. THE LD. DR, MR. TARSEM LAL ARGUED THAT THERE I S A HUMAN INTERVENTION IN THE SERVICES OF THE CLEARING CHARGES AND THEREFO RE THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. BHARTI CELLULA R LTD; (SUPRA) CANNOT BE MADE APPLICABLE TO THE PRESENT FACTS AND CIRCUMSTAN CES OF THE CASE. 7.3. THE LD. COUNSEL FOR THE ASSESSEE, MR. R.K.GUPT A,CA ON THE OTHER HAND, RELIED UPON THE SUBMISSIONS MADE BEFORE THE L D. CIT(A) AND ORDER OF THE LD. CIT(A) AND ARGUED THAT THE LD. CIT(A) HAS G IVEN PERTINENT FINDING THAT HUMAN INTERVENTION IS NOT REQUIRED IN CLEARING CHARGES SINCE CLEARING IS DONE BY MACHINE WHICH RECOGNIZES NUMERIC DATA PRINT ED WITH MAGNETIC CHARGED INK IS BEING DONE WITH THE HELP OF ULTRAVIO LET RAYS WHICH SCANS THE GENUINENESS OF CHEQUES. ACCORDINGLY, THE LD. CIT(A ) FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. BHA RAT CELLULAR LTD. (2010) ITA NO.206(ASR)/2013 7 234 CTR (SC) 146 HAS RIGHTLY DELETED THE DISALLO WANCE MADE BY THE A.O. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) AND THE ARGUMENTS MADE BY THE LD. COUNSEL FOR THE ASSESSEE, MR. R.K.GUPTA THAT TH E LD. CIT(A) IN THE PRESENT CASE HAS GIVEN A PERTINENT FINDING THAT MICR CHQUES ARE CLEARED THROUGH WITH THE HELP OF ULTRAVIOLET RAYS WHICH SCANS THE G ENUINENESS OF CHEQUES. NO HUMAN INTERVENTION IS REQUIRED IN MICR CLEARING OF CHEQUES BY WAY OF EXAMINING TECHNICAL DATA, ANALYZING THEM AND MAKIN G THEM USEFUL FOR SUBSEQUENT USE. IN FACT, MICR CLEARANCE OF CHEQUE CAN BE POSSIBLE BY A MECHANIZED SYSTEM ONLY AND NOT THROUGH HUMAN INTERV ENTION KEEPING IN VIEW THE PROCESSING OF BULK CHEQUES. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. BHARTI CELLULAR LTD. (SUPRA) IS CLEARLY APPLICABLE AND THE LD. CIT(A) HAS RIGHTLY DELETED THE DISALLOWANCE MAD E BY THE A.O. IN GROUND NO.2 OF THE REVENUE. THUS, GROUND NO.2 OF THE REVEN UE IS DISMISSED. 9. AS REGARDS GROUND NO.3 OF THE REVENUE, THE BRIEF FACTS ARE THAT THE A.O. OBSERVED THAT BARI BRAHMANA I/C BRANCH OF THE BANK IS NOT A RURAL BRANCH AS IT IS SITUATED AT A PLACE HAVING POPULATI ON OF MORE THAN 10000 I.E. HAVING A POPULATION OF 31616 AS PER DIGEST OF STATI TICS FOR THE YEAR 2002-03 ITA NO.206(ASR)/2013 8 PUBLISHED BY GOVERNMENT OF J & K AND ACCORDINGLY DE DUCTION CLAIMED BY THE ASSESSEE U/S 36(1)(VIIA) OF THE ACT WAS DISALLO WED BY THE A.O. 9.1. BEFORE THE LD. CIT(A), THE ASSESSEE MADE SUBMI SSIONS THAT THE BRANCH IS LOCATED AT VILLAGE KARTHOLI HAVING POPULATION O F 314 AS PER 2001 CENSUS AND THE RELEVANT PAGES OF THE CENSUS WERE PLACED BE FORE THE LD. CIT(A). 9.2. THE LD. DR, MR. TARSEM LAL, RELIED UPON THE OR DER OF THE ASSESSING OFFICER. 9.3. THE LD. COUNSEL FOR THE ASSESSEE, MR. R.K.GUPT A, ARGUED THAT ON IDENTICAL FACTS, THE ISSUE CAME UP BEFORE THE ITAT , AMRITSAR BENCH IN ITA NOS.363(ASR)/99, 364(ASR)/99, 365(ASR)/99, 366(ASR) /99, 274(ASR)/2004 & 275(ASR)/2004, WHICH WERE PLACED ON RECORD BEFORE T HE LD. CIT(A) AND THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE. HE ARG UED THAT THE BRANCH IS LOCATED AT A PLACE WHERE THE POPULATION IS LESS THA N 10,000, AS SUCH ELIGIBLE FOR DEDUCTION UNDER SECTION 36(1)(VIIA) OF THE ACT. THEREFORE, THE AO IS NOT JUSTIFIED TO TAKE POPULATION OF BARI BRAHAMANA FRO M THE BOOK DIGEST OF STATISTICS FOR THE YEAR 2002-03 WHEREAS THE BRANCH IS LOCATED AT A PLACE KARTHOLI HAVING POPULATION OF 314 AS PER THE LAST C ENSUS. HE ALSO READ THE MEANING OF PLACE WHICH IS NOT DEFINED IN THE IN THE INCOME TAX ACT, WHICH WAS PLACED IN HIS WRITTEN SUBMISSIONS PLACED BEFORE THE CIT(A). HE ARGUED THAT IT IS THE NOTIFIED AREA WHICH IS COMPRI SING OF VARIOUS VILLAGES ITA NO.206(ASR)/2013 9 WITH RESPECT TO SOME OR ALL THE MATTERS UPON WHICH A MUNICIPAL FUND MAY BE EXPANDED, IMPROVED ARRANGEMENTS ARE REQUIRED. IN OTHER WORDS, NOTIFIED AREA COMPRISES OF VARIOUS VILLAGES AS WELL AS MOH ALLAS WITHOUT ANY CRITERIA OF POPULATION. THE VILLAGE HAS BEEN DEFINED UNDER THE STATE VILLAGE AND TOWN PETROL ACT, 1959 TO BE A PARCEL OR PARCELS OF LAND HAVING A SEPARATE NAME IN THE REVENUE RECORDS AND KNOWN LIMITS AND N OT INCLUDED IN THE LIMITS OF A MUNICIPALITY, CANTONMENT OF TOWN AREA, PROVIDE D THAT THE DISTRICT MAGISTRATE, WHEREVER NECESSARY MAY TREAT A PART OF A VILLAGE AS A SEPARATE VILLAGE FOR THE PURPOSE OF THIS ACT. HE INVITED OUR ATTENTION TO THE DECISION OF THE ITAT, AMRITSAR BENCH, REPRODUCED BY THE LD. CIT (A) AT PAGE 10 & 11 ON THE IDENTICAL ISSUE. ACCORDINGLY, HE PRAYED TO CONF IRM THE ORDER OF THE LD. CIT(A) ON THIS ISSUE. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. ON THE IDENTICAL FACTS, SIMILAR ISSUE HAS COME UP BEFORE THE ITAT, AMRITSAR BENCH, IN THE CASE REFERRED TO IN THE CIT(A)S ORDE R OF ITAT AMRITSAR BENCH, PASSED IN ITA NOS.363(ASR)/99, 364(ASR)/99, 365(ASR)/99, 366(ASR)/99, 274(ASR)/2004 & 275(ASR)/2004, DATED 2 9.08.2005, WHERE THE SAID ISSUE HAS BEEN IDENTICALLY DEALT BY THIS BENCH IN FAVOUR OF THE ASSESSEE FOR ALLOWING DEDUCTION UNDER SECTION 36(1)(VIIA) OF THE ACT AND THEREFORE, THE LD. CIT(A) HAS RIGHTLY ALLOWED THE CLAIM OF THE ASS ESSEE BY FOLLOWING THE ITA NO.206(ASR)/2013 10 AFORESAID DECISION OF ITAT AMRITSAR BENCH, WHERE IT HAS BEEN HELD THAT THE PLACE WHERE THE BRANCH OF THE BANK IS SITUATED IS TO BE CONSIDERED FIRST AND THE PLACE AND BRANCH OF BANK IS TO BE READ TOGETHER . IN THE PRESENT CASE, THE VILLAGE KARTHOLI IS THE PLACE WHERE THE BRANCH OF THE BANK IS SITUATED WITH REFERENCE TO WHICH THE LD. CIT(A) HAS RIGHTLY ALLOW ED THE DEDUCTION AND WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A). T HUS, GROUND NO.3 OF THE REVENUE IS DISMISSED. 11. AS REGARDS GROUND NO.4 OF THE REVENUE, THE AO HAS ALLOWED A DEPRECIATION @ 10% INSTEAD OF 100% AS CLAIMED BY TH E ASSESSEE ON WOODEN PARTITION AMOUNTING TO RS.78,77,736/-. 11.1. BEFORE THE LD. CIT(A), THE ASSESSEE MADE THE SUBMISSIONS WHICH WERE CONSIDERED AND THE LD. CIT(A) HELD HAT THE STRUCTUR E IN THE FORM OF WOODEN PARTITION IS PURELY A TEMPORARY WOODEN STRUCTURE IN THE RENTED PREMISES AND NO ADVANTAGE OF ENDURING BENEFIT ACCRUED TO THE AS SESSEE AND ACCORDINGLY ALLOWED THE CLAIM OF THE ASSESSEE BY HOLDING THAT THE ASSESSEE IS ENTITLED TO 100% DEPRECIATION ON WOODEN PARTITIONS. 11.2. LD. DR ARGUED THAT THE WOODEN PARTITIONS IN T HE BANK ARE OF PERMANENT NATURE AND ARE NEVER DISMANTLED, MAY BE IN THE OWNED OR RENTED PREMISES OR OF ENDURING IN NATURE AND THEREFORE, 10 % DEPRECIATION SHOULD HE ITA NO.206(ASR)/2013 11 ALLOWED INSTEAD OF 100% CLAIMED. ACCORDINGLY, HE PR AYED TO REVERSE THE ORDER OF THE LD. CIT(A) AND CONFIRM THE ORDER OF T HE ASSESSING OFFICER. 11.3. MR. R.K.GUPTA, CA, RELIED UPON THE SUBMISSI ONS MADE BEFORE THE LD. CIT(A) AND THE ORDER OF THE LD. CIT(A). HE FURTHER ARGUED THAT THE IDENTICAL ISSUE HAS COME UP BEFORE THIS BENCH IN ITA NO.43(AS R)/2012 DATED 23.01.2013 WHERE VIDE PARA 13.3 OF THE SAID ORDER, ON IDENTICAL FACTS, THE PRESENT ASSESSEE HAS BEEN ALLOWED THE CLAIM AT 100% DEDUCTION OF THE EXPENDITURE INCURRED DURING THE YEAR 2003-04. IN TH E SAID ORDER OF THE ITAT SINCE THE ISSUE IS COVERED BY BENCHS OWN DECISION AND THEREFORE, NO DIFFERENT VIEW CAN BE TAKEN IN THE PRESENT APPEAL. 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THERE IS NO DISPUTE TO THE FACT THAT THE WOODEN PA RTITIONS WERE ERECTED ON THE LEASE/RENTED ACCOMMODATION. IN OUR VIEW, SUCH WOODE N PARTITIONS ON LEASE OR RENTED ACCOMMODATION ARE NOT ENDURING IN NATURE AND CANNOT BE TREATED AS CAPITAL EXPENDITURE AND FOLLOWING OUR OWN ORDER DAT ED 23.01.2013 FOR THE ASSESSMENT YEAR 2003-04, WE FIND NO INFIRMITY IN TH E ORDER OF THE LD. CIT(A), WHO HAS RIGHTLY ALLOWED THE CLAIM OF THE AS SESSEE. HENCE, GROUND NO.4 OF THE REVENUE IS DISMISSED. 13. AS REGARDS GROUND NO.5 OF THE REVENUE, THE BRIE F FACTS ARE THAT THE AO DISALLOWED UNDER SECTION 40(A)(IA) OF THE ACT, AN A MOUNT OF RS.2,58,25,857/- ITA NO.206(ASR)/2013 12 FOR NON DEDUCTION OF TAX ON INTEREST PAID BY DIFFE RENT BRANCHES OF THE BANK TO JAMMU DEVELOPMENT AUTHORITY. 13.1. BEFORE THE LD. CIT(A), THE ASSESSEE MADE TH E SUBMISSIONS WHICH WERE CONSIDERED AND ACCORDINGLY, HE ALLOWED THE CLA IM OF THE ASSESSEE. 13.2. THE LD. DR ARGUED THAT THE LD. CIT(A) HAS FOL LOWED THE ORDER OF THE ITAT, AMRITSAR BENCH, WHICH IN FACT HAS FOLLOWED TH E DECISION OF ITAT, DELHI BENCH IN THE CASE OF CHIEF/SENIOR MANAGER, OR IENTAL BANK OF COMMERCE VS. ITO (TDS & SURVEY) GHAZIABAD, PASSED IN ITA NO.2228(DEL)/2011 FOR THE A.Y.2005-06 DATED 15.07.2 011. HE ARGUED THAT HIS ARGUMENTS MADE IN THOSE YEARS PLACED ON RECORD AND THE ORDER BEING PER INCURIAM CANNOT BE FOLLOWED IN THE PRESENT FACTS A ND CIRCUMSTANCES OF THE CASE AND THE ITAT BENCH HAS THE POWER TO IGNORE SUC H ORDER AND ACCORDINGLY HE PRAYED NOT TO FOLLOW SUCH ORDER. 14. THE LD. COUNSEL FOR THE ASSESSEE, MR. R.K.GUPTA , CA ARGUED AND STRONGLY RELIED UPON THE ORDER OF THE CIT(A) AND TH E SUBMISSIONS MADE BEFORE HIM AND THE ORDER OF THIS BENCH IN ITA NOS. 623 & 624(ASR)/2011 FOR THE ASSESSMENT YEARS 2007-08 & 2008-09 DATED 09.07. 2012 AND ALSO OUR ORDER IN ITA NOS. 206 TO 210(ASR)/2011 DATED 24.04 .2012 IN ASSESSEES OWN CASE. ITA NO.206(ASR)/2013 13 15. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE HAVE PERUSED THE ORDER OF ITAT DELHI BENCH IN TH E CASE OF CHIEF/SENIOR MANAGER, ORIENTAL BANK OF COMMERCE VS. ITO (TDS & SURVEY) (SUPRA) AND OUR EARLIER ORDERS MENTIONED H EREINABOVE ON THE IDENTICAL FACTS. IN OUR ORDER IN ITA NO. 206 TO 2 10(ASR)/2011 DATED 24.04.2012 (PB 60 72) IN ASSESSEES OWN CASE, ESPEC IALLY AT PAGE 12 OF THE SAID ORDER (AT PB-71), THE ARGUMENTS MADE BY THE LD . DR HAS BEEN DEALT WITH, WHICH FOR THE SAKE OF CLARITY ARE REPRODUCED HEREUNDER: 6.1. THUS, RESPECTFULLY FOLLOWING THE AFORESAID O RDER OF THE ITAT, DELHI BENCH I WE DISMISS THE APPEAL FILED BY THE REVENUE BY HOLDING THAT THE JAMMU DEVELOPMENT AUTHORITY IS IN EXEMPTED CATEGORY WHERE THE PROVISIONS OF SECTION 194(1) AR E NOT APPLICABLE. WE ALSO HOLD THAT EXCEPTION PROVIDED IN SECTION 19 4A(3)(III)(F) OF THE ACT AND AS PER NOTIFICATION, THE JAMMU DEVELOPMENT AUTHORITY IS A CREATION OF J & K DEVELOPMENT ACT AND SATISFIES TH E CONDITION AT ENTRY NO.39 OF THE SAID NOTIFICATION AND WE HOLD T HAT NO TAX WAS DEDUCTIBLE ON ACCRUED INTEREST ON FDRS OF JAMMU DE VELOPMENT AUTHORITY WITH J & K BANK LTD. KEEPING IN VIEW THE ABOVE DISCUSSIONS, WE HOLD THAT NO INTERFERENCE IS CALLE D FOR IN THE WELL REASONED IMPUGNED ORDER PASSED BY THE LD. FIRST AP PELLATE AUTHORITY AND ACCORDINGLY WE UPHOLD THE SAME. HENCE, THE APP EAL OF THE REVENUE IN ITA NO.206(ASR)/2011 IS DISMISSED. 15.1. IN SUCH FACTS AND CIRCUMSTANCES, WE FIND NO I NFIRMITY IN THE ORDER OF THE LD. CIT(A), SINCE ON IDENTICAL FACTS, THE ISSUE IS COVERED BY OUR OWN DECISION IN ITA NOS. 206 TO 210(ASR), DATED 24.04.2 012 MENTIONED HEREINABOVE AND THE ARGUMENTS OF LD DR ON PER INCURIAM CANNOT BE ENTERTAINED BEING WITHOUT ANY BASIS . THEREFORE, WE DO NOT FIND ANY INFIRMITCCY IN ITA NO.206(ASR)/2013 14 THE ORDER OF THE LD. CIT(A), WHO HAS RIGHTLY DELETE D THE DISALLOWANCE. THUS, GROUND NO.5 OF THE REVENUE IS DISMISSED. 16. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IN ITA NO.206(ASR)/2013 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28TH MAY, 2013. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28TH MAY, 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:THE JAMMU & KASHMIR BANK LTD, SRINGAR. 2. THE DCIT CIR.1, JAMMU. 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.