Deputy Commissioner of Income-tax, V. Bajaj Finance Ltd., Pune

ITA 2094/PUN/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1761 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 21-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE ITA NOS TO PN
• Keywords: Earning of tax free income
• Section: 43B; 14A; 145

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . , ! , # $ BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.2128/PN/2014 #& & / ASSESSMENT YEAR : 2004-05 BAJAJ FINANCE LIMITED, (FORMERLY KNOWN AS BAJAJ AUTO FINANCE LTD.), 4 TH FLOOR, SURVEY NO.208/1-B, VIMAN NAGAR, PUNE 411014 PAN NO.AABCB1518L . / APPELLANT V/S DCIT, CIRCLE - 8, PUNE . / RESPONDENT . / ITA NOS.2094 TO 2097/PN/2014 #& & / ASSESSMENT YEARS : 2004-05 TO 06-07 & 11-12 DCIT, CIRCLE - 8, PUNE . / APPELLANT V/S BAJAJ FINANCE LIMITED, (FORMERLY KNOWN AS BAJAJ AUTO FINANCE LTD.), 4 TH FLOOR, SURVEY NO.208/1-B, VIMAN NAGAR, PUNE 411014 PAN NO.AABCB1518L . / RESPONDENT C.O. NO.22/PN/2016 (ARISING OUT OF ITA NO.2097/PN/2014) #& & / ASSESSMENT YEAR : 2011-12 BAJAJ FINANCE LIMITED, (FORMERLY KNOWN AS BAJAJ AUTO FINANCE LTD.), 4 TH FLOOR, SURVEY NO.208/1-B, VIMAN NAGAR, PUNE 411014 PAN NO.AABCB1518L CROSS OBJECTOR V/S DCIT, CIRCLE - 8, PUNE RESPONDENT / ASSESSEE BY : SHRI KIRIT KAMDAR & SHRI NIKHIL MUTHA / REVENUE BY : SHRI HITENDRA NINAWE 2 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 / ORDER PER R.K.PANDA, AM : ITA NO.2128/PN/2014 FILED BY THE ASSESSEE AND ITA NO.2094/PN/2014 FILED BY THE REVENUE ARE CROSS APPEALS A ND ARE DIRECTED AGAINST THE ORDER DATED 25-08-2014 OF THE CIT (A)-V, PUNE RELATING TO ASSESSMENT YEAR 2004-05. ITA NOS. 2095/P N/2014 AND 2096/PN/2014 FILED BY THE REVENUE ARE DIRECTED AGAIN ST THE SEPARATE ORDERS DATED 25-08-2014 OF THE CIT(A)-V, PUNE RELATING TO ASSESSMENT YEARS 2005-06 AND 2006-07 RESPECTIVELY. I TA NO.2097/PN/2014 FILED BY THE REVENUE IS DIRECTED AGAINST T HE ORDER DATED 22-08-2014 OF THE CIT(A)-V, PUNE RELATING TO ASSESSMENT YEARS 2011-12. THE ASSESSEE HAS FILED THE C O NO.22/PN/2016 AGAINST THE APPEAL FILED BY THE REVENUE FOR A.Y. 2011-12. FOR THE SAKE OF CONVENIENCE THESE BATCH OF AP PEALS AND CO WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY T HIS COMMON ORDER. ITA NO.2128/PN/2014 (BY ASSESSEE) (A.Y. 2004-05) : ITA NO.2094/PN/2014 (BY REVENUE) (A.Y. 2004-05) : 2. GROUND OF APPEAL NOS. 1.1 AND 1.2 BY THE ASSESSEE AND GROUND OF APPEAL NOS. 2(A) AND 2(B) BY THE REVENUE READ AS UNDER : GROUNDS BY ASSESSEE : 1.1 THE LD.CIT(A) ERRED IN CONFIRMING THE DISALLOWA NCE U/S.14A OF THE ACT TO THE EXTENT OF 2.5% OF THE EXEMPT INCOME. 1.2 IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THE LD.CIT(A) SHOULD HAVE APPRECIATED THAT DISALLOWANCE U/S.14A OF T HE ACT SHOULD BE RESTRICTED TO RS.50,000/- AS CONFIRMED BY THE REVEN UE AUTHORITIES FOR THE PRECEDING AS WELL AS SUBSEQUENT YEARS UPTO A.Y. 2007-08. / DATE OF HEARING :01.06.2016 / DATE OF PRONOUNCEMENT:03.06.2016 3 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 GROUNDS BY REVENUE : 2(A) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT(A) WAS JUSTIFIED IN RESTRICTING THE AOS DISA LLOWANCE U/S.14A OF THE ACT TO RS.50,000/- BY RELYING ON THE HONBLE ITATS DECISION IN ASSESSEES OWN CASE FOR A.Y. 2008-09 2(B) WHETHER THE LD.CIT(A) WAS FURTHER JUSTIFIED IN C ONSIDERING THAT DISALLOWANCE OF RS.50,000/- U/S.14A AS OFFERED BY ASSESSEE WAS REASONABLE WHEN THE AO HAD RIGHTLY DISALLOWED THE AMO UNT OF RS.23,40,344/- U/S.14A AFTER ESTIMATING 10% OF EXEMPT INCOME CLAIMED BY ASSESSEE IN ASSESSMENT ORDER AND ALSO IN NOT APPR ECIATING THAT THE AO HAD RIGHTLY OBSERVED THAT THE ASSESSEE COMPA NY WAS INCURRING SUBSTANTIAL AMOUNT OF EXPENDITURE ON PERSONS INVOLVED IN INVESTMENT PORTFOLIO AND THAT THE ASSESSEE COMPANY WAS N OT MAINTAINING ANY RECORD THROUGH WHICH SUCH EXPENDITUR E COULD BE IDENTIFIED. 3. THIS IS THE SECOND ROUND OF LITIGATION BEFORE THE TRIBUNA L. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 2004-05 DECLARING TOTAL INCOME OF RS.42,94,47,570/- WHICH WAS SUBSEQUENTLY REVISED TO RS.44,70,06,640/-. THE AO IN THE ORIGINAL ASSESSMENT ORDER PASSED U/S.143(3) ON 31-10-2006 HAD MADE DISALLOWANCE OF RS.23,40,334/- BY INVOKING THE PROVISIONS OF SECTION 14A OF T HE I.T. ACT. 4. IN APPEAL THE LD.CIT(A) RESTRICTED THE DISALLOWANCE TO RS.50,000/- AS BEING REASONABLE BY FOLLOWING HIS OWN DECISIO N IN EARLIER ASSESSMENT YEAR, I.E. A.Y. 2003-04. ON FURTHER APPEA L, THE TRIBUNAL FOLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF GODREJ AND BOYCE MANUFACTURING COMPANY LT D. VS. DCIT REPORTED IN 328 ITR 81 RESTORED THE ISSUE TO THE FILE OF THE AO FOR DECIDING THE ISSUE AFRESH IN THE LIGHT OF THE ABOVE DEC ISION. THEREAFTER, THE AO FOLLOWING THE DECISION OF HONBLE BOMBAY H IGH COURT IN THE CASE OF GODREJ AND BOYCE MANUFACTURING COMPANY LTD . (SUPRA) MADE DISALLOWANCE OF RS.23,40,334/- BEING 10% OF THE 4 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 EXEMPT INCOME OF RS.2,34,03,348/-. IN APPEAL THE LD.CIT(A) RESTRICTED SUCH DISALLOWANCE TO 2.5% OF THE EXEMPT INCOME WHICH COMES TO RS.5,85,084/-. THE RELEVANT OBSERVATION OF THE C IT(A) READ AS UNDER : 12. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AS WELL AS REPLY OF THE APPELLANT. IN THIS CASE AS HELD BY HONBLE BO MBAY HIGH COURT IN THE CASE OF GODREJ & BOYCE MFG. CO. LTD. VS. DCIT, 32 8 ITR PAGE 81, IT IS SEEN THAT RULE 8D IS NOT APPLICABLE FOR A.Y. 2004-05. AT THE SAME TIME, THERE IS NO MERIT IN THE SUBMISSION OF THE APPELLANT TH AT NO EXPENDITURE HAS BEEN INCURRED FOR EARNING SUCH INCOME . IT IS SEEN THAT HONBLE PUNE TRIBUNAL IN THE CASE OF FINOLEX INDUSTRI ES LTD. FOR A.Y. 2000-01 IN ITA NO.1365/PN/2011 DATED 29-08-2013 HAD RESTRICTED THE DISALLOWANCE TO R.5% OF THE EXEMPT INCOME. FACT S BEING THE SAME, RESPECTFULLY FOLLOWING THE DECISION OF HONBLE PUNE T RIBUNAL, DISALLOWANCE U/S.14A OF THE INCOME TAX ACT IS RESTRICT ED TO 2.5% OF RS.2,34,03,348/- WHICH COMES TO RS.5,85,084/-. ACCORD INGLY, THE APPELLANT RELIEF OF RS.17,55,250/- (23,40,334/- - 5 ,85,084) WHILE DISALLOWANCE OF RS.5,85,084/- IS UPHELD. THUS, THE GRO UND IS PARTLY ALLOWED. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE AS WELL AS THE REVENUE ARE IN APPEAL BEFORE US. 6. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO THE ORD ER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2008-09 VIDE ITA NOS. 1676 AND 1709/PN/2012 ORDER DATED 30-06-2014 DREW T HE ATTENTION OF THE BENCH TO PARA 48 OF THE TRIBUNALS OR DER AND SUBMITTED THAT THE TRIBUNAL HAS RESTRICTED SUCH DISALLOWAN CE TO RS.57,600/- WHICH INCLUDES DEMAT CHARGES OF RS.7,600/-. THU S, IN EFFECT RS.50,000/- HAS BEEN DISALLOWED. REFERRING TO PAGES 7 1 TO 81 OF THE PAPER BOOK THE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2009-10 AND 2010-11 VIDE ITA NOS. 560 AND 561/PN/2014 AND ITA NOS. 578 AND 579/PN/2014 AND SU BMITTED THAT THE TRIBUNAL FOR A.Y. 2009-10 HAS SUSTAINED THE AMO UNT OF RS.76,951/- WHICH INCLUDES DEMAT CHARGES OF RS.26,951/-. 5 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 SIMILARLY, FOR A.Y. 2010-11 THE TRIBUNAL AT PARA 30 OF THE O RDER FOLLOWED THE ORDER FOR A.Y. 2009-10 AND SUSTAINED SIMILAR DISALLOWANCE. HE ACCORDINGLY SUBMITTED THAT IN THE LIGHT OF THE CONSISTENT VIEW OF THE TRIBUNAL IN ASSESSEES OWN CASE ON LY NOMINAL AMOUNT CAN BE DISALLOWED U/S.14A AND NOT 2.5% AS SUSTAIN ED BY THE CIT(A). 7. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND HEAVILY RELIED ON THE ORDER OF THE AO. 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE P APER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE DECISIONS OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR VARIOU S YEARS. WE FIND THE AO IN THE ORIGINAL ASSESSMENT ORDER HAD DISALLOW ED RS.23,40,334/- BEING 10% OF THE EXEMPT INCOME OF RS.2,34,03,348/- U/S.14A OF THE I.T. ACT. WE FIND THE LD.CIT(A ) RESTRICTED SUCH DISALLOWANCE TO RS.50,000/-. ON FURTHER A PPEAL THE MATTER WAS SET ASIDE BY THE TRIBUNAL TO THE FILE OF THE AO WHO REPEATED THE SAME DISALLOWANCE OF RS.23,40,334/-. WE FIND ON APPEAL BY THE ASSESSEE THE LD.CIT(A) RESTRICTED SUCH DISA LLOWANCE TO 2.5% OF THE EXEMPT INCOME, THUS SUSTAINING AN AMOUNT OF RS.5,85,084/-. WE FIND IDENTICAL ISSUE HAD COME UP BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE IN A.YRS. 2007-08, 2008-09 , 2009- 10 AND 2010-11. WE FIND THE CIT(A) IN ASSESSEES OWN CAS E FOR A.Y. 2002-03 HAS RESTRICTED THE DISALLOWANCE U/S.14A TO RS.50,0 00/- AS AGAINST RS.24,54,729/- MADE BY THE AO. SIMILARLY, THE AO IN A.YRS. 2005-06 AND 2006-07 HAS HIMSELF RESTRICTED SUCH DISALLOWANCE TO RS.50,000/-, COPIES OF WHICH ARE PLACED AT P AGES 6 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 156 TO 163 OF THE PAPER BOOK. WE FIND FOR A,.Y. 2007-08 TH E AO HAS ACCEPTED THE SUOMOTO DISALLOWANCE OF RS.50,000/- MADE BY THE ASSESSEE. WE FIND THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2009-10 HAD RESTRICTED SUCH DISALLOWANCE TO RS.76,951/- WHICH INCLUDES RS.26,951/- TOWARDS DEMAT CHARGES. SINCE THE F ACTS OF THE IMPUGNED ASSESSMENT YEAR ARE IDENTICAL TO THE FACTS DECIDED BY THE TRIBUNAL IN CASE OF THE ASSESSEE FOR DIFFERENT ASSESSME NT YEARS, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL A S WELL AS THE ORDER OF THE AO FOR A.YRS. 2005-06 AND 2006-07, W E RESTRICT SUCH DISALLOWANCE TO RS.50,000/-. WE ACCORDINGLY SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO SUSTAIN ADDITION OF RS.50,000/- U/S. 14A. GROUNDS RAISED BY THE ASSESSEE IS ACCORDINGLY PARTLY ALLOWED AND THE GROUNDS RAISED BY T HE REVENUE ON THIS ISSUE ARE DISMISSED. 9. GROUNDS OF APPEAL NO. 1(A) AND 1(B) BY THE REVENUE REA DS AS UNDER : 1(A) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT(A) WAS CORRECT IN DISREGARDING THE JUDGMEN T OF HONBLE SUPREME COURT GIVEN IN THE CASE OF SOUTHERN TECHNOLO GIES LTD. VS. JCIT 320 ITR 577 (SC) WHICH SAYS THAT PROVISIONS OF RBI ACT CANNOT OVERRIDE THE PROVISION OF SEC.145 OF THE INCOME TAX ACT, SINCE BOTH THE ACTS OPERATE IN DIFFERENT FIELDS AND THEREFORE ASSESSEE CANNOT RECOGNIZE INTEREST INCOME ON NPA AND YET NOT OFFER IT IN PROFI T AND LOSS ACCOUNT. 1(B) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) WAS JUSTIFIED IN NOT CONSIDERING THE F ACT THAT THE SPECIAL PROVISIONS OF SECTION 43D ARE APPLICABLE ONLY TO FINAN CIAL INSTITUTIONS AND CO-OP. BANKS WHEREAS THE ASSESSEE FALLS UNDER THE CATE GORY OF DOMESTIC COMPANY. 10. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A NON- BANKING FINANCE COMPANY ENGAGED IN THE BUSINESS OF AUTO FINANCE, LEASING OF TWO WHEELERS AND SOME DURABLES AND ALS O GRANTING ASSETS ON LEASE. IN THE ORDER PASSED U/S.143 (3) ON 31-10- 7 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 2006 THE AO HAD MADE ADDITION OF RS.1,76,99,057/- BEING INTE REST ON NON PERFORMING ASSETS (IN SHORT NPA) WHICH WAS NOT C REDITED BY THE ASSESSEE IN THE PROFIT AND LOSS ACCOUNT. THE CIT(A) FOLLOWING HIS ORDER FOR A.Y. 2003-04 DELETED THE ADDITION OF RS.1,76,99,057/ -. ON FURTHER APPEAL BY THE REVENUE, THE TRIBUNAL RESTORED THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO ADJUDICATE THE ISS UE IN THE LIGHT OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF SOUTHERN TECHNOLOGIES LTD. VS. JCIT REPORTED IN 320 ITR 577. THE AO THEREAFTER FOLLOWING THE SAID DECISION AGAIN ADDED THE A MOUNT OF RS.1,76,99,057/- BEING INTEREST ON NPA. THE LD.CIT(A) FOLLOWING HIS ORDER IN ASSESSEES OWN CASE FOR A.Y. 2007-08 WHICH H AS SINCE BEEN UPHELD BY THE TRIBUNAL IN ITA NO.1709/PN/2012 ORDE R DATED 30-06-2014 DIRECTED THE AO TO DELETE THE ADDITION. 11. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REVENUE IS IN APPEAL BEFORE US. 12. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SU BMITTED THAT THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2007-08 TO 2 010-11, COPIES OF WHICH ARE PLACED IN THE PAPER BOOK, HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND THE APPEAL FILED BY THE REVE NUE ON THIS ISSUE HAS BEEN DISMISSED. 13. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER H AND FAIRLY CONCEDED THAT THE ISSUE HAS BEEN DECIDED IN FAVOUR OF TH E ASSESSEE AND AGAINST THE REVENUE BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.YRS. 2007-08 TO 2010-11. 14. AFTER HEARING BOTH THE SIDES, WE FIND THE ISSUE OF TAXA BILITY OF INTEREST ON NON PERFORMING ASSETS HAS BEEN DECIDED IN FA VOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 8 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 2007-08 IN ITA NO.1175/PN/2012 AND ITA NO.1273/PN/2012 ORDER DATED 30-06-2014. THE RELEVANT OBSERVATION OF THE TRIBU NAL FROM PARA 27 TO 30 READ AS UNDER : 27. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. THE ASSESSEE BEFORE US IS A NBFC, AND SUM AND SUBSTANCE OF THE DISPUTE RELATES TO THE STAND OF THE ASSESSEE THAT INTEREST INCOME RELATING T O CERTAIN HIRE PURCHASE TRANSACTIONS DID NOT ACCRUE TO THE ASSESSEE BECAU SE SUCH TRANSACTIONS WERE CLASSIFIED AS NPAS FOLLOWING THE RBI G UIDELINES. WHEN THE MATTER CAME UP FOR THE FIRST TIME BEFORE TH E TRIBUNAL FOR ASSESSMENT YEARS 1996-97 TO 1999-2000 AND 2000-01 TO 200 3-04, VIDE A COMMON ORDER DATED 31.03.2010 THE ISSUE WAS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO BE CONSIDERED IN THE LI GHT OF THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE O F SOUTHERN TECHNOLOGIES LTD. (SUPRA) AND ALSO ALLOWING THE ASSESSEE TO DEMONSTRATE THE JUSTIFICATION AND CRITERION FOR IDENT IFICATION OF NPAS AND NON-ACCRUAL OF INCOME ON SUCH ADVANCES. SUBSEQUENT LY, WHEN SIMILAR ISSUE CAME UP BEFORE THE TRIBUNAL IS ASSESSEES CASE FOR ASSESSMENT YEARS 2004-05 TO 2006-07, THE TRIBUNAL BY WAY OF A COMMON ORDER DATED 31.08.2012 (SUPRA) AGAIN RESTORED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER NOT ONLY IN TERMS OF THE DECISION OF THE TRIBUNAL DATED 31.03.2010 (SUPRA) BUT ALSO REQ UIRING THE ASSESSING OFFICER TO TAKE INTO CONSIDERATION SUCH OTHE R LEGAL POSITION AS PREVAILING AT THE TIME OF ENSUING REMAND PROCEEDIN GS. THE AFORESAID DIRECTION WAS IN THE CONTEXT OF THE JUDGEME NTS OF THE (I) HONBLE DELHI HIGH COURT IN THE CASE OF M/S VASISTH CHA Y VYAPAR LTD. (SUPRA) AND BRAHAMPUTRA CAPITAL FINANCIAL SERVICES LT D. (SUPRA); AND, (II) DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN T HE CASE OF ALFA LAVAL FINANCIAL SERVICES LTD. (SUPRA), WHICH WAS CITED BEFOR E THE TRIBUNAL. THE AFORESAID PRECEDENTS WERE NOT AVAILABLE WHEN THE TRIBUNAL CONSIDERED THE ISSUE ON THE EARLIER OCCASION VIDE ORDER DATED 31.10.2010 (SUPRA). 28. IN THE COURSE OF THE IMPUGNED APPELLATE PROCEEDI NGS BEFORE THE CIT(A) FOR THE PRESENT ASSESSMENT YEAR, ASSESSEE RELIED UPO N THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CA SE OF M/S VASISTH CHAY VYAPAR LTD. (SUPRA) AS WELL AS THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF ALFA LAVAL FINANCIAL SE RVICES LTD. (SUPRA) TO SUBMIT THAT THERE IS NO ACCRUAL OF INCOME IN RELATION TO ASSETS WHICH ARE CLASSIFIED AS NPAS IN TERMS OF RBI GUIDELINES. IN THIS CON TEXT, THE CIT(A) HAS FACTUALLY CONCLUDED THAT THE AMOUNT OF RS.12,87,3 7,505/- PERTAINS TO INTEREST ON NPAS. THIS FINDING OF THE CIT(A) IS NOT DISPUTED BY THE REVENUE. IN THE BACKGROUND OF THIS UNDISPUTED FACTUAL POSITION, NOW WE HAVE TO EXAMINE THE ULTIMATE CONCLUSION OF THE CI T(A). AS PER THE CIT(A), UNRECOGNIZED INCOME ON NPAS CLASSIFIED IN TER MS OF RBI GUIDELINES CANNOT BE ASSESSED ON ACTUAL BASIS. THE AFORESAI D STAND OF THE CIT(A) IS DIRECTLY SUPPORTED BY THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF BRAHAMPUTRA CAPITAL FINANC IAL SERVICES LTD. (SUPRA), WHICH IS ALSO A CASE OF A NBFC. THE CIT(A) HAS ALSO RELIED UPON THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN TH E CASE OF ALFA LAVAL FINANCIAL SERVICES LTD. (SUPRA), WHICH IS ALSO A COPY O F A NBFC. THE REVENUE HAS NOT BROUGHT TO OUR NOTICE ANY DECISION TO THE CONTRARY. 9 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 29. IN THE ABOVE BACKGROUND, THE LEARNED COUNSEL FOR THE ASSESSEE IS JUSTIFIED IN ARGUING THAT NO USEFUL PURPOSE WOULD BE SE RVED BY REMANDING THE ISSUE BACK TO THE FILE OF THE ASSESSING OF FICER FOLLOWING THE ORDERS OF THE TRIBUNAL OF EARLIER YEARS. IN THE P RESENT YEAR, AS OUR AFORESAID DISCUSSION SHOWS, THE FACTUAL FINDINGS OF THE CI T(A) REGARDING THE NATURE OF THE IMPUGNED IS NOT DISPUTED, AND, THE LEGAL POSITION ARTICULATED BY THE CIT(A) HAS ALSO NOT BEEN ASSAILED B Y THE REVENUE ON THE BASIS OF ANY CONTRARY JUDGEMENT, WHEREAS THE STAND OF THE CIT(A) IS SUPPORTED BY THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT. 30. FOLLOWING THE AFORESAID DISCUSSION, WE HEREBY AFFIR M THE ORDER OF THE CIT(A) HOLDING THAT THE AMOUNT OF RS.12,87,37,50 5/- REPRESENTING UNRECOGNIZED INCOME ON NPAS CLASSIFIED AS PER THE RBI G UIDELINES CANNOT BE ASSESSED ON ACCRUAL BASIS. THUS, REVENUE FAILS ON THIS GROUND. 15. SIMILAR VIEW HAS BEEN TAKEN BY THE TRIBUNAL FOR A.Y.2008 -09 AT PARA 55 OF THE SAID ORDER. FOLLOWING THE DECISION OF T HE TRIBUNAL IN ASSESSEES OWN CASE FOR A.YRS. 2007-08 AND 2008-09 THE TRIBUNAL IN ITA NOS. 560 AND 561/PN/2014 AND ITA NOS. 578 AND 579/PN/2014 ORDER DATED 11-04-2016 FOR A.YRS. 2009-10 AND 2010-11 HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE, COPIES OF WHICH ARE PLACED IN THE PAPER BOOK. 16. SINCE THE FACTS OF THE IMPUGNED ASSESSMENT YEAR ARE IDENTICAL TO THE FACTS DECIDED BY THE TRIBUNAL IN THE SUBSEQUENT A SSESSMENT YEARS, THEREFORE, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIB UNAL AND IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTIC E, WE UPHOLD THE ORDER OF THE CIT(A) ON THIS ISSUE. THE GROUND RAISED BY THE REVENUE IS ACCORDINGLY DISMISSED. ITA NO.2095/PN/2014 (BY REVENUE) (A.Y. 2005-06) : 17. GROUNDS OF APPEAL NO. 1(A) AND 1(B) BY THE REVENUE RE AD AS UNDER: 1(A) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) WAS CORRECT IN DISREGARDING THE JUDGMENT O F HONBLE SUPREME COURT GIVEN IN THE CASE OF SOUTHERN TECHNOLO GIES LTD. VS. JCIT 320 ITR 577 (SC) WHICH SAYS THAT PROVISIONS OF RBI ACT CANNOT OVERRIDE THE PROVISION OF SEC.145 OF THE INCOME TAX ACT, SINCE BOTH THE 10 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 ACTS OPERATE IN DIFFERENT FIELDS AND THEREFORE ASSESSEE CANNOT RECOGNIZE INTEREST INCOME ON NPA AND YET NOT OFFER IT IN PROFI T AND LOSS ACCOUNT. 1(B) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN NOT CONSIDERING THE FACT THAT THE SPECIAL PROVISIONS OF SECTION 43D ARE APPLICABLE ONLY TO FINAN CIAL INSTITUTIONS AND CO-OP. BANKS WHEREAS THE ASSESSEE FALLS UNDER THE CATE GORY OF DOMESTIC COMPANY. 18. AFTER HEARING BOTH THE SIDES, WE FIND THE ABOVE GROUN DS ARE IDENTICAL TO GROUNDS OF APPEAL NO.1(A) AND 1(B) IN ITA NO.2094/PN/2014 FILED BY THE REVENUE. WE HAVE ALREADY D ECIDED THE ISSUE AND THE GROUNDS RAISED BY THE REVENUE HAVE BEEN DISMISSED. FOLLOWING THE SAME REASONINGS, THE ABOVE GROUN DS BY THE REVENUE ARE DISMISSED. ITA NO.2096/PN/2014 (BY REVENUE) (A.Y. 2006-07) : 19. GROUNDS OF APPEAL NO. 1(A) AND 1(B) BY THE REVENUE R EAD AS UNDER: 1(A) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) WAS CORRECT IN DISREGARDING THE JUDGMENT O F HONBLE SUPREME COURT GIVEN IN THE CASE OF SOUTHERN TECHNOLO GIES LTD. VS. JCIT 320 ITR 577 (SC) WHICH SAYS THAT PROVISIONS OF RBI ACT CANNOT OVERRIDE THE PROVISION OF SEC.145 OF THE INCOME TAX ACT, SINCE BOTH THE ACTS OPERATE IN DIFFERENT FIELDS AND THEREFORE ASSESSEE CANNOT RECOGNIZE INTEREST INCOME ON NPA AND YET NOT OFFER IT IN PROFI T AND LOSS ACCOUNT. 1(B) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN NOT CONSIDERING THE FACT THAT THE SPECIAL PROVISIONS OF SECTION 43D ARE APPLICABLE ONLY TO FINAN CIAL INSTITUTIONS AND CO-OP. BANKS WHEREAS THE ASSESSEE FALLS UNDER THE CATE GORY OF DOMESTIC COMPANY. 20. AFTER HEARING BOTH THE SIDES, WE FIND THE ABOVE GROUN DS ARE IDENTICAL TO GROUNDS OF APPEAL NO.1(A) AND 1(B) IN ITA NO.2094/PN/2014 FOR A.Y. 2004-05 FILED BY THE REVENUE. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUNDS RAISED BY THE REVENUE HAVE BEEN DISMISSED. FOLLOWING THE SAME REASONINGS, THE AB OVE GROUNDS BY THE REVENUE ARE DISMISSED. 11 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 ITA NO.2097/PN/2014 (BY REVENUE) (A.Y. 2011-12) : 21. GROUNDS OF APPEAL NO. 1(A) AND 1(B) BY THE REVENUE REA D AS UNDER: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) WAS JUSTIFIED IN RESTRICTING THE A.O.'S D ISALLOWANCE U/ S 14A OF THE ACT TO RS. 50,000/- BY REL Y ING ON THE HON'BLE ITAT'S DECISION IN ASSESSEE'S OWN CASE FOR A.Y . 2008-09. 2. WHETHER THE LD.CIT(A) WAS FURTHER JUSTIFIED IN CON SIDERING THAT DISALLOWANCE OF RS. 50,000/ - U/ S 14A AS OFFERED BY AS SESSEE WAS REASONABLE WHEN THE A.O . HAD RIGHTLY DISALLOWED THE AMOUNT OF RS.3,11,028/- U/ S 14A AFTER APPLYING RULE 8D IN HIS A SSESSMENT ORDER AND ALSO IN NOT APPRECIATING THAT THE A.O. HAD RIGHT LY OBSERVED THAT THE ASSESSEE COMPANY WAS INCURRING SUBSTANTIAL AMOUNT OF EXPEN DITURE ON PERSONS INVOLVED IN INVESTMENT PORTFOLIO AND THAT THE ASSESSEE COMPANY WAS NOT MAINTAINING ANY RECORD THROUGH WHICH SUCH EXPENDITURE COULD BE IDENTIFIED. 22. AFTER HEARING BOTH THE SIDES, WE FIND THE ABOVE GROUN DS ARE IDENTICAL TO GROUNDS OF APPEAL NO.2(A) AND 2(B) IN ITA NO.2094/PN/2014 FOR A.Y. 2004-05 FILED BY THE REVENUE. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUNDS RAISED BY THE REVENUE HAVE BEEN DISMISSED. FOLLOWING THE SAME REASONINGS, THE AB OVE GROUNDS BY THE REVENUE ARE DISMISSED. 23. GROUNDS OF APPEAL NO.2(A) AND 2(B) BY THE REVENUE READ AS UNDER : 2(A) WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE CIT(A) WAS CORRECT IN DISREGARDING THE JUDGM ENT OF HON'BLE SUPREME COURT GIVEN IN THE CASE OF SOUTHERN TECHNOLO GIES LTD VS JCIT 320 ITR 577(SC) WHICH SAYS THAT PROVISIONS OF RBI ACT C ANNOT OVERRIDE THE PROVISION OF SEC. 145 OF THE INCOME TAX ACT, SINC E BOTH THE ACTS OPERATE IN DIFFERENT FIELDS AND THEREFORE ASSESSEE CANN OT RECOGNIZE INTEREST INCOME ON N.P.A AND YET NOT OFFER IT IN PRO FIT AND LOSS ACCOUNT? 2(B) WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) WAS JUSTIFIED IN NOT CONSIDERING THE FA CT THAT THE SPECIAL PROVISIONS OF SECTION 43D ARE APPLICABLE ONLY TO FINAN CIAL INSTITUTIONS AND CO-OP. BANKS WHEREAS THE ASSESSEE FALLS UNDER THE CATE GORY OF DOMESTIC COMPANY. 12 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 24. AFTER HEARING BOTH THE SIDES, WE FIND THE ABOVE GROUN DS ARE IDENTICAL TO GROUNDS OF APPEAL NO.1(A) AND 1(B) IN ITA NO.2094/PN/2014 FOR A.Y. 2004-05 FILED BY THE REVENUE. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUNDS RAISED BY THE REVENUE HAVE BEEN DISMISSED. FOLLOWING THE SAME REASONINGS, THE AB OVE GROUNDS BY THE REVENUE ARE DISMISSED. 25. GROUND OF APPEAL NO.3 BY THE REVENUE READS AS UNDER : 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS . 4,30,854/ - MADE U/ S.36(1)(VA) WITHOUT APPRECIATING THAT THE ASSE SSEE AS AN EMPLOYER HAS NOT CREDITED THE EMPLOYEE'S CONTRIBUTION TO PF BEFORE THE DUE DATE PRESCRIBED IN THE RELEVANT FUND AND NOT BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME? 26. AFTER HEARING BOTH THE SIDES, WE FIND THE AO MADE ADD ITION OF RS.4,30,854/- ON ACCOUNT OF DELAY IN THE PAYMENT OF EMPLOYE ES CONTRIBUTION TO PF. WHILE DOING SO, HE REJECTED THE CONT ENTION OF THE ASSESSEE THAT THE SAME HAS BEEN PAID BEFORE THE D UE DATE OF FILING OF THE RETURN OF INCOME U/S.139(1) OF THE ACT. IN APPEA L THE LD.CIT(A) FOLLOWING THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATION VIDE ORDER DATED 26-12-2013 AND THE DECISION OF HONBLE BOMBAY HIG H COURT IN THE CASE OF CIT VS. HINDUSTAN ORGANICS CHEMICAL LTD. RE PORTED IN 366 ITR 1 HELD THAT PROVISIONS OF SECTION 43B OF THE I. T. ACT ALSO APPLIES TO EMPLOYEES CONTRIBUTION TO PF AND ACCORDINGLY DELETED THE DISALLOWANCE MADE BY THE AO. 27. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A). THE COORDINATE BENCHES OF THE TRIBUNAL FOLLOWING THE DECISION OF T HE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. HINDUS TAN ORGANICS CHEMICAL LTD.(SUPRA) AND IN THE CASE OF CIT VS. GH ATGE 13 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 PATIL TRANSPORTS LTD. REPORTED IN 368 ITR 749 ARE CONSIS TENTLY TAKING THE VIEW THAT DISALLOWANCE U/S.43B CANNOT BE MADE ON ACCOUNT OF DELAYED PAYMENT OF EMPLOYEES CONTRIBUTION TO PF AND ESI, IF THE SAME HAS BEEN DEPOSITED BEFORE THE DUE DATE OF FILING OF THE RETURN U/S.139(1) OF THE I.T. ACT. SINCE THE ASSESSEE IN THE INSTANT CASE HAS ADMITTEDLY DEPOSITED THE EMPLOYEES CO NTRIBUTION TO PF BEFORE THE DUE DATE OF FILING OF THE RETURN U/S.139(1) OF THE I.T. ACT, THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) DELETING THE ADDITION MADE BY THE AO. ACCORDINGLY, THE SA ME IS UPHELD AND THE GROUND RAISED BY THE REVENUE IS DISMISSED. CO NO.22/PN/2016 (BY ASSESSEE) (A.Y. 2011-12) 28. GROUNDS OF APPEAL NO.1 AND 2 BY THE ASSESSEE IN THE CROSS OBJECTION READ AS UNDER : 1. CLAIM FOR DEDUCTION IN REESPECT OF EMPLOYEE STO CK OPTIONS (ESOP) EXPENDITURE THE RESPONDENT SUBMITS THAT THE DEDUCTION IN RESPECT OF ESOP OF RS.2,60,65,287/- OUGHT TO BE ALLOWED AS A DEDUCTION U /S.37(1) OF THE ACT. 2. ADDITIONAL CLAIM FOR DISCOUNT ON ISSUE OF ESOP U/S.37(1) OF THE ACT BASED ON EXERCISE OF OPTIONS OF RS.2,29,063/-. THE RESPONDENT SUBMITS THAT THE INCREMENTAL EXPENDITUR E OF RS.2,29,063/- IN RESPECT OF THE EXCESS AMOUNT CHARGED I N THE HANDS OF EMPLOYEES AS PERQUISITE ON EXERCISE OF STOCK OPTIONS DUR ING A.Y. 2011- 12 (RS.3,55,687/-) AS COMPARED TO THE FAIR VALUE OF D ISCOUNT CLAIMED BY THE RESPONDENT (RS.1,26,625/-) OUGHT TO BE ALLOWED A S DEDUCTION U/S.37(1) OF THE ACT. 29. AFTER HEARING BOTH THE SIDES, WE FIND THE ASSESSEE HA S NOT RAISED THIS GROUND BEFORE THE AO AND THE CIT(A). HOWEVER , THE ASSESSEE HAS RAISED THIS GROUND IN THE CROSS OBJECTION FOR THE FIRST TIME. IT WAS SUBMITTED THAT THE ISSUE WAS RAISED BY THE ASSESSEE IN A.Y. 2010-11 AS ADDITIONAL GROUND VIDE ADDITIONAL GROUND NO.4 . 14 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 THE TRIBUNAL VIDE ITA NO.579/PN/2014 ORDER DATED 11-04- 2016 HAS ADMITTED THE ADDITIONAL GROUND AND RESTORED THE ISSU E TO THE FILE OF THE AO. THE LD. COUNSEL FOR THE ASSESSEE ACCORDINGLY SUBMITTED THAT SINCE ALL THE FACTS ARE ALREADY THERE ON T HE RECORDS OF THE DEPARTMENT AND NO FRESH FACTS ARE REQUIRED TO BE V ERIFIED, THEREFORE, IN VIEW OF THE DECISION OF THE TRIBUNAL IN ASSESSE ES OWN CASE IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR, THE GROUND MAY BE ADMITTED AND THE MATTER MAY BE RESTORED TO TH E FILE OF THE AO FOR DECIDING THE ISSUE IN THE LIGHT OF THE DECISION OF THE TRIBUNAL. 30. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER H AND WHILE OPPOSING THE ABOVE GROUNDS IN THE CROSS OBJECTION SUBM ITTED THAT THE EXPENDITURE WAS NEVER CLAIMED BY THE ASSESSEE AND THEREFORE THE SAME SHOULD NOT BE ADMITTED. 31. AFTER HEARING BOTH THE SIDES, WE FIND THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.579/PN/2014 FOR A.Y. 2010- 11 HAS DISCUSSED THE ISSUE AND RESTORED THE ISSUE TO THE FILE OF THE AO BY OBSERVING AS UNDER : 32. THE ASSESSEE RAISED ADDITIONAL GROUND AS GROUND NO. 4 ON ACCOUNT OF CLAIM OF DEDUCTION IN RESPECT OF EMPLOYEE STOCK O PTIONS (ESOP) EXPENDITURE OF RS.1,33,64,340/-. THE LD. AR SUBMITTED THAT THE ASSESSEE IS A LISTED COMPANY AND ISSUED STOCK OPTIONS WITH A CEILI NG OF 5% OF THE ISSUED EQUITY CAPITAL OF THE COMPANY TO ITS EMPLOYEES PURSUANT TO EMPLOYEE STOCK OPTION SCHEME 2009. THE SAID SCHEME WA S FORMULATED IN ACCORDANCE WITH THE SEBI (EMPLOYEE STOCK OPTION SCHEME AND EMPLOYEE STOCK PURCHASE SCHEME) GUIDELINES, 1999. THE ASSESSEE AS A MATTER OF ABUNDANT CAUTION DID NOT CLAIM DEDUCTION OF ESOP EXPENDITURE OF RS.1,33,64,340/- IN ITS RETURN OF INCO ME FOR ASSESSMENT YEAR 2010-11 IN VIEW OF CONFLICTING DECISIONS OF VARI OUS BENCHES OF THE TRIBUNAL ON THE ISSUE. NOW, IN THE LIGHT OF BANGALORE SPECIAL BENCH DECISION IN THE CASE OF BIOCON LIMITED VS. DCIT REPORT ED AS 25 ITR (TRIB.) 602 THE ADDITIONAL GROUND OF APPEAL IS RAISED BEFORE TRIBUNAL FOR CLAIMING ESOP EXPENDITURE AS A TAX DEDUCTIBLE EX PENSE. 33. ON THE OTHER HAND LD. DR SUBMITTED THAT THE ASSESSEE RAISED THIS ISSUE FIRST TIME BEFORE THE TRIBUNAL. THE LD. DR SUBMIT TED THAT THE EXPENDITURE WAS NEVER CLAIMED BY THE ASSESSEE. THEREFORE , THE SAME IS NOT ALLOWABLE. 15 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 34. BOTH SIDES HEARD. IT IS AN ADMITTED FACT THAT THE ASSESSEE HAS CLAIMED ESOP EXPENDITURE FOR THE FIRST TIME BEFORE T HE TRIBUNAL. THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT HAS HELD THAT THE POWERS OF THE APPELLATE TRIBUNA L ARE NOT IMPINGED TO ACCEPT THE CLAIM OF ASSESSEE WHICH HAS NOT B EEN MADE BEFORE THE ASSESSING OFFICER. WE DEEM IT APPROPRIATE TO REMIT THIS ISSUE BACK TO THE FILE OF ASSESSING OFFICER TO CONSIDER THE C LAIM OF THE ASSESSEE IN THE LIGHT OF DECISION OF SPECIAL BENCH OF TH E BANGALORE TRIBUNAL IN THE CASE OF BIOCON LIMITED (SUPRA). THE A SSESSEE SHALL FILE FRESH COMPUTATION OF INCOME BEFORE THE ASSESSING OFFICER . THE ASSESSING OFFICER SHALL CONSIDER THE SAME AND DECIDE THE C LAIM OF ASSESSEE IN ACCORDANCE WITH LAW. ACCORDINGLY, THIS GROUN D OF APPEAL OF THE ASSESSEE IS ALLOWED FOR THE STATISTICAL PURPOSE. 32. SINCE THE FACTS OF THE IMPUGNED ASSESSMENT YEAR ARE IDENTICAL TO THE FACTS IN THE CASE FOR A.Y. 2010-11, THEREFORE, FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN THE IMMED IATELY PRECEDING ASSESSMENT YEAR, WE RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO ADJUDICATE THE ISSUE IN THE LIGHT OF THE DIRECTION OF THE TRIBUNAL IN A.Y. 2010-11. THE GROUNDS RAISED BY THE ASSESSEE IN THE CROSS OBJECTION ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 33. GROUND OF APPEAL NO.3 BY THE ASSESSEE IN THE CROSS OBJECTION READS AS UNDER : 3. CLAIM FOR DEDUCTION IN RESPECT OF AMORTIZATION OF PREMIUM ON INVESTMENTS : RS.83,77,194/-. THE RESPONDENT SUBMITS THAT THE AMORTIZATION OF PREMIU M PAID ON SECURITIES OF RS.83,77,195/- FORMING PART OF ITS BUSINESS ASSETS OUGHT TO BE ALLOWED AS A DEDUCTION U/S.37(1) OF THE ACT. 34. AFTER HEARING BOTH THE SIDES, WE FIND THE ASSESSEE HAS NOT RAISED THIS GROUND BEFORE THE AO OR THE CIT(A). HOWEVER, THE ASSESSEE HAS RAISED THIS GROUND IN THE CROSS OBJECTION. IT WAS SUBMITTED THAT SIMILAR ISSUE WAS RAISED BY THE ASSESSEE I N A.Y. 2010-11 AS ADDITIONAL GROUND VIDE ADDITIONAL GROUND NO.5. T HE 16 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 TRIBUNAL VIDE ITA NO.579/PN/2014 ORDER DATED 11-04-201 6 HAS ADMITTED THE ADDITIONAL GROUND AND RESTORED THE ISSUE TO THE FILE OF THE AO. THE LD. COUNSEL FOR THE ASSESSEE ACCORDINGLY SU BMITTED THAT SINCE ALL THE FACTS ARE ALREADY THERE IN THE RECORD S OF THE DEPARTMENT AND NO FRESH FACTS ARE REQUIRED TO BE VERIFIE D, THEREFORE, IN VIEW OF THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN C ASE IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR, THE GROUND MAY B E ADMITTED AND THE MATTER MAY BE RESTORED TO THE FILE OF T HE AO FOR DECIDING THE ISSUE IN THE LIGHT OF THE DECISION OF THE TRIBUNAL. 35. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND WHILE OPPOSING THE ABOVE GROUND IN THE CROSS OBJECTION SUBMIT TED THAT THE EXPENDITURE WAS NEVER CLAIMED BY THE ASSESSEE AND THEREFORE THE SAME SHOULD NOT BE ADMITTED. 36. AFTER HEARING BOTH THE SIDES, WE FIND THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.579/PN/2014 FOR A.Y. 2010- 11 HAS DISCUSSED THE ISSUE AND RESTORED THE ISSUE TO THE FILE OF THE AO BY OBSERVING AS UNDER : 35. THE ASSESSEE HAS RAISED ANOTHER ADDITIONAL ISSUE AS GRO UND NO. 5. THE GROUND NO. 5 RAISED BY THE ASSESSEE IS IN RESPECT OF A MORTIZATION OF PREMIUM PAID FOR SECURITIES. SIMILAR ISSUE WAS RAISED BY THE ASSESSEE IN APPEAL FOR THE ASSESSMENT YEAR 2009-10. WE HAVE REMITTE D 34 ITA NOS. 560, 561, 578 & 579/PN/2014, A.YS. 2009-10 & 2010-11 THIS ISSUE BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICA TION IN THE LIGHT OF THE JUDGMENT OF HON'BLE BOMBAY HIGH COURT IN THE CA SE OF COMMISSIONER OF INCOME TAX VS. M/S. LORD KRISHNA BANK LT D. (SUPRA). ACCORDINGLY, IN ASSESSMENT YEAR 2010-11 ALSO WE REMIT H IS ISSUE BACK TO THE FILE OF ASSESSING OFFICER TO DECIDE THIS ISSUE AFRE SH IN SIMILAR TERMS. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED. 37. SINCE THE FACTS OF THE IMPUGNED ASSESSMENT YEAR ARE IDENTICAL TO THE FACTS IN THE CASE FOR A.Y. 2010-11, THEREFORE, FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN THE IMMED IATELY 17 ITA NOS.2128, 2094 TO 2097/PN/2014 & CO NO.22/PN/2016 PRECEDING ASSESSMENT YEAR, WE RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO ADJUDICATE THE ISSUE IN THE LIGHT OF THE DIRECTION OF THE TRIBUNAL IN A.Y. 2010-11. THE GROUND RAISED BY THE ASSESSEE IN THE CROSS OBJECTION IS ACCORDINGLY ALLOWED FOR STATISTICA L PURPOSES. 38. IN THE RESULT, ITA NO.2128/PN/2014 FILED BY THE ASSESS EE IS PARTLY ALLOWED, ITA NOS. 2094 TO 2097/PN/2014 FILED BY THE REVENUE ARE DISMISSED AND THE CROSS OBJECTION NO.22/PN/ 2016 FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03-06-2016. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE ; DATED : 03 RD JUNE, 2016. ) *#,! -! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A ) - V , PUNE 4. 5. 6. THE CIT-V, PUNE $ ''(, (, / DR, ITAT, B PUNE; - / GUARD FILE. / BY ORDER , // TRUE COPY // // $ ' //TRUE /0 ' ( / SR. PRIVATE SECRETARY (, / ITAT, PUNE