THE RAJASTHAN STATE CO-OP. BANK LTD., Jaipur V. DCIT, Jaipur

ITA 266/JPR/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2175 (ITAT-JAIPUR)
• Duration Of Justice: 4 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 12-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S R SHARMA
• Keywords: Business income; Depreciation; Earning of tax free income
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH DQY HK KJ R ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO ] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT , JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA - @ ITA N O. 266 / JP/201 3 FU/KZKJ.K O 'K Z @ ASSESSMENT YEAR : 20 07 - 08 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD., 2 ND FLOOR, APEX BUILDING, NEHRU BAZAR, CHAURA RASTA, JAIPUR CUKE VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - 06, JAIPUR LFKK;H YS[KK LA - @THVKBZVKJ L A - @ PAN/GIR NO.: AAAAT0824G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S.R. SHARMA (C.A) JKTLO DH VKSJ LS @ REVENUE BY : SHRI R.A.VERMA (J CIT ) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 06 / 04 /201 7 MN ?KKS 'K .KK DH RKJH [ K@ DATE OF PRONOUNCEMENT: 17 / 04 /201 7 VKNS'K@ ORDER PE R : VIKRAM SINGH YADAV , A .M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A) - II, JAIPUR DATED 22.01.2013 FOR A.Y. 2007 - 08. THE SOLE GROUND OF APPEAL TAKEN BY THE ASSESSEE IS AS UNDER : - 1 . THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) IS WRONG, UNJUST AND HAS ERRED IN LAW IN CONFIRMING ADDITION OF RS. 1 , 18 , 99 , 651/ - MADE TO THE INCOME OF THE APPELLANT BY THE LD. ASSESSING OFFICER BY UPHOLDING HIS FINDING T HAT IN THE YEAR THE TRANSFER TO RESERVE FUND OF THE EXCESS PROVISIONS MADE FOR ESTABLISHMENT AND ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 2 OTHER EXPENSES IN EARLIER YEARS WHEN THE BUSINESS INCOME OF ASSESSEE BANK WAS TOTALLY EXEMPT U/S 80P OF I.T. ACT, 1961 AMOUNTS TO CESSATION OF THOSE LIABILITIE S AND IS THEREFORE CHARGEABLE TO TAX IN THE YEAR U/S 41(1) OF I.T. ACT.. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN A PEX CO - OP. BANK OF RAJASTHAN DERIVING INCOME FROM BANKING BUSINESS. THE INCOME OF ASSESSEE CO - OPERATIVE BANK WAS EXEMPT U/S 80P(2) OF I.T. ACT, 61 IN ALL THE EARLIER YEAR(S) AND FROM THIS ASSESSMENT YEAR 2007 - 08 , THE ENTIRE INCOME FROM BANKING BUSINESS OF ASSESSEE BANK BECAME TAXABLE ON WITHDRAW A L OF EXEMPTION BY INSERTION OF SECTION 80P(4) BY FINANCE ACT, 2006 W.E.F 1 - 4 - 07. THE O RIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) AT AN INCOME OF RS. 32,94,27,120/ - MAKING DISALLOWANCE OF RS. 1,18,99,651/ - ON ACCOUNT OF TRANSFER TO STATUTORY RESERVE OUT OF CARRIED FORWARD ACCOUNT OF PROVISION FOR EXPENSES TREATING THE SAME AS TAXABLE U /S 41 OF I.T.ACT, 1961 AND DISALLOWANCE OF RS. 1,00,21,000/ - OUT OF CONTRIBUTION TO PAC MANAGERS SALARY. THE ASSESSEE B ANK FILED APPEAL AGAINST THE SAID ADDITION/DISALLOWANCE AND LD. CIT(A) - 1, JAIPUR VIDE ORDER DATED 16.8.2010 IN APPEAL NO. 587/09 - 10 DELE TED BOTH ADDITION/DISALLOWANCE. THE DEPARTMENT FILED APPEAL AGAINST THE SAID APPEAL O RDER BEFORE ITAT, JAIPUR BENCH WHICH APPEAL WAS DECIDED VIDE ORDER DATED 22 - 7 - 11 (ITA NO. 1277/JP/2010). THE COORDINATE BENCH CONFIRMED THE ORDER OF CIT(A) IN RESPECT TO THE DELETION OF DISALLOWANCE ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 3 OF PAC MANAGERS SALARY BUT THE ISSUE IN RESPECT TO TRANSFER TO STATUTORY RESERVE OUT OF CARRIED FORWARD ACCOUNT OF PROVISION FOR EXPENSES WAS RESTORED BACK TO THE FILE OF A.O . THE RELEVANT FINDINGS OF THE COORDINATE BENCH AR E CONTAINED AT PARA 2.9 OF ITS ORDER WHICH READS AS UNDER: 2.9 IT IS WELL SETTLED LAW THAT ENTRIES IN THE BOOKS OF ACCOUNTS ARE NOT CONCLUSIVE. ONE HAS TO ASCERTAIN THE TAXABILITY ON THE BASIS OF THE PROVISIONS OF INCOME TAX ACT. CREDITING THE AMOUNT IN THE BALANCE SHEET WILL NOT DECIDE THE ISSUE THAT SUCH CREDITS CANNOT BE ADDED TO THE INCOME. THE HONBLE APEX COURT IN THE FOLLOWING CASES HAVE HELD THAT BOOK ENTRIES ARE NOT CONCLUSIVE. 1. KEDARNATH JUTE MFG. CO. LTD. VS. CIT, 82 ITR 363 (SC) 2. CIT VS. INDIAN DISCOUNT CO. LTD. 75 ITR 191 (SC) 3. SATLUJ COTTON MILLS LTD. VS. CIT, 116 ITR 1 (SC) 4. CIT VS. TUTICORIN ALKALI CHEMICALS & FERTILIZERS LTD., 227 ITR 172 SC 5. CIT VS. SHOORJI VALLABHDAS & CO., 46 ITR 144 (SC) 6. CIT VS. TRIVENI ENGINEERING & INDUSTRIES LTD., 181 TAXMAN 5 (DEL.) THUS THE ISSUE IS NOT TO BE DECIDED SIMPLY ON THE BASIS THAT THE ENTRIES HAVE BEEN MADE IN THE BALANCE SHEET AND NOT IN THE P & L A/C. WE ARE NOT HAVING SUFFICIENT DETAILS TO DECIDE THE ISSUE BEFORE US AS TO WHETHER THE AMOUNT COULD HAVE BEEN ADDED OR NOT AND THEREFORE, WE RESTORE BACK THE ISSUE ON THE FILE OF THE A.O. THE AO WILL ASCERTAIN THE NATURE OF THE PROVISIONS WHICH HAS BEEN WRITTEN BACK DURING THE YEAR AND WILL ALSO ASCERTAIN AS TO WHETHER SUCH PROVISION WA S ADDED BACK IN THE YEAR IN WHICH SUCH PROVISION WAS CREDITED IN THE BALANCE SHEET. THUS THIS ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 4 ISSUE IS RESTORED BACK ON THE FILE OF THE AO AND AO WILL DECIDE AS TO WHETHER PROVISION WRITTEN BACK WAS INCLUDED IN EXPENSES CLAIMED IN THE YEAR IN WHICH SUCH P ROVISION CREATED. IF IT WAS CLAIMED THEN AMOUNT WRITTEN BACK WILL BE INCOME. 2. 1 THE AO IN ACCORDANCE WITH ABOVE SAID DIRECTIONS OF THE COORDINATE BENCH TOOK UP THE PROCEEDINGS AND VIDE IMPUGNED ORDER UNDER APPEAL HAS RECORDED FOLLOWING FACTS AFTER NECE SSARY EXAMINATION: I. STATUTORY RESERVE OF RS. 80,99,16,594.12/ - AS ON 01.04.2006 HAS INCREASE TO RS. 82,41,83,630.49/ - . THE INCREASE IN THE AMOUNT OF STATUTORY RESERVE IS CONTRIBUTED BY TRANSFERRED OF RS. 1,18,99,651/ - FROM CARRIED FORWARD PROVISIONS WR ITTEN BACK IN THE RELEVANT FINANCIAL YEAR BY TRANSFERRING THE SAID AMOUNT TO THE STATUTORY RESERVE ACCOUNT. II. THE PROVISIONS FOR ESTABLISHMENT OF RS. 1,18,99,651/ - COMPRISES PROVISIONS FOR ESTABLISHMENTS EXPENSES OF RS. 1,12,02,831.40/ - (PROVISION FOR ES TABLISHMENT EXPENSES OF RS. 30,00,000/ - FOR THE PERIOD ENDING ON 31.03.2004, RS. 40,00,000/ - FOR THE PERIOD ENDING ON 31.03.2005 AND RS. 40,00,000/ - FOR THE PERIOD ENDING ON 31.03.2006) BALANCE AMOUNT OF RS. 2,02,831/ - PERTAINS TO THE PERIOD PRIOR TO F.Y 2 003 - 04. RS. 6,96,819/ - RELATES TO PROVISION FOR EXPENSES LIKE WATER, POSTAGE, TELEPHONE ETC. INCLUDED WITH EXPENSES UNDER RESPECTIVE HEAD AND DEBITED TO PROFIT AND LOSS ACCOUNT FOR THE F.Y. 200 - 06. ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 5 III THE ABOVE AMOUNT OF PROVISIONS FOR ESTABLISHMENT EXP ENSES ARE INCLUDED WITH THE EXPENDITURE OF SALARY AND ALLOWANCE AND PROVIDENT FUND, FOR EXAMPLE, PROVISION FOR ESTABLISHMENT EXPENSES RS. 40,00,000/ - IS INCLUDED WITH SALARY EXPENSES TOTAL OF RS. 2,87,07,784.56/ - AND COUPLED WITH OTHER EXPENSES TOTAL RS. 5 ,51,08,851.53/ - IS DEBITED TO PROFIT AND LOSS ACCOUNT FOR THE PERIOD ENDING ON 31.03.2006 UNDER HEAD SALARIES AND ALLOWANCES AND PROVIDENT FUND. IV PROVISIONS FOR ESTABLISHMENT EXPENSES MADE IN DIFFERENT YEARS AND PROVISION FOR OTHER EXPENSES ARE DEBITE D TO PROFIT AND LOSS ACCOUNT TO THE RESPECTIVE YEARS. V. FROM THE ENTRIES MADE IN THE BOOKS ACCOUNT RELATING TO PROVISIONS FOR ESTABLISHMENT EXPENSES HAVE BEEN CLAIMED AS EXPENDITURE IN THE PROFIT AND LOSS ACCOUNT. VI. IT IS EVIDENT FROM THE COMPUTATION OF INCOME MENTIONED SUPRA AS WELL AS FROM THE REPLY OF THE ASSESSEE THAT PROVISIONS FOR ESTABLISHMENT EXPENSES CLAIMED AS EXPENDITURE IN THE PROFIT AND LOSS ACCOUNT HAVE NOT BEEN ADDED BACK FOR THE COMPUTATION OF INCOME. VII. IN THE F.Y. 2006 - 07 THE ASSESSEE BANK REALIZED THAT THE SAID BROUGHT FORWARD PROVISIONS FOR ESTABLISHMENT EXPENSES TO THE EXTENT OF RS. 1,18,99,651/ - IS NO LONGER REQUIRED THE SAID AMOUNT WAS TRANSFERRED TO STATUTORY RESERVE. ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 6 2.2 THE AO THEREAFTER HELD THAT IT IS CONCLUDED THAT PROVISI ON FOR ESTABLISHMENT EXPENSES AND OTHER EXPENSES TO THE EXTENT OF RS. 1,18,99,651/ - HAS BEEN CLAIMED AND ALLOWED AS EXPENDITURE IN THE PROFIT & LOSS ACCOUNT IN PRECEEDING ASSESSMENT YEARS . THE PROVISIONS FOR EXPENSES HAVE NOT BEEN ADDED BACK IN THE COMPUT ATION OF INCOME. THEREFORE, THE TRANSFER OF LIABILITY OF EXPENSES (PROVISION FOR ESTABLISHMENT EXPENSES AND OTHER EXPENSES TOTALING RS 1,18,99,651) DIRECTLY TO RESERVE AMOUNTS TO CESSATION OF LIABILITIES OF EXPENSES AND IS TAXABLE AS INCOME IN THE YEAR IN WHICH IT IS TRANSFERRED TO RESERVE. THUS THE AO RECONFIRMED THE ADDITION OF RS. 1,18,59,651/ - BY INVOKING SECTION 41 (1) OF I.T. ACT, 1961. 2. 3 BEING AGGRIEVED, T HE ASSESSEE AGAIN CARRIED THE MATTER IN APPEAL BEFORE CIT(A) - II, JAIPUR WHO VIDE HER APPEA L ORDER DATED 22 - 1 - 2013 DISMISSED THE APPEAL OF ASSESSEE AND THE RELEVANT FINDINGS ARE CONTAINED AT PARA 7 OF HER ORDER WHICH READS AS UNDER: - IT IS NOT DISPUTED BY THE APPELLANT THAT THE PROVISIONS TOTALING TO RS. 1,18,99,651/ - WERE NOT ADDED BACK IN TH E COMPUTATIONS OF INCOME OF THE RETURNS FILED FOR EARLIER ASSESSMENT YEARS. IT IS ALSO NOT DISPUTED THAT THE PROVISIONS WERE DEBITED IN THE P & L ACCOUNT, THEREFORE THE CONCLUSION IN THE ASSESSMENT ORDER OF TAXING THE PROVISIONS TOTALING TO RS. 1,18,99,65 1/ - BECAUSE THEY HAVE BEEN TRANSFERRED TO RESERVE IN THE YEAR UNDER CONSIDERATION IS UPHELD AS HONBLE ITAT DIRECTION WAS ONLY ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 7 TO CONFIRM WHETHER THE PROVISIONS WERE ADDED BACK TO INCOME IN EARLIER YEARS OR NOT. THE ANSWER IS NO THEY HAD NOT BEEN ADDED BA CK. THE ADDITION OF RS. 1,18,99,651/ - IS THUS UPHELD. 3. DURING THE COURSE OF HEARING, T HE LD AR OF THE ASSESSEE HAS SUBMITTED THAT T HE ADDITION HAS BEEN MADE BY AO AND SUSTAINED BY LD. CIT(A) BY INVOKING PROVISIONS OF SECTION 41(1) OF I.T. ACT, 1961. IT WAS SUBMITTED THAT T HE PROVISION OF SECTION 41(1) HAVE APPLICATION ONLY IF: - (I) AN ALLOWANCE OR DEDUCTION HAD BEEN MADE, IN THE COMPUTATION OF PROFITS AND GAINS OF A BUSINESS OR PROFESSION, IN THE ASSESSMENT FOR ANY YEAR IN RESPECT OF LOSS, EXPENDI TURE OR TRADING LIABILITY INCURRED BY THE ASSESSEE, AND (II) SUBSEQUENTLY DURING ANY PREVIOUS YEAR THE ASSESSEE HAD OBTAINED, WHETHER IN CASH OR IN ANY OTHER MANNER WHATSOEVER, ANY AMOUNT IN RESPECT OF SUCH LOSS OR EXPENDITURE OR SOME BENEFIT IN RESPECT O F SUCH TRADING LIABILITY BY WAY OF REMISSION OR CESSATION THEREOF. 3.1 IT WAS SUBMITTED THAT T HE UNDISPUTED FACTS OF THE CASE ARE THAT ASSESSEE BANK HAS CARRIED FORWARD RESERVES AND PROVISIONS UNDER VARIOUS HEADS CREATED FROM THE PROFITS OF THE EARLIER YE ARS, AMONGST THEM THE ASSESSEE CO - OPERATIVE BANK AS ON 1 - 4 - 06 HAD BROUGHT FORWARD STATUTOR Y RESERVE OF RS. 80,99,16,594 AND BROUGHT FORWARD PROVISION UNDER THE HEAD PROVISION FOR ESTABLISHMENT (EXPENSES) OF RS. 1,18,99,651/ - . THE ASSESSEE BANK ON FINDIN G THAT THE SAID BROUGHT FORWARD PROVISION UNDER THE HEAD PROVISION FOR EXPENSES IS NO LONGER ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 8 REQUIRED AND SO IT TRANSFERRED THE SAME TO STATUTORY RESERVE FUND IN THIS YEAR. 3.2 IT WAS SUBMITTED THAT THE ENTIRE INCOME OF ASSESSEE APEX CO - OPERATIVE BANK WAS EXEMPT U/S 80P(2)(A)(I) SINCE COMMENCEMENT OF I.T. ACT AND BECAME TAXABLE FOR AND FROM A.Y. 2007 - 08 BY VIRTUE OF SECTION 80P(4) INSERTED BY FINANCE ACT, 2006. THE ASSESSEE IN COMPUTATION OF INCOME FILED WITH RETURN OF EACH OF ASSESSMENT YEAR PRIOR TO A.Y . 2007 - 08 PUT A NOTE WHICH READS AS UNDER AND ALSO REPRODUCED ON PAGE - 4 OF IMPUGNED ASSESSMENT ORDER: - THE INCOME FROM BANKING BUSINESS IS WHOLLY EXEMPT U/S 80P (2)(1) OF THE INCOME TAX ACT, 1961 AND AS SUCH IT HAS NOT BEEN CONSIDERED NECESSARY TO DISTUR B AND ADD BACK THE ITEMS OF P & L ACCOUNT IN CONFORMITY WITH INCOME - TAX ACT/I.T. RULES, 1962 INCLUDING APPROPRIATION OF PROFIT IN RESERVE/FUNDS. 3.3 IT WAS SUBMITTED THAT T HE ASSESSMENT FOR MOST OF THE YEARS WERE COMPLETED U/S 143(3) AND COPIES OF RETUR NS ALONG WITH COMPUTATION OF INCOME AND COPIES OF ASSESSMENT ORDER FOR A.Y 2004 - 05, 2005 - 06, 2006 - 07 WERE HEREWITH SUBMITTED WHEREIN RETURN OF INCOME FILED BY THE ASSESSEE ACCEPTED WHICH MEANS ACCEPTANCE OF ABOVE NOTE APPENDED TO THE COMPUTATION OF INCOME AND ALL DISALLOWABLE EXPENSES/DEDUCTIONS ETC. DEEMED TO HAVE BEEN CONSIDERED AND ADDED AND AS RESULTANT ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 9 INCOME WOULD HAVE BEEN EXEMPT , EXERCISE OF ADDING THEM IN ASSESSMENT WAS NOT DONE. THE REPLY OF ASSESSEE FILED BY ASSESSEE BEFORE A.O. REPRODUCED IN PA RA 6.1, 6.2 & 6.3 OF ASSESSMENT ORDER IS CONSIDERED IN PARA 8.2 OF ASSESSMENT ORDER AND OBSERVATION OF LD. AO THEREON ARE AS UNDER: - THE CONTENTION OF THE ASSESSEE IS NOT CORRECT BECAUSE THE ASSESSEE HAS NOT FOLLOWED THE DISCIPLINE OF ACCOUNTING AS WELL AS COMPUTATION OF INCOME. SUCH AS TRANSFER TO RESERVE IS MADE OUT OF THE PROFIT BUT THE ASSESSEE HAS TRANSFERRED THE AMOUNTS TO RESERVE FROM LIABILITIES FOR EXPENSES AND WHICH HAS BEEN ALLOWED AS EXPENDITURE. THEY HAVE NEVER BEING DECLARED AS INCOME OF T HE ASSESSEE FOR THE RELEVANT ASSESSMENT YEAR. THERE ARE MANY PROVISIONS UNDER THE INCOME TAX ACT WHERE THE INCOME IS EXEMPTED BUT THEY HAVE TO GET THEIR ACCOUNTS AUDITED AND FILING OF RETURN OF INCOME IS NECESSARY. THEY CANNOT BE EXONERATED FROM THE LI ABILITY FROM FILING OF RETURN OF INCOME OR GETTING THEIR ACCOUNT AUDITED MERELY BY INFORMING THE DEPARTMENT THAT THEIR INCOME IS TOTALLY EXEMPT AND NO TAX LIABILITY WOULD ARISE, THEREFORE, A NOTE TO THIS EFFECT IS SUFFICIENT COMPLIANCE FOR NON MAINTENANCE OF BOOKS OF ACCOUNTS OR GETTING THE ACCOUNTS AUDITED AND NOT FILING OF RETURN OF INCOME. HOWEVER THE ISSUE RAISED BY LD. AO EQUALLY APPLIES TO LD. AO ALSO WHO PASSED ASSESSMENT ORDER(S). THE LD. AO IS ALSO DUTY BOUND TO MAKE ASSESSMENT IN CONFORMITY OF LAW AND WHEN EVE N ON PROPER DISCLOSURE LD. AO. A DOPTED THE SAME WAY OF CO MPUTATION OF INCOME AS ASSESSEE FOLLOWED AND DID NOT CHOOSE TO DO EXERCISE OF ADDING BACK THE PROVISIONS WHICH ARE CLEARLY DISALLOWANCE UNDER I.T. ACT, 1961 , THE FAULT CANNOT BE FOUND WITH ASSESSEE ONLY. IN THESE FACTS AND CIRCUMSTANCES ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 10 OF THE CASE IT IS TO BE TAKEN THAT THE PROVISIONS FOR SAID EXPENSES MADE IN ACCOUNTS WERE DEEMED TO HAVE BEEN DISALLOWED LIKE IT HAS BEEN DEEMED BY A.O. THAT DEPRECIATION HAS BEEN ALLOWED. ON THESE FACT S OF THE CASE IT CANNOT BE CONCLUDED THAT ASSESSEE CLAIMED PROVISIONS OF EXPENSES IN P& L A/C AND THE SAME WERE ALLOWED IN ASSESSMENT. IN VIEW OF THIS , THE PROVISIONS OF SECTION 41(1) CANNOT BE APPLIED TO ASSESSEE WHEN PART OF CARRIED FORWARD PROVISION FOR EXPENSES WAS WRITTEN BACK IN THIS YEAR IN ACCOUNTS AND TRANSFERRED TO STATUTORY RESERVE FUND. 3. 4 IT WAS SUBMITTED THAT T HE SCOPE OF SECTION 41(1) IS TO BRING TO TAX ANY LOSS, EXPENDITURE OR TRADING LIABILITY ALLOWED IN AN EARLIER ASSESSMENT BUT WHICH IS RECOUPED BY REMISSION OR CESSATION OF SUCH LIABILITY IN A LATER YEAR. IT IS CLEAR THAT DEDUCTION IN AN EARLIER YEAR IS THE PRIMARY CONDITION FOR JURISDICTION UNDER SECTION 41(1). EVEN AN UNILATERAL ENTRY VIDE EXPLANATION 1 WITH EFFECT FROM THE ASSESSMENT Y EAR 1997 - 1998 WOULD ATTRACT LIABILITY UNDER SECTION 41(1), SO THAT ANY CREDIT TO THE PROFIT AND LOSS ACCOUNT OR EVEN A PROPRIETORS ACCOUNT OR RESERVES BY SQUARING UP THE LIABILITY SHOULD ATTRACT TAX UNDER SECTION 41(1) AS LONG AS THE AMOUNT HAD BEEN ALLOW ED AS A DEDUCTION IN COMPUTATION OF TAXABLE INCOME. THE ALLOWANCE OR DEDUCTION IN RESPECT OF LOSS EXPENDITURE OR EXPRESSLY NOT ALLOWABLE INCOME IS DETERMINED AND ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 11 CANNOT BE INFERRED OR CONCLUDED WHILE EXEMPT INCOME IS DETERMINED AS IN THE LATER CASE THEIR A DDITION IS NOT MATERIAL AS EVEN THEREAFTER RESULTANT SUM INCOME WILL BE EXEMPT. 3. 5 IT WAS SUBMITTED THAT T HE FINDINGS OF LD. CIT(A) THAT IT IS NOT DISPUTED BY APPELLANT THAT THE PROVISIONS OF EXPENSES TOTALING TO RS. 1,18,99,651/ - DEBITED IN THE P&L A/C W ERE NOT ADDED BACK IN THE COMPUTATION OF INCOME OF THE RETURNS FILED FOR EARLIER ASSESSMENT YEARS IS NOT CORRECT AS ASSESSEE BANK IS CONSTANTLY CLAIMING THAT THE NOTES GIVEN IN THE COMPUTATION STATEMENT AND RESULTANT ASSESSMENTS MADE IT IS TO BE TAKEN TH AT PROVISIONS FOR EXPENSES MADE IN ACCOUNT WERE DEEMED TO HAVE BEEN DIS ALLOWED. IT WAS ALSO CONSTANTLY CLAIMED THAT THE ALLOWANCE OR DEDUCTION ENVISAGED IN SECTION 41(1) MEANS THAT THE SAME WERE MADE WHILE COMPUTING TAXABLE INCOME BUT WHEN WHOLE INCOME OF ASSESSEE BANK IS EXEMPT THAN THERE CANNOT BE INFERRED ANY ALLOWANCE OR DEDUCTION HAVING BEEN MADE WHILE COMPUTING EXEMPT INCOME. THUS THE ORDER OF LD. CIT(A) IS ON MISAPPRECIATION OF FACTS AND CONTENTIONS MADE BY ASSESSEE BANK. THE ORDER OF LD. CIT(A) THUS SUFFERS FROM INFIRMITY BY WHICH SAID ADDITION WAS UPHELD. 3. 6 IT WAS FINALLY SUBMITTED THAT ON THESE FACTS OF THE CASE AND POSITION OF LAW , THE CONCLUSION OF LD. CIT(A ) AND LD. A.O. THAT PROVISIONS OF EXPENSES WERE CLAI MED BY ASSESSEE BANK IN ITS P & L A/ C ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 12 IN EARLIER YEARS AND SAME WERE ALLOWED IS WRONG, UNWARRANTED AND BAD IN LAW AND, THEREFORE THE ADDITION OF RS. 1,18,99,651/ - UPHELD BY LD. CIT(A) IS ALSO WRONG. THE ADDITION OF RS. 1,18,99,651/ - MADE IN THE INCOME OF ASSESSEE BANK BY INVOKING SEC. 41(1 ) OF I.T. ACT, 61 DESERVES TO BE DELETED . 4. THE LD. DR HAS VEHEMENTLY ARGUED THE MATTER , SUPPORTED THE ORDER OF THE LOWER AUTHORITIES AND HAS RELIED UPON THE FOLLOWING CASE LAWS: 1. GEOTZE (INDIA) LTD. VS. CIT 157 TAXMAN 1 (SC) 2. CHI EF CIT VS. MACHIN E TOOL CORPN O F INDIA LTD. 67 TAXMAN 363 (KAR) 3. SARLA HANDICRAFTS (P) LTD VS. ADDL. CIT 296 ITR 94 (P&H) 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. THE P RINCIPLE CONTENTION RAISED BY THE LD. AR IS THAT THE ASSE SSEE S INCOME FROM ITS BANKI NG BUSINESS WAS WHOLLY EXEMPT U/S 80P(2) OF THE ACT IN THE EARLIER YEARS (PRIOR A.Y 2007 - 08) AND BY WAY OF A NOTE TO THE COMPUTATION OF INCOME FILED WITH RETURN OF EACH OF THE PRIOR ASSESSMENT YEAR S, IT HAS STATED THAT AS INCOM E FROM ITS BAN KING BUSINESS IS WHOLLY EXEMPT U/S 80P(2) OF THE INCOME TAX ACT, IT HAS NOT BEEN CONSIDERED NECESSARY TO DISTURB AND ADD BACK ITEMS OF PROFIT AND LOSS ACCOUNT IN CONFORMITY WITH THE INCOME TAX ACT/ INCOME TAX RULES INCLUDING APP ROPRIATION OF PROFIT IN RESERVE FUNDS . IT WAS SUBMITTED ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 13 THAT THE ASSESSMENT FOR MOST OF THE PRIOR YEARS WERE COMPLETED U/S 143(3) W HEREIN THE RETURN OF INCOME FILED BY THE ASSESSEE WAS ACCEPTED INCLUDING THE ACCEPTANCE OF THE ABOVE SAID NOTE APPENDED TO THE COMPUTATIO N OF INCOME. IT WAS SUBMITTED THAT BY WAY OF SAID NOTE TO THE COMPUTATION OF INCOME, ALL DISALLOWABLE EXPENSES/ DEDUCTION S ETC. WERE DEEMED TO HAVE BEEN CONS IDERED AND ADDED BACK TO THE COMPUTATION OF INCOME AND AS RESULTANT INCOME WOULD HAVE BEEN EXEMPT U /S 80P(2) , EXERCISE OF ADDING ALL DISALLOWABLE EXPENSES/DEDUCTIONS ETC. I N ASSESSMENT WAS NOT DONE. 5.1 IN ORDER TO APPRECIATE THE SAID CONTENTIONS RAISED BY THE LD. AR , I T WOULD BE RELEVANT TO REFER TO THE PROVISIONS OF SECTION 41(1) OF THE ACT WHICH R EADS AS UNDER: - (1) WHERE AN ALLOWANCE OR DEDUCTION HAS BEEN MADE IN THE ASSESSMENT FOR ANY YEAR IN RESPECT OF LOSS, EXPENDITURE OR TRADING LIABILITY INCURRED BY THE ASSESSEE (HEREINAFTER REFERRED TO AS THE FIRST - MENTIONED PERSON) AND SUBSEQUENTLY DURING ANY PREVIOUS YEAR, - (A) THE FIRST - MENTIONED PERSON HAS OBTAINED, WHETHER IN CASH OR IN ANY OTHER MANNER WHATSOEVER, ANY AMOUNT IN RESPECT OF SUCH LOSS OR EXPENDITURE OR SOME BENEFIT IN RESPECT OF SUCH TRADING LIABILITY BY WAY OF REMISSION OR CESSATION THE REOF, THE AMOUNT OBTAINED BY SUCH PERSON ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 14 OR THE VALUE OF BENEFIT ACCRUING TO HIM SHALL BE DEEMED TO BE PROFITS AND GAINS OF BUSINESS OR PROFESSION AND ACCORDINGLY CHARGEABLE TO INCOME - TAX AS THE INCOME OF THAT PREVIOUS YEAR, WHETHER THE BUSINESS OR PROFESS ION IN RESPECT OF WHICH THE ALLOWANCE OR DEDUCTION HAS BEEN MADE IS IN E XISTENCE IN THAT YEAR OR NOT 5.2 HERE IT WOULD BE RELEVANT TO THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN CASE OF CIT VS. BHARAT IRON AND STEEL INDUSTRIES 199 ITR 67 WHEREIN TH E HONBLE HIGH COURT HAS HELD AS UNDER: THE KEY WORDS IN SECTION 41(1) ARE 'THE ASSESSEE HAS OBTAINED, WHETHER IN CASH OR IN ANY OTHER MANNER WHATSOEVER, ANY AMOUNT IN RESPECT OF SUCH LOSS OR EXPENDITURE OR SOME BENEFIT IN RESPECT OF SUCH TRADING LIABILI TY BY WAY OF REMISSION OR CESSATION THEREOF. IT IS THE OBTAINING IN 'CASH OR IN ANY OTHER MANNER WHATSOEVER, ANY AMOUNT... OR SOME BENEFIT IN RESPECT OF SUCH TRADING LIABILITY...' WHICH IS CONTEMPLATED BY THE LEGISLATURE WHEN IT USED THE WORDS 'HAS OBTAINE D'. SECTION 41(1) INTRODUCES A FICTION BY WHICH AN ALLOWANCE OR DEDUCTION WHICH HAS BEEN MADE IN THE ASSESSMENT FOR ANY YEAR IN RESPECT OF LOSS, EXPENDITURE OR TRADING LIABILITY INCURRED BY THE ASSESSEE, AND SUBSEQUENTLY, DURING ANY PREVIOUS YEAR THE ASSES SEE HAS OBTAINED, WHETHER IN CASH OR IN ANY OTHER MANNER WHATSOEVER ANY AMOUNT IN RESPECT OF SUCH LOSS OR ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 15 EXPENDITURE OR SOME BENEFIT IN RESPECT OF SUCH TRADING LIABILITY BY WAY OF REMISSION OR CESSATION THEREOF, THE AMOUNT OBTAINED BY HIM OR THE VALUE OF BENEFIT ACCRUING TO HIM, SHALL BE DEEMED TO BE PROFITS AND GAINS OF THE BUSINESS OR PROFESSION AND, ACCORDINGLY, CHARGEABLE TO INCOME - TAX AS INCOME OF THAT PREVIOUS YEAR, WHETHER THE BUSINESS OR PROFESSION IN RESPECT OF WHICH THE ALLOWANCE OR DEDUCTION HAS BEEN MADE IS IN EXISTENCE IN THAT YEAR OR NOT. THE FICTION IS AN INDIVISIBLE ONE. IT CANNOT BE ENLARGED BY IMPORTING ANOTHER FICTION, NAMELY, THAT IF THE AMOUNT WAS OBTAINABLE OR RECEIVABLE DURING THE PREVIOUS YEAR, IT MUST BE DEEMED TO HAVE BEEN OBTAINED OR RECEIVED DURING THAT YEAR. 5.3 A PPLYING THE SAME ANALOGY TO THE FIRST LIMB OF SECTION 41(1) WHICH TALKS ABOUT ANY ALLOWANCE OR DEDUCTION MADE IN THE ASSESSMENT FOR ANY YEAR IN RESPECT OF LOSS, EXPENDITURE OR TRADING LIABILITY INCURRED BY THE ASSESSE E, IT MEANS THE ACTUAL DEDUCTION WHICH HAS BEEN CLAIMED/ MADE IN THE COMPUTATION OF INCOME AND THEREAFTER UPHELD IN THE ASSESSMENT ORDER FOR THE RELEVANT ASSESSMENT YEAR. THE SAME CANNOT BE EXTENDED TO INCLUDE ANY LOSS, EXPENDITURE OR TRADING LIABILITY DE EMED TO HAVE BEEN CLAIMED AND ALLOWED TO THE ASSESSEE. EXTENDING THE SAID ANALOGY FURTHER, IT CANNOT BE SAID THAT CERTAIN EXPENDITURE THOUGH CLAIMED INITIALLY IN THE PROFIT/LOSS ACCOUNT WERE DEEMED TO HAVE ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 16 BEEN DISALLOWED EITHER IN THE COMPUTATION OF INCO ME BY THE ASSESSEE OR SUBSEQUENTLY BY THE AO IN THE ASSESSMENT ORDER. FURTHER, THE NOTE TO THE COMPUTATION OF INCOME IS TOTALLY SILENT ABOUT NATURE AND QUANTUM OF PROVISIONS FOR ADMINISTRATIVE EXPENSES WHICH HAS BEEN MADE SUBJECT MATTER OF SECTION 41(1) O F THE ACT. UNLESS AND UNTIL THERE IS ONE TO ONE CORRELATION BETWEEN THE EXPENSES DISALLOWED EARLIER AND BENEFIT OBTAINED NOW BY WAY OF REVERSAL OF SUCH PROVISION FOR EXPENSES , IT CANNOT BE HELD THAT THE PROVISIONS OF SECTION 41(1) ARE NOT APPLICABLE. TH ERE FORE, THE ABOVE SAID CONTENTION OF THE LD AR IN RESPECT OF DEEMED DISALLOWANCE OF THE PROVISIONS OF EXPENSES BY WAY OF A NOTE IN THE COMPUTATION OF INCOME AND HENCE, NOT APPLICABILITY OF SECTION 41(1) CANNOT BE ACCEPTED. 5.4 NOW COMING TO THE 2 ND CONT ENTION RAISED BY THE LD. AR THAT ALLOWANCE AND DEDUCTION IN RESPECT OF LOSS OR EXPENDITURE IN THE CONTEXT OF SECTION 41(1) CAN ONLY BE INFERRED IF TAXABLE INCOME IS DETERMINED AND IT CANNOT BE INFERRED OR CONCLUDED WHILE EXEMPTED INCOME IS DETERMINED AS IN THE LATER CASE THE ADDITION IS NOT MATERIAL AS RESULTANT INCOME WILL BE EXEMPT U/S 80 P(2 ) OF THE ACT . IN OTHER WORDS, THE CONTENTION OF THE AR IS THAT THE EMPHASIS ON ALLOWANCE/DEDUCTION IN SECTION 41(1) MEANS THAT THE SAME ARE MADE WHILE COMPUTED TAXABL E ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 17 INCOME BUT WHEN WHOLE INCOME OF ASSESSEE BANK IS EXEMPT THEN THEY CANNOT BE INFERRED ANY ALLOWANCE/DEDUCTION HAVING MADE WHILE COMPUTING EXEMPT INCOME. 5.5 WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE SAID CONTENTION RAISED BY THE LD. AR BUT WE ARE UN ABLE TO ACCEPT THE SAME . S ECTION 41(1) TALKS ABOUT ALLOWANCE S /DEDUCTION S WHICH HAS BEEN MADE IN THE ASSESSMENT FOR ANY YEAR IN RESPECT OF LOSS , EXPENDITURE OR TRADING LIABILITY INCURRED BY THE ASSESSEE . T HE SAID ALLOWANCE/DEDUCTION U/S 41(1) HAS NOT BEEN MADE SUBJECT TO DEDUCTION UNDER CHAPTER - VIA OF THE ACT AS CLAIMED LD. AR. IF THE CONTENTION RAISED BY THE LD. AR IS ACCEPTED , THEN IT LEADS TO THE SITUATION WHERE NO ALLOWANCE O R DEDUCTION WILL HAVE B E CLAIMED BY THE ASSESSEE AND FURTHER, IN SUCH CIRCUMST ANCES, PROVISIONS OF SECTION 41(1) CANNOT BE INVOKED WHERE AN ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER CHAPTER - VI - A OF THE ACT. IN OUR VIEW, THE SAID CONTENTION OF THE LD AR WILL MAKE SECTION 41(1) INFRUCTOUS IN SUCH CASES. 5.6 NOW COMING TO CHAPTER VI - A WHICH CONTAINS SECTION 80P WHEREIN THE ASSESSEES INCOME WAS HELD ELIGIBLE FOR DEDUCTION PRIOR TO THE IMPUNGED ASSESSMENT YEAR. SECTION 80P(1) PROVIDES THAT WHEREIN THE ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 18 CASE OF THE ASSESSEE BEING CO - OPERATIVE SOCIETY , THE GROSS TOTAL INCOME INCLUDES ANY INCOME REFERRED IN SECTION (2) , T HEY SHALL BE DEDUCT ED, IN ACCORDANCE WITH AND SUBJECT TO PROVISIONS OF THIS SECTION , THE S UM SPECIFIED IN S UB - SECTION (2) , IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE. THE EMPHASIS, THEREFO RE, IS ON THE INCOME WHIC H IS INCLUDED IN GROSS TOTAL INCOME OF THE ASSESSEE. IN THI S REGARD, S ECTION 80 AB OF THE ACT PROVIDES NECESSARY GUIDANCE WHICH READS AS UNDER: - WHERE ANY DEDUCTION IS REQUIRED TO BE MADE OR ALLOWED UNDER ANY SECTION INCLUDED IN THIS CHAPTER UNDER THE H EADING C - DEDUCTIONS IN RESPECT OF CERTAIN INCOMES IN RESPECT OF ANY INCOME OF THE NATURE SPECIFIED IN THAT SECTION WHICH IS INCLUDED IN THE GROSS TOTAL INCOME OF THE ASSESSEE, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN THAT SECTION, FOR THE PURPOSE OF C OMPUTING THE DEDUCTION UNDER THAT SECTION, THE AMOUNT OF INCOME OF THAT NATURE AS COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT (BEFORE MAKING ANY DEDUCTION UNDER THIS CHAPTER) SHALL ALONE BE DEEMED TO BE THE AMOUNT OF INCOME OF THAT NATURE WHICH IS DERIVED OR RECEIVED BY THE ASSESSEE AND WHICH IS INCLUDED IN HIS GROSS TOTAL INCOME. 5.7 IN LIGHT OF ABOVE DISCUSSIONS , IT IS CLEAR THAT THE INCOME THAT IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80P HAS TO BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS O F ACT AND WHICH INCLUDES SECTION 41(1) OF THE ACT. THEREFORE, FIRSTLY THE INCOME HAS TO BE COMPUTED TAKING INTO CONSIDERATION THE PROVISIONS OF SECTION 41(1) OF THE ACT AND THEREAFTER, THE DEDUCTION UNDER S ECTION 80P HAS TO BE DETERMINED. IT MAY SO HAPPE N THAT THE WHOLE OF THE INCOME SO COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT IS HELD ELIGIBLE FOR DEDUCTION UNDER SECTION 80P ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 19 OF THE ACT HOWEVER, THE SAME CANNOT BE A BASIS TO HOLD THAT PROVISIONS OF SECTION 41(1) ARE NOT APPLICABLE. THERE COUL D ALSO BE SITUATIONS WHERE THE BUSINESS WHICH IS ELIGIBLE FOR SECTION 80P IS NO MORE IN EXISTENCE AND THE ASSESSEE HAS OBTAINED SOME BENEFIT, PROVISION OF SECTION 41(1) CONTINUES TO APPLY. SIMILARLY, WHERE THE ASSESSEE CONTINUES TO CARRY ON THE SAME BUSIN ESS BUT IN THE LATER YEARS, IT IS NOT ELIGIBLE FOR SECTION 80P DUE TO AMENDMENT IN THE LAW AS HAS HAPPENED IN THE INSTANT CASE, IT CANNOT BE HELD THAT THE PROVISIONS OF SECTION 41(1) ARE NOT APPLICABLE. THE PROVISIONS OF THE ACT , T HEREFORE, HAVE TO BE REA D HARMONIOUSLY AND IN SUCH A MANNER THAT NONE OF THE PROVISIONS ARE RENDERED INFRUCTUOUS . IN LIGHT ABOVE DISCUSSIONS, WE DO NOT SEE ANY INFIRMITY IN THE ORDER OF THE AO WHO HAS RIGHTLY FOLLOWED THE DIRECTIONS OF THE COORDINATE BENCH AND THE ORDER OF THE L D. CIT(A) WHICH IS HEREBY CONFIRMED . THE GROUND TAKEN BY THE ASSESSEE IS THUS DISMISSED. I N THE RESULT , APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 / 0 4 /2017 . SD/ - SD/ - DQY HK KJ R FOE FLAG ;KNO ( KUL BHARAT ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED: - 17 /04 /2017. ITA NO.266 /JP/201 3 M/S THE RAJASTHAN STATE CO - OPERATIVE BANK LTD VS. ASSISTANT COMMISSIONER OF INCOME TAX 20 * GANESH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE A PPELLANT - THE RAJASTHAN STATE CO - OPERATIVE BANK 2. IZR;FKHZ@ THE RESPONDENT - A.C.I.T . 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 266 /JP/201 3 } VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR