Punjab National Bank, New Delhi V. ACIT, New Delhi

ITA 3843/DEL/2010

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2822 (ITAT-DELHI)
• Duration Of Justice: 7 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2006-2007
• Appeal Filed On: 12-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K SAMPATH SMT PARAMITA TRI
• Keywords: Capital asset; Business income; Depreciation; Business expenditure; Period of limitation; Cost of acquisition; Date of conversion; Fair market value; Bad and doubtful debts; Time period of passing order; Revenue expenditure; Capital expenditure
• Section: 45(2); 43B; 2(14); 14A; 28; 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE MR. N.S. SAINI , ACCOUNTANT MEMBER AND MR S. SUCHITRA KAMBLE , JUDICIAL MEMBER ITA N O. 3843 /DEL/201 0 A SSESSMENT YEAR: 20 06 - 07 PUNJAB NATIONAL BANK HO ACCOUNTS & TAXATION DEPTT., HO: 5 - SANSAD MARG, NEW DELHI VS. ACIT RANGE - 14 C.R. BUILDING, NEW DELHI PAN : AAACP0165G (APPELLANT) (RESPONDENT) ITA N O. 4241 /DEL/201 0 A SSESSMENT YEAR: 20 06 - 07 ACIT, CIRCLE. 14(1), ROOM NO. 415, 4 TH FLOOR, C.R. BUILDING, NEW DELHI VS. PUNJAB NATIONAL BANK HO ACCOUNTS & TAXATION DEPTT., HO: 5 - SANSAD MARG, NEW DELHI PAN : AAACP0165G (APPELLANT) (RESPONDENT) O R D E R PER N.S. SAINI , AM . : 1. THESE ARE THE CROSS APPEALS FILED BY THE ASSESSEE AND REVENUE AGAINS T THE ORDER OF THE LEARNED CIT(A) - XVII , NEW DELHI DATED 14.6.2010 . 2 . WE FIRST TAKE UP THE ASSESSEE S APPEAL. ASSESSEE BY SH. K. SAMPATH, ADVOCATE RESPONDENT BY SMT. PARAMITA TRIPATHY, CIT (DR) DATE OF HEARING 13.03.2 018 DATE OF PRONOUNCEMENT 16 .03.2018 2 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 3 . THE ASSESSEE HAS RAISED THE FOLLOWING ADDITIONAL GROUNDS OF APPEAL WHICH READS AS UNDER: - I. ON THE FACTS, IN THE CIRCUMSTANCES AND IN LAW, THE BANK SHOULD HAVE BEEN ALLOWED DEDUCTION OF RS. 121.30 C R ORE INCURRED ON ACCOUNT OF C ONTRIBUTION TO PENSION FUND. IT IS PRAYED THAT DEDUCTION OF RS. 121.30 CRORE BE ALLOWED. II. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED TO DIRECT THE ASSESSING OFFICER TO VERIFY THE WORKING OF DISALLOWANCES UNDER SECTION 14A AS PER RUL E 8D AND TO RESTRICT THE ADDITION AS PER RULE 8D WHEREAS RULE 8D IS NOT APPLICABLE ON US. IT IS PRAYED THAT THE ADDITION BEING UNWARRANTED BE DELETED. 4 . AT THE TIME OF HEARING, THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT HE IS NOT PRESSING THESE GROU NDS OF APPEAL AND ALSO MADE ENDORSEMENT TO THIS EFFECT ON THE COPY OF THE ADDITIONAL GROUND OF APPEAL FILED BEFORE THE TRIBUNAL. HENCE, THEY ARE DISMISSED FOR WANT OF PROSECUTION. 5 . GROUND NO. 1 AND 3OF THE APPEAL ARE GENERAL IN NATURE AND HENCE REQUIRED NO SEPARATE ADJUDICATION BY US. 6 . GROUND NO. 2 OF THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A) CONFIRMING THE ORDER OF THE AO TREATING PROFIT ON SALE OF HELD TO MATURITY CATEGORY SECU RITIES OF RS. 27,27,44,102/ - AS BUSINESS INCOME WHICH WAS OFFERED FOR TAX UNDER THE HEAD CAPITAL GAINS. 7 . THE FACTS OF THE CASE, ARE THAT, THE ASSESSEE CLAIMED DEDUCTION OF RS. 27,27,44,102/ - FROM BUSINESS INCOME ON ACCOUNT OF PR OFIT ON SALE SECURITIES ON HE LD TO MATURITY CATEGORY. THE SAME WAS OFFERED TO TAX AS SHORT TERM AND LONG TERM CAPITAL GAINS IN THE COMPUTATION OF INCOME AS UNDER: - 3 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 CAPITAL GAINS AMOUNT (RS.) SHORT TERM @30% 4,35,43,224 LONG TERM @10% 22,92,00,878 TOTAL 27,27,44,102 THE AO OBSERVED THAT THOUGH THE SECURITIES ON WHICH THE ABOV E MENTIONED DEDUCTION WAS CLAIMED WAS CLASSIFIED AS HELD TILL MATURITY (HTM) , THESE WERE SOLD BEFORE THE DATE OF MATURITY. ACCORDING TO THE AO, THE TREATMENT GIVEN BY THE ASSESSEE BANK TO SECURITIES HELD AS HTM CATEGORY IS NOT IN ACCORDANC E WITH IAS 39. AC CORDING TO HIM IN THE CASE OF THE ASSESSEE BANK PROFIT ON SALE OF INVESTMENTS ON HELD TO MATURITY CATEGORY HAVE BEEN SHOWN AS BUSINESS PROFIT IN THE BOOKS OF ACCOUNTS. HE OBSERVED THAT THE ASSESSEE HAS ALSO FAILED TO SUBSTANTIATE THAT THE INVESTMENTS IN QUESTION WERE REALLY BELONGED TO HELD TO MATURITY CATEGORY. THE MAGNITUDE AND NATURE OF TRANSACTIONS IN THE LIGHT OF ABOVE PRINCIPLES IS TO EARN PROFIT ON SUCH SALE AND PURCHASE. ACCORDING TO THE AO THE ASSESSEE HAS BEEN CLAIMING BROKEN PERIOD INTEREST O N SUCH INVESTMENTS AS REVENUE EXPENDITURE . ACCORDINGLY , THE AO ASSESSED IT AS BUSINESS INCOME INSTEAD OF CAPITAL GAIN. 8 . ON APPEAL BEFORE THE LEARNED CIT ( A), THE ASSESSEE SUBMITTED THAT THE BANK IS ENGAGED IN BUSINESS OF BANKING AND AS A PART OF ITS B ANKING BUSINESS, IT ALSO UNDERTAKES THE INVESTMENT ACTIVITIES. IN TERMS OF RBI GUIDELINE S, THE INVESTMENTS HAVE BEEN CLASSIFIED BY THE BANK INTO CURRENT AND PERMANENT CATEGORY UNTIL OCTOBER 2000 WHEN THE GUIDELINES WERE 4 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 REVISED BY THE RBI AND NEW CLASSIFIC ATION WAS STIPULATED FOR ALL THE BANKS UNDER THE FOLLOWING CATEGORIES: - I. HELD TO MATURITY [CAPITAL ASSEETS] II. HELD TO TRADING [STOCK IN TRADE] III. AVAILABLE FOR SALE [STOCK IN TRADE] 9 . THE ASSESSEE WAS CONSISTENTLY FOLLOWING THE RBI GUIDELINES OVER THE YEARS IN PREPARATION AND PRESENTATION OF ITS FINANCIAL STATEMENTS AND HAS ALSO ADOPTED THEM IN ITS OWN METHOD OF ACCOUNTING WHICH IS REFLECTED IN SIGNIFICANT ACCOUNTING POLICY DISCLOSED BY THE BANK. ACCORDINGLY, PROFIT OR LOSS IN RELATION TO ALL THE INVESTMENTS INCLUDING THE CATEGORIES UNDER THE HELD TO MATURITY HAS BEEN TAKEN TO PROFIT & LOSS A/C AS PER RBI GUIDELINES. RBI ISSUED A CIRCULAR NO. DBOD. NO. BPBC. 11/21.04.141/2004 - 05 DATED JULY 17, 2004 GIVING GUIDELINES IN RESP ECT OF VALUATION OF SECURITIES HELD UNDER HELD TO MATURITY CATEGORY. THE CIRCULAR STIPULATES THAT VALUATION OF HELD TO MATURITY SECURITIES SHALL BE MADE AS UNDER: - I. INVESTMENTS CLASSIFIED UNDER HELD TO MATURITY CATEGORY NEED NOT BE MARKED TO MARKET AND WILL BE CARRIED AT ACQUISITION COST UNLESS IT IS MORE THAN THE FACE VALUE, IN WHICH CASE THE PREMIUM SHOULD BE AMORTIZED OVER THE PERIOD REMAINING TO MATURITY. II. BANKS SHOULD RECOGNIZE ANY DIMINUTION, OTHER THAN TEMPORARY, IN THE VALUE OF THE IR INVESTMENTS IN SUBSIDIARIES/JOINT VENTURES WHICH ARE INCLUDED UNDER HELD TO MATURITY CATEGORY AND PROVIDE THEREOF. SUCH DIMINUTION SHOULD BE DETERMINED AND PROVIDED FOR EACH INVESTMENT INDIVIDUALLY. FURTHER, IN THE BALANCE SHEET FOR THE PREVIOUS END ED 3 1 ST MARCH, 2006, IN SCHEDULE 17 - SIGNIFICANT ACCOUNTING POLICIES, ON PAGE NO. 71 THE POLICY FOR VALUATION OF INVESTMENT IN DIFFERENT CATEGORIES IS DISCLOSED. VALUATION OF INVESTMENT HELD UNDER HTM CATEGORY VALUED AS VALUED AT ACQUISITION COST UNLESS MORE THAN THE FACE/MATURITY VALUES, IN WHICH CASES THE PREMIUM IS AMORTIZED OVER THE REMAINING YEARS TO MATURITY. 5 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 THE ASSESSEE FURTHER CONTENDED THAT SUBMISSIONS HAVE BEEN MADE BEFORE THE AO DURING ASSESSMENT PROCEEDINGS THAT THE BANK TREATS INVESTMENT UNDER HTM CATEGORY AS CAPITAL ASSET AND OFFERS THE SAME FOR TAXATION UNDER THE HEAD CAPITAL GAINS . THE AO HAS OBSERVED AS UNDER: - WHETHER ANY ASSET IS STOCK IN TRADE OR CAPITAL ASSET DEPENDS UPON A NUMBER OF FACTORS AND DOMINANTLY DEPENDS UPON THE INTENTION OF THE OWNER OF THE ASSET. IF THE INTENTION OF HOLDING FOR THE ASSET IS TO EARN INCOME THERE FROM BY WAY OF INTEREST, DIVIDEND OR OTHERWISE AND TO HAVE A CAPITAL APPRECIATION IN ITS VALUE, THEN SUCH ASSETS ARE TO BE CONSIDERED AS CAPITAL ASSET WITHIN THE M EANING OF SECTION 2(14) OF THE INCOME TAX ACT, 1961. THEREFORE, PROFIT ON SALE OF HTM SECURITY HAS BEEN DEDUCTED FROM THE HEAD PROFIT OR GAINS FROM BUSINESS & PROFESSIONS AND THE SAME IS OFFERED FOR TAXATION UNDER THE HEAD CAPITAL GAINS. 10 . IT WAS FUR THER SUBMITTED THAT AS PER PARAGRAPH 1.2.4 OF THE MASTER CIRCULAR OF RBI, BANK CAN SELL ITS SECURITIES DIRECTLY FROM ANY OF THE CATEGORY. THERE IS NO COMPULSION THAT SECURITIES HELD UNDER HELD TO MATURITY SHOULD FIRST BE CONVERTED IN AVAILABLE FOR SALE C ATEGORY FOR THE PURPOSE OF RETAILING THE SECURITIES. THIS OPTION IS AVAILABLE, AS BANKS ARE ALLOWED TO INCLUDE INVESTMENTS INCLUDING UNDER HELD TO MATURITY CATEGORY UP TO 25% OF THEIR TOTAL INVESTMENTS. THE CONTENTS OF PARA 2.3 OF THE MASTER CIRCULAR OF RBI SAYS THAT RBI GIVES THE BANK AN OPTION FOR SHIFTING OF SECURITIES AMONG AVAILABLE CATEGORIES. THEREFORE, BANKS MAY SHIFT INVESTMENTS TO / FROM HELD TO MATURITY CATEGORY WITH THE APPROVAL OF THE BOARD OF DIRECTORS ONCE IN A YEAR. 6 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 11 . IT WAS FURTHER ARGU ED THAT THOUGH POLICIES OF THE BANK ARE IN CONFORMITY WITH THE GUIDELINES OF RESERVE BANK OF INDIA, THESE ARE NOT IN CONFORMITY WITH THE INCOME TAX ACT IS NOT CORRECT. 12 . THE A SSESSEE FURTHER STATED THAT THE AO ON THE ONE HAND HAS TREATED HELD TO MATURIT Y CATEGORY AS STOCK - IN - TRADE, ON THE OTHER HAND WHILE MAKING DISALLOWANCE OF LOSS ON REVALUATION OF INVESTMENTS AND SECURITY TRANSACTION TAX, HE HAS TREATED HELD TO MATURITY AS CAPITAL ASSETS. ACCORDING TO THE ASSESSEE, THE AO HAS TAKEN TWO CONTRADICTOR Y STANDS IN THE SAME ASSESSMENT ORDER. 13 . THE LEARNED CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE HELD AS UNDER: - I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND HAVE PERUSED THE ORDER OF THE AO AND THE SUBMISSIONS MADE BY THE APPELL ANT. THERE IS NO DENYING THE FACT THAT THE SECURITIES IN QUESTION WERE HELD BY THE APPELLANT BANK IN HTM CATEGORY FOLLOWING THE RBI GUIDELINES. SINCE THESE SECURITIES WERE HELD AS LONG TERM INVESTMENT; THE SAME WERE IN THE NATURE OF CAPITAL ASSETS. HOWEVER , ON GOING THROUGH THE DETAILS OF TRANSACTION OF THESE SECURITIES, I FIND THAT THERE HAS BEEN FREQUENT TRADING IN THESE SECURITIES. IN OTHER WORDS, IT IS NOT A CASE WHERE THE SAID SECURITIES WERE SOLD ON ONE OR TWO OCCASIONS DURING THE YEAR. IT IS A SETTLE D POSITION OF LAW THAT THE NATURE OF TRANSACTIONS IS TO BE DECIDED BASED ON THE FREQUENCY OF TRANSACTIONS AND THE CONDUCT OF THE APPELLANT AND NOT MERELY ON THE BASIS OF THE INTENTION AT THE TIME OF PURCHASE. IN THE INSTANT CASE, THE PRESENCE OF FREQUENT T RADING IN THESE SECURITIES INDICATES THAT THE PROFITS ARISING ON SUCH TRANSACTIONS ARE IN THE NATURE OF BUSINESS PROFITS. THE RBI HAS PRESCRIBED CERTAIN BROAD GUIDELINES IN RESPECT OF THE CLASSIFICATION OF SECURITIES INTO THREE CATEGORIES. HOWEVER, THERE I S NO EXPRESS BAR ON CONVERSION OF SECURITIES FROM ONE CATEGORY TO ANOTHER CATEGORY; THE ONLY REQUIREMENT IS THAT CERTAIN INTERNAL FORMALITIES HAVE TO BE FOLLOWED BY THE BOARD OF DIRECTORS OF THE COMPANY. I, THEREFORE, HOLD THAT THE PROFIT ARISING ON SALE O F INVESTMENT HELD UNDER HTM CATEGORY SHOULD BE TREATED AS BUSINESS INCOME AND ACCORDINGLY THERE IS NO REASON TO INTERFERE WITH THE VIEW OF THE AO. THIS GROUND OF APPEAL IS REJECTED . 7 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 14 . THE AR REITERATED THE SUBMISSIONS OF MADE BEFORE THE LEARNED CIT(A). ON THE OTHER HAND, THE LEARNED DR RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 15 . WE FIND THAT THE LEARNED AR OF THE ASSESSEE COULD NOT CONTROVERT THE FINDING OF THE LEARNED CIT(A). HE COULD NOT POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE LEARNED CIT(A). FURTHER, IT IS OBSERVED THAT THE ASSESSEE HAS TREATED THESE SECURITIES AS STOCK - IN - TRADE AND CLAIMED DEDUCTION OF LOSS ARISING OUT OF THE VALUATION OF SECURITIES AT THE YEAR END ON THE BASIS OF COST OR MARKET PRICE WHICHEVER IS LOWER BASIS FROM TH E BUSINESS INCOME. HENCE, WE FIND NO GOOD REASONS TO INTERFERE WITH THE ORDER OF THE LEARNED CIT(A). IT IS CONFIRMED. THE GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 16 . GROUND NO. 3 OF THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEA RNED CIT(A) CONFIRMING THE ACTION OF AO IN DISALLOWING THE LOSS OF RS. 10,06,04,870/ - BEING THE BUSINESS LOSS ON CONVERSION OF CAPITAL ASSET INTO STOCK IN TRADE. 17 . THE BRIEF FACTS , OF THE CASE, ARE THAT THE ASSESSING OFFICER OBSERVED THAT IN THE ABSENCE OF COST OF ACQUISITION AND SELLING PRICE, IT IS NOT KNOWN AS TO HOW THE FIGURES OF BUSINESS LOSS OF RS. 10,06,04,870/ - HAS BEEN ARRIVED AT. IF THERE WAS ANY SUCH LOSS, IF SHOULD HAVE BEEN BOOKED IN THE BOOKS OF ACCOUNTS. IT IS NOT KNOWN WHETHER THE LOSS O F RS. 10,06,04,870/ - IS OVER AND ABOVE THE LOSSES CLAIMED IN THE BOOKS OF ACCOUNT. THE AO OBSERVED THAT THE ASSESSEE WAS ASKED TO FURNISH SUCH DETAILS TIME AND AGAIN 8 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 AS TO HOW THE CAPITAL GAIN OF RS. 31,02,16,914/ - AS WELL AS THE BUSINESS LOSS OF RS. 10,06 ,04,870/ - WAS DERIVED BUT THE ASSESSEE COULD NOT GIVE THE DETAILS AT ALL. THE AO FURTHER STATED THAT ONCE THE HELD TO MATURITY CATEGORY SECURITY IS CONVERTED INTO AVAILABLE FOR SALE, IT WILL SUFFER TWO INCIDENCE OF TAX ON THE DATE OF SALE. THE FIRST INCIDE NCE OF TAX WOULD BE THE RESULT OF APPLICATION OF SECTION 45(2) WHICH PROVIDES FOR ONCE CAPITAL ASSET IS CONVERTED INTO STOCK - IN - TRADE, CAPITAL GAIN WOULD BE TAXABLE AND SALE CONSIDERATION WOULD BE THE MARKET VALUE ON THE DATE OF CONVERSION. ONCE THE CAPITA L ASSET I S CONVERTED INTO STOCK - IN - TRADE, IT WILL SUFFER ANOTHER INCIDENCE OF TAX UNDER SECTION 28 AS NORMAL BUSINESS INCOME WHERE THE COST OF ACQUISITION WILL BE THE COST OF SECURITY AND THE SALE CONSIDERATION WILL BE SALE PRICE, THE DIFFERENCE BETWEEN SA LE PRICE AND COST PRICE EQUAL BUSINESS INCOME. ACCORDING TO THE AO, IN THIS CASE, THE ASSESSEE HAS FAILED TO SUBSTANTIATE THE CLAIM AND HAS NOT FURNISHED THE DETAILS OF COST OF ACQUISITION AND THE SELLING PRICE EITHER IN THE RETURN OR DURING THE ASSESSMENT PROCEEDINGS. THE LOSS OF RS. 10,06,04,870/ - IS CLAIMED IN THE COMPUTATION OF INCOME BUT IS NOT BOOKED IN THE BOOKS OF ACCOUNTS. 18 . ON APPEAL BEFORE THE LEARNED CIT(A), THE ASSESSEE SUBMITTED THAT FULL DETAILS WERE PROVIDED TO THE AO. THE CAPITAL GAIN HA S BEEN WORKED OUT BY DEDUCTING THE COST OF SECURITIES FROM FAIR MARKET VALUE OF THE SECURITIES ON THE DATE OF CONVERSION OF CAPITAL ASSETS INTO STOCK - IN - TRADE. BUSINESS LOSS OF RS. 10,06,04,870/ - ARISING OUT OF SALE OF SUCH CONVERTED STOCK HAS BEEN 9 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 CLAIMED AS ALLOWABLE DEDUCTION UNDER THE HEAD BUSINESS INCOME. THE ASSESSEE FURTHER STATED THAT ALTHOUGH THE AO HAS NOT ALLOWED BUSINESS LOSS ARISING ON CONVERSION OF CAPITAL ASSETS INTO STOCK - IN - TRADE BUT HAS ACCEPTED CAPITAL GAINS AS OFFERED BY THE ASSESSEE ON CONVERSION. BOTH CAPITAL GAINS AND BUSINESS INCOME ORIGINATE FROM THE SAME TRANSACTION. AND THE ASSESSEE ACCEPTING ONE PART OF SECTION 45(2) AND REJECTING OTHER PART IS ITSELF A FIT CASE FOR QUASHING OF DISALLOWANCE MADE BY THE AO. 19 . THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE HELD AS UNDER: - I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE ID. AR AND PERUSED THE ORDER OF THE AO. IN THIS REGARD, IT WILL BE RELEVANT TO CONSIDER THE PROVISIONS OF SECTION 45(2) WHICH ARE RE PRODUCED AS UNDER: '45(2) NOTWITHSTANDING ANYTHING CONTAINED IN SUB - SECTION(L), THE PROFITS OR GAINS ARISI NG FROM THE TRANSFER BY WAY OF CONVERSION BY THE OWNER OF A CAPITAL ASSET INTO, OR ITS TREATMENT BV HIM AS STOCK - IN - TRADE OF A BUSINESS CARRIED ON BY HIM SHALL BE CHARGEABLE TO INCOME - T AX AS HIS INCOME OF THE PREVI OUS YEAR IN WHICH SUCH STOCK - IN - TRADE IS SOLD OR OTHERWISE TRANSFERRED BY HIM AND, FOR THE PURPOSES OF SECTION 48, THE FAIR MARKET VALUE OF THE ASSET ON THE DATE OF SUCH CONVERSION OR TREATMEN T SHALL BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER OF THE CAPITAL ASSET.' A PLAIN LOOK AT THE ABOVE PROVISIONS MAKES IT CLEAR THAT IT IS A DEEMING PROVISION WHICH CREATES A LEGAL FICTION FOR THE PURPOSE OF TAXING THE CAPITAL GAIN. THERE MAY NOT BE ACTUAL GAIN BUT THE PROVISION MAKES IT MANDATORY FOR ITS CHARGEABILITY. ON THE OTHER HAND, BUSINESS LOSS OR PROFIT IS TO BE CONSIDERED AS PER PROVISIONS OF SECTION 28 WHEN THE ACTUAL SALE TAKES PLACE. THE AO HAS GIVEN A FINDING THAT THE APPELLANT HAS FAILED TO SUBSTANTIATE CLAIM OF BUSINESS LOSS AND HAS NOT BEEN ABLE TO FURNISH THE DETAILS OF COST OF ACQUISITION AND THE SELLING PRICE EITHER IN THE RETURN OF INCOME OR DURING THE ASSESSMENT PROCEEDINGS. THE TAX AUDIT REPORT ALSO STATES THAT COST OF ACQUISITION IS NOT ASCERTAINED SEPARATELY. THE AO HAS FURTHER MENTIONED THAT THE LOSS SO BEEN CLAIMED ONLY IN THE COMPUTATION OF INCOME FILED WITH 10 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 THE RETURN. THE CONTENTION OF THE APPELLANT THAT T HE ACTION OF THE AO IS CONTRADICTORY IN AS MUCH AS HE HAS NOT ALLOWED BUSINESS LOSS ARISING ON CONVERSION OF CAPITAL ASSET INTO STOCK - IN - TRADE BUT HAS ACCEPTED CAPITAL GAIN, IS NOT CORRECT. AS DISCUSSED ABOVE, SECTION 45(2) CREATES A LEGAL FICTION FOR TAXI NG CAPITAL GAIN ON NOTIONAL BASIS AS THAT PROVISION IS A DEEMING PROVISION. HOWEVER, SECTION 45(2) IS NOT APPLICABLE FOR BUSINESS LOSS OR BUSINESS PROFIT. BUSINESS LOSS OR BUSINESS PROFIT IS DIFFERENT FROM CAPITAL GAIN AS THE SAME IS TAXED AT A DIFFERENT R ATE. IN ORDER TO CLAIM A BUSINESS LOSS AS A DEDUCTION, THE APPELLANT MUST SHOW THAT IT HAS ACTUALLY SUFFERED THAT LOSS. IN THE CASE UNDER CONSIDERATION, THE APPELLANT HAS FAILED TO PRODUCE ANY EVIDENCE EITHER BEFORE THE AO DURING ASSESSMENT PROCEEDINGS OR BEFORE ME DURING APPELLATE PROCEEDINGS THAT THE APPELLANT HAS SUFFERED ACTUAL LOSS. IN VIEW OF THE ABOVE DISCUSSION, I DO NOT FIND ANY INFIRMITY IN THE ACTION OF THE AO IN DISALLOWING THE BUSINESS LOSS OF RS. 10,06,04,870/ - CLAIMED ON ACCOUNT OF CONVERSION OF SECURITIES INTO STOCK - IN - TRADE. THEREFORE, THIS GROUND OF APPEAL IS REJECTED. 20 . BEFORE US, THE AR OF THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LEARNED CIT(A). ON THE OTHER HAND, THE LEARNED DR SUPPORTED THE ORDERS OF THE AUTHORITIES B ELOW. 21 . AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING THE ORDERS OF THE LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE ASSESSING OFFICER AS WELL AS THE LEARNED CIT(A) HAS DISALLOWED THE DEDUCTION FOR THE LOSS OF RS. 10,6,04,870 / - ON THE GROUND THAT THE ASSESSEE FAILED TO SUBSTANTIATE THE CLAIM AND HAS NOT FURNISHED THE DETAILS OF COST OF ACQUISITION AND THE SELLING PRICE EITHER IN THE RETURN OR DURING THE ASSESSMENT PROCEEDINGS. BEFORE US ALSO, THESE DETAILS HAVE NOT BEEN FURNIS HED. WE, THEREFORE, FIND NO GOOD REASONS TO INTERFERE WITH THE ORDER OF THE LEARNED CIT(A). IT IS CONFIRMED. THE GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 11 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 22 . GROUND NO. 4 OF THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT (A) CONFIRMING THE ADDITIONS OF RS. 49,78,53,535/ - MADE BY THE AO IN RESPECT OF AMOUNT TRANSFERRED FROM INTER BRANCH TRANSACTION BLOCKED ACCOUNTS TO RESERVES ROUTED THROUGH PROFIT & LOSS ACCOUNT. 23 . THE BRIEF FACTS OF THE CASE , ARE THAT, THE ASSESSING OFF ICER OBSERVED THAT THE ASSESSEE BANK HAS REDUCED AN AMOUNT OF RS. 49,78,53,535/ - FROM ITS COMPUTATION OF INCOME ON ACCOUNT OF AMOUNT TRANSFERRED FROM OLD BLOCKED ACCOUNT IN PROFIT & LOSS ACCOUNT. THE ASSESSEE HAS SUBMITTED THAT IT IS FOLLOWING A CREDIT O RIGINATING SYSTEM IN RESPECT OF INTER - BRANCH TRANSACTIONS WHEREIN CREDIT ENTRIES ARE GENERATED FIRST, WHICH CAN BE SET OFF ONLY BY A CORRESPONDING DEBIT ENTRY. THE AFORESAID CREDIT ENTRIES DEPICT BASICALLY A CREDIT TO THE CONCERNED BRANCH FOR DEBIT TO BE D ISCHARGED BY SUCH BRANCH LATER. THE ENTRY MAKING OFFICE AS WELL AS THE BRANCH TO WHICH THE CREDIT IS GIVEN IS BOTH THE PART OF THE SAME LEGAL ENTITY. THE CREDIT SURPLUS RELATES TO ENTRIES, MOSTLY RELATING TO MONIES DEPOSITED IN ONE BRANCH FOR ISSUING DRAFT S IN ANOTHER BRANCH OF THE BANK, WHICH ARE NOT MATCHED BY THE DEBIT ENTRIES FROM THE OTHER BRANCH. ACCORDING TO THE AO, THE APPELLANT BANK HAS TREATED THE AMOUNT TRANSFERRED AS INCOME IN PROFIT & LOSS ACCOUNT AS MISCELLANEOUS INCOME. T HE APPELLANT BANK HAS ALSO TREATED THEM AS INCOME IN ITS PROFIT & LOSS ACCOUNT AND APPROPRIATED TO ITS GENERAL RESERVE, BUT THIS A PPROPRIATION IS BELOW THE LINE . HENCE THE APPELLANT 12 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 INITIALLY TREATED THE AMOUNT AS ITS INCOME BUT LATER REDUCED IT FROM ITS COMPUTATION OF INCOME. THE FACTS OF THE CASE OF THE APPELLANT BANK IS COVERED BY THE CASE DECIDED BY HON BLE SUPREME COURT IN THE CASE OF T.V. SUNDARAM IYENGAR AND SONGS LIMITED (222 ITR 344). ACCORDING TO THE AO THE AMOUNT TRANSFERRED TO GENERAL RESERVES IS THE REAL INCOME OF THE ASSESSEE BANK. 24 . ON APPEAL, THE LEARNED CIT(A) CONFIRMED THE ACTION OF THE AO BY FOLLOWING HIS ORDER IN THE CASE OF ASSESSEE ITSELF FOR AY 2005 - 06 ORDER DATED 8.3.2007 . 25 . BEFORE US, THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE ISSUE AT HAND WAS C OVERED BY THE DECISION OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF ASSESSEE ITSELF FOR AY 2005 - 06 IN ITA NO. 2047/DEL/2007, ORDER DATED 25.10.2011. THE LEARNED DR AGREED WITH THE SUBMISSION OF THE AR OF THE ASSESSEE. WE FIND THAT THE TRIBUNAL IN THE AY 20 05 - 06 HELD AS UNDER: - 33. T HE FACTS OF THE CASE OF THE ASSESSEE ARE EXACTLY SIMILAR TO THE FACTS BEFORE THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF BETTS HARTLEY HUETT AND CO. LTD. (SUPRA). IN THAT CASE, IT WAS HELD THAT THE TRANSACTION BETWEEN THE HEA D OFFICE OF THE ASSESSEE AND ITS BRANCH IN INDIA WAS A TRANSACTION BETWEEN THE PR INCIPAL AND PRINCIPAL. IN LAW, THERE CANNOT BE A VALID TRANSACTION OF SALE BETWEEN THE BRANCH AND ITS HEAD OFFICE. AS IT IS ULTIMATELY BASED ON A PROPOSITION THAT NO PERSON CA N ENTER INTO CONTRACT WITH ONE SEL F. DEBITING OR CREDITING ONE'S A CCOUNT CANNOT ALTER THE LEGAL POSITION. APPLYING THE SAME PRINCIPLE AS ENUNCIATED BY THE HON'BLE CALCUTTA HIGH COURT, IT CANNOT BE SAID THAT THE TRANSACTIONS BETWEEN THE BRANCHES GAVE RISE T O AN INCOME ASSESSABLE UNDER THE INCOME - TAX ACT. THE SUBSTANCE OF THE ENTIRE TRANSACTION, IN OUR VIEW, APPEARS TO BE PURE ACCOUNTING LAPSES ON THE PART OF THE BANK OR ITS BRANCHES TO PROPERLY RECONCILE THE TRANSACTIONS. IN FACT, IT IS ALWAYS UNDERSTOOD THA T ALL THESE ACCOUNTS MUST HAVE CANCELLED EACH OTHER. IT DID NOT TAKE PLACE THAT WAY 13 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 DUE TO HUMAN ERRORS OR LACK OF ADVICE FORTHCOMING AS REGARDS THE CLOSURE OF THE ACCOUNTS. IN ANY CASE, ANY IMBALANCE IN THE INTER BRANCH ACCOUNTS, IN OUR CONSIDERED VIEW, C ANNOT GIVE RISE TO A TAXABLE INCOME UNDER THE INCOME - TAX ACT. THE ASSESSING OFFICER AS WELL AS CIT - DR HAS HEAVILY RELIED UPON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF T.V.SUNDARAM IYENGAR & SONS LTD. - 222 ITR 344. IN THAT CASE, THE ASSESSE E RECEIVED THE DEPOSITS FROM CUSTOMERS IN THE COURSE OF ITS BUSINESS AND TRANSFERRED THE AMOUNTS WHICH WERE NOT CLAIMED BY THE CUSTOMERS TO ITS PROFIT & LOSS ACCOUNT. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE SUMS IN QUESTION HAVE BECOME THE INCOME OF THE ASSESSEE BECAUSE OF THE EXPIRY OF LIMITATION PERIOD OR OTHER STATUTORY OR CONTRACTUAL RIGHTS. THE AMOUNTS HAD THE CHARACTER OF INCOME AND THEREFORE, ASSESSABLE TO TAX. THE HON'BLE SUPREME COURT HELD THAT ALTHOUGH THE AMOUNTS RECEIVED ORIGINALLY WERE N OT IN THE NATURE OF AN INCOME, THE AMOUNTS REMAINED WITH THE ASSESSEE FOR A LONG PERIOD UNCLAIMED BY THE TRADE PARTIES.IT BECAME A DEFINITE TRADE SURPLUS. THE ASSESSEE F TREATED THE MONEY AS ITS OWN MONEY AND TAKEN THE AMOUNT TO ITS PROFIT & LOSS ACCOUNT. THE AMOUNTS WERE ASSESSABLE IN THE HANDS OF THE ASSESSEE. HERE, IN THIS CASE, THE FACTS ARE SLIGHTLY DIFFERENT. THE AMOUNTS ARE LYING IN THE ACCOUNTS WHICH ARE KNOWN AS INTER BRANCH ACCOUNTS. IT IS EXPECTED THAT ALL THESE INTER BRANCH ACCOUNTS SHOULD GET S QUARED UP ON CONSOLIDATION. DUE TO HUMAN ERROR OF ACCOUNTING OR LACK OF PROPER ADVISE FROM DIFFERENT BRANCHES, THE AMOUNTS IN QUESTION HAVE REMAINED EITHER IN DEBIT OR CREDIT IN DIFFERENT INTER BRANCH ACCOUNTS AND THE BANK HAS ADMITTEDLY NOT RECONCILED THE SE ACCOUNTS FOR OVER A LONG PERIOD OF TIME. IT IS VERY DIFFICULT TO SAY THAT THESE HAVE TRACES OF INCOME EITHER AT THE TIME OF RECEIPT OR AT THE TIME OF WRITE OFF TO THE PROFIT & LOSS ACCOUNT. IN FACT, THE RESERVE BANK OF INDIA HAS PERMITTED THEM TO CLOSE THESE DIFFERENCES TO THE PROFIT & LOSS ACCOUNT WITH A RIDER THAT THE SUMS IN QUESTION ARE NOT PERMITTED BY THE RESERVE BANK OF INDIA TO BE USED IN THE FORM OF DISTRIBUTION OF DIVIDENDS AND IT WAS SPECIFICALLY MADE CLEAR BY THE RESERVE BANK OF INDIA THAT TH E OBLIGATION TO DISCHARGE THE LIABILITIES ARISING THEREUNDER IS UPON THE BANK. MEANING THEREBY, THERE IS NO QUESTION OF THE AMOUNTS BEING TREATED AS INCOME IN THE HANDS OF THE BANK. WE MUST APPRECIATE THAT THESE TRANSACTIONS IN THE INTER BRANCH ACCOUNTS AR E MERE ACCOUNTING ENTRIES. WHEN THE TRANSACTIONS WERE MADE TO THESE ACCOUNTS INITIALLY, THESE WERE NOT IN THE NATURE OF INCOME EITHER OF THE BRANCHES INVOLVED OR OF THE BANK AS A WHOLE. IT IS A PART OF TRANSACTIONS ON THE REAL ACCOUNTS AND NOT ON WHAT IS K NOWN AS REVENUE ACCOUNTS. THEREFORE, IT IS DIFFICULT TO SAY THAT THE AMOUNTS IN QUESTION BEAR THE SAME CHARACTER AS UNCLAIMED DEPOSIT RECEIVED FROM THE CUSTOMERS BY THE ASSESSEE T.V.SUNDARAM IYENGAR & SONS LTD. 34. IN THE LIGHT OF THE DISCUSSIONS OF THESE FACTS, IT IS DIFFICULT TO SAY THAT EITHER THE DECISION OF THE APEX COURT IN THE CASE OF T.V.SUNDARAM IYEN GAR & SONS LTD. (SUPRA) OR OTHER DECISIONS INCLUDING THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. RAJASTHAN GOLDEN TRANSPORT 14 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 CO.(P) LTD. - 249 ITR 723 ARE APPLICABLE TO THE FACTS OF THE CASE. IN FACT, THE HON'BLE DELHI HIGH COURT IN THE CASE OF RAJASTHAN GOLDEN TRANSPORT CO.(P) LTD. (SUPRA) WAS CONCERNED WITH THE AMOUNTS RECEIVED IN THE COURSE OF TRADE TRANSACTIONS. IN THE DECISION OF THE HON'BLE DELHI HIGH COURT, THE AMOUNTS IN QUESTION WERE HELD TO BE TAXABLE UNDER SECTION 41(1) OF THE ACT. AS REGARDS TH E APPLICABILITY OF SECTION 41(1) WE MAY AGAIN STATE THAT SUCH PROVISIONS OF SECTION 41(1) CANNOT BE INVOKED TO BRING THESE AMOUNTS I N QUESTION TO BE TAXED AS A PART OF THE RECEIPT IN THE AFORESAID PROVISION. THE REVENUE HAS TO FIRST ESTABLISH THAT THE SUM IN QUESTION WHICH IS NOW BEING B - OUGHT TO TAX HAS ONCE BEEN ALLOWED IN THE PAST AS A DEDUCTION WHILE COMPUTING THE INCOME OF THE BAN K. IT IS NO T THE CASE OF THE REVENUE OR AT LEAST THE REVENUE HAS NOT DROUGHT ANY MATERIAL TO SHOW THAT THE SUM IN QUESTION FORMING PART OF THE SO - CALLED INTER BRANCH TRANSACTIONS WERE ONCE ALLOWED BY THE REVENUE AS A DEDUCTION IN THE COMPUTATION OF PROFITS AND GAINS OF BUSINESS. WHEN THAT PRIMARY REQUIREMENT IS ABSENT, THE QUESTION OF BRINGING THE - SUMS IN QUESTION TO TAX UNDER SECTION 41(1) MAY NOT BE LEGALLY PERMISSIBLE TO THE REVENUE. IN THE LIGHT OF THE DISCUSSIONS ABOVE, WE DO NOT AGREE WITH THE STAND OF THE DEPARTMENT THAT THE AMOUNTS IN QUESTION WHICH ARE PART OF THE INTER BRANCH TRANSACTIONS REQUIRES TO BE BROUGHT TO TAX AS INCOME OF THE ASSESSEE IN THE YEAR IN QUESTION. ] 26 . THE FACTS BEING IDENTICAL, RESPECTFULLY FOLLOWING THE PRECEDENT, WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND ALLOW THIS GROUND OF APPEAL OF THE ASSESSEE. 27 . NOW WE TAKE UP THE REVENUE S APPEAL. 28 . GROUND NO. 1 AND 2 OF THE REVENUE S APPEAL ARE DIRECTED AGAINST THE ORDER S OF THE LEARNED CIT(A) DELETING THE ADDITION OF RS. 8,66,07,96,481/ - MADE ON ACCOUNT OF DISALLOWANCE OF DEPRECIATION AND DELETING THE ADDITION OF RS. 2,47,06,53,905/ - MADE ON ACCOUNT OF DISALLOWANCE OF LOSSES ON REVALUATION OF INVESTMENT CLAIMED BY THE ASSESSEE. 29 . THE BRIEF FACTS, OF THE CASE, ARE TH AT THE ASSESSING OFFICER DISALLOWED THE DEPRECIATION ON INVESTMENT OF RS. 8,66,07,96,481/ - AND LOSS ON INVESTMENT OF RS. 2,47,06,53,905/ - BY FOLLOWING HIS ORDERS IN THE EARLIER 15 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 YEARS AND TAKING THE STAND THAT THOUGH THE DEPRECIATION / LOSS ON REVALUATION H AS BEEN DONE IN ACCORDANCE WITH THE GUIDELINES OF THE RBI, YET THE FACTS REMAIN THAT THESE PROVISIONS AND LOSSES ARE OF NOTIONAL NATURE AND ARE NOT AVAILABLE. 30 . BEFORE THE LEARNED CIT(A), THE ASSESSEE SUBMITTED THAT THE INVESTMENT HAS BEEN VALUED AS PER THE RBI GUIDELINES. THE VALUE OF INVESTMENT AT THE END OF THE ACCOUNTING YEAR HAS BEEN ADOPTED AT COST PRICE OR THE MARKET PRICE, WHICHEVER IS LOWER. THE MARKET PRICE IS WORKED OUT ON THE BASIS OF VARIOUS GUIDELINES ISSUED BY THE RESERVE BANK OF INDIA AND THE AO HAS NOT DISPUTED THE BASIS OF WORKING OUT THE MARKET VALUE. THE METHOD HAS BEEN CONSISTENTLY AND REGULARLY FOLLOWED AND THE SAME HAS BEEN ACCEPTED AT THE APPELLATE STAGE FOR THE LAST SO MANY YEARS. THE INVESTMENTS ARE STOCK - IN - TRADE IN THE CASE OF THE APPELLANT AND THE SAME HAS TO BE VALUED ON COST OR MARKET PRICE WHICHEVER IS LOWER, WHICH IS A RECOGNIZED PRINCIPLE FOR WORKING OUT THE VALUE OF CLOSING STOCK IN THE MERCANTILE SYSTEM OF ACCOUNTING. RELIANCE WAS PLACED ON THE RATIO OF THE JUDGMENT OF H ON BLE APEX COURT IN THE CASE OF UCO BANK VS. CIT 240 ITR 355 (SC) WHEREIN IT HAS BEEN HELD THAT THE INVESTMENT IS TO BE VALUED AT COST OR MARKET PRICE, WHICHEVER IS LOWER. 31 . THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVED THAT THIS IS A RECURRING ISSUE IN THE CASE OF THE APPELLANT BANK AND HIS PREDECESSOR HAVE ALLOWED THIS GROUND IN FAVOUR OF THE 16 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 APPELLANT RIGHT FROM AY 2000 - 01 TO 20005 - 06. MOREOVER, THIS ISSUE IS SQUARELY COVERED BY THE ABOVE MENTIONED APEX COURT S DECISI ON, REPORTED IN 240 ITR 355. THE FACTS REMAINING THE SAME IN THIS YEAR ALSO, THE ISSUE IS DECIDED IN FAVOUR OF THE APPELLANT. THUS, THE APPELLANT GETS A RELIEF OF RS. 8,66,07,96,481/ - . 32 . THE APPELLANT BANK HAS STATED THAT THE APPELLANT IS CONSISTENTLY FO LLOWING ACCRUAL METHOD OF ACCOUNTING REGULARLY AND CONSTANTLY . AMORTIZATION REQUIRES TO EXPENSE THE ACQUISITION COST LESS REALIZABLE VALUE IN SYSTEMIC MANNER OVER THE ESTIMATED USEFUL ECONOMIC LIFE SO AS TO REFLECT THEIR EXPIRATION OR DECLINE IN THE VALUE AS A RESULT OF USE OR PASSAGE OF TIME. THE CONCEPT IS LIKE DEPRECIATION. THE RBI AS PER ITS MASTER CIRCULAR ON VALUATION OF INVESTMENTS, APPLICABLE TO ALL BANKS PRESCRIBED THAT IN CASE OF ACQUISITION COST OF SECURITIES CLASSIFIED UNDER HTM CATEGORY IS MORE THAN THE FACE VALUE, THE PREMIUM (DIFFERENCE BETWEEN THE ACQUISITION COST AND THE FACE VALUE) SHOULD BE AMORTIZED OVER THE REMAINING PERIOD OF MATURITY. THESE GUIDELINES ARE AS PER ACCOUNTING STANDARDS AND ARE MANDATORY. THE APPELLANT BANK HAS FURTHER STA TED THAT IN APPELLANT S OWN CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN THE PAST HAVE BEEN ALLOWING AMORTIZATION OF HTM SECURITIES AS ALLOWABLE BUSINESS EXPENDITURE. IN THE CASE OF CIT VS. NEDUNGADI BANK LTD. 264 ITR 545 ON THE SIMILAR ISSUE, THE HON BLE KERELA HIGH COURT HAS GIVEN THE RULING IN FAVOUR OF THE ASSESSEE BANK. I FIND THAT THE ARGUMENTS SUBMITTED BY THE APPELLANT BANK HAVE FORCE 17 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 IN THEM. AMORTIZATION, WHICH IS AS GOOD AS DEPRECIATION, REQUIRES THE SAME TREATMENT WHICH IS APPLICABL E ON DEPRECIATION. MOREOVER, IN APPELLANT S OWN CASE AND IN NEDUNGADI BANK, ON SIMILAR ISSUE, THE RELIEF HAS BEEN ALLOWED BY TREATING LOSS ON REVALUATION OF INVESTMENTS. IN VIEW OF THE ABOVE DISCUSSION AND JUDICIAL PRONOUNCEMENT ON THE ISSUE, I AM OF THE V IEW THAT THE AMOUNT OF RS. 2,47,06,53,905/ - IS ALLOWABLE AS DEDUCTION. THE APPELLANT GETS RELIEF OF RS. 2,47,06,53,905/ - . 33. BEFORE US, THE AR OF THE SUBMITTED THAT THE ISSUE WAS COVERED BY THE DECISION OF THE BENCH OF THE TRIBUNAL IN THE CASE OF THE ASS ESSEE ITSELF IN AY 2005 - 06 IN ITA NO. 2873/DEL/2007 DATED 25.10.2011. 34. THE LEARNED DR RELIED ON THE ORDER OF THE AO AND THE LEARNED AR RELIED ON THE ORDER OF THE LEARNED CIT(A) . WE FIND THAT THE TRIBUNAL IN THE AY 2005 - 06 VIDE ORDER DATED 25.10.2011 H ELD AS UNDER: - THE NEXT DISPUTE IN THE REVENUE S APPEAL RELATES TO THE DELETION OF DISALLOWANCE OF DEPRECIATION IN INVESTMENT OF RS. 48,82,82,014/ - . WE HAVE HEARD BOTH THE SIDES AND FIND THAT THE ISSUE IS FULLY COVERED BY THE EARLIER YEARS ORDERS RIGHT FROM AY 2001 - 01 TO 2004 - 05. THE LEARNED CIT(A) HAS ONLY FOLLOWED THE PRINCIPLE LAID DOWN BY THE APEX COURT IN THE CASE OF UCO BANK 240 ITR 355. IN THE LIGHT OF THE AFORESAID BINDING DECISION OF THE APEX COURT, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A). THE SAME IS DISMISSED. 35 . THE LEARNED DR COULD NOT POINTED OUT ANY SPECIFIC ERROR IN T HE ORDER OF THE LEARNED CIT(A). HE ALSO COULD NOT BRING ANY MATERIAL ON RECORD TO SHOW THAT THE ORDER OF THE TRIBUNAL FOR AY 2005 - 06 WAS VARI ED IN APPEAL BEFORE ANY HIGHER AUTHORITIES. H ENCE, WE FIND THAT NO GOOD REASONS TO 18 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 INTERFERE WITH THE ORDERS OF LEARNED CIT(A) WHICH IS CONFIRMED AND THE GROUNDS OF APPEAL OF THE REVENUE IS DISMISSED. 3 6 . IN GROUND NO. 3 OF THE APPEAL OF THE REVENUE IN DE LETING THE ADDITION OF RS. 42,33,78,370/ - MADE ON ACCOUNT OF RECOVERY IN WRITTEN OFF ACCOUNT. THE BRIEF FACTS OF THE CASE, ARE THAT, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS ADDED BACK A SUM OF RS. 42,33,78,370/ - TO THE INCOME DECLARED AS PER T HE PROFIT & LOSS ACCOUNT IN THE COMPUTATION INCOME FILED WITH THE RETURN. HOWEVER, DEDUCTION OF SIMILAR AMOUNT HAS BEEN CLAIMED THERE FROM IN THE COMPUTATION ITSELF. THE AO ASKED THE ASSESSEE TO JUSTIFY THE CLAIM. IT WAS SUBMITTED THAT THE BANK HAS BEEN MA KING PROVISION FOR BAD AND DOUBTFUL DEBTS YEAR AFTER YEAR DEBITING PROFIT & LOSS ACCOUNT. SUCH PROVISIONS ARE MADE IN ACCORDANCE WITH THE GUIDELINES LAID DOWN BY RESERVE BANK OF INDIA. AT THE END YEAR END, EACH AND EVERY BORROWAL ACCOUNT IS REVIEWED BY THE BANK THE CONDUCT OF THE ACCOUNT, VALUE OF SECURITY, RECOVERY OF INTEREST & PRINCIPAL AND SUCH LIKE GUIDELINES OF THE RESERVE BANK OF INDIA, REQUISITE PROVISION IS ASCERTAINED. KEEPING IN VIEW THE PROVISION ALREADY HELD IN TH E ACCOUNT, ADDITIONAL PROVISION , IF ANY, IS DEBITED TO THE PROFIT & LOSS ACCOUNT. IN CASE THE PROVISION HELD IS MORE THAN THE REQUIRED, THE SURPLUS PROVISION IS TREATED AS RECOVERY / RIGHT BACK AND IS CREDITED TO THE PROFIT & LOSS ACCOUNT. THE PROVISION FOR BAD AND DOUBTFUL DEBTS SO CRE ATED, AS PER RESERVED BANK OF INDIA GUIDELINES IS CLAIMED AS DEDUCTION UPTO THE SHELTER AVAILABLE UNDER THIS SECTION AND CHAPTER VIA 19 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 PLUS 10 PER CENT OF AGGREGATE AVERAGE OF RURAL ADVANCES. THOUGH IN MANY YEARS, PROVISION MADE IS IN EXCESS OF THE SHELTER, SUCH EXCESS IS BEING OFFERED FOR TAXATION. THE AO DID NOT AGREE WITH THE SUBMISSIONS OF THE APPELLANT. ACCORDING TO HIM, THE DEDUCTIONS WHICH ARE ADMISSIBLE TO THE ASSESSEE ARE ONLY THOSE WHICH ARE PROVIDED U/S 36(1) (VIIA). THE AO WAS OF THE VIEW THAT THE RECOVERY MADE FROM BAD AND DOUBTFUL DEBTS IS TAXABLE U/S 41(4) AND THEREFORE, HE ADDED THE SAME TO THE INCOME OF THE ASSESSEE. 37 . ON APPEAL, THE LEARNED CIT(A) DELETED THE ADDITION OF AS UNDER: - I HAVE CAREFULLY CONSIDERED THE ORDER OF THE AO AND SUBMISSIONS MADE BY THE APPELLANT BANK AS DISCUSSED ABOVE. I HAVE NOTED THAT THE AO IN THE EARLIER YEARS AS WELL AS IN SUBSEQUENT YEAR HAD TREATED SUCH RECOVERY AS NON - TAXABLE. I, THEREFORE, AGREE WITH THE SUBMISSIONS OF THE LD. AR THAT THE SAME SHOULD BE ALLOWED. THE APPELLANT GETS RELIEF OF RS. 42,33,78,370/ - . 38 . THE LEARNED DR RELIED ON THE ORDER OF THE AO AND THE LEARNED AR RELIED ON THE ORDER OF THE LEARNED CIT(A). 39. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE CONSIDERED OPINION THAT THE RECOVERY RELATING TO PROVISION WHICH WERE MADE IN EARLIER YEARS AND NOT ALLOWED AS BUSINESS DEDUCTION TO THE ASSESSEE IS NOT TAXABLE. HOWEVER, THE RECOVERY MADE IN EXCESS OF THAT AMOUNT I.E. RELATING TO TH OSE PROVISIONS WHICH WERE ALLOWED AS DEDUCTION TO THE ASSESSEE ARE TO BE TREATED AS TAXABLE INCOME OF THE ASSESSEE. WE FIND THAT NEITHER OF THE LOWER AUTHORITIES HAVE EXAMINED THE ISSUE FROM THIS ANGLE THEREFORE, IN OUR CONSIDERED VIEW, IT WILL BE JUST AND FAIR TO RESTORE THE MATTER BACK TO THE FILE OF THE AO TO RE - ADJUDICATE THE 20 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 ISSUE AFRESH IN LIGHT OF THE OBSERVATION MADE HEREINABOVE AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS, THIS GROUND OF APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 40 . IN GROUND NOS. 4 AND 5 OF THE APPEAL OF THE REVENUE, THE GRIEVANCE OF THE REVENUE IS THAT THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION OF RS. 4,31,00,000/ - ON ACCOUNT OF CONTRIBUTION OF PNB EMPLOYEES PENSION FUND TRUST. THE BRIEF FACTS OF THE CASE, ARE THAT, THE AO OBSERVED THAT CONTRIBUTION MADE TO PNB EMPLOYEES PENSION FUND TRUST WAS NOT CONTRIBUTION TO THE PENSION FUND. ACCORDING TO HIM, THE PROVISIONS OF SECTION 43(B) ARE NOT APPLICABLE TO THE ASSESSEE BANK. A CCORDING TO THE AO, NO DEDUCTION OF SUCH PAYMENT OF RS. 431 CRORES IS ALLOWABLE TO THE ASSESSEE BANK, EVEN THOUGH THE SAME IS ACTUALLY PAID. AS PER SECTION 36(1)(IV) ANY SUM PAID BY THE ASSESSEE AS AN EMPLOYER BY WAY OF CONTRIBUTION RECOGNIZED PROVIDENT FU ND OR AN APPROVED SUPERANNUATION FUND OR ANY FUND OF SIMILAR NATURE IS ALLOWABLE AS DEDUCTION, SUBJECT TO CONDITION LAID DOWN UNDER RULE 87 & 88 OF INCOME TAX RULE, 1962. ACCORDING TO THE AO SUCH CONTRIBUTIONS SHOULD NOT BE IN THE NATURE OF ANNUAL CONTRIBU TIONS OF FIXED AMOUNTS OR ANNUAL CONTRIBUTIONS FIXED ON SOME DEFINITE BASIS. THEREFORE, HE DI SALLOWED THE ADDITION OF RS. 431 CRORES. 41 . ON APPEAL, THE LEARNED CIT(A) DELETED THE DISALLOWANCE BY OBSERVING AS UNDER: - I HAVE CAREFULLY CONSIDERED THE SUBMI SSIONS OF THE LD. AR AND PERUSED THE FINDINGS GIVEN BY THE AO IN THE ASSESSMENT ORDER. IT IS A FACT 21 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 THAT THE PENSION FUND TRUST OF THE ASSESSEE BANK IS AN APPROVED FUND. THE ASSESSEE BANK HAD ALREADY REMITTED THE AMOUNT TO THE TRUST WHICH IS COVERED BY THE PROVISIONS OF SECTION 43B OF THE INCOME TAX ACT. THE AMOUNT OF CONTRIBUTION HAS INCREASED RAPIDLY DUE TO IMPLEMENTATION OF MANDATORY ACCOUNTING STANDARD 15, UPWARD REVISION OF SALARIES, PROMOTION OF EMPLOYEES TO HIGHER CADRE ETC. AS PER THE PENSION FUND T RUST REGULATIONS OF THE BANK, THE CONTRIBUTION BY BANK IS FIXED AT THE RATE OF 10 PER CENT WHICH IS WELL WITHIN THE LIMITS. THERE IS NO INCREASE IN SUCH RATE DURING THE YEARS. 4 2 . THE LEARNED DR RELIED ON THE ORDER OF THE AO AND THE LEARNED AR RELIED ON THE ORDER OF THE LEARNED CIT(A) . 43 . THE DR COULD NOT POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE LEARNED CIT(A) BY BRINGING ANY COGENT, POSITIVE MATERIAL ON RECORD. THEREFORE, WE FIND THAT NO GOOD REASONS TO INTERFERE WITH THE ORDERS OF LEARNED CIT (A) WHICH IS CONFIRMED AND THE GROUNDS OF APPEAL OF THE REVENUE IS DISMISSED. 4 4 . IN GROUND NO. 6 OF THE APPEAL OF THE REVENUE, THE GRIEVANCE OF THE REVENUE IS THAT THE LEARNED CIT(A) IN DELETING THE ADDITION OF RS. 71,500/ - MADE ON CAPITAL EXPENDITURE DE BITED TO REVENUE WHICH HAS BEEN POINTED OUT IN THE TAX AUDIT REPORT. 45 . THE BRIEF FACTS OF THE CASE, ARE THAT, THE AO OBSERVING THAT THE AUDITS HAVE BEEN POINTED OUT IN ITEM 17(A) OF THE TAX AUDIT REPORT IN FORM 3CD THAT A SUM OF RS. 2,64, 26,437 / - ONLY I N THE COMPUTATION OF INCOME. ACCORDINGLY, THE AO HAD ADDED BACK THE DIFFERENCE OF RS. 71,510/ - . BEFORE THE LEARNED CIT(A), THE ASSESSEE SUBMITTED THAT OUT OF RS. 71,510/ - AN AMOUNT OF RS. 68,180/ - RELATES TO SECURITY DEPOSIT FOR GETTING TELEPHONE 22 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 CONNECTI ON AND RS. 3,330/ - RELATES TO TELEPHONE CHARGES WHICH WERE WRONGLY DEBITED UNDER THE HEAD SAFE, FURNITURE AND FIXTURE . SINCE THE EXPENSES WERE OF REVENUE NATURE, THE SAME WERE NOT OFFERED FOR TAX. 46 . THE LEARNED CIT(A) , AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DELETED THE ADDITION BY OBSERVING THAT HE AGREED WITH THE SUBMISSION OF THE ASSESSEE THAT THE AMOUNT OF RS. 71510/ - IS REVENUE NATURE. 47 . THE LEARNED DR RELIED ON THE ORDER OF THE AO AND THE LEARNED AR RELIED ON THE ORDER OF THE LEARNED CIT(A) . THE DR COULD NOT POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE LEARNED CIT(A) BY BRINGING ANY MATERIAL ON RECORD, THEREFORE, WE FIND THAT NO GOOD REASONS TO INTERFERE WITH THE ORDERS OF LEARNED CIT(A) WHICH IS CONFIRMED AND THE GROUNDS OF APPEAL OF THE REVENUE IS DISMISSED. 48 . IN GROUND NO. 7 OF THE APPEAL OF THE REVENUE, THE GRIEVANCE OF THE REVENUE IS THAT THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION OF RS. 6,12,00,000/ - BEING DEPRECIATION ON GOODWILL. 49 . THE AO OBSERVED THAT THE DETAI LED DISCUSSION IS MADE IN AY 2003 - 04 AND 2004 - 05 ON THIS ISSUE. IT WAS OBSERVED BY THE AO IN THOSE YEARS THAT GOODWILL CANNOT BE CONSIDERED AS BUSINESS OR COMMERCIAL RIGHT WITHIN THE MEANING OF SECTION 32(1) READ WITH APPENDIX I OF I.T. ACT AND THUS, DISAL LOWED THE CLAIM. 23 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 50 . BEFORE THE LEARNED CIT(A) , THE ASSESSEE CONTENDED THAT THE DEPRECIATION ON GOODWI LL WAS ALLOWED TO THE ASSESSEE IN EARLIER YEARS. THE AO SHOULD HAVE ALLOWED THE DEPRECIATION IN THIS YEAR ALSO. 51 . THE LEARNED CIT(A), AFTER CONSIDERIN G THE SUBMISSIONS OF THE ASSESSEE DELETED THE ADDITION BY OBSERVING AS UNDER: - FOR THE SAKE OF BREVITY, IT MAY BE NOTED THAT IT IS A RECURRING ISSUE ARISING FROM THE ASSESSMENT YEAR 2003 - 04. THE APPELLANT HAS MADE CLAIM OF DEPRECIATION ON GOODWILL CLAIMED TO BE ACQUIRED ON AMALGAMATION OF THE ERSTWHILE NEDUNGADI BANK LTD. WITH THE APPELLANT BANK. AFTER DISCUSSING THE ISSUE IN DETAIL, THE LD. CIT(A) IN THE ASSESSMENT YEAR 2003 - 04, IN HIS ORDER HAS ALLOWED DEPRECIATION ON GOODWILL. THE LD. CIT(A) IN THE ASSE SSMENT YEAR 2004 - 05 HAS AGREED WITH THE ORDERS OF CIT(A) IN EARLIER YEAR. IT IS A CONSEQUENTIAL CLAIM DURING THIS YEAR. SINCE THE CLAIM HAS BEEN ALLOWED BY MY LD. PREDECESSORS, THE AO IS DIRECTED TO ALLOW DEPRECIATION ON W.D.V. OF THE BLOCK OF GOODWILL THI S YEAR ALSO. THUS, THIS GROUND OF APPEAL IS ALLOWED. 52 . THE LEARNED DR RELIED ON THE ORDER OF THE AO AND THE LEARNED AR RELIED ON THE ORDER OF THE LEARNED CIT(A) . THE DR COULD NOT POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE LEARNED CIT(A) . WE FIN D THAT DEPRECIATION HAS ALLOWED IN THE EARLIER ASSESSMENT YEARS 2003 - 04 AND AY 2004 - 05 AND THE ALLOWANCE OF THE SAME IN THE PRESENT YEAR IS CONSEQUENTIAL. THE DR COULD NOT BRING ANY MATERIAL ON RECORD TO SHOW THAT THE ORDER OF THE LEARNED CIT(A) FOR AY 200 3 - 04 AND AY 2004 - 05 WAS VARIED IN APPEAL BEFORE ANY HIGHER AUTHORITIES. HENCE, WE FIND THAT NO GOOD REASONS TO INTERFERE WITH THE ORDERS OF LEARNED CIT(A) WHICH IS CONFIRMED AND THE GROUNDS OF APPEAL OF THE REVENUE IS DISMISSED. 24 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 5 3 . IN GROUND NO. 8 OF THE APPEAL OF THE REVENUE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 26,44,837/ - MADE ON EXTRA DEPRECIATION CLAIMED ON GOODWILL. THE AO WHILE DISALLOWING THE CLAIM OF DEPRECIATION OF RS. 26,44,837/ - AND RS. 2,82,486/ - TAKING THE PLEA THAT THE DEPRE CIATION CLAIMED IS OVER AND ABOVE THE DEPRECIATION CHART AS SHOWN IN THE RETURN OF INCOME AND HENCE IS NOT ALLOWABLE. 5 4 . BEFORE THE LEARNED CIT(A), THE ASSESSEE SUBMITTED THAT 26,44,837/ - CLAIMED AS DEPRECIATION REPRESENTS GOODWILL BEING INTANGIBLE ASSET IS ELIGIBLE FOR DEPRECIATION UNDER SECTION 32 OF THE INCOME TAX ACT. THIS IS SIMILAR TO GROUND NO. 12 WHICH HAS BEEN DECIDED IN FAVOUR OF THE APPELLANT. MOREOVER, THERE HAS BEEN NO ADDITION ON THIS ISSUE IN THE PRECEDING YEARS AND LATER YEARS BY THE AO HI MSELF. ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOUR OF THE APPELLANT EVEN ON THE PRINCIPLE OF THE PRECEDENCE AND CONSISTENCY. 55 . THE LEARNED DR RELIED ON THE ORDER OF THE AO AND THE LEARNED AR RELIED ON THE ORDER OF THE LEARNED CIT(A) . THE DR COULD NOT PO INT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE LEARNED CIT(A) BY BRINGING ANY MATERIAL ON RECORD, THEREFORE, WE FIND THAT NO GOOD REASONS TO INTERFERE WITH THE ORDERS OF LEARNED CIT(A) WHICH IS CONFIRMED AND THE GROUNDS OF APPEAL OF THE REVENUE IS DISMISSE D. 25 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 56 . GROUND NO. 9 OF THE APPEAL OF THE REVENUE, THE GRIEVANCE OF THE REVENUE IS THAT THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION OF RS. 1,65,13,445/ - MADE ON ACCOUNT OF SET OFF OF LOSS FROM VENTURE CAPITAL FUNDS. 57 . THE BRIEF FACTS OF THE CASE, A RE THAT, THE AO OBSERVED THAT SINCE LONG TERM CAPITAL GAIN ON VENTURE CAPITAL FUND WITH SECURITIES TRANSACTION TAX IS CLAIMED AS EXEMPT, ANY LOSS ARISING OUT OF SUCH VENTURE CAPITAL FUND IS ALSO EXEMPT AND NOT ALLOWED TO BE SET OFF AGAINST THE OTHER HEADS OF INCOME. 5 8 . BEFORE THE LEARNED CIT(A), THE ASSESSEE SUBMITTED THAT BANK IN THE RETURN OF INCOME OFFERED FOR TAX, THE INCOME RECEIVED FROM VENTURE CAPITAL FUND IN ACCORDANCE WITH SECTION 115U I.E. THE AMOUNT WHICH WAS CAPITAL GAIN IN THE BOOKS OF VENTURE CAPITAL FUND AND THE AMOUNT WHICH WAS DIVIDEND INCOME IN THE BOOKS OF VENTURE CAPITAL FUND WAS GIVEN THE SIMILAR TREATMENT IN THE RETURN OF INCOME OF THE APPELLANT BANK. SIMILARLY, LOSS OF RS. 1,65,13,445/ - FROM OTHER SOURCES IN THE BOOKS OF VENTURE CAPIT AL FUND WAS TREATED AS LOSS UNDER THE HEAD INCOME FROM OTHER SOURCES IN THE RETURN OF THE ASSESSEE BANK. 5 9 . THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE HELD AS UNDER: - I HAVE PERUSED THE ORDER OF THE AO AND CAREFULLY CONSIDERED THE SUBMISSIONS MADE BY THE APPELLANT BANK. I FIND THAT THE AMOUNT OF LOSS FROM VCF WAS DETERMINED AS PER FORM 64 RECEIVED FROM VARIOUS VENTURE CAPITAL FUNDS WHICH IS IN ACCORDANCE WITH LAW OF THE LAND. I, THEREFORE, ALLOW THIS GROUND OF APPEAL. CONSEQUEN TLY, THE APPELLANT GETS A RELIED OF RS. 1,65,13,445/ - . 26 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 60 . THE LEARNED DR RELIED ON THE ORDER OF THE AO AND THE LEARNED AR RELIED ON THE ORDER OF THE LEARNED CIT(A) . THE DR COULD NOT POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE LEARNED CIT(A) BY BRING ING ANY MATERIAL ON RECORD, THEREFORE, WE FIND THAT NO GOOD REASONS TO INTERFERE WITH THE ORDERS OF LEARNED CIT(A) WHICH IS CONFIRMED AND THE GROUNDS OF APPEAL OF THE REVENUE IS DISMISSED. 61 . IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND TH E APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ( ORDER PRONOUNCED IN THE COURT ON FRIDAY THE 16 TH DAY OF MARCH, 2018 AT NEW DELHI). SD/ - SD/ - ( SUCHITRA K AMBLE ) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 16 . 0 3 .2018 SH COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR , ITAT NEW DELHI 27 ITA NO . 3843 /DEL/201 0 ITA NO. 4241/DEL/2010 DATE 1. DRAFT DICTATED ON PS 2. DRAFT PLACED BEFORE AUTHOR 3. 201 8 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 3 . 201 8 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 3 .201 8 PS 8. DATE ON WHICH FIL E GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.