YES BANK LTD, MUMBAI V. ASST CIT 7(3), MUMBAI

ITA 4270/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 3170 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Assessee
• Bench Allotted: G
• Next Hearing Date: 19-05-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 28-05-2013
• Court: TRIBUNAL
• Department Lawyers: S S KUMARAN
• Section: 143(3); 263

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G, MUMBAI , , , BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.4270/MUM/2013 ASSESSMENT YEAR: 2006-07 YES BANK LTD., 9 TH FLOOR, NEHRU CENTRE, DISCOVERY OF INDIA BUILDING, DR. A.B. ROAD, WORLI, MUMBAI -400018 / VS. ACIT 7 ( 2 ) MUMBAI- ( ASSESSEE ) ( REVENUE ) P.A. NO. AAACY2 068D / ASSESSEE BY SHRI YOGESH THAR & SHRI DEEPAK JAIN (AR) / REVENUE BY SHRI S. S. KUMARAN ( D R) ! ' # / DATE OF HEARING : 9/09/2015 ' # / DATE OF ORDER: 30/09/2015 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEAL S)-13, MUMBAI DATED 22.02.2013 FOR THE ASSESSMENT YEAR 200 6-07, YES BANK LTD. 2 DECIDED AGAINST THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE ACT. THE ASSESSEE HAS RAI SED FOLLOWING GROUNDS OF APPEAL: GROUND NO. I: DISALLOWANCE OF DEDUCTION UNDER SECTION 35D OF THE ACT AMOUNTING TO RS. 3,27,82,000/- IN RESPECT OF AMORTIZATION OF EXPENDITURE INCURRED ON THE INITIAL PUBLIC OFFER OF EQUITY SHARES: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED CIT (A) ERRED IN CONFIRMING THE DISALLO WANCE OF DEDUCTION, CLAIMED UNDER SECTION 35D OF THE ACT IN RESPECT OF AMORTIZATION OF EXPENDITURE INCURRED ON INITIAL PUBLIC OFFER OF EQUITY SHARES AMOUNTING TO RS. 3,27,82,000 /- (BEING ONE-FIFTH OF THE TOTAL EXPENDITURE OF RS.16. 39 CORE) ON THE GROUND THAT THE APPELLANT IS NOT AN INDUSTRIAL UNDERTAKING. 2. THE APPELLANT PRAYS THAT THE DISALLOWANCE OF DED UCTION AMOUNTING TO RS. 3,27,82,000/- UNDER SECTION 35D OF THE ACT BE DELETED. 2 . IN THIS CASE, THE BRIEF BACKGROUND IS THAT IN THE RETURN OF INCOME, THE ASSESSEE HAD CLAIMED DEDUCTION U/S 35D AT RS. 3,27,82,000/- (BEING 1/5 TH OF TOTAL EXPENDITURE OF RS.16,39,10,000/-), BEING AMORTIZATION OF EXPENDITU RE INCURRED ON THE INITIAL PUBLIC OFFER OF EQUITY SHAR ES. THE ASSESSEE'S RETURN OF INCOME WAS SCRUTINIZED AND ORD ER U/S 143(3) OF THE ACT WAS PASSED BY A.O. U/S 143(3) OF THE ACT DATED 31.12.2008. IN THE SAID ASSESSMENT ORDER, THE A.O. ALLOWED ASSESSEES CLAIM OF DEDUCTION U/S. 35D OF T HE ACT AT RS. 3,27,82,000/-. THEREAFTER THE CIT-7, MUMBAI PAS SED REVISION ORDER U/S 263 OF THE ACT DATED 02-03-2011, HOLDING THAT ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE YES BANK LTD. 3 INTEREST OF REVENUE SINCE ASSESSEE WAS NOT ENTITLED FOR DEDUCTION U/S 35D OF THE ACT. AS PER PROVISIONS OF SECTION 35D OF THE ACT, THE DEDUCTION U/S 35D(1)(II) R.W. EXPLA NATION (B)(II), THE DEDUCTION WAS ALLOWABLE ONLY IF THE COMPANY IS 'INDUSTRIAL UNDERTAKING'. THE WORD 'INDUSTRIAL' WAS DELETED BY THE FINANCE ACT, 2008 W.E.F. 01-04-2009. SINCE THE ASSE SSMENT YEAR UNDER CONSIDERATION IS 2006-07, THEREFORE, THE COMPANY WAS REQUIRED TO BE AN INDUSTRIAL UNDERTAKING FOR CLAIMING DEDUCTION U/S. 35D OF THE ACT. SINCE THE ASSESSEE B ANK WAS NOT AN 'INDUSTRIAL UNDERTAKING', THEREFORE, THE LD CIT, BY PASSING ORDER U/S 263, CANCELLED THE ASSESSMENT ORD ER, DIRECTING THE A. O. TO RE- FRAME THE SAME BY DISALL OWING THE ASSESSEES CLAIM FOR THE DEDUCTION U/S 35D OF THE A CT. IN PURSUANCE OF CITS, ORDER U/S 263 OF THE ACT, THE A .O. PASSED FRESH ASSESSMENT ORDER U/S 143(3) R.W.S. 263 DATED 03.11.2011, DISALLOWING THE ASSESSEES CLAIM OF DED UCTION U/S 35D AT RS. 3,27,82,000/-. 2.1. BEING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFO RE LD CIT(A), AGAINST THE DISALLOWANCE U/S 35D OF THE ACT , MADE IN THE AFORESAID ORDER PASSED U/S 143(3) R.W.S 263. I N THE MEANWHILE, THE ASSESSEE HAD ALSO FILED AN APPEAL TO THE ITAT AGAINST THE AFORESAID ORDER PASSED U/S 263 OF THE A CT BY THE CIT. THE ITAT PASSED ORDER DATED 25-01-2012, CONFIR MING THE ORDER PASSED BY CIT, U/S 263 OF THE ACT. IN PARA 14 OF THE SAID ORDER, THE ITAT ALSO HELD THAT THE ASSESSEE BEING A BANK WAS NOT AN 'INDUSTRIAL UNDERTAKING'. DURING THE APPELLA TE YES BANK LTD. 4 PROCEEDINGS BEFORE THE LD CIT(A), THE ASSESSEE HAD FILED DETAILED SUBMISSIONS. 2.2 LD CIT(A) CONSIDERED THE SUBMISSIONS OF THE ASSES SEE AND FACTS OF THE CASE, BUT CONFIRMED THE ORDER OF THE A O ON THE GROUND THAT SINCE THE ITAT IN ASSESSEE'S OWN CASE H AS HELD THAT THE ASSESSEE WAS NOT AN 'INDUSTRIAL UNDERTAKIN G', THEREFORE, THE ASSESSEE WAS NOT ENTITLED FOR DEDUCT ION U/S 35D OF THE ACT. THE DISALLOWANCE MADE BY A.O. WAS THERE FORE UPHELD BY HIM. 2.3 . BEING AGGRIEVED THE ASSESSEE HAS FILED THIS APPEA L BEFORE THE TRIBUNAL, AGAINST THE IMPUGNED ORDER OF LD. CIT (A). 2.4 . DURING THE COURSE OF HEARING, LD DR RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES AND SUBMITTED THAT SINCE TRIBUNAL HAS ALREADY DECIDED THIS MATTER IN THE ASS ESSEES OWN CASE AND HELD THAT ASSESSEE WAS NOT ELIGIBLE U/S 35 D, THEREFORE, THE ISSUE STOOD COVERED AGAINST THE ASSE SSEE AND DISALLOWANCE MADE BY THE AO IN PURSUANCE TO DIRECTI ON GIVEN BY LD CIT IN THE ORDER PASSED U/S 263, SHOULD BE CO NFIRMED. 2.5. ON THE OTHER HAND, LD COUNSEL OF THE ASSESSE HAS A RGUED THE MATTER IN DETAIL. HE HAS ASSAILED THE ORDER OF LOWER AUTHORITIES AND ARGUED THAT ASSESSEE WAS ELIGIBLE T O CLAIM DEDUCTION U/S 35D. VARIOUS REASONS GIVEN BY THE LD COUNSEL IN SUPPORT OF HIS ARGUMENTS ARE AS UNDER : YES BANK LTD. 5 (I) THOUGH THE DECISION OF HON'BLE BOMBAY HIGH COUR T IN THE CASE OF CIT VS. EMIRATES COMMERCIAL BANK LTD (262 I TR 55) IS ON S. 32A(2)(B )(III), THE RATIO WILL STILL APPLY T O ISSUE U/S. 35D OF THE ACT BECAUSE BOTH THE SECTIONS TALK OF 'INDUS TRIAL UNDERTAKING', (II) HON'BLE DELHI HIGH COURTS DECISION IN THE CAS E OF ANSAL HOUSING AND CONSTRUCTION LTD. V. CIT (320 ITR 420) IS ON CONSTRUCTION OF IMMOVABLE PROPERTY WHICH IS HELD AS NOT 'MANUFACTURE OR PRODUCTION OF AN ARTICLE OR A THING '. THIS IS WELL SETTLED BY THE HON'BLE SUPREME COURT IN THE CA SE OF CIT V. N.C. BUDHARAJA & CO. (204 ITR 412) AND THERE CAN BE NO DISPUTE ON THAT. HOWEVER, THIS DECISION CANNOT APPL Y TO A BANKING COMPANY AS IT IS NOT ENGAGED IN THE BUSINES S OF BUILDING, ETC., (III) PRESENT CASE IS COVERED BY THE DECISION OF TH E HON'BLE SUPREME COURT IN THE CASE OF CIT V. PEERLESS CONSULTANCY & SERVICE (P.) LTD. (248 ITR 178), (IV) HONBLE ITATS ORDER IN A.Y. 2006-07 IN ITA NO.4002/MUM/2011 IN ASSESSEE'S OWN CASE IS PER INCU RIAM, AS IT IS WITHOUT CONSIDERING THE DECISION OF THE HO N'BLE SUPREME COURT IN THE CASE OF PEERLESS FINANCE (SUPR A) AND HENCE CANNOT BE A VALID PRECEDENT. LD COUNSEL ALSO RELIED UPON THE JUDGMENTS OF CIT V. STANDARD MOTOR PRODUCTS OF INDIA LTD. (MAD HC) (142 ITR 877) AND CIT VS. CASCADE HOLDING PVT. LTD. (BOM HC) (365 ITR 84), V) THE JUDGMENT OF EMIRATES COMMERCIAL BANK (SUPRA) HAS CONSIDERED THE DECISION OF THE MADRAS HIGH COURT IN THE CASE OF CIT V. COMP-HELP SERVICES (P.) LTD.(246 ITR 722) . HONBLE YES BANK LTD. 6 MADRAS HIGH COURTS JUDGMENT HAS BEEN DECIDED AFTER CONSIDERING THE CASE OF N.C BUDHARAJA & CO, SUPRA , (VI) IT WAS SUBMITTED THAT BETWEEN DELHI HIGH COURT AND BOMBAY HIGH COURT, THE HON'BLE ITAT OUGHT TO FOLLOW BOMBAY HIGH COURT, BEING THE JURISDICTIONAL HIGH COURT AND IN HIS SUPPORT, LD COUNSEL RELIED UPON THE JUDGMENT OF CIT V. THANE ELECTRICITY SUPPLY LTD. (BOM HC) (206 ITR 727) AND (VII) IN CASE OF DIFFERENCE IN VIEWS OF DELHI HIGH COURT AND MADRAS HIGH COURT, THE ONE WHICH IS MORE FAVOURABLE TO THE ASSESSEE SHOULD BE FOLLOWED IN BOMBAY JURISDICTION. RELIANCE WAS PLACED UPON THE JUDGMENT OF CIT VS. VEGETABLE P RODUCTS LTD. (88 ITR 192) (SC). 2.6. WE HAVE HEARD BOTH THE SIDES ON THIS ISSUE. BEFORE GOING INTO THE ARGUMENTS MADE BY THE LD COUNSEL OF THE AS SESSEE, WE FIND THAT, THIS ISSUE HAS ALREADY BEEN DECIDED I N ASSESSEES OWN CASE BY THE ITAT WHILE UPHOLDING THE ORDER U/S 263, FOR THIS VERY ASSESSMENT YEAR. RELEVANT OBSERVATIONS OF THE TRIBUNAL, IN ASSESSEES OWN CASE, IN ITA NO.4002/MU M/2011 FOR ASSESSMENT YEAR 2006-07 DATED 25.01.2012, PASSE D AGAINST THE ORDER U/S 263 ARE REPRODUCED BELOW: 10. WE HAVE HEARD BOTH THE SIDES, PERUSED THE RECORDS AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE IS A COMPANY CARRYING ON BANKING BUSINESS IN INDIA. DURING THE RELEVANT YEAR AN EXPENDITURE OF RS.16.39 CRORE WAS INCURRED ON IPO OF EQUITY SHARES AND A DEDUCTION OF 1/5 AMOUNTING TO RS. 3.27 CRORE WAS CLAIMED U/S 35D. THE CLAIM OF THE ASSESSEE WAS ALLOWED BY THE ASSESSING OFFICER. SUBSEQUENTLY, AFTER PERUSAL OF T HE YES BANK LTD. 7 ASSESSMENT ORDER, THE COMMISSIONER, BY EXERCISING THE POWER U/S 263, ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE ON THE GROUND THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WAS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE AND CAL LED FOR AN EXPLANATION FROM ASSESSEE. THE ASSESSEE HAS EXPLAINED BEFORE THE CIT THAT THE ASSESSEE IS AN INDUSTRIAL UNDERTAKING FOR THE PURPOSE OF SEC. 35D AND IS ELIGIBLE FOR THE CLAIM. FOR THIS SUBMISSION, HE RELIED UPON THE DECISION OF EMIRATE COMMERCIAL BANK LTD. (SUPRA) & HSBC SECURITIES AND CAPITAL MARKETS (INDIA) PVT. LTD. (SUPRA) AND SUBMITTED THAT THE CL AIM OF THE ASSESSEE FOR DEDUCTION U/S 5D IS IN ACCORDANCE WITH LAW AND IS ELIGIBLE. THE LEARNED COMMISSIONER AFTER CONSIDERING THE EXPLANATION GIVE N BY THE ASSESSEE AND ALSO CONSIDERING THE CASE LAWS RELIED UPON BY THE ASSESSEE HAS HELD THAT THE ASSESSING OFFICER HAS NOT AT ALL EXAMINED THE ISSUE AND PASSED THE ASSESSMENT ORDER WITHOUT APPLICATION OF MIND AND THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. THE LEARNE D COMMISSIONER FURTHER HELD THAT THE ASSESSEE IS A BANK AND NOT AN INDUSTRIAL UNDERTAKING FOR THE PURPOSE OF SECTION 35D. 11. WE FIND THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF EMIRATES COMMERCIAL BANK (SUPRA) CONSIDERED THE SUBMISSIONS OF THE ASSESSEE AND HELD THAT THE ASSESSEE FULFILLED THE CONDITIONS AS LAID DOWN U/S 32A(2)(B)(III) OF THE ACT, AND ALLOWED THE CLAIM OF THE ASSESSEE. IT WAS NOT THE ISSUE BEFORE THE HONBLE HIGH COURT IN THE AFORESAID CASE THAT WHETHER THE BANK IS AN INDUSTRIAL UNDERTAKING OR NO T ?. THE HONBLE COURT HAS ONLY CONSIDERED THE FACTS OF THE CASE IN THE CONTEXT OF SECTION 32A(2)(B)(III). 12. THE HONBLE DELHI HIGH COURT IN THE CASE OF ANS AL HOUSING & CONSTRUCTION LTD. (SUPRA) HAS CONSIDERED THE MEANING OF THE INDUSTRIAL UNDERTAKING FOR THE PURPOSE OF SECTION 35D ELABORATELY WHILE DECIDING T HE MEANING OF THE INDUSTRIAL UNDERTAKING, THE HONBLE COURT HAS ALSO CONSIDERED THE DECISION OF THE HONB LE BOMBAY HIGH COURT IN THE CASE OF CIT VS. EMIRATES YES BANK LTD. 8 COMMERCIAL BANK LTD. (SUPRA) WHEREIN IT WAS OBSERVED AS UNDER: IN THAT CASE, THE BOMBAY HIGH COURT HELD THAT THE BRANCH OF A FOREIGN BANK EXISTING IN INDIA WAS ENTITLED TO INVESTMENT ALLOWANCE UNDER SECTION 32A OF THE ACT WITH RESPECT TO COMPUTERS INSTALLED IN THE BANK. THE DEDUCTION UNDER THE SAID SECTION IS AVAILABLE TO AN INDUSTRIAL UNDERTAKING ENGAGED IN MANUFACTURE OR PRODUCTION OF AN ARTICLE OR A THING. THE ASSESSEES SUBMISSION IN THAT CASE WAS THAT AS LONG AS THE ASSESSEE USED THESE COMPUTERS FOR PRODUCTION OF ARTICLES AND THINGS IT COULD BE REGAR DED AS AN INDUSTRIAL UNDERTAKING AND THIS SUBMISSION OF THE ASSESSEE WAS ACCEPTED BY THE COURT. FROM THE DISCUSSION UP TO NOW, IT FOLLOWS THAT:- A)INDUSTRIAL UNDERTAKING IS TO BE GIVEN THE MEANING WHICH IS UNDERSTOOD IN COMMON PARLANCE, AND B)WHICH SHOULD BE INTERPRETED WIDELY, AT THE SAME, WE HAVE TO BEAR IN MIND THAT THE EXPRESSION IS TO B E CONSTRUED IN THE CONTEXT OF SECTION 35D OF THE ACT AND IT IS TO BE FURTHER DISCERNED AS TO WHETHER THE BUSINESS OF CONSTRUCTION ACTIVITY WOULD BE TREATED AS AN INDUSTRIAL UNDERTAKING OR NOT. 13. THE HONBLE DELHI HIGH COURT AFTER CONSIDERING THE DECISION OF THE EMIRATES COMMERCIAL BANK (SUPRA ) AND OTHER CASE LAWS, HA S HELD THAT COMMONSENSE APPROACH WILL HAVE TO BE ADOPTED AND THOSE UNDERTAKINGS WOULD QUALIFY AS INDUSTRIAL UNDERTAKING WHICH ARE INVOLVED IN MANUFACTURING ACTIVITY. 14. IN THE PRESENT CASE, THE ASSESSEE IS A BANK, INCURRED EXPENSE ON ISSUE OF IPO EQUITY SHARES, CLAIMED DEDUCTION U/S 35D. IT IS A FACT THAT THE ASSSESEE HAS NOT CARRIED ANY MANUFACTURING ACTIVITY. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF ANSAL HOUSING & CONSTRUCTION LTD. (SUPRA), HOLD THAT THE ASSESSEE IS A BANK AND NOT AN INDUSTRIAL UNDERTAKING FOR THE PURPOSE YES BANK LTD. 9 OF SECTION 35D AND ACCORDINGLY, WE UPHOLD THE ORDER OF THE CIT ON MERITS OF THE CASE. 15. IN SO FAR AS ANOTHER ARGUMENT OF THE LEARNED COUNSEL IS CONCERNED THAT THE AO HAS TAKEN A POSSIBLE VIEW AFTER EXAMINING THE DETAILS FILED BEF ORE HIM BY THE ASSESSEE, WE HAVE GONE THROUGH THE ASSESSMENT ORDER PASSED BY THE AO AND THE AO HAS NOT DISCUSSED ANYTHING ABOUT THE ISSUE INVOLVED IN THIS APPEAL. IN OUR OPINION, THE AO HAS NOT EXAMINE D ISSUE AND SIMPLY WITHOUT APPLYING THE MIND ALLOWED THE CLAIM OF THE ASSESSEE, THEREFORE, THE ORDER OF THE AO BECOMES ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IN THIS CONTEXT, THE HON BLE DELHI HIGH COURT IN THE CASE OF GEE VEE ENTERPRISES VS. ACIT, 99 ITR 375 WHEREIN THE HONBLE DELHI HIGH COURT HAS OBSERVED AS UNDER:- IT IS NOT NECESSARY FOR THE COMMISSIONER TO TAKE FURTHER INQUIRIES BEFORE CANCELLING THE ASSESSMENT ORDER OF THE INCOME-TAX OFFICER. THE COMMISSIONER CAN REGARD THE ORDER AS ERRONEOUS ON THE GROUND THA T IN THE CIRCUMSTANCES OF THE CASE THE INCOME-TAX OFFICER SHOULD HAVE MADE FURTHER INQUIRIES BEFORE ACCEPTING THE STATEMENTS MADE BY THE ASSESSEE IN HIS RETURN. THE REASON IS OBVIOUS. THE POSITION AND FUNCTION OF THE INCOME-TAX OFFICER IS VERY DIFFEREN T FROM THAT OF A CIVIL COURT. THE STATEMENTS MADE IN A PLEADING PROVED BY THE MINIMUM AMOUNT OF EVIDENCE MAY BE ADOPTED BY A CIVIL COURT IN THE ABSENCE OF A NY REBUTTAL. THE CIVIL COURT IS NEUTRAL. IT SIMPLY GIV ES DECISION ON THE BASIS OF THE PLEADING AND EVIDENCE WHICH COMES BEFORE IT. THE ITO IS NOT ONLY AN ADJUDICATOR BUT ALSO AN INVESTIGATOR. HE CANNOT REMAIN PASSIVE IN THE FACE OF A RETURN WHICH IS APPARENTLY IN ORDER BUT CALLS FOR FURTHER INQUIRY. IT IS HIS DUTY TO ASCERTAIN THE TRUTH OF THE FACTS STATED IN THE RETURN WHEN THE CIRCUMSTANCES OF THE CASE ARE SUCH AS TO PROVOKE AN INQUIRY. IT IS BECAUSE IT IS INCUMBENT ON THE INCOME-TAX OFFICER TO FURTHER INVESTIGATE THE FACTS STATED IN THE RETURN WHEN CIRCUMSTANCES WOULD MAKE SUCH AN INQUIRY PRUDENT THAT THE WORD ERRONEOUS IN SECTION 263 INCLUDES T HE YES BANK LTD. 10 FAILURE TO MAKE SUCH AN ENQUIRY. THE ORDER BECOMES ERRONEOUS BECAUSE SUCH AN INQUIRY HAS NOT BEEN MADE AND NOT BECAUSE THERE IS ANYTHING WRONG WITH THE ORDER IF ALL THE FACTS STATED THEREIN ARE ASSUM ED TO BE CORRECT. 16. IN SO FAR AS THE ANOTHER ARGUMENT OF THE LEARNE D COUNSEL FOR THE ASSESSEE IS THAT THE FINANCE ACT, 2008 HAS OMITTED THE WORD INDUSTRIAL IS CONCERNED , THE LEARNED CIT HELD THAT THE AMENDMENT RELATES TO SUBSTANTIVE PROVISION AND NOT PROCEDURAL AND THEREFORE, IT APPLIES PROSPECTIVELY. WE AGREE WITH THE SAID VIEW OF THE CIT. IN VIEW OF THE ABOVE, THE ORD ER PASSED BY THE CIT U/S 263 OF THE ACT, IS HEREBY UPHELD. 2.7 . WE FIND THAT THE TRIBUNAL HAS ALREADY HELD, ON ME RITS AS WELL, THAT THE ASSESSEE IS NOT ELIGIBLE TO CLAIM DE DUCTION U/S 35D. AFTER THIS ORDER FROM THE TRIBUNAL IN ASSESSEE S OWN CASE, FOR THIS VERY ASSESSMENT YEAR, THE ISSUE UNDER CONS IDERATION I.E. ALLOWABILITY OF CLAIM U/S 35D, HAS ATTAINED FAIT ACCOMPLI . IN OUR CONSIDERED VIEW, THIS ISSUE IS NO MORE OPEN BEFORE US FOR OUR CONSIDERATION. LD. CIT HAD DIRECTED THE AO IN HIS ORDER PASSED U/S 263, TO MAKE DISALLOWANCE OF DEDUCTION U /S 35D CLAIMED BY THE ASSESSEE. THE ACTION OF PASSING THE IMPUGNED ASSESSMENT ORDER, BY THE AO U/S 143(3), IN PURSUAN CE TO REVISION ORDER PASSED BY THE LD CIT U/S 263, WAS ME RELY A MINISTERIAL TASK, TO GIVE EFFECT TO THE SAID REVISI ON ORDER OF LD CIT. IN FACT, LD CIT(A) HAS RIGHTLY UPHELD THE IMPU GNED ASSESSMENT ORDER, WITHOUT EVEN GOING DEEP INTO MERI TS. EVEN BEFORE US, IN OUR CONSIDERED OPINION, THIS ISSUE IS NO MORE OPEN FOR OUR ADJUDICATION, ESPECIALLY AFTER IT HAS BEEN SEALED BY THE TRIBUNAL IN ITS ORDER. THE ASSESSEE MAY HAVE HAD SOME LEGAL GRIEVANCES AGAINST THE ORDER PASSED U/S 263, BUT, ONCE YES BANK LTD. 11 THE SAME WAS CONFIRMED BY THE TRIBUNAL, THE RIGHT F ORUM FOR HEARING OF THESE GRIEVANCES WOULD BE BEFORE HONBLE HIGH COURT. THE LAW DOES NOT PERMIT US TO GO INTO THIS I SSUE, AT THIS STAGE. 3 . THUS, IN VIEW OF FACTS AND CIRCUMSTANCES OF THE C ASE, DISALLOWANCE MADE U/S 35D IS CONFIRMED. THUS, GROUN DS RAISED BY THE ASSESSEE IN ITS APPEAL ARE REJECTED. 4 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER, 2015. SD/- (AMIT SHUKLA ) SD/- (ASHWANI TANEJA) '# / JUDICIAL MEMBER $# / ACCOUNTANT MEMBER ! MUMBAI; & DATED : 30/09/2015 CTX? P.S/. .. %'&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ( )* / THE APPELLANT 2. +,)* / THE RESPONDENT. 3. - - ( ( ) / THE CIT, MUMBAI. 4. - - / CIT(A)- , MUMBAI 5. 01 2 +3 , - ( # 3 4 , ! / DR, ITAT, MUMBAI 6. 2 5 6 ! / GUARD FILE. / BY ORDER, , 0( + //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ! / ITAT, MUMBAI