DCIT ( IT) 2(1)(1), MUMBAI V. CREDIT AGRICOLE & INVESTMENT BANK (FORMERLY CALYON BANK), MUMBAI

ITA 4702/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0025 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 08-06-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 19-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M DAYASAGAR
• Section: 244A; 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO.4702/MUM/2015 (ASSESSMENT YEAR 2005-06) THE DY.COMMISSIONER OF INCOME TAX- (IT)-2(1)(1), 1 ST FLOOR, ROOM NO.114, SCINDIA HOUSE, BALLARD PIER, N.M.ROAD, MUMBAI 400 038 ...... APPELLANT VS. M/S. CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK ( FORMERLY CALYON BANK) 11 TH ,12 TH AND 14 TH FLOORS, HOECHST HOUSE, NARIMAN POINT, MUMBAI -400 021, PAN:AACCC3872B .... RESPONDENT APPELLANT BY : SHRI M.DAYASAGAR RESPONDENT BY : SHRI MADHUR AGARWAL DATE OF HEARING : 08/06/2017 DATE OF PRONOUNCEMENT : 30/06/2017 ORDER PER G.S.PANNU,A.M: THE CAPTIONED APPEAL FILED BY THE REVENUE PERTAI NS TO ASSESSMENT YEAR 2005-06 IS DIRECTED AGAINST AN ORDER PASSED BY CIT(A)-55, MUMBAI DATED 30/03/2015., WHICH IN TURN, ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 250 OF THE INCOM E TAX ACT, 1961 (IN SHORT THE ACT) DATED 30/04/2014. 2 ITA NO.4702/MUM/2015 (ASSESSMENT YEAR 2005-06) 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLO WING GROUNDS OF APPEAL:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE ID. CIT(A) IS CORRECT IN HOLDING THAT THE UN-AMENDED PR OVISIONS OF SECTION 115JB ARE NOT APPLICABLE IN THE CASE OF NON- RESIDENT BANKING COMPANY? 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT(A) IS CORRECT IN ALLOWING THE INTEREST PAID UND ER THE PROVISIONS .OF THE ACT TO BE ADJUSTED AGAINST THE INTEREST RECEIVED UNDER SECTIO N 244A OF THE ACT?' 3. THE APPELLANT PRAYS THAT THE ORDER OF THE ID. CI T(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED. 3. THE FACTS RELEVANT WITH RESPECT TO THE GROUNDS O F APPEAL NO.1 CAN BE UNDERSTOOD AS FOLLOWS. THE RESPONDENT ASSESSEE IS A NON-RESIDENT FOREIGN BANKING COMPANY INCORPORATED IN FRANCE. IN AN ORDE R PASSED BY THE ASSESSING OFFICER DATED 30/04/2014 GIVING APPEAL EF FECT TO THE ORDER PASSED BY THE CIT(A) DATED 23/08/2012, THE ASSESSING OFFIC ER WORKED OUT THE TAX LIABILITY OF THE ASSESSEE UNDER SECTION 115JB OF TH E ACT BY DETERMINING THE BOOK PROFIT OF RS.78,84,38,248/-. THIS ACTION OF T HE ASSESSING OFFICER WAS CHALLENGED BY THE ASSESSEE IN APPEAL BEFORE THE CIT (A) ON TWIN GROUNDS. FIRSTLY, ASSESSEE POINTED OUT THAT THE ISSUE OF APP LICABILITY OF SECTION 115JB OF THE ACT WAS NOT A PART OF THE ORDER OF THE CIT(A) D ATED 23/8/2012 OR EVEN THE ORIGINAL ASSESSMENT ORDER DATED 30/12/2008 AND, THEREFORE, IN THE ORDER GIVING EFFECT TO THE ORDER OF THE CIT(A), THE ASSES SING OFFICER COULD NOT RAISE SUCH AN ISSUE FOR THE FIRST TIME BECAUSE THE SAME D ID NOT EMERGE FROM THE ORDER OF THE CIT(A). SECONDLY, ASSESSEE CONTENDED THAT IT BEING A BANKING COMPANY, IT WAS SAVED FROM THE APPLICABILITY OF THE PROVISIONS OF SECTION 115JB OF THE ACT IN VIEW OF THE EXEMPTION SET OUT U NDER THE PROVISO TO SECTION 211(2) OF THE COMPANIES ACT, 1956, WHICH E XEMPTS BANKING COMPANIES FROM THE PROVISIONS OF SCHEDULE-VI OF THE COMPANIES ACT. IT WAS 3 ITA NO.4702/MUM/2015 (ASSESSMENT YEAR 2005-06) ALSO BROUGHT TO THE NOTICE OF THE CIT(A) THAT IN AS SESSEES OWN CASE FOR ASSESSMENT YEAR 2004-05 THE TRIBUNAL VIDE ITS ORDER IN ITA NO.724/MUM/2011 DATED 10/12/2014 HAS HELD THE ISSUE IN FAVOUR OF THE ASSESSEE. CONSIDERING THE AFORESAID SUBMISSIONS, T HE CIT(A) HAS SET ASIDE THE ACTION OF THE ASSESSING OFFICER BY MAKING THE F OLLOWING DISCUSSIONS. 4. BEFORE US, IT WAS A COMMON POINT BETWEEN THE PAR TIES THAT THE ORDER OF THE TRIBUNAL DATED 10/12/2014(SUPRA) WHILE DEALI NG WITH AN IDENTICAL CONTROVERSY IN THE ASSESSEES OWN CASE CONTINUES TO HOLD THE FIELD AS IT HAS NOT BEEN ALTERED BY ANY HIGHER AUTHORITIES. FOR TH E SAID REASON AND ALSO CONSIDERING THE REASONING BROUGHT OUT BY CIT(A), WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE CIT(A). THUS, ON T HIS ASPECT REVENUE FAILS. 5. IN SO FAR AS SECOND GROUND OF APPEAL IS CONCERN ED, IT WAS A COMMON POINT BETWEEN THE PARTIES THAT THE SAID ISSUE DOES NOT ARISE FROM THE IMPUGNED ORDER OF THE CIT(A) AND, THEREFORE, THE SA ME IS MISCONCEIVED. THUS, THIS GROUND IS HEREBY DISMISSED. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 30/06/2017 SD/- SD/- (RAVISH SOOD) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 30/06/2017 VM , SR. PS 4 ITA NO.4702/MUM/2015 (ASSESSMENT YEAR 2005-06) COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI