M/S. ICICI BANK LIMITED ., MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX 2 (3) (2), MUMBAI

MA 156/MUM/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2392 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 05-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G
• Keywords: Bad and doubtful debts

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RA JESH KUMAR , ACCOUNTANT MEMBER M.A. NO. 156 /MUM./2018 ARISING OUT OF ITA NO. 6137/MUM./2008 ( ASSESSMENT YEAR : 2004 05 ) ICICI BANK LTD. (IN R/O ICICI LTD. MERGED WITH M/S. ICICI BANK LIMITED) ICICI BANK TOWERS BANDRA KURLA COMPLEX MUMBAI 400 051 PAN AAACI1195H . APP LICANT V/S ASSTT. COMMISSIONER OF INCOME TAX RANGE 2(3)(2), MUMBAI . RESPONDENT ASSESSEE BY : MS. ARATI VISSANJI REVENUE BY : SHRI D.G. PANSARI DATE OF HEARING 2 4 .0 8 .2018 DATE OF ORDER 09.11.2018 O R D E R PER SAKTIJIT DEY, J.M. BY WAY OF THIS MISC. APPLICATION , PURPORTEDLY FILED UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) THE ASSESSEE SEEKS RECTIFICATION OF THE ORDER DATED 3 RD NOVEMBER 2017, PASSED IN ITA NO.6137/MUM./2008, INSOFAR AS IT RELATES TO GROUND NO.6, OF APPEAL FILED BY THE R EVENUE. 2 ICICI BANK LTD. 2 . T HE LEARNED AUTHORISED REPRESENTATIVE DRAWING OUR ATTENTION TO PARA GRAPH 34 OF THE APPEAL ORDER SUBMITTED THAT SINCE THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE ASSESSEE HAS ACTUALLY WRITTEN OFF BAD DEBTS IN THE BOOKS OF ACCOUNT , THE DIREC TION OF THE TRIBUNAL TO THE ASSESSING OFFICER TO AGAIN EXAMINE THE CLAIM OF WRITE OFF OF BAD DEBT IN RESPECT OF THE ENTIRE AMOUNT CLAIMED BY THE ASSESSEE WAS NOT PROPER, HENCE, IS A MISTAKE APPARENT ON THE FACE OF RECORD. THE LEARNED AUTHORISED REPRESENTAT IVE SUBMITTED , IN THE ASSESSMENT ORDER THE ASSESSING OFFICER , THOUGH , HAS ACCEPTED THE FACT THAT THE ASSESSEE HAS CLASSIFIED CERTAIN DEBTS AS BAD AND HAS WRITTEN OFF IN THE ACCOUNT, HOWEVER, HE HAS DISALLOWED SUCH WRITE OFF AS WITHOUT VALID REASON. SH E SUB MITTED , THE DIRECTION OF THE TRIBUNAL TO EXAMINE THE CLAIM OF WRITE OFF OF BAD DEBT SHOULD ONLY BE RESTRICTED TO THE PROVISIONS OF BAD DEBT AMOUNTING TO ` 34,59,54,799. 3 . THE LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY OPPOSING THE CONTENTIONS OF THE ASSESSEE SUBMITTED THAT THE ISSUE RAISED BY THE ASSESSEE IN THE MISC. APPLICATION DOES NOT COME WITHIN THE PURVIEW OF MISTAKE APPARENT ON THE FACE OF RECORD AS EN VISAGED UNDER SECTION 254(2) OF THE ACT. THUS, HE SUBMITTED , THE MISC. APPLICATION SHOULD BE D ISMISSED. 4 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. A CAREFUL READING OF THE FINDING OF THE TRIBUNAL IN PARA GRAPH 34 3 ICICI BANK LTD. OF THE APPEAL ORDER REVEALS THAT THE TRIBUNAL HAS GIVEN A CLEAR DIRECTION TO THE ASSESSING OFFICER TO ALLOW AS SESSEES CLAIM IN RESPECT OF BAD DEBTS WHICH ARE ACTUALLY WRITTEN OFF BY FOLLOWING THE RATIO OF THE HON'BLE SUPREME COURT IN TRF LTD. V/S CIT, [2010] 230 ITR 014 (SC). THE TRIBUNAL HAS FURTHER DIRECTED THE ASSESSING OFFICER TO EXAMINE WHETHER THE CLAIM OF WRITE OFF OF BAD DEBT RELATES TO MERE PROVISIONS AND CONSIDER ALLOWANCE OF SUCH CLAIM FOLLOWING THE DECISION OF THE HON'BLE SUPREME COURT IN VIJAYA BANK LTD. V/S CIT, [2010] 323 ITR 166 (SC). THUS, THE DIRECTION OF THE TRIBUNA L IN RESPECT OF ACTUAL BAD DEB T WRITTEN OFF AND PROVISIONS OF BAD DEBT ARE DISTINCT, CLEAR AND CATEGORICAL. MOREOVER, THE GROUND RAISED BY THE DEPARTMENT IS IN RESPECT OF ENTIRE BAD DEBT CLAIM ED BY THE ASSESSEE AMOUNTING TO ` 1157,66,77,475. THUS, AS COULD BE SEEN FROM THE DIRECTIONS O F THE TRIBUNAL, A CLEAR MANDATE HAS BEEN GIVEN TO THE ASSESSING OFFICER TO ALLOW ASSESSEES CLAIM OF BAD DEBT WHICH ARE ACTUALLY WRITTEN OFF IN THE BOOKS OF ACCOUNT IN TERMS OF SECTION 36(1)(VII) OF THE ACT WITHOUT REQUIRING THE ASSESSEE TO ESTABLISH THE F ACT THAT THE DEBT HAS ACTUALLY BECOME IRRECOVERABLE. IN THE FACE OF SUCH OBSERVATIONS OF THE TRIBUNAL, WE DO NOT FIND ANY MISTAKE , FAR LESS , A MISTAKE APPARENT ON THE FACE OF RECORD IN THE APPEAL ORDER PASSED BY THE TRIBUNAL. IN THE AFORESAID VIEW OF THE M ATTER, WE ARE UNABLE TO ACCEPT THE PLEA OF THE ASSESSEE. 4 ICICI BANK LTD. THE PRESENT MISC. APPLICATION FILED BY THE ASSESSEE BEING DEVOID OF MERIT IS, THEREFORE, DISMISSED. 5 . IN THE RESULT, MISC. APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.11.2018 SD/ - RAJESH KUMAR ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 14.11.2018 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ( SR. PRIVATE SECRETARY ) ITAT, MUMBAI