STATE BANK OF INDIA, MUMBAI V. ADDL CIT RG 2(2), MUMBAI

MA 20/MUM/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3798 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2002-2003
• Appeal Filed On: 27-01-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “G" BENCH, MUMBAI BEFORE SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER AND MS KAVITHA RAJAGOPAL, HON'BLE JUDICIAL MEMBER MA.No. 20 & 21/MUM/2022 [ARISING OUT OF ITA.Nos. 4408 & 4409/MUM/2011 (A.Ys. 2002-03 & 2001-02)] State Bank of India Financial Reporting Compliance & Taxation Department, 3 rd Floor, Corporate Centre Madam Cama Road, Nariman Point Mumbai 400 021 PAN: AAACS8577K v. Addl. Commissioner of Income Tax Range–2(2), Mumbai (Appellant) (Respondent) Assessee by : Shri Ketan Ved & Ms. Shraddha Jain Department by : Shri B.K. Bagchi Date of Hearing : 01.04.2022 Date of Pronouncement : 24.06.2022 MA.No. 20 & 21/MUM/2022 State Bank of India 2 O R D E R PER S. RIFAUR RAHMAN (AM) 1. Through this Miscellaneous Application assessee is seeking for rectification of some of the mistakes crept in the common order passed by the Tribunal in ITA.No. 4408 & 4409/Mum/2011 dated 12.07.2021 for the A.Y. 2002-03 and 2001-02. M.A. No. 21/MUM/2022 [Arising out of ITA.No. 4409/Mum/2022]. 2. At the time of hearing Ld. AR brought to our notice findings of the bench in Ground No. 3, 9 and additional Ground No. 2 and 3 in which bench has inadvertently decided the issue in favour or against the assessee which was not in line with the decisions reached by the Bench in other Assessment Years in the same consolidated order. 3. He submitted the relevant ground wise apparent mistakes as under: - Ground Findings of the Hon'ble Bench Applicant's Submissions Disallowance of depreciation on securities- Rs. 35,99,26,182/- We have heard both the parties and perused the material on record including the case laws relied upon by the parties. It was submitted before the Hon'ble Tribunal that the said issue has been decided against the Bank in the earlier years viz. MA.No. 20 & 21/MUM/2022 State Bank of India 3 Ground Findings of the Hon'ble Bench Applicant's Submissions Both the parties agreed before us that identical issue has been decided by the Tribunal and has allowed the claim of depreciation on securities in the assessment year 2000-01, 1996-97, 1997- 98, 1999-00. Consistent with the view taken therein, we set the impugned order passed by the learned CIT(A) by allowing the ground raised by the assessee. Ground No. 3, is allowed. (Para 08 to 09 of the impugned Order) 1996-97 to 2000-01 (details as per chart extracted hereinabove). However, the Tribunal has inadvertently, decided the issue in favour of the assessee holding that the issue is decided in favour in earlier years. Here, it may be noted that a similar issue in the same consolidated Order for AY 2002-03 has been correctly decided against the assessee (refer Para No. 53 & 54 of the Order). Write-off of bad debts u/s. 36(l)(vii) in respect of non-rural advances After hearing both the parties and on perusal of the record in the light of decisions relied upon by the learned Sr. Counsel for the assessee, we find that the issue for our consideration is identical to the issue decided by the Co-ordinate Bench of this Tribunal rendered in assessee's own case wherein the Tribunal has decided the issue against the assessee and in favour of the Revenue in Assessment year 2008-09. Consistent with the view taken therein as aforesaid, we uphold the order passed by the learned CIT(A) by dismissing the ground raised by the assessee. Ground no. 9, is dismissed. It was submitted that the issue is decided in favour of the assessee in assessee's own case for the Assessment Year 2008-09 and was restored to the Assessing Officer in Assessment Year 2000- 01. However, the Tribunal while deciding the issue (refer Para No. 30 & 31) holds that the issue was decided against the assessee in the Assessment Year 2008- 09, and therefore dismisses it. Similar issue in the same consolidated Order for the Assessment Year 2002-03 has been decided in favour of the assessee holding that it is decided in favour in Assessment MA.No. 20 & 21/MUM/2022 State Bank of India 4 Ground Findings of the Hon'ble Bench Applicant's Submissions (Para 30 to 31 of the impugned Order) Year 2001-02 (supra) in Para 231 (refer para No.70 and 71 of the order) Recovery of bad-debts written off should not be liable to tax u/s. 41(4) Having heard both the parties, we find that identical issue has been consistently decided by the Tribunal in assessee's own case for the assessment year 1996-97, 1997-98, 1998-99, 1999-2000, 2000- 01 and 2008-09, wherein the Tribunal following the order 3 rd January 2014, passed in assessee's own case for the assessment year 1996-97 in MA No. 371/Mum/2014, restored the issue to the file of the Assessing Officer and directed him to decide the controversy afresh by giving an opportunity of being heard to the assessee in accordance with law by following similar guidelines as given by the Tribunal in the aforesaid misc. application. Consistent with the view as aforesaid, we set-aside the order by the Commissioner (Appeals) and restore the issue to the file of the Assessing Officer with similar direction. We order accordingly. Additional ground No. 2, raised by the assessee is allowed for statistical purpose. (Para No. 41 to 42 of the impugned Order) It was submitted that the issue is decided in favour in case of State Bank of Mysore v/s. DCIT (2009) 33 SOT 7 (BANG.) and has been principally decided in favour of the assessee in Assessment Year 2008-09 though restored to the Assessing Officer for verification. Further it was submitted that the issue is restored to the Assessing Officer to decide afresh in Assessment Year 1996-97 to 2000-01. The Tribunal in para No. 42 of the Order, while deciding the issue holds that the said issue was restored back in all the years (including AY 2008- 09) to decide afresh, without considering that the issue is principally decided in favour in Assessment Year 2008- 09, and accordingly similar directions ought to be given for the year under consideration viz. Assessment Year 2001-02 as well. MA.No. 20 & 21/MUM/2022 State Bank of India 5 Ground Findings of the Hon'ble Bench Applicant's Submissions Income earned from foreign branches should not be liable to tax in India Considered the rival submissions and perused the material on record in the light of the decisions relied upon by the learned Counsel for the assessee. Before us, both the parties agree that identical issue has been consistently decided by the Tribunal in assessee's own case for the assessment year 1996-97, 1997-98, 1998-99, 1999- 2000,2000-01 and 2008- 09, wherein the Tribune! following the order 3 rd January 2014, passed in assessee's own case for the assessment year 1996-97 in MA no. 371/Mum/2014, restored the issue to the file of the Assessing Officer and directed him to decide the controversy afresh by giving an opportunity of beaing heard to the assessee in accordance with law by following similar guidelines as given by the Tribunal in aforesaid misc. application. Consistent with the view as aforesaid, we set-aside the order passed by the learned Commissioner (Appeals) and restore the issue to the file of the Assessing Officer with similar direction. We order accordingly. Additional ground No. 3, raised by the assesses is allowed for statistical purpose. It was submitted that the issue is decided in favour by the Tribunal in the case of Bank of India v/s. DCIT (ITA No. 2781/Mum/2011) and has been decided in favour of the assessee in AY 2008-09. Further it was submitted that the issue restored to decide afresh in AY 1996- 97 to 2000-01. However, the Tribunal (refer para No. 44), while deciding the issue holds that the said issue was restored back in all the year(s) (including Assessment Year 2008- 09) to decide afresh, without considering that the issue has been decided in Assessee's favour in Assessment Year 2008-09, and accordingly similar directions ought to be given for the year under consideration viz. Assessment Year 2001-02 as well. MA.No. 20 & 21/MUM/2022 State Bank of India 6 4. Ld.DR did not raise any objections. 5. Considered the rival submissions and material placed on record, we observe that there is inadvertent mistake crept in the consolidated order passed by the bench for the cross appeals filed for the Assessment Years 2001-02 and 2002-03. Accordingly, the relevant paras are replaced with the below Paragraphs: - 6. With regard to Ground No. 3 which is in respect of disallowance of depreciation on securities ₹.35,99,26,182/-, the Para No. 8 and 9 are replaced as below: - “8. Ground No.3, relates to disallowance of ₹.35,99,26,182, on account of depreciation on securities. 9. We have heard both the parties and perused the material on record including the case laws relied upon by the parties. Both the parties agreed before us that identical issue in respect of disallowance of depreciation on securities has been consistently decided against the assessee and in favour of the revenue by the decisions of the Tribunal rendered in assessee’s own case in MA.No. 20 & 21/MUM/2022 State Bank of India 7 assessment year assessment year 2000–01, 1996–97, 1997–98, 1998–99, 1999–00. Consistent with the view taken therein, we uphold the order of the learned CIT(A) by dismissing the ground raised by the assessee Ground No. 3 is dismissed.” 7. With regard to Ground No. 9 which is in respect of Write-off of bad debts u/s. 36(1)(vii) in respect of non-rural advances -, the Para Nos. 30 and 31 are replaced as below: - “30. Ground no.9, relates to write–off of bad debts under section 36(1)(vii) of the Act in respect of non–rural advances. 31. After hearing both the parties and on perusal of the record in the light of the decisions relied upon by the learned Sr. Counsel for the assessee, we find that the issue for our consideration is identical to the issue decided by the Co–ordinate Bench of this Tribunal rendered in assessee’s own case wherein the Tribunal has decided the issue against the revenue and in favour of MA.No. 20 & 21/MUM/2022 State Bank of India 8 the assessee in assessment year 2008–09. Consistent with the view taken therein as aforesaid, we set-aside the order passed by the learned CIT(A) by allowing the ground raised by the assessee. Ground no.9, is allowed.” 8. With regard to Additional Ground No. 2 which is in respect of Recovery of bad-debts written off should not be liable to tax u/s. 41(4), the Para no. 41 and 42 are replaced as below: - “41. Additional ground no.2, raised by the assessee relates to recovery of bad–debts written–off should not be liable to tax under section 41(4) of the Act as the assessee had not claimed deduction under section 36(1)(vii), as held by the Tribunal, Bangalore Bench, in State Bank of Mysore v/s DCIT, [2009] 33 SOT 007 (Bang.). 42. Having heard both the parties, we find that identical issue has been consistently decided by the Tribunal in assessee’s own case for the assessment year 1996–97, 1997–98, 1998–99, 1999–2000, 2000–01 and 2008–09, MA.No. 20 & 21/MUM/2022 State Bank of India 9 wherein the Tribunal by order dated 06 th March, 2020, passed in assessee’s own case for the assessment year 2008-09, decided the issue in favour of assessee. Consistent with the view as aforesaid, we set aside the order passed by the learned Commissioner (Appeals) and allow the ground raised by the assessee with the similar direction as given in A.Y. 2012-13. We order accordingly. Additional ground no.2, raised by the assessee is allowed.” 9. With regard to Additional Ground No. 3 which is in respect of income earned from foreign branches should not be liable to tax in India, the para no. 44 are replaced as below: - “44. Considered the rival submissions and perused the material on record in the light of the decisions relied upon by the learned Counsel for the assessee. Before us, both the parties agree that identical issue has been consistently decided by the Tribunal in assessee’s own case for the assessment year 1996–97, 1997–98, 1998– 99, 1999–2000, 2000–01 and also 2008–09, wherein the MA.No. 20 & 21/MUM/2022 State Bank of India 10 Tribunal by order dated 06 th March, 2020, passed in assessee’s own case for the assessment year 2008-09, decided the issue in favour of assessee. Consistent with the view as aforesaid, we set aside the order passed by the learned Commissioner (Appeals) and allow the ground raised by the assessee with the similar direction as given in A.Y. 2012-13. We order accordingly. Additional ground no.3, raised by the assessee is allowed.” 10. In the result, Miscellaneous Application filed by the assessee is allowed as indicated above. M.A. NO. 20/MUM/2022 [Arising out of ITA.No. 4408/Mum/2011] 11. Ld. AR submitted that the relevant ground wise apparent mistakes as under: - Ground Findings of the Hon'ble Bench Applicant's Submissions Recovery of bad-debts written off should not be liable to tax u/s. 41(4) Having heard both the parties, we find that identical issue has been consistently decided by the Tribunal in assessee's own case for the assessment year 1996-97, 1997-98, 1998-99, 1999- It was submitted that the issue is decided in favour in case of State Bank of Mysore v/s. DCIT (2009) 33 SOT 7 (BANG.) and has been principally decided in favour of the assessee in MA.No. 20 & 21/MUM/2022 State Bank of India 11 Ground Findings of the Hon'ble Bench Applicant's Submissions 2000, 2000-01 and 2008- 09, wherein the Tribunal following the order 3 rd January 2014, passed in assessee's own case for the assessment year 1996-97 in MA No. 371/Mum/2014, restored the issue to the file of the Assessing Officer and directed him to decide the controversy afresh by giving an opportunity of being heard to the assessee in accordance with law by following similar guidelines as given by the Tribunal in the aforesaid misc. application. Consistent with the view as aforesaid, we set-a side the order by the Commissioner (Appeals) and restore the issue to the file of the Assessing Officer with similar direction. We order accordingly. Additional ground No. 2, raised by the assessee is allowed for statistical purpose. (Para No. 83 and 84 of the impugned Order). Assessment Year 2008-09 though restored to the Assessing Officer for verification. Further it was submitted that the issue is restored to the Assessing Officer to decide afresh in Assessment Year 1996-97 to 2000-01. deciding the issue holds that the said issue was restored back in all the years (including AY 2008-09) to decide afresh, without considering that the issue is principally decided in favour in Assessment Year 2008-09, and accordingly similar directions ought to be given for the year under consideration viz. Assessment Year 2002-03 as well. Income earned from foreign branches should not be liable to tax in India Considered the rival submissions and perused the material on record in the light of the decisions relied upon by the learned Counsel for the assessee. Before us, both the parties agree that identical issue has been consistently It was submitted that the issue is decided in favour by the Tribunal in the case of Bank of India v/s. DCIT (ITA No. 2781/Mum/2011) and has been decided in favour of the assessee in AY 2008-09. MA.No. 20 & 21/MUM/2022 State Bank of India 12 Ground Findings of the Hon'ble Bench Applicant's Submissions decided by the Tribunal in assessee's own case for the assessment year 1996-97, 1997-98, 1998- 99, 1999-2000,2000-01 and 2008-09, wherein the Tribunal following the order 3 rd January 2014, passed in assessee's own case for the assessment year 1996-97 in MA no. 371/Mum/2014, restored the issue to the file of the Assessing Officer and directed him to decide the controversy afresh by giving an opportunity of being heard to the assessee in accordance with law by following similar guidelines as given by the Tribunal in aforesaid misc. application. Consistent with the view as aforesaid, we set-aside the order passed by the learned Commissioner (Appeals) and restore the issue to the file of the Assessing Officer with similar direction. We order accordingly. Additional ground No. 3, raised by the assessee is allowed for statistical purpose. Further it was submitted that the issue restored to decide afresh in AY 1996- 97 to 2000-01. However, the Tribunal (refer para No. 86), while deciding the issue holds that the said issue was restored back in all the year(s) (including Assessment Year 2008-09) to decide afresh, without considering that the issue has been decided in Applicant's favour in Assessment Year 2008-09, and accordingly similar directions ought to be given for the year under consideration. viz. Assessment Year 2002-03 as well. 12. Ld. DR did not raise any objections. MA.No. 20 & 21/MUM/2022 State Bank of India 13 13. Considered the rival submissions and material placed on record, we observe that there is inadvertent mistake crept in the consolidated order passed by the bench for the cross appeals filed for the Assessment Years 2001-02 and 2002-03. Accordingly, the relevant paras are replaced with the below Paragraphs: - 14. With regard to Additional Ground No. 2 which is in respect of Recovery of bad-debts written off should not be liable to tax u/s. 41(4), the para no. 83 and 84 are replaced as below: - “83. Additional ground no.2, raised by the assessee relates to recovery of bad–debts written–off should not be liable to tax under section 41(4) of the Act as the assessee had not claimed deduction under section 36(1)(vii), as held by the Tribunal, Bangalore Bench, in State Bank of Mysore v/s DCIT, [2009] 33 SOT 007 (Bang.). 84. Having heard both the parties, we find that identical issue has been consistently decided by the Tribunal in assessee’s own case for the assessment year 1996–97, MA.No. 20 & 21/MUM/2022 State Bank of India 14 1997–98, 1998–99, 1999–2000, 2000–01 and also 2008– 09, wherein the Tribunal by order dated 06 th March, 2020, passed in assessee’s own case for the assessment year 2008-09, decided the issue in favour of assessee. Consistent with the view as aforesaid, we set aside the order passed by the learned Commissioner (Appeals) and allow the ground raised by the assessee with the similar direction as given in A.Y. 2012-13. We order accordingly. Additional ground no.2, raised by the assessee is allowed.” 15. With regard to Additional Ground No. 3 which is in respect of income earned from foreign branches should not be liable to tax in India, the para no. 86 is replaced as below:- “86. Considered the rival submissions and perused the material on record in the light of the decisions relied upon by the learned Counsel for the assessee. Before us, both the parties agree that identical issue has been consistently decided by the Tribunal in assessee’s own case for the assessment year 1996–97, 1997–98, 1998– MA.No. 20 & 21/MUM/2022 State Bank of India 15 99, 1999–2000, 2000–01 and also 2008–09, wherein the Tribunal by order dated 06 th March, 2020, passed in assessee’s own case for the assessment year 2008-09, decided the issue in favour of assessee. Consistent with the view as aforesaid, we set aside the order passed by the learned Commissioner (Appeals) and allow the ground raised by the assessee with the similar direction as given in A.Y. 2012-13. We order accordingly. Additional ground no.3, raised by the assessee is allowed.” 16. In the result, Miscellaneous Application filed by the assessee is allowed as indicated above. Order pronounced in the open court on 24 th June, 2022 Sd/- Sd/- (KAVITHA RAJAGOPAL) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 24.06.2022 Giridhar, Sr.PS MA.No. 20 & 21/MUM/2022 State Bank of India 16 Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER, (Asstt. Registrar) ITAT, Mum