STATE BANK OF INDIA, V. DCIT CIR 2(2),

MA 371/MUM/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1481 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 1996-1997
• Appeal Filed On: 10-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GIRISH DAVE IZRFKHZ DH LS
• Keywords: Bad and doubtful debts

Judgement Text

- 1 - VK;DJ VIHYH; VF/KDJ.K MH U;K;IHB EQACBZ ESAA IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUM BAI JH JH JH JH FOT; IKY JKO] FOT; IKY JKO] FOT; IKY JKO] FOT; IKY JKO] U;KF;D LNL; ,OA JH U;KF;D LNL; ,OA JH U;KF;D LNL; ,OA JH U;KF;D LNL; ,OA JH ,U ,U,U ,U- -- - DS DS DS DS- -- - FCYYS;K] FCYYS;K] FCYYS;K] FCYYS;K] YS[KK LNL; DS LE{K YS[KK LNL; DS LE{K YS[KK LNL; DS LE{K YS[KK LNL; DS LE{K BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER FOFO/K VKOSNU LA[;K /MA NO.371/MUM/2013 ARISING OUT OF ITA;- 5470/MUM/2002 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR 1996-97 STATE BANK OF INDIA FINANCIAL REPORTING & TAXATION DEPARTMENT 3 RD FLOOR, CORPORATE CENTRE, MADAM CAMA ROAD NARIMAN POINT MUMBAI- 400021 CUKE@ VS. THE DEPUTY COMMISSIONER OF INCOME TAX- CIRCLE 2(2) MUMBAI PAN:- AAACS8577K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VIHYKFKHZ DH VKSJ LS @ ASSESSEE BY SHRI GIRISH DAVE IZR;FKHZ DH VKSJ LS @ REVENUE BY SHRI RAVI PRAKASH VKNS'K@ VKNS'K@ VKNS'K@ VKNS'K@ ORDER PER VIJAY PAL RAO, JM BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSES SEE IS SEEKING RECTIFICATION OF ERROR IN THE ORDER OF TRIBUNAL DATED 26 TH JULY 2013 IN ITA NO. 5470/MUM/2002, WHEREBY THE APPEAL OF THE ASSESSEE WAS DISPOSED OF. 2. WE HAVE HEARD THE LD. COUNSEL FOR THE ASSESSEE A S WELL AS THE LD. DR AND HAVE CAREFULLY PERUSED THE IMPUGNED ORDER AND RELEVANT M ATERIAL. THE GRIEVANCE OF THE ASSESSEE AS POINTED OUT IN THE MISCELLANEOUS APPLIC ATION IS REGARDING THE ADDITIONAL GROUNDS NO. 1 TO 3 RAISED BY THE ASSESSEE WHICH WAS DISPOSED OFF BY THE TRIBUNAL BY REMITTING THE SAME TO THE RECORD OF THE ASSESSING O FFICER. THE LD. COUNSEL FOR THE LQUOKBZ DH RKJH[K@ DATE OF HEARING 03-01-2014 ?KKS'K.KK DH RKJH[K@ DATE OF PRONOUNCEMENT 03-01-2014 - 2 - ASSESSEE HAS POINTED OUT THAT THOUGH THESE GROUNDS WERE RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL AND THE TRIBUNAL AFTER CONSIDER ING THE FACT THAT THESE ARE PURELY LEGAL ISSUES HAVE ADMITTED THESE GROUNDS FOR ADJUDI CATION ON MERIT. THE LD. COUNSEL HAS FURTHER SUBMITTED THAT IN SUPPORT OF THESE ADDITION AL GROUNDS THE ASSESSEE HAS RELIED UPON THE VARIOUS DECISIONS WHEREBY THESE ISSUES WER E COVERED IN FAVOUR OF THE ASSESSEE. HOWEVER IN PARA 37 OF THE IMPUGNED ORDER THE DECISION RELIED UPON BY THE ASSESSEE DO NOT FIND MENTION. THUS THE LD. COUNSEL HAS SUBMITTED THAT INSTEAD OF REMITTING THE ISSUE TO THE AO FOR FRESH ADJUDICATIO N THE TRIBUNAL SHOULD ALSO CONSIDER THE DECISIONS RELIED UPON BY THE ASSESSEE. HENCE IT IS URGED THAT THE SUITABLE CLARIFICATION/MODIFICATION IN THE IMPUGNED ORDER OF THE TRIBUNAL IN PARA 37 MAY BE MADE. 3. ON THE OTHER HAND LD. DR HAS SUBMITTED THAT THER E IS NO APPARENT ERROR IN THE IMPUGNED ORDER OF THE TRIBUNAL REGARDING THE ADDITI ONAL GROUNDS RAISED BY THE ASSESSEE WHICH WERE REMITTED TO THE RECORD OF THE AO FOR EX AMINATION AND ADJUDICATION AS PER LAW. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FUL PERUSAL OF THE RECORDS, WE NOTE THAT THE ASSESSEE HAS ADVANCED ARGUMENTS IN RE SPECT OF ADDITIONAL GROUNDS NO. 1- 3 WHICH READS AS UNDER:- SL. NO. ADDITIONAL GROUNDS OF APPEAL REMARKS 1. WRITE-OFF OF BAD DEBTS U/S 36 (1) (VII) COVERED BY THE DECISION OF THE SUPREME COURT IN THE CASE OF VIJAYA BANK VS. CIT (2010) 323 ITR 166 2. RECOVERY OF BAD-DEBTS WRITTEN OFF SHOULD NOT BE LIABLE TO TAX U/S 41(4) COVERED BY THE DECISION OF THE BANGALORE TRIBUNAL IN THE CASE OF STATE BANK OF INDIA MYSORE VS. DCIT (2009) 33 SOT 7 (BANG.) 3. INCOME EARNED FROM FOREIGN BRANCHES SHOULD NOT BE LIABLE TO TAX IN INDIA COVERED IN FAVOUR OF THE APPELLANT BY THE DECISION OF THE MUMBAI BENCH OF TRIBUNAL IN THE CASE OF BANK OF INDIA VS. DCIT (ITA NO. 2781/MUM/2011) - 3 - 4. THE TRIBUNAL HAS DISPOSED OF THE ISSUE IN PARA 37 OF THE ORDER WHICH READS AS UNDER:- IN ADDITIONAL GROUND NO. 1-3 ARE RAISED FIRST TIME BY THE ASSESSEE AND INVOLVES LEGAL ISSUE, THEREFORE AS PRAYER BY THE AS SESSEE THE SAME ARE REMITTED TO THE RECORD OF THE ASSESSING OFFICER FOR EXAMINATION AND ADJUDICATION AS PER LAW AFTER GIVING A OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IT IS APPARENT FROM THE FINDING OF THE TRIBUNAL IN PARA 37 (SUPRA) THAT THE DECISIONS RELIED UPON BY THE LD. AR HAVE ESCAPED CO NSIDERATION, ACCORDINGLY WE ARE OF THE VIEW THAT TO THAT EXTENT THERE IS AN APPARENT E RROR IN THE IMPUGN ORDER OF THE TRIBUNAL WHICH REQUIRES TO BE RECTIFIED U/S 254(2) OF THE INCOME TAX ACT. SINCE THESE ISSUES WERE RAISED FOR THE FIRST TIME AND REMITTED TO THE RECORD OF THE AO FOR EXAMINATION AND ADJUDICATION, THEREFORE, WE MODIFY OUR FINDING ON THE ADDITIONAL GROUNDS NO. 1-3 IN PARA 37 WHICH READS AS UNDER:- 37. ADDITIONAL GROUND NO. 1-3 ARE RAISED FIRST TIME BY THE ASSESSEE AND INVOLVES LEGAL ISSUE. THOUGH THE ASSESSEE HAS RELIE D UPON THE FOLLOWING DECISION IN SUPPORT OF ITS CLAIM ;- 1. COVERED BY THE DECISION OF THE SUPREME COURT IN THE CASE OF VIJAYA BANK VS. CIT (2010) 323 ITR 166 2. COVERED BY THE DECISION OF THE BANGALORE TRIBUNAL I N THE CASE OF STATE BANK OF INDIA MYSORE VS. DCIT (2009) 33 SOT 7 (BANG.) 3. COVERED IN FAVOUR OF THE APPELLANT BY THE DECISION OF THE MUMBAI BENCH OF TRIBUNAL IN THE CASE OF BANK OF INDIA VS. DCIT (ITA NO. 2781/MUM/2011) HOWEVER SINCE THE ISSUE HAS NOT BEEN EXAMINED BY TH E AO, THEREFORE, IN THE INTEREST OF JUSTICE WE REMIT THESE GROUNDS TO T HE RECORD OF THE ASSESSING OFFICER FOR FRESH EXAMINATION AND ADJUDICATION AFTE R CONSIDERING THE DECISIONS RELIED UPON BY THE ASSESSEE AS WELL AS AFTER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE. - 4 - 6. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED AS IMPUGNED ORDER IS MODIFIED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT TODAY I.E 03/0 1/2014 SD/- SD/- (N.K. BILLAIYA) (VIJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER SKS SR. P.S, MUMBAI DATED 03/01/2014 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, D BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI