It is a cardinal principle, when two
sovereign nations enter into an agreement and have come to an
understanding regarding the terms, views expressed in the agreement,
such terms cannot be unilaterally changed. Once the Government of India
and Government of UAE had not used the limitation clause of
applicability of domestic law in determining the profits and deduction
of expenses of PE under Article 7(3), the same cannot be read into even
impliedly, that such a provision existed. One
has to see the merits of the word and its meaning understood when the
two high contracting parties, herein in this case, two sovereign nations
entered into an agreement. When a particular provisions in the
agreement has been brought from a particular date, it has to be, prima
facie, taken to be prospective in operation, unless it is expressly or
by necessary implication provided or made to have retrospective
operation, because the parties interpreting such agreement gets vested right under
such existing agreement and any such interpretation giving
retrospective effect not only impairs the vested right but attracts the
new disability in respect of transactions already entered in the past.
Here in this case, if any such interpretation is given for retrospective
operation of this Article, it creates new obligation and disturbs the
assessability of the profit of the PE. The retrospective operation
cannot be taken to be intended unless by necessary implication it has
been made to have the retrospective effect. Thus, the amendment
brought in Article 7(3) w.e.f. 1-4-2008, will not apply retrospectively,
prior to such date as it would impose a new obligation or a liability
to tax which was not made by the two Contracting States.
IN THE ITAT MUMBAI
Abu Dhabi Commercial Bank Ltd.
v.
ADIT (IT) – 1(1), Mumbai
IT APPEAL NOS. 1996, 2205, 2851, 3925, 4304
& 5017 (MUM.) OF 2004
AND 3462, 3857 & 4022 (MUM.) OF 2010
C.O. NOS. 115 & 414 (MUM.) OF 2004
AND 48 (MUM.) OF 2005
[ASSESSMENT YEARS 1995-96 TO 2000-01]
July 20, 2012
ORDER
Per Bench – These are
bunch of cross appeals and cross objections filed by the assessee for
the assessment years 1995-1996 to 2000-2001. Since the issues in all the
appeals are common, therefore, for the sake of convenience, all these
appeals are being disposed of by this consolidated order.
ITA No.3462/M/2010 (AY: 1995-1996) (By Assessee) :-
2. In this appeal the
assessee is aggrieved by the order dated 8-2-2010, passed by the
CIT(A)-10, Mumbai on the following grounds :-
“1. The
Commissioner of Income-tax (Appeals)-10, Mumbai [hereinafter referred to
as the CIT(A)] erred in confirming the action of Assessing Officer (AO)
of restricting the deduction for head office expenses by applying the
provisions of section 44C of the Act, as against the appellants claim
that the entire amount of Rs. 40,04,788 allocated to the Indian branches
should be allowed as a deduction as per the provision of Article 7(3)
of the convention between the Govt of UAE and the Government of India
(hereinafter referred to as the Tax Treaty).
The appellants submit that in computing
the taxable business income in India, the treaty allows a deduction for
all expenses wherever incurred and reasonably allocable to the
permanent establishment, including its share of executive and general
administrative expenses. As the treaty overrides the domestic law, the
amount allocated by the Head Office should be allowed as a deduction in
full.”
3. Briefly stated the relevant facts of the case for adjudication
of the solitary issue involved is that the assessee is a Banking
Company incorporated in UAE and is having two branches in India i.e. in
Mumbai and Bangalore. The income from banking operations in India is
offered for tax in India. The Government of UAE and Government of India
have entered into DTAA, which is applicable from this year i.e., from
assessment year 1995-1996. The business profit of the bank related to
its Indian operations required to be computed in accordance with the
provisions of Article 7 of the convention. In computing the total
income, the assessee after taking into consideration the provisions of
Article 7(3), had taken a stand in the return of income that the various
provisions of income tax relating to computation
of business income which restricts the allowance of expenses, will not
be applicable. In short the assessee’s contention is that the provision
of Section 44C will not be applicable. The assessee had claimed ‘head
office expenses’ of Rs. 40,04,788, which were incurred and were
attributable to Indian operation. The administrative cost incurred by
the head office was thus, allocated to its branches. The Assessing
Officer vide order dated 20-2-1998, assessed the head office expenses by
applying the provisions of section 44C of the Income Tax Act. However,
the learned CIT(A), vide order dated 12th June, 2000, allowed the entire
expenditure of Rs. 40,04,788/-, after following the jurisdictional High
Court judgment in the case of CIT v. Deutsche Bank A.G., reported 284 ITR 463 and also various Tribunal’s orders rendered in assessee’s own case for
the assessment years 1984-1985 to 1992-1993. Against the said order,
the revenue came in appeal before the ITAT. The Tribunal vide order
dated 14-2-2007, restored the matter back to the file of the Assessing Officer for fresh adjudication on the ground that the amendment
in section 44C has come in the statute w.e.f. 1-4-1993 and all the
judgments rendered were prior to the assessment years in question and,
therefore, will not be applicable. Thus, the matter was restored back to
decide this issue afresh as per the amended provisions of Section 44C
and in accordance with the provisions of law.
4. Before the Assessing
Officer in the set aside proceedings, the assessee claimed that the
deduction for head office expenses, which was attributable to Indian
branches should be allowed in full, in view of the Article 7(3) of the
Treaty between India and UAE. The Assessing Officer observed that there
is no dispute that this deduction for head office expenses should be
allowed to the permanent establishment, albeit within the limits
specified under the Income Tax Act i.e. under Section 44C. The Assessing
Officer while arriving to this conclusion, referred to commentaries
of UN Model convention and OECD convention that the intention of the
Article 7 is to ensure the correct profit is brought to tax. He also
referred to CBDT circular No.202,
which was rendered at the time of introduction of Section 44C by the
Finance Act, 1976. Lastly, he extensively referred and relied upon the
decision of CIT(A) rendered in the case of the assessee for the
assessment year 1997-1998 vide order dated 18-1-2001. Following the said
decision, he held that ‘head office expenses’ will be allowed only as
per the limit prescribed under section 44C.
5. Before the CIT(A),
the assessee made elaborate submissions, contending, inter alia, that
the total income of the PE should be computed as per the provisions of
Article 7(3), where there is no restriction clause for applying the tax laws of the Contracting State. It was further submitted that such a restriction in Article 7(3) has come by way of the amendment brought through Protocol dated 3-10-2007 with effect from 1st April, 2008. Thus, prior to the amendment such a restriction clause cannot be read into. The assessee also relied upon the decision of ITAT Mumbai Bench in the case of Bank International Indonesia, Mumbai ITA No. 303/M/2001 (vide order dated 14.1.2004) and Metchem Canada Inc.
100 ITD 251 (Mum.), wherein the Tribunal came to a view in the light of
non-discrimination clause in DTAA, that the entire ‘head office
expenses’ are permissible as deduction. The CBDT Circular No. 202 as
have been relied upon by the Assessing Officer would be applicable where
the claim has been made under the IT Act and not in those cases, where
the provisions of DTAA are applicable, which overrides the provisions of
Income Tax Act.
6. The ld. CIT(A) after
considering the finding of the Assessing Officer and the submission of
the assessee, held that even though Article 7(3) of Indo-UAE Treaty,
does not contain any express provision for applying “Indian Taxation
Law” for computing of profits of PE, however, the provisions of Article
25(1) of the treaty relating to elimination of double taxation would
prevail and, therefore, in view of such article, laws in force in India
should continue to govern the taxation of income of PE situated in
India. Further he held that the amendment brought by Protocol dated
3-10-2007 w.e.f. 1-4-2008, strengthens the department’s case, as it has
clarified the matter that expenses pertaining to executive and
administrative are to be allowed in accordance with the provisions of
domestic law only. Thus, the provision contained in Article 25(1) has
been ratified by this amendment. Following the CIT(A)’s order for the
assessment years 1998-1999 to 2003-2004, he thus, upheld the finding of
the Assessing Officer and dismissed the assessee’s ground on this score.
7. Learned Senior
Counsel appearing on behalf of the assessee submitted before us that in
absence of limitation clause in Article 7(3), the provision of section
44C cannot be applied in the assessee’s case. The amendment brought by
way of protocol in the Indo-UAE Treaty w.e.f. 1-4-2008 only strengthens
the assessee’s case that earlier such a limitation clause cannot be read
into in Article 7(3). On the issue that the limitation clause can be
said to be imported by virtue of Article 25(1), he submitted that it is a
general article dealing with elimination of double taxation and credit
of taxes and does not provide any restriction to article 7(3). He
referred to similar provisions in various treaties and their
interpretation as per OECD convention, UN Model etc. He submitted that
wherever there is a limitation clause, this has been expressly provided
in the Article 7 and Articles similar to Article 25 that has also been
defined with regard to mode of giving credit of taxes in various
treaties. He cited example of Indo-German DTAA and Indo-Japan DTAA,
wherein article 23(3) and 23(1), which is similar to Article 25(3) of
Indo-UAE Treaty have been interpreted to be not providing any clause of
limitation in Article 7(3). In support of his contention that view taken
by ITAT in Mitsui Bank PSC (supra) has been impliedly observed by recent decision of ITAT Mumbai Special Bench in the case of M/s Sumitomo Mitsui Banking Corporation v. DDIT (IT),
passed in ITA No. 5402/M/2006, vide order dated 30-3-2012 and drew our
attention, specifically to paras 60 to 63. Lastly, he submitted that in a
latest decision by the ITAT Ahmedabad Bench in the case of ADIT(IT) v. M/s Dalma Energy LLC,
passed in ITA No. 1664/Ahd/2008, vide order dated 23-4-2012, have
discussed this issue of Article 7(3), 25(1) of Indo-UAE Treaty with
specific reference to amendment brought by way of Protocol w.e.f.
1-4-2008 and submitted that in this case it has been held that the
amendment would be applicable prospectively and not retrospectively.
8. Per Contra, learned CIT DR submitted that this issue is squarely covered by the decision of ITAT Mumbai Bench in the case of Mashreqbank Psc. v. DDIT(IT),
passed in 2153/Mum/01, vide order dated 13-4-2007. He submitted that in
this case, the Tribunal has categorically held that in view of the
provision of Article 25(1) of Indo-UAE Treaty, limitation clause gets
applicable in Article 7(3). The Tribunal has analysed the provisions
given in Articles 7(3) and 25(1) in a great detail, after referring to
various commentaries. He further submitted that the decision of Special
Bench in the case of M/s Sumitomo Mitsui Banking Corporation (supra),
is entirely distinguishable on facts and was rendered in altogether on a
different issue and the decision of the Special Bench does not overrule
the decision of case of Mashreqbank Psc. (supra). He
also brought to our notice that the assessee had earlier filed a
miscellaneous application against the order of the ITAT dated 14-2-2007,
wherein the matter was remanded back to the Assessing Officer, The
Tribunal, in its order passed in M.A., has discussed this issue and the
matter was decided against the assessee. He also tried to distinguish
the decision of the ITAT Ahmedabad Bench in the case of M/s Dalma Energy LLC (supra),
on the ground that impact of Article 25(1) has not been considered at
all. On the issue that amendment was only clarificatory, he relied upon
the decision of ITAT which has been reported in 13 SOT 95, wherein it
was held that amendment in Article 4, was clarificatory, and therefore,
the same logic should be imported to Article 7(3) vis-Ã -vis protocol
brought with effect from 1st of April, 2008. Lastly, he extensively
referred to findings and the reasoning given by the CIT(A) and the
Assessing Officer.
9. In rejoinder,
learned Senior Counsel submitted that purpose of Article 25(1) of
Indo-UAE Treaty, which is similar to Article 23(3) of Indo-Japan Treaty
has been specifically interpreted by the Special Bench in the case of M/s Sumitomo Mitsui Banking Corporation (supra). He referred to various paragraphs in the said judgment wherein this issue has been clarified. Regarding the case of Mashreqbank Psc. (supra) as relied upon by the learned CIT DR he submitted that in view of the Special Bench decision, Mashreqbank Psc. (supra)
cannot be held to be good law as on date. He further submitted that
this decision was rendered prior to the amendment brought by way of
Protocol w.e.f. 1-4-2008. Once the protocol has been brought from a
specific period, no hidden meaning can be assigned in the article 7(3)
and it can never be held that it has a retrospective effect. He cited
examples of various protocol wherein chargeability of a tax from a
particular date, cannot be said to be retrospective. Regarding order of
the Tribunal in miscellaneous application, he submitted that when the
miscellaneous application has been dismissed, it is dismissed in toto,
which inter alia, means original order stands as it is and it does not
amend the original order. Lastly, he submitted that the case of M/s Dalma Energy LLC (supra), which has considered that the protocol should be applied.
10. We have heard the
rival submissions and perused the material placed on record. Here in
this case, the entire controversy is whether in determining the profits
of PE in India, the expenses incurred for the purpose of PE is to be
computed by applying the provisions of section 44C of the Act (i.e.,
under the domestic law in which PE is situated) on an interpretation of
Article 7(3) r/w Article 25(1) of the India-UAE DTAA as was prevalent in
the relevant assessment year. The other corollary to this issue are:-
(i)
Whether on a true and correct interpretation of Article 7(3), (at the
relevant time), the limitation clause of applicability of domestic laws
of the State in which PE situated, (herein in this case, India), should
be construed to be available from Article 25(1);
(ii)
Whether the limitation clause inserted in Article 7(3), by way of
amendment brought by Protocol vide notification No.282/2007 , dated
28-11-2007, w.e.f. 1.04.2008, regarding applicability of domestic law,
can be said to have come into force, w.e.f. 1st day of April, 2008 or
can be held to be clarificatory in the nature, hence, to have
retrospective effect.
10.1 The department’s
case has been, wherever, there has been no specific provision in Article
7(3) for computing the profit of PE as per domestic laws, the same
should be interpreted in view of the provisions of Article 25(1) of the
DTAA which provides that the laws in force in either of the contracting
States shall continue to govern the taxation of income in the respective
contracting State except for expressly provided in the agreement. The
ld. CIT(A) has observed that most of the Treaties entered into by India
with various countries, it has been specifically provided that
computation of profit of PE in Article 7(3) would be as per domestic
laws of that State in which PE is situated and wherever there is no such
specific provision, Article 25(1) enables the applicability of the
domestic law. He has referred to commentary by ‘Klaus Vogel’, wherein he
mentions that “while explaining the provision of Article 7(1) of the
OECD/UN Model Convention that the meaning of term profit of a permanent
establishment and how the profits are determined is always governed by
the domestic laws of the contracting state concerned, though it may
happen sometimes that certain provisions of domestic law do not apply to
the foreign permanent establishment.” He also relied upon the CBDT
Circular No. 202, which lays down intention behind interpretation of
Section 44C. The protocol dated 3-10-2007, which has amended the Article
7(3) w.e.f. 1-4-2008 only clarifies the department’s stand that the
expenses pertaining to executive and administrative nature are to be
allowed in accordance with the provisions of domestic law i.e. 44C and
this amendment is only clarificatory in nature. The assessee’s stand on
the other hand, has been that in the relevant assessment year, the
Article 7(3) as it stood, cannot be interpreted in such a manner that
the limitation clause of applicability of domestic law should be read
into. The protocol amending Article 7(3) has been brought w.e.f.
1-4-2008 which cannot have a retrospective effect. Before us, both the
parties have given decision of ITAT in their favour on this point. The
Department has heavily relied upon the judgment of Mashreqbank Psc (supra), and the assessee has relied upon the case of M/s Dalma Energy Ltd. (supra).
11. The relevant
provisions contained in Article 7(3) of Indo-UAE DTAA prior to 1-4-2008
which was based on OECD model, reads as under :-
“3. In determining
the profits of a permanent establishment, there shall be allowed as
deductions expenses which are incurred for the purposes of the business
of the permanent establishment, including executive and general
administrative expenses so incurred, whether in the State in which the
permanent establishment is situated or elsewhere.”
From the above, it is apparent that in determining the profits of PE,
(i) all
expenses incurred for the purposes of the business of the PE shall be
allowed as a deduction in determining profits of PE;
(ii) such expenses include executive and general administrative expenses; and
(iii) such expenses could be incurred within or outside the state in which the PE is situated.
Thus, there is no
restriction on allowing of head office expenses and other expenses
attributable to PE. The said article has now been amended by the
Protocol entered into by the India-UAE on 3-10-2007 which has been
notified on 28-11-2007, effective from 1st April, 2008. The Article 2 of
the Protocol, has amended the Article 7(3),which reads as under :
“3. In determining
the profits of a permanent establishment, there shall be allowed as
deductions expenses which are incurred for the purposes of the business
of the permanent establishment, including executive and general
administrative expenses so incurred, whether in the State in which the
permanent establishment is situated or elsewhere, in accordance with the
provisions of and subject to the limitations of the tax laws of that
State.”
11.1 Now, with the
insertion of phrase, “in accordance with the provisions of and subject
to the limitations of the tax laws of that State”, the mandate of
applicability of the domestic law has been provided, in allowing the
deduction of expenses of the PE and determination of profit under the
Income Tax Act. Consequently section 44C becomes applicable. The issue
before us is, whether such a limitation clause can be said to have
retrospective effect. It is a cardinal principle, when two sovereign
nations enter into an agreement and have come to an understanding
regarding the terms, views expressed in the agreement, such terms cannot
be unilaterally changed. Once the Government of India and Government of
UAE had not used the limitation clause of applicability of domestic law
in determining the profits and deduction of expenses of PE under
Article 7(3), the same cannot be read into even impliedly, that such a
provision existed. One has to see the merits of the word and its meaning
understood when the two high contracting parties, herein in this case,
two sovereign nations entered into an agreement. When a particular
provisions in the agreement has been brought from a particular date, it
has to be, prima facie, taken to be prospective in operation, unless it
is expressly or by necessary implication provided or made to have
retrospective operation, because the parties interpreting such agreement
gets vested right under such existing agreement and any such
interpretation giving retrospective effect not only impairs the vested
right but attracts the new disability in respect of transactions already
entered in the past. Here in this case, if any such interpretation is
given for retrospective operation of this Article, it creates new
obligation and disturbs the assessability of the profit of the PE. The
retrospective operation cannot be taken to be intended unless by
necessary implication it has been made to have the retrospective effect.
Thus, the amendment brought in Article 7(3) w.e.f. 1-4-2008, will not
apply retrospectively, prior to such date as it would impose a new
obligation or a liability to tax which was not made by the two
Contracting States.
12. A lot of stress has
been given by the department and the learned DR that such an exception
already existed by virtue of Article 25(1) which provides that :
“The laws in force
in either of the Contracting States shall continue to govern the
taxation of income and capital in the respective Contracting States
except where express provisions to the contrary are made in this
Agreement.”
Article 25 which is similar to Article
23 of other treaties, deals with the Elimination of double taxation and
it is for this purpose, it has been provided that the ‘laws in force’ in
either of the Contracting States shall continue to govern the taxation
of the income unless express provision to the contrary are made in this
Agreement. Further paragraphs of Article 25 provide for deductions or
credit of the taxes paid in either of the states. Various countries in
their agreements based on different models have adopted different method
of credit of taxes or deductions or exemptions to eliminate the
incidents of double taxation in their domestic laws. Article 25 per se
does not provide any rules on the mechanism for computing relief. Hence
for this purpose, the domestic laws may have to be referred.
Interpretation of Article 25 that it extends to Article 7 for
applicability of domestic law will not be correct. If a computation of
profit has been provided in a certain manner in Article7, restrictions
cannot imported therein by virtue of Article 25.
13. The case of Mashreqbank Psc (supra),
which has been relied upon heavily by the department, first of all, was
rendered prior to the amendment brought by the Protocol. However in
this case it has been interpreted that Article 25(1) of Indo-UAE Treaty
should be read in Article 7(3) for applicability of domestic law. After
detail analysis and discussion, the relevant observations given in the
said decision are as under :-
“21. In view of the
above discussions, and particularly bearing in mind the provisions of
Article 25(1) of the India UAE tax treaty, we are of the considered view
that the limitations under the domestic tax laws are to be taken into
account for the purposes of computing profits of a PE under Article 7(3)
of the India UAE tax treaty. The plea of the assessee is incompatible
with overall scheme of the tax treaties, particularly India UAE tax
treaty. Accordingly, the conclusion arrived at by the CIT(A) meets our
approval. We confirm the same and decline to interfere in the matter.”
This view of Mashreqbank psc (supra), stands impliedly overruled by the latest decision of ITAT Special Bench in the case of M/s Sumitomo Mitsui Banking Corp.(supra),
wherein while interpreting a similar provision of Article 23(1) of
Indo-Japan DTAA, which is materia to Article 25(1) of Indo-UAE Treaty,
has observed and held as under :-
“60. First we shall
deal with the arguments of Shri Girish Dave based on the relevant
provisions of the Indo-Japanese treaty. He has, inter alia, relied on
article 23 of Indo-Japanese treaty which provides that the laws in force
in either of the contracting State shall continue to govern the
taxation of income in respective contracting state except where express
provisions to the contrary are made in the convention. According to him,
article 11 read with article 7 of the treaty contains such express
provision and make the interest payable by the PE in India to the GE
abroad the income of the GE chargeable to tax in India. Before we
consider this argument of Shri Girish Dave in the light of the relevant
provisions of the article 7 and 11 of the Indo-Japanese treaty, it is
pertinent to discuss certain basic aspects of the matter which are
relevant in this context.
61. Section 90(2) of
the Income-tax Act, 1961 provides that where the Central Government has
entered into an agreement with the Government of any country outside
India or specific territory outside India, as the case may be, section
(1) for granting relief of tax, or as the case may be, avoidance of
double taxation, then, in relation to the assessee to whom such
agreement applies, the provisions of this Act shall apply to the extent
they are more beneficial to that assessee. This specific provision
contained in section 90(2) makes it abundantly clear that in relation to
the assessee like the one in the present case to whom the double tax
avoidance treaty entered into by the Indian government applies, the
provisions of Income-tax Act shall apply to the extent they are more
beneficial to him. It, therefore, follows that if the provisions of the
domestic law are more beneficial to the assessee than the provisions of
the relevant tax treaty, the provisions of the domestic law shall
override and prevail over the provisions of the treaty. Article 23 of
the Indo-Japanese treaty therefore cannot be interpreted in a way as
sought by Shri Girish Dave because if such interpretation is assigned to
article 23 and the interest income which is otherwise not taxable in
India as per the domestic law is held to be taxable relying on the
provisions of the treaty, the same will run contrary to the provisions
of section 90(2). Such interpretation, therefore, cannot be assigned to
article 23 and the only interpretation which, in our opinion, can be
assigned to the said article so as to make the provisions thereof in
consonance with section 90(2) of the domestic law is that if there is an
express provision made in the convention giving benefit to the assessee
which is contrary to the domestic law, then the provisions of treaty
can be relied upon which shall override and prevail over the provisions
of the domestic law to give any benefit expressly given to the assessee
under the treaty. The decision of Hon’ble Supreme Court in the case of Azadi Bachao Andolan (supra) fully supports this view.”
13.1 The view taken by
the Special Bench in a way negates the view of Mashreq Banks case. If
such an interpretation of Article 25(1) is to be given in Article 7(3),
then there was no need of bringing the amendment by way of protocol from
a particular date. The amendment itself shows there was no such
intention by the two Contracting States at the time when they entered
into the agreement. This amendment by way of protocol and Article 7(3)
has been duly considered by the ITAT Ahmedabad Bench in the case of Dalma Energy LLC (supra),
wherein the applicability of Section 44C in Article 7(3) for the
earlier assessment years has been interpreted in the following manner :-
“14. To conclude the
legal aspect of this issue, we have already reproduced Article 7 (in
para 12.1 above) and on careful perusal, we have noted that in
determining the profits of a PE the expenses which are incurred for the
purposes of the business of the said PE, including general
administrative expenses is to be allowed. At this stage of argument, we
have categorically raised a question that if executive and general
administrative expenses of a PE is to be allowed having been incurred
for the purposes of the business of a PE, then what is the utility of
the introduction of section 44C of the IT Act. Ld. AR Mr. Milin Mehta
has answered that keeping in mind the controversy an amendment took
place in the Articles and vide a protocol amending the agreement between
the Government of the Republic of India and the Government of United
Arab Emirates vide Notification No.282/2007, dated 28/11/2007 which is
effective from 1st day of April, 2008, paragraph 3 of Article 7
(Business Profits) has been replaced by the following :-
“3. In determining
the profits of a permanent establishment, there shall be allowed as
deductions expenses which are incurred for the purposes of the business
of the permanent establishment, including executive and general
administrative expenses so incurred, whether in the State in which the
permanent establishment is situated or elsewhere, in accordance with the
provisions of and subject to the limitations of the tax laws of that
State.” (emphasis given)
14.1 In view of the
aforesaid amendment, now the admitted legal position is that the
admissibility of expenditure is to be governed by Article 7(3) of the
Treaty upto the date from which the new amended provisions of the Treaty
shall be applicable i.e. w.e.f. 1.4.2008. It can, inter alia, be
summed-up that the contracting States and to avoid any conflict in the
provisions of the tax laws vis-Ã -vis the provisions of Treaty, as also
to streamline the applicable provisions of law, it was decided to
incorporate that, for the purposes of determining the profits of a
permanent establishment, there shall be allowed deduction of expenses
incurred for the purposes of the business of the permanent establishment
including general administrative expenses but in accordance with the
provisions and also subject to the limitations of the tax laws of that
State. Therefore, by this amendment in the Article the applicability of
provision of section 44C has been enforced, nevertheless with effect
from 1st day of April, 2008.”
14. Thus, in view of
our above finding, we hold that, firstly, in the assessment year
involved, limitation clause of applicability of income-tax Act will not
apply in Article 7(3) and consequently provisions of sections 44C will
not be applicable; secondly, the amendment brought by way of Protocol by
which article 7(3) has been amended and limitation clause has been
brought in, will apply from 1st April, 2008 and will not have any
retrospective effect; thirdly, the judgment of Mashreqbank psc (supra), is no longer relevant in view of the decision of the Special Bench in the case of M/s Sumitomo Mitsui Banking Corp.(supra).and
Lastly, from the above conclusions, it is held that computation of
income and disallowance of expenses relating to head office cannot be
made by invoking the provisions of Section 44C of IT Act. Thus, in view
of the above conclusions, we hold that income of the PE of the assessee
should be computed as business income after allowing all the expenses
attributable to its business in India including the head office
expenses.
15. In the result, grounds taken by the assessee is allowed.
ITA NO.3857/M/2010 (AY:1996-97) (By Assessee):
16. This appeal has been filed against the order dated 5.3.2010 passed by CIT (A)-10, Mumbai.
17. In ground no.1
assessee has challenged the restriction of deduction for head office
expenses by applying the provisions of sec. 44C of the Act as against
the assessee’s claim that the entire amount of Rs. 39,47,623/-allocated
to the Indian branches should be allowed as deduction as per provision
of Article 7(3) of India-UAE DTAA.
18. This issue has
already been decided in favour of the assessee in the aforesaid appeal
for the Assessment Year 1995-96 in ITA No.3462/M/2010. The finding given
in the above appeal applies mutadis-mutandis in this ground also. Thus,
ground no.1 as raised by the assessee stands allowed.
19. In ground no.2, the assessee has challenged calculation of interest u/s 244A in the following manner:
“2(a) The CIT(A)
ought to have directed the AO to recomputed interest under section 244A
at Rs. 1,17,83,506/- (per computation enclosed) as against Rs.
85,50,458/- (incorrectly mentioned as Rs. 8,55,05,458/- by the CIT(A) in
the order dated 5th March, 2010 for the assessment year 1996-97) being
interest granted by the AO vide order under section 154 dated 3rd
December, 2008.
(b) The
CIT(A) ought to have directed the AO to recomputed the interest under
section 244A based on the outcome of the appeal. The appellants pray
that the AO be directed to recomputed the interest under section 244A.
(c) The CIT(A) ought to have directed the AO to grant interest up to date of receipt of refund by the appellants.
(d) The
CIT(A) ought to have appreciated the fact that interest under section
244A should be computed on the tax refund excluding interest already
granted to the appellants.”
20. The Ld CIT (A) has
rejected the assessee’s ground on the score that this issue is not
arising out of order impugned before him but from order u/s 154.
21. At the very outset,
learned Sr. Counsel on behalf of the assessee submitted that this issue
stands covered by the decision of ITAT in assessee’s own case for the
assessment year 1990-91 passed in ITA No.5136/M/2009 vide order dated
2.7.2010. He also referred to calculation of interest which has been
given in the paper book from pages 98 to 102. On the other hand, Ld
CIT-DR submitted that the issue of interest u/s 244A is arising out of
the order u/s 154 passed by the AO and, therefore, the same cannot be
adjudicated upon.
22. After carefully
considering the rival submissions and perusing the material on record,
we find that the issue of interest u/s 244A is a part of working of
demand determined by the AO in pursuance of the assessment order.
Therefore, same can very well be challenged in the present appellate
proceedings. As stated by the learned Counsel, this issue has come up
for consideration before this Tribunal in assessment year 1990-1991
wherein this issues was decided in favour of the assessee after
observing and holding as under:
“We have considered
the rival contentions and relevant record. It is evident from the orders
of the lower authorities that the AO has calculated the interest u/s
244A by reducing the refund of tax already granted to the assessee. In
the amount of refund the interest which was granted earlier occasions
also included. Therefore, the AO has reduced the total refund granted
which consists refund of tax and interest already granted u/s 244A.
Therefore, we find force in the contention of the learned AR that while
computing the interest u/s 244A, the AO has reduced both the refund of
tax as well as interest granted u/s 244A from the refund due to the
assessees. In order to compute the interest u/s 244A, the amount balance
refund due to the assessee has to be determined after deducting the
amount of that tax already refunded and not amount of interest already
granted u/s 244A. Thus the interest component in the refund already
granted should be excluded while the same is to be reduced from the
refund due to the assessee for the purposes of section 244A for future
interest on the balance refund due amount. Accordingly, we are of the
view that the method adopted by the AO suffered from grave error as the
same has resulted the reduction of interest payable to the assessee
because the principal amount is reduced by interest component already
granted and then future interest is computed. The interest already
granted up to a date is relevant only for exclusion of period for which
it is granted and the future interest has to be granted from the
subsequent period. Therefore, the interest already granted cannot reduce
the principle refund due to the assessee but the amount which
represents the tax already refunded has to be reduced from the total
refund due to the assessee for computation of interest u/s 244A. We note
that the CIT (A) has decided the issue in para 2.2 of the impugned
order as under:
“2.2 I have
considered the appellant’s request and examined the facts. In view of
the facts above, I find that the issue relates to calculation method
adopted by the department and assessee. It is seen that method adopted
by the AO is being consistently followed in respect of all assessees.
Therefore, I am of the view that method adopted by the AO as per
provisions of the Act cannot be faulted. I therefore, inclined to agree
with the computation method adopted by the AO. Accordingly, the ground
under appeal is dismissed.
From the above it is
clear that the CIT (A) has not gone into the question of correctness of
method adopted by the AO but decided the issue on the ground that the
method adopted by the AO is being consistently followed in respect of
all assessees. Therefore, the impugned order of the CIT (A) qua this
issue is not sustainable in law and liable to be set aside. We
accordingly decide this issue in favour of the assessee and direct the
AO to calculate the interest on the refund due to the assessee without
reducing the interest under section 244A which is part of the refund
earlier granted from the refund due.”
23. Thus, respectfully
following the aforesaid decision, we direct the AO to calculate the
interest on the refund due to the assessee without reducing the interest
u/s 244A which is a part of the refund earlier granted from the refund
due. The AO is also required to examine the calculation of interest as
submitted by the assessee.
24. Thus, this ground
is restored back to the AO to give consequential relief in calculation
of interest u/s 244A. In the result, this ground is treated as allowed,
but for statistical purposes.
ITA NO.4022/M/2010 (AY: 1997-98) (By Assessee):
25. In this appeal, ground no.1 is similar to ground no.1 in ITA No.3462/M/2010 dealing with applicability of sec.44C vis.a.vis Article
7(3). The issue raised in this ground has been discussed in detail in
the assessment year 1995-1996 in ITA No.3462/M/2010 and the finding
given therein, squarely applies in this year also. Thus ground no.1 as
raised by the assessee is allowed.
26. In ground no.2, the assessee has challenged the disallowances in respect of the following expenses.
| (a) Travelling Expenses under Rule 6D |
Rs. 51,943/- |
| (b) Entertainment |
Rs. 2,41,664/- |
| (c) 43 B |
Rs. 1,15,472/- |
27. The Ld CIT (A) has
held that issue of disallowance of these expenses are not borne out
from the ITAT’s order dated 14.2.2007and neither any details have been
filed nor examined by the AO as to how these expenses are not part of
section 44C of the Act. On this reasoning, he dismissed the assessee’s
ground.
28. After perusing the
records it is seen neither the AO nor the CIT (A) have properly examined
this issue. Therefore, in the interest of justice, this matter is
restored back to the file of AO, who will examine these expenses afresh
after calling for the necessary records and evidence from the assessee
in support of its claim. In the result, this ground is allowed for
statistical purposes.
29. In ground no.3, the
assessee has challenged the computation of interest u/s 244A on the
refund granted by the AO. Similar matter has been decided in assessee’s
appeal for the assessment year 1996-1997 in ITA No.3857/M/2010 wherein
after relying upon the Tribunal’s order for the assessment year
1990-1991, matter has been sent back to the Assessing Officer as per
directions given therein. In view of the findings given therein, this
ground is treated as allowed for statistical purposes.
ITA NO.1996/M/2004 (AY:1998-1999) (By Assessee):
30. This appeal has been filed by the assessee against order dated 19.12.2003 passed by CIT (A)-XXXI, Mumbai.
31. In this appeal,
ground no.1 is similar to ground no.1 in ITA No.3462/M/2010 that is,
applicability of sec. 44C is computing the profits and deduction of
expenses vis.a.vis Article 7(3). The issue raised in this
ground has been discussed in detail in the assessment year 1995-1996 in
ITA No.3462/M/2010 and the finding given therein squarely applies in
this year also. Thus ground no.1 as raised by the assessee is allowed.
32. In ground no.2, the
assessee has challenged the AO’s action for applying the tax rate of
48% to the assessee’s business income instead of 35%. The CIT (A) too
has confirmed the action of the AO after giving detailed reasoning in
para nos. 6.4 to 6.7 of the order.
33. At the outset,
learned Counsel submitted that this issue stands covered against the
assessee by the order of ITAT in assessee’s own case for the assessment
years 1995-1996, 1996-1997 and 1997-1998.
34. After gone through
the aforesaid decisions of the ITAT passed in ITAT Nos.4316 &
4317/M/2000, we find that this issue has been decided against the
assessee after observing and holding as under:
“We have considered
the rival submissions, perused the materials on record and have gone
through the orders of authorities below and the judgments cited by both
sides. We find that this issue is covered against the assessee by the
judgment of the Tribunal rendered in the case of ABN Amro Bank NV v. JCIT reported in TTJ (Cal) (TM)1041.
In that case also,
contention was advanced on behalf of the assessee that this Explanation
to section 90 is un-implementable because of inappropriate language.
But, it was held by the Tribunal that this contention of the assessee
cannot be accepted. Relevant para of this Tribunal judgment i.e.
parano.56 is being reproduced here:
“The contention
advanced on behalf of the assessee that the said Explanation to section
90 is un-implementable because of inappropriate language does not appeal
to us. The Explanation in our view provides for two eventualities. One
is the charge of tax in respect of a foreign company vis-Ã -vis and India
company (i.e. a domestic company). The second category as per
Explanation is the foreign company vis-Ã -vis the domestic company other
than Indian company. It is noteworthy that the domestic company is
defined under the Finance Act. For the sake of reference we may quote
the definition of the domestic company as per the finance (No.2) Act,
1996.
“Domestic Company”
means and Indian company, or any other company which in respect of its
income liable to income tax under the IT Act for the assessment year
commencing on the 1st April, 1996, has made the prescribed arrangements
for the declaration and payment within India of the dividends (including
dividends on preference shares) payable out of such income in
accordance with the provisions of section 194 of the Act.”
Thus even under the
Finance Act the domestic company is recognized as Indian company and any
other company having made arrangement for declaration of dividends
payable on such income. We, therefore, do not find the language of
Explanation to section 90 as inappropriate. Moreover, insofar as there
is no doubt the category of the foreign company vis-Ã -vis Indian company
having been specified in the Explanation, one need to ascertain as to
whether in any case the second category of the companies would at all
exist. We, therefore, do not find merit in the contentions advanced on
behalf of the assessee in this regard.”
35. Thus, respectfully following the aforesaid decision, ground no.2 is decided against the assessee and stands dismissed.
36. In ground no.3,
assessee has challenged the AO’s action of taxing the interest
securities on accrued basis as against due basis.
37. At the outset,
learned Counsel submitted that this issue is decided in favour of the
assessee in the earlier assessment years by the ITAT right from AY
1990-1991 to AY 1997-1998.
38. After going through
the judgments of the ITAT, we find that this issue stands decided in
favour of the assessee by the Tribunal in the assessment year 1995-1996
to 1997-1998 in ITA Nos. 4316 & 4317/M/2000 and ITA No.2116/M/2001
wherein the Tribunal after following the earlier years orders and
various other decisions has observed and hold as under:
“We have considered
the rival submissions, perused the materials on record and have gone
through the Tribunal judgments relied upon by learned Counsel of the
assessee. We find that this issue has been decided by the Tribunal in
favour of the assessee by the following the judgment of Hon’ble Calcutta
High Court rendered in the case of Eastern Investments India reported
in 213 ITR 334 and Tribunal judgment in the cases of Canara Bank Ltd
reported in 84 ITD 310. It is also noted by the Tribunal that the
department’s SLP is since been rejected by Hon’ble Apex Court in the
case of Canara Bank Ltd. as per 201 ITR (Statute) 51.
Learned DR of the
revenue could not point out any difference in facts; and hence,
respectfully following the precedent, this issue is decided in favour of
the assessee. These grounds of the revenue stand rejected.”
39. Thus, respectfully following the aforesaid decision, this ground stands allowed in favour of the assessee.
ITA NO.2205/M/2004 (AY:1998-99) ( By Department):
40. In ground no.1 of
this appeal, the Department has challenged allowing of exemption u/s
10(15) of the Act, in respect of ‘gross receipts’ and not in respect of
the ‘net income’ arising to the assessee.
41. At the outset,
learned Counsel submitted that this issue stands covered in favour of
the assessee by the Tribunal in assessee’s own case in assessment year
1997-1998 in ITA No.2116/M/2001 and catena of other decisions passed by
the ITAT, Mumbai Bench. After gone through the order of the Tribunal for
the assessment year 1997-1998, we find that this issue stands allowed
in favour of the assessee after observing and holding as under:
“We have considered the rival submissions and perused the materials on record. We find that in the case of State Bank of India (supra),
this issue has been decided by the Tribunal in favour of the assessee
by holding that for exemption u/s 10(15), gross interest has to be
considered. While holding so, the Tribunal has followed the judgment of
Hon’ble Bombay high Court rendered in the case of CIT v. New Great Insurance Co. Ltd.,
90 ITR 348 and also on the judgment of Hon’ble Apex Court rendered in
the case of Rajasthan Warehousing Corporation, 242 ITR 450.
In the case of JCIT v. Mashrequ Bank PSC (supra), the Tribunal has decided the issue in favour of the assessee by following the Tribunal judgment rendered in the case of State Bank of India (surpa).
In the case of British Bank of Middle East (supra) also, the issue has been decided by following the Tribunal judgment in the case of State Bank of India (supra)
and it held that provisions of section 10(15)(iv) are very clear and
unambiguous and what is exempt under the said section is ‘interest
payable’ and not the income by way of the interest; and hence, the
revenue’s grievance is devoid of any substance and the same was
rejected. Respectfully following the precedent, this issue is decided in
favour of the assessee and this ground of the revenue is rejected.”
42. Thus, respectfully
following the aforesaid decision, this ground is decided against the
department and in favour of the assessee. In the result, ground no.1 is
dismissed.
43. In ground no.2, the
Department has challenged the deletion of addition of Rs. 75,07,484/-
made by the AO in respect of guarantee commission.
44. The assessee’s case
before the CIT(A) as well as before the AO has been that it has been
following mercantile system of accounting for accounting the guarantee
commission. If the guarantee commission is for the guarantee given for a
period of 5 years, then the commission received and taken to the profit
is only 1/5th in a year. Since, the assessee has been following
mercantile system and have been offering the tax on guarantee
commission, during the currency of the period of guarantee, there is no
justification to tax the same on receipt basis. Such a system of
accounting had been followed consistently and the same has been accepted
by the Department in the past. Reliance was place on the decision of
Supreme Court in Madras Industrial Investment Corporation (225 ITR 802)
and Bombay High Court judgment in Taparia Tools Ltd. (260 ITR 102). On
the other hand, the Assessing Officer’s case is that the transaction
involving bank guarantee is only in the year in which guarantee is
given. The assessee bank receives no right in subsequent year for any
guarantee commission. That is an advance commission received, therefore,
there is no question of deferring the same to future years. Ld CIT(A)
agreed with the contention of the assessee and allowed the assessee’s
ground after observing and holding as under :
“I have carefully
considered the submission of the appellant along with the contention of
the AO and I have no hesitation in saying that the AO has misconstrued
the concept of accrual in the present case. Mere receipt of income is
not the sole test chargeability. Receipt of income refers to the first
occasion when the recipient gets the money under his own control.
According to the Oxford English Dictionary, the meaning of the word
“accrue” is “to fall as a natural worth or increment; to come as an
accession or advantage”. The word “arse” is defined as “to spring up, to
come into existence”. The words “accrue” and “arise” do not mean actual
receipt of profits or gains. Both these words are used in
contradistinction to the word “receive” and indicate a right to receive.
Thus, it is manifest that if any assessee acquires a right to receive
income, the income can be said to accrue to him though it may be
received later on. Unless and until there is created in favour of an
assessee a debut due by somebody, it cannot be said that income has
accrued to him. A mere claim to income without an enforceable right
thereto cannot be regarded as accrued income for the purpose of
income-tax Act. When the bank gives a guarantee, its obligation extends
to the entire period for which guaranty is given. In exchange of this
obligation, the bank receives a commission. It is wrong to say that such
commission accrues to the full extent the moment when the bank stands
as a guarantor. Since the obligation is spread over a period of time, so
should be the guarantee commission. One can perhaps draw a parallel on
this issue with the decision of the Hon’ble Supreme Court in the case of
Madras Industrial Investment Corporation Ltd. v. CIT
(225 ITR 802), where dealing with the issue of allowability of discount
on debentures, the Hon’ble Court held that the entire discount liability
cannot be allowed as a deduction in one year and authorised spread over
of the committed obligation to be discharged in later years. Further,
this issue is also covered by the decision of the Hon’ble Calcutta High
Court in the case of CIT v. Bank of Tokyo Ltd. (71
Taxman 85), where also the assessee was a non-resident banking company
and the guarantee commission that pertained to unexpired period was not
offered t tax in the year of receipt. The Assessing Officer taxed the
entire guarantee commission in the year of receipt. On appeal, the
CIT(A) deleted the addition and the Tribunal also upheld the CIT(A)’s
order. On further appeal to the High Court, the Hon’ble Calcutta High
Court upheld the Tribunal’s order. The High Court held as under:
“The Revenue
contends that the right to receive the commission being a one-time
right, its accrual shall coincide with the commencement of the service
rendered by way of guaranteeing the debt repayment; it is immaterial
that the repayment covers more than one previous year. Therefore, the
entirety of the commission accrues at a time. The assessee-bank, on the
other hand, submits that the service having a spread of years, the
accrual should be year by year. The Revenue’s contention that the
accrual of the entire commission is a point of time accrual is not
tenable. The contesting submissions boil down to one question. Whether
accrual is co-eval with the playability, the same may be payable but may
not be apportionable until the happening of an event; In the present
case the expiry of the period of guarantee comprised in the previous
year. The right to receive for unexpired period, for, the guarantee
beyond the expiry date of the previous year remains in a suspense. It
may or may not fructify into an actual right to receive for the
subsequent period of the term of the guarantee as the sooner
determination of the guarantee is a contingency not ruled out by the
agreement. It is only upon certain conditions being fulfilled, viz, the
guarantee running the full course or period of the debt guaranteed, that
the right to the entirety of the commission can be said to have
accrued.”
Therefore, in view of the above, this
ground of appeal is allowed and the Assessing officer is directed to
delete the addition of Rs. 75,07,484/- made in respect of guarantee
commission. In view of my above decision the alternative submission made
by the appellants does not survive for consideration.”
45. Ld CIT-DR relied upon the findings of the AO and on the other hand learned Sr. Counsel relied on the findings of the CIT(A).
46. After carefully
considering the submissions made by the parties and the findings given
by the AO as well as CIT(A), we find that in view of the decision of the
Hon’ble Supreme Court in the case of Madras Industrial Investment Corporation (supra) and the Bombay High Court decision in the case of Taparia Tools Ltd. (supra),
the finding and the reasoning given by the CIT(A) is legally correct
and we do not find any reason to deviate from such reasoning. Thus, the
finding of the CIT(A) is upheld. In the result, the ground taken by the
Department is dismissed.
47. In ground no.3, the
Department has challenged the deletion of addition of Rs. 1,37,75,000/-
made in the computation of total income of the assessee on account of
difference between cost and book value of investment.
48. The assessee’s case
before the Assessing Officer as well as the CIT(A) has been that the
assessee bank normally values its securities at cost or market value
whichever is lower and during the accounting year 1994-1995, the bank
had purchased Zero Coupon Bonds for Rs. 4,33,01,000/-. In the accounting
year ended 31.3.1996 relevant to assessment year 1996-1997, it
erroneously re-valued these bonds at the market value of Rs.
5,44,81,000/-and accordingly offered to tax an amount of Rs.
1,11,80,000/- which was taxed at the rate of 55%. In the year ended
31.3.1998, this mistake was realised and the entry was corrected and the
differential which was erroneously taxed was claimed as deduction at
the rate of tax being 48% in the assessment year 1998-1999 and,
therefore, the Department has gained more tax. Similarly, HUDCO Bonds
were purchased by the Bank for Rs. 4,59,77,000/-, which too was wrongly
valued by the Bank in the accounting year ended 31.3.1996 at market
value of Rs. 5,50,00,000/- resulting in offering to tax erroneously at
Rs. 90,23,000/- in the assessment year 1996-1997 @ 55%. This error was
realised and was corrected after reversing the amounts for year ending
31.3.1997 and 31.3.1998. In the assessment year 1997-1998, the AO
allowed the assessee’s claim with respect to the amount reversed in the
assessment year 1997-1998. In this year the assessee has only claimed
balance amount. Ld CIT(A) allowed the assessee’s claim after following
the decision of Hon’ble Bombay High Court in the case of Bank of Baroda
reported in 2003 (262 ITR 334) after observing and holding as under:
“I have considered the facts of the case
and the material on record and I am of the view that the claim of the
appellant in this regard is fair and does not result in any disadvantage
to the department. On the other hand, the acceptance of the claim
results in a gain to the department. Further the AO has himself accepted
a claim with respect to this very transaction in the immediately
preceding year. In any event, the issue can also be considered from a
different angle that the assessee would be entitled to value the stocks
at cost or market value whichever is lower. As the cost in the instant
case is lower, the appellant would be entitled to adopt the same and
claim the differential as loss on revaluation. This would be in
accordance with the Bombay High Court decision in the case of Bank of
Baroda (262 ITR 334). Accordingly, the AO is directed to delete the
addition of Rs. 1,37,75,000/- made by him in computing the total income
of the appellant on this issue.”
49. After carefully
considering the issue involved and the finding of the AO as well as
CIT(A), it is an undisputed fact that the method of valuation followed
by the assessee to value its investment was cost or market value
whichever was lower. The assessee had shown a higher value and paid the
tax at a higher rate in the assessment year 1996-1997. Such valuation
was reversed as per its method of accounting and the differential amount
has been claimed as loss. Thus, such a claim is duly allowable in view
of the decision of Hon’ble Bombay High Court in the case of Bank of Baroda (supra) and the decision of Hon’ble Supreme Court in the case of United Commercial Bank Ltd. v. CIT
reported in 1999 (240 ITR 355). Thus, the findings given by the Ld
CIT(A) is perfectly correct and we do not find any reason to deviate
from the same. In the result, ground no.3 is dismissed.
C.O. No.115/M/2004 (AY:1998-199) (By the Assessee):
50. This Cross
Objection arising out of ITA No.2205/M/2004. The assessee has taken an
alternative plea to ground no.2 raised by the Department as under:
“In the event, the Assessing Officer’s
(A) action of bringing to tax the deferred payment guarantee commission
of Rs. 75,07,484/- in the year under appeal is upheld, then the AO be
directed to exclude the amount offered to tax in the subsequent
assessment years.”
51. Since, ground no.2 in Department’s appeal stands dismissed, this ground becomes infructuous.
52. In the result, the grounds taken in the Cross Objection stand dismissed being infructuous.
ITA No.2851/M/2004 (AY: 1999-2000) (By the Assessee):
53. In this appeal,
ground no.1 is similar to ground no.1 in ITA No.3462/M/2010. The issue
raised in this ground has been discussed in detail in the assessment
year 1995-1996 in ITA No.3462/M/2010 and the finding given therein
squarely applies in this year also. Thus, ground no.1 as raised by the
assessee is allowed.
54. Ground no.2 is
similar to ground no.2 in ITA No.1996/M/2004 for the assessment year
1998-1999. In view of the finding given therein, this issue is decided
against the assessee. In the result, ground no.2 is dismissed.
ITA NO.3925/M/2004 (AY:1999-2000) (By the Department):
55. In this appeal the revenue has raised the following grounds :
“1(i) On the facts and
circumstances of the case in law, the CIT(A) erred in holding that,
exemption of sec. 10(15) of the IT Act, 1961 was to be allowed in
respect of the “gross receipt” and not in respect of the net income
arising to the assessee.
(ii) On the facts and
circumstances of the case and in law, the CIT(A) erred in directing the
AO to delete the addition of Rs. 28,97,893/-made in respect of guarantee
commission.
(iii) On the facts and
circumstances of the case and in law, the CIT(A) erred in directing the
AO to delete the addition of Rs. 3,53,000/-made in computing the total
income of the assessee being the depreciation claimed by the assessee,
representing the difference between cost and market value thereof.
(iv) On the facts and
circumstances of the case and in law, the CIT(A) erred in directing the
AO to allow bad debts of Rs. 2,53,64,316/-without setting of the
provision for bad debts of Rs. 75,73,458/- made during the year and
claimed as deduction u/s 36(1)(viia).”
56. Ground no. 1(i) is
similar to ground no.1 of the Departmental appeal for the assessment
year 1998-1999 in ITA No.2205/M/2004. In view of the finding given
therein, this ground is dismissed.
57. Ground no. 1(ii) is
similar to the ground no. 2 of the Departmental appeal for the
assessment year 1998-1999. In view of the finding given therein, this
issue stands decided against the assessee. As a result, this ground is
dismissed.
58. Ground no. 1(iii)
is similar to ground no.3 of the Departmental appeal for the assessment
year 1998-1999. Thus, in view of the findings given therein, this ground
is too decided against the Department and accordingly this ground is
dismissed.
59. In ground no.
1(iv), Department has challenged allowability of bad debts of Rs.
2,53,64,316/- without setting of the provision for bad debts of Rs.
75,73,458/- made during the year. The assessee has claimed deduction for
bad debts of Rs. 2,53,64,316/- after setting off opening provision of
Rs. 2,11,60,709/-. The Assessing Officer while computing the total
income has allowed deduction of Rs. 1,77,90,858/- after setting off the
closing provision of Rs. 75,73,458/-.
60. Before the CIT(A)
it was submitted that closing provision of Rs. 75,73,458/- made u/s
36(1)(viia) ought not to have been set off against the amount of Rs.
2,53,64,316/-. In support of the above contention, the assessee has
relied upon the decision of ITAT, Mumbai Bench in the case of Oman
International Bank in ITA No.6043/M/1996 relating to assessment year
1993-1994 dated 27.11.2003. The Ld CIT(A) by following the said order of
the ITAT, directed the AO to allow bad debts of Rs. 2,53,64,316/-
without setting off closing provision of Rs. 75,73,458/-.
61. The learned Sr.
Counsel submitted that the view taken by the CIT(A) in consonance with
several decisions of the ITAT including in the case of Oman
International Bank (92 ITD 76) and in host of other cases. On the other
hand, Ld CIT-DR relied upon the findings of the AO.
62. We have carefully,
considered the rival submissions and also gone through the decisions
relied upon by the learned Counsel and the findings of the CIT(A). The
total income of the assessee can be computed at the end of the previous
year and in computation of such income deduction u/s 36(1)(viia) has to
be allowed. If bad debts are written off in the books of account during
the course of the previous year, such bad debts must be deducted as
admissible u/s 36(1)(viia). Apparently, the deduction allowable under
clause (viia) in respect of bad debts will have to be taxed against the
opening credit balance in the provision of account to arrive at the
quantum of deduction allowable while computing the total income. The
decision of Oman International Bank v. DCIT (92 ITD
76) is also in support of the case of the assessee. We thus find no
infirmity in the reasoning given by the CIT(A) for allowing the
assessee’s claim.
63. In the result, this issue is decided in favour of the assessee and accordingly this ground is decided against the Department.
C.O.NO.414/M/2004 (AY: 1999-2000) (By the Assessee):
64. The assessee has
made an alternative plea with regard to issue of guarantee commission
and depreciation claimed by the assessee representing the difference
between cost and market value of the shares. Since this issue in the
Department appeal has been allowed in favour of the assessee, grounds
raised in this Cross Objection has become infructuous and, therefore,
same are being dismissed as infructuous.
ITA NO.4304/M/2004 (AY: 2000-2001) (By the Assessee):
65. In this appeal,
ground no.1 is similar to ground no.1 in ITA No.3462/M/2010. The issue
raised in this ground has been discussed in detail in the assessment
year 1995-1996 in ITA No.3462/M/2010 and the finding given therein
squarely applies in this year also. Thus ground no.1 as raised by the
assessee is allowed.
66. Ground no.2 is
similar to ground no.2 in ITA No.1996/M/2004 for the assessment year
1998-1999. In view of the finding given therein, this issue is decided
against the assessee. In the result, ground no.2 is dismissed.
ITA NO.5017/M/2004 (AY:2000-2001) ( By the Department):
67. In this appeal, the revenue has taken the following two grounds :
“1. On the facts and circumstances of
the case and in law, the Ld. CIT(A) has erred in holding that, exemption
of section 10(15) of the IT Act, 1961, was to be allowed in respect of
the ‘gross receipts’ and not in respect of the ‘net income’ arising to
the assessee.
2. On the facts and circumstances of
the case and in law, the Ld. CIT(A) has erred in directing the AO to
delete the addition of Rs. 16,54,257/- made in respect of guarantee
commission.”
68. Ground no.1 is
similar to ground no.1 of Department’s appeal in ITA No.2205/M/2004.
Therefore, respectfully following the decision given therein, this
ground is dismissed.
69. Ground no.2 is
similar to ground no.2 of Department’s appeal in ITA No.2205/M/2004.
Therefore, in view of the decision given therein, this issue is decided
against the Department and accordingly this ground is dismissed.
C.O.NO.48/M/2005 (AY: 2000-2001) (By the Assessee):
70. The assessee has
raised this Cross Objection by way of alternative ground to the issue on
guarantee commission. Since, Department’s ground on this score has been
dismissed and, therefore, this ground has become infructuous.
71. In the result, the Cross Objection is dismissed as infructuous.
72. As a result, all the above appeals filed by the
assessee are partly allowed and the Departmental appeals and Cross
Objections of the assessee are dismissed.
