{"id":18226,"date":"2010-02-26T00:00:00","date_gmt":"2010-02-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-commissioner-of-income-tax-vs-391-on-26-february-2010"},"modified":"2016-04-06T07:02:28","modified_gmt":"2016-04-06T01:32:28","slug":"the-commissioner-of-income-tax-vs-391-on-26-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-commissioner-of-income-tax-vs-391-on-26-february-2010","title":{"rendered":"The Commissioner Of Income Tax vs 391 on 26 February, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
The Commissioner Of Income Tax vs 391 on 26 February, 2010<\/div>\n
Bench: Dr. D.Y. Chandrachud, J.P. Devadhar<\/div>\n
                                              1\n\n                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                 \n                         ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                         \n                           INCOME TAX APPEAL NO.2308 OF 2009\n\n\n\n\n                                                        \n    The Commissioner of Income Tax, \n\n    (Central) - II, Room No.415,\n\n\n\n\n                                             \n    Aayakar Bhavan, M.K. Road, \n\n    Mumbai - 400 020\n                               ig                                 ..Appellant.\n\n\n          Versus\n                             \n    M\/s. Development Credit Bank Limited\n\n    391, 'Trade Plaza', Veer Savarkar Marg,\n           \n\n\n    Prabhadevi, Mumbai - 400 025                                  ..Respondent.\n        \n\n\n\n    Mr.Suresh Kumar for the appellant.\n\n\n\n\n\n    Mr.Satish R. Mody with Ms.Aasifa Khan for the respondent.\n\n\n\n                                                   CORAM : Dr.D.Y. Chandrachud &\n\n\n\n\n\n                                                            J.P. Devadhar, JJ.   \n<\/pre>\n
                                                   DATE     : 26th February, 2010.\n\n\n\n    ORAL JUDGMENT : (Per Dr.D.Y. Chandrachud, J.)\n\n    1.             Admit\n\n<\/pre>\n
    2.             The appeal under Section 260A of the Income Tax Act, 1961 arises out <\/p>\n
    of an order passed by the Income Tax Appellate Tribunal on 15th January 2009, by <\/p>\n
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\n                                                        2<\/span><\/p>\n
    which the Tribunal held that the jurisdiction under Section 263 had not been validly <\/p>\n
    exercised by the Commissioner of Income Tax. Hence,   the   appeal   by   the   Revenue <\/p>\n
    raises the following substantial question of law :-\n<\/p>\n
            “Whether the Tribunal was justified in holding that the initiation of
\n            proceedings under Section 263 was not justifiable, on the ground that <\/p>\n
            the order of the Assessing Officer was not erroneous or prejudicial to
\n            the interests of the Revenue ?”\n<\/p><\/blockquote>\n
    3.              The assessee is a Bank.   In the present case, an order of assessment <\/p>\n
    under Section 143(3), in relation to assessment year 2002-2003, was passed on 24th <\/p>\n
    December 2004.  In so far as it is material to this proceeding, the Assessing Officer, <\/p>\n
    while dealing with a provision for depreciation on current investments noted that in <\/p>\n
    the   computation   of   total   income   of   the   assessee,   depreciation   on   current <\/p>\n
    investments   was   computed   at   Rs.6.22   crores.     The   assessee   was   called   upon   to <\/p>\n
    clarify the treatment of depreciation.   The assessee clarified that as in the past, it <\/p>\n
    has been dealing in Government and other Approved Securities and at the end of <\/p>\n
    the year, the stock of those securities constitutes the trading   stock.   This stand of <\/p>\n
    the   assessee   –   Bank   has   been   accepted   by   the   Department   while   finalizing <\/p>\n
    assessments in the past.  The assessee inter alia relied upon Circular No.665 issued <\/p>\n
    by   the   Central   Board   of   Direct   Taxes   (‘CBDT’),   in   which   it   was   noted   that   the <\/p>\n
    question as to whether a particular item of investment in securities constitutes stock <\/p>\n
    in trade or a capital asset is a question of fact.   Banks are generally governed by <\/p>\n
    instructions of the Reserve Bank of India with regard to classification of their assets <\/p>\n
    and by accounting standards for investments.   The CBDT, therefore, decided that <\/p>\n
    the Assessing Officers should determine on the facts and circumstances of each case, <\/p>\n
    as to whether any particular security constitutes stock in trade or investment, taking <\/p>\n
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\n                                                     3<\/span><\/p>\n
    into account the guidelines issued by the Reserve Bank of India  in this regard from <\/p>\n
    time-to-time.   The Assessing Officer concluded that according to the guidelines of <\/p>\n
    the the Reserve Bank of India, banks were permitted to provide depreciation on <\/p>\n
    investments   category-wise   after   considering   the   appreciation,   if   any,   in   that <\/p>\n
    category.   Following the said direction devaluation in the value of securities was <\/p>\n
    computed at Rs.6.22 crores  and provided in the accounts of the assessee.  However, <\/p>\n
    while calculating taxable income the guidelines had not been followed to the extent <\/p>\n
    that appreciation, as suggested by the Reserve Bank of India had been ignored.  In <\/p>\n
    these circumstances, depreciation on current investment was allowed only to the <\/p>\n
    extent computed in accordance with the guidelines of the Reserve Bank of India and <\/p>\n
    booked in the amount of Rs.6.22 crores.  The claim of the assessee to the extent of <\/p>\n
    Rs.10.81 crores in the computation was disallowed.\n<\/p>\n
    4.             At this stage, it would be necessary to note that during the course of <\/p>\n
    the   assessment   proceedings,   a   communication   was   addressed   by   the   Assessing <\/p>\n
    Officer   to   the   assessee   on   20th  September   2004.     The   communication   inter   alia <\/p>\n
    sought a disclosure of the following items, namely (i) Details of capital gains in the <\/p>\n
    amount   of   Rs.1.62   crores   deducted   in   the   computation   of   business   income;   (ii) <\/p>\n
    Details of securities sold during the year on which long term capital gain has been <\/p>\n
    shown; and (iii) A break up of the investments held and value under each category <\/p>\n
    as reflected in Schedule 17 forming part of the accounts of the assessee.   These <\/p>\n
    details were sought in items 17, 18 and 20 of the aforesaid letter of the Assessing <\/p>\n
    Officer.  In pursuance thereto, the assessee in its response furnished a break up of <\/p>\n
    long term investments held in excess of one year on which capital gains of Rs.1.26 <\/p>\n
    crores came to be computed separately.   The assessee also communicated a break <\/p>\n
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\n                                                         4<\/span><\/p>\n
    up   of   permanent   investments   and   current   investments   held   by   the   Bank.     The <\/p>\n
    permanent   investments   were   regarded   as   those   being   ‘held   to   maturity’   (HTM).\n<\/p>\n
    The   current   investments   were   those   which   constitute   the   stock   in   trade.\n<\/p>\n
    Consequently,   during   the   course   of   the   assessment   proceedings,   the   assessee <\/p>\n
    supplied   to   the   Assessing   officer,   in  response   to   a   specific   query   in  that   regard, <\/p>\n
    details of investments which were held as permanent investments or those held to <\/p>\n
    maturity   on   one   hand   and   those   which   on   the   other   hand   constitute   current <\/p>\n
    investments or stock in trade.\n<\/p>\n
    5.               On 26th March 2007, the Commissioner of Income Tax passed an order <\/p>\n
    under Section 263(1), by which he set aside the assessment order and directed the <\/p>\n
    Assessing Officer to re-frame the assessment denovo after furnishing to the assessee <\/p>\n
    an opportunity and after conducting an enquiry on the following issues :\n<\/p>\n
            “(i)    Whether the capital gain of Rs.1,26,30,070\/- has been earned
\n                    by the assessee on transactions related to investments held to
\n                    maturity.\n<\/p><\/blockquote>\n
            (ii)    Whether   the   depreciation   of   Rs.622.39   lakhs   allowed   on
\n                    investments is only for those investments held as stock-in-trade
\n                    and whether it is an allowable deduction.\n<\/p><\/blockquote>\n
            (iii)   Whether long term capital loss of Rs.1,66,021\/- is to be allowed  <\/p>\n
                    to be carried forward.\n<\/p><\/blockquote>\n
            (iv)    Whether the profit on transfer of tenancy rights amounting to
\n                    Rs.21,32,427\/-   can   be   set   off   against   long-term   capital   loss
\n                    claimed on sale of Government securities mainly in the light of
\n                    the   fact   that   sale   of   Government   securities   is   a   trading
\n                    transaction and, therefore, long term capital loss cannot be set
\n                    off against such trading income.\n<\/p><\/blockquote>\n
            (v)     Whether   the   provisions   of   section   70   are   applicable   in   this
\n                    regard.”<\/p><\/blockquote>\n
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\n                                                       5<\/span><\/p>\n
                    Of the aforesaid issues, it would be noticed at the outset that (i) and <\/p>\n
    (ii) above formed the principal bone of contention.  Both the counsel concede that <\/p>\n
    the rest followed in consequence.  The Commissioner of Income Tax was of the view <\/p>\n
    that the Assessing Officer failed to examine (i) Whether the capital gains of Rs.1.26 <\/p>\n
    crores have been earned by the assessee on transactions related to investments held <\/p>\n
    to maturity as claimed by the assessee; and (ii) Whether the depreciation of Rs.\n<\/p>\n
    622.39 lakhs claimed and allowed on investments is only for those investments held <\/p>\n
    as stock-in-trade as claimed by the assessee.   The assessee, it may be noted, had <\/p>\n
    contended   that   the   capital   gain   of   Rs.1.26   crores   was   earned   from   transactions <\/p>\n
    relating to investments held to maturity and was, therefore, required to be treated <\/p>\n
    as a long term capital gain.   The assessee had also urged that depreciation of Rs.\n<\/p>\n
    622.39 lakhs was incurred on investments held as stock-in-trade.  Consequently, the <\/p>\n
    case   of   the   assessee   was   that   capital   gain   and   depreciation   was   referable <\/p>\n
    respectively to two different classes of investments.\n<\/p>\n
    6.              The   Tribunal,   on   an   appeal   being   filed   by  the   assessee   against  the <\/p>\n
    order   of   the   Commissioner   of   Income   Tax,   held   that   the   Assessing   Officer   had <\/p>\n
    specifically called upon the assessee to furnish details with regard to the capital <\/p>\n
    gain of Rs.1.26 crores in the computation of business income.  Moreover, a break up <\/p>\n
    of the investments was called for by the Assessing Officer.  The Tribunal noted that <\/p>\n
    all   the   details   were   furnished   and,   after   they   were   considered   by   the   Assessing <\/p>\n
    Officer, an assessment order was passed under Section 143(3).  Hence, the Tribunal <\/p>\n
    came to the conclusion that the Commissioner of Income Tax was not justified in <\/p>\n
    exercising the suo-motu power of revision under Section 263.\n<\/p>\n
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\n                                                       6<\/span><\/p>\n
    7.              A  reading  of  the  order  passed by the  Commissioner  of Income Tax <\/p>\n
    would show that the principal objection which the Revisional Authority expressed <\/p>\n
    against the order of the Assessing Officer was an alleged failure of the Assessing <\/p>\n
    Officer   to   examine;  firstly  whether   the   capital   gain   of   Rs.1.26   crores   has   been <\/p>\n
    earned by the assessee on transactions relating to investments ‘held to maturity’, <\/p>\n
    and  secondly  whether   the   depreciation   of   Rs.622.39   lakhs   was   claimed   on <\/p>\n
    investments which were held as stock-in-trade. Now from the material on record <\/p>\n
    before the Court it is evident that the assessee, in response to a specific query of the <\/p>\n
    Assessing   Officer   dated   20th  September   2004   supplied   details   of   the   long   term <\/p>\n
    investments held for a period in excess of one year which the assessee treated as <\/p>\n
    investments held to maturity.  The profit on these investments was computed at Rs.\n<\/p>\n
    1.26   crores.     In   so   far   as   the   aspect   of   depreciation   of   Rs.622.39   lakhs   on <\/p>\n
    investments   held   as   stock-in-trade   was   concerned,   the   assessee   had   similarly <\/p>\n
    supplied to the Assessing Officer details of the current investments in response to <\/p>\n
    the query of the Assessing Officer.  In addition, it would also have to be noted that, <\/p>\n
    in pursuance of the order passed by the Commissioner of Income Tax under Section <\/p>\n
    263, an assessment order came to be passed on 28th  December 2007.   During the <\/p>\n
    course of the assessment order, the Assessing Officer noted that the assessee has <\/p>\n
    explained depreciation claimed against the investments held and classified as stock-\n<\/p>\n
    in-trade.  The explanation of the assessee in this connection was accepted and the <\/p>\n
    Assessing Officer came to the conclusion that depreciation of Rs.622.39 lakhs has <\/p>\n
    been claimed towards investments held and classified as stock-in-trade.   We have <\/p>\n
    indicated this only as and by way of an illustration in aid of our finding that there <\/p>\n
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\n                                                          7<\/span><\/p>\n
    was no   basis  or  justification  for   the   Commissioner   of   Income   Tax  to   invoke   the <\/p>\n
    provisions of Section 263.   In the order of assessment, the Assessing Officer had <\/p>\n
    after making an enquiry and eliciting a response from the assessee come to the <\/p>\n
    conclusion that the assessee was entitled to depreciation to the extent of Rs.622.39 <\/p>\n
    lakhs on the value of securities held on the trading account.  In the absence of any <\/p>\n
    tangible material to the contrary, the Commissioner of Income Tax could not have <\/p>\n
    treated   this   finding   to   be   erroneous   or   to   be   prejudicial   to   the   interest   of   the <\/p>\n
    Revenue.   The observation of the Commissioner of Income Tax that the Assessing <\/p>\n
    Officer had arrived at his finding without conducting an enquiry was erroneous, <\/p>\n
    since an enquiry was specifically held with reference to which a disclosure of details <\/p>\n
    was called for by the Assessing Officer and made by the assessee. We have adverted <\/p>\n
    earlier to the directions which have been issued by the Commissioner of Income Tax <\/p>\n
    to the Assessing Officer with regard to the holding of a fresh enquiry.  Before us it is <\/p>\n
    common   ground   between   counsel   that   the   first   and   the   second   issues   therein <\/p>\n
    relating to the capital gain of Rs.1.26 crores and depreciation of Rs.622.39 lakhs <\/p>\n
    constitute the basis of the view of the Revisional Authority and the others follow in <\/p>\n
    consequence.   Once we come to the conclusion that the Revisional Authority was <\/p>\n
    not justified in exercising the jurisdiction under Section 263 with reference to the <\/p>\n
    aforesaid issues {(i) and (ii) in the directions of the Commissioner of Income Tax <\/p>\n
    noted earlier}, the other issues are consequential to the enquiry which was directed <\/p>\n
    in respect of the first and second issues.  This has not been disputed.\n<\/p>\n
    8.               In these circumstances, for the reasons which we have set out herein <\/p>\n
    above,   we   are   of   the   view   that   the   Tribunal   was   justified   in   coming   to   the <\/p>\n
    conclusion that recourse to the powers under Section 263 was not warranted in the <\/p>\n
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\n                                                    8<\/span><\/p>\n
    facts   and   circumstances   of   the   case.     The   question   of   law   which   has   been <\/p>\n
    formulated   shall   stand   answered   in   the   aforesaid   terms.     The   appeal   shall <\/p>\n
    accordingly stand dismissed.  There shall be no order as to costs.\n<\/p>\n
                   (J.P. Devadhar, J.)                            (Dr.D.Y. Chandrachud, J.)\n\n\n\n\n                                                                \n                                                   \n                                 \n                                \n        \n     \n\n\n\n\n\n\n                                                                 ::: Downloaded on - 09\/06\/2013 15:39:16 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court The Commissioner Of Income Tax vs 391 on 26 February, 2010 Bench: Dr. D.Y. Chandrachud, J.P. Devadhar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.2308 OF 2009 The Commissioner of Income Tax, (Central) – II, Room No.415, Aayakar Bhavan, M.K. Road, Mumbai – […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-18226","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe Commissioner Of Income Tax vs 391 on 26 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-commissioner-of-income-tax-vs-391-on-26-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Commissioner Of Income Tax vs 391 on 26 February, 2010 - 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