9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2009 (10) TMI 643 - AT - Income TaxComputation of taxable profits of an insurance company - exemption claimed by the assessee on account of profit on sale of investment - scope of prospective amendment - whether or not the CIT(A) was justified in holding that the profit on sale of investments, is taxable in the hands of the assessee? - HELD THAT - The computation of taxable profits of an insurance company is governed by a specific legal provision, i.e., section 44 read with First Schedule to the Income-tax Act. Under the said scheme of things envisaged by these provisions, only such adjustments can be made to the profits disclosed by the annual accounts drawn up under the Insurance Act, 1938, as are specifically provides for under clause 5 of the First Schedule. There was no dispute that the independent code is enacted by the introduction of section 44 which independently prescribed the mode and manner for assessment of Insurance Business. This section since contains non obstante clause, therefore, notwithstanding anything contained in any of the sections of the Act, the profits and gains of Insurance Business including any such business carried on by a Mutual Insurance Company or by an Co-operative Society shall be computed in accordance with the rules contained in First Schedule. Accordingly, there could not be any other income taxable other hand Insurance Business because section 44 overrules all other provisions of the Income-tax Act. We have noted that the Legislature has now brought in a prospective amendment, with effect from assessment year 2011-12, in rule 5( b )( i ) of First Schedule to the Income-tax Act. By the virtue of this amendment, profits on sale of investments, in the case of insurance companies will be taxable with effect from 2011-12. Since the amendment so made in the statute, which cannot be inferred to be a superfluous amendment, is with effect from 2011-12, the conclusion arrived at by the Pune Bench stands further fortified. This further fortifies the stand taken by the co-ordinate Bench in the case of Bajaj Allianz General Insurance Co. Ltd 2009 (8) TMI 810 - ITAT PUNE-A ,. In view of discussions (supra), we uphold the grievance of the assessee. The profits on sale of investment in the years before us, which are year prior to the years with effect from which prospective amendment is made, are not taxable in the hands of the assessee. The taxability of income of insurance companies under the head Income from business and profession as governed by provisions of section 44, read with First Schedule to the Income-tax Act, does not extend to taxability of profits on sale of investments - So far as the assessment years before us are concerned. Therefore, we direct the AO to exclude profits on sale of investments from income of the assessee liable to be taxed. The assessee gets the relief accordingly.
Issues Involved:
1. Disallowance of exemption claimed by the assessee on account of "profit on sale of investment." 2. Failure of CIT(A) to appreciate the binding nature of the CBDT Circular on the Assessing Officer. 3. Non-allowance of the appellant's claim for exemption of profit on sale of investment. 4. Non-allowance of the appellant's claim for deduction in respect of investments written off. 5. CIT(A)'s refusal to entertain the appellant's claim for deduction in respect of investments written off. 6. Disallowance of the appellant's claim for deduction in respect of investments written off contrary to the provisions of section 44 of the Income-tax Act, 1961, read with rule 5 of the First Schedule. Issue-wise Detailed Analysis: 1. Disallowance of Exemption Claimed by the Assessee on Account of "Profit on Sale of Investment": The primary issue adjudicated was whether the CIT(A) was justified in holding that the profit on sale of investments is taxable in the hands of the assessee. The assessment years involved were 2002-03, 2003-04, and 2004-05. The Tribunal noted that the issue was covered in favor of the assessee by the Pune Bench decision in the case of Bajaj Allianz General Insurance Co. Ltd. v. Addl. CIT. The Tribunal emphasized that the computation of taxable profits of an insurance company is governed by specific legal provisions, i.e., section 44 read with the First Schedule to the Income-tax Act. Under these provisions, only specific adjustments can be made to the profits disclosed by the annual accounts drawn up under the Insurance Act, 1938. Since there were no specific provisions for making adjustments on account of profits on the sale of investment after the removal of clause 5(b) with effect from 1-4-1989, there was no occasion to make such an adjustment. The Tribunal concluded that the profits on the sale of investments are not taxable in the hands of the assessee unless there is a specific provision for exemption of such profits. 2. Failure of CIT(A) to Appreciate the Binding Nature of the CBDT Circular on the Assessing Officer: The Tribunal noted that the learned Departmental Representative vehemently relied upon the orders of the authorities below and submitted that exemptions cannot be inferred in the absence of a specific provision. However, the Tribunal followed the stand taken by the co-ordinate Bench in the case of Bajaj Allianz General Insurance Co. Ltd., which supported the assessee's position. The Tribunal emphasized that the taxability of profits in the hands of insurance companies is confined to profits as per the annual accounts drawn up in accordance with the Insurance Act, subject to permissible adjustments under the Income-tax Act. 3. Non-allowance of the Appellant's Claim for Exemption of Profit on Sale of Investment: The Tribunal reiterated that the taxability of income in the case of insurance companies is not on commercial profits but on profits computed in accordance with the provisions of the Insurance Act, subject to specific adjustments under the Income-tax Act. The Tribunal found it futile to suggest that the profits on the sale of investments are taxable in the hands of the assessee unless there is a specific provision for exemption of such profits. The Tribunal emphasized that the question of exemption only arises when something is taxable, and in this case, the profits on the sale of investments were not taxable in the first place. 4. Non-allowance of the Appellant's Claim for Deduction in Respect of Investments Written Off: The Tribunal did not specifically address this issue in the detailed analysis, as the primary focus was on the taxability of profits on the sale of investments. However, the Tribunal's overall conclusion that the profits on the sale of investments are not taxable would imply that any related deductions would also not be relevant. 5. CIT(A)'s Refusal to Entertain the Appellant's Claim for Deduction in Respect of Investments Written Off: Similar to the previous issue, the Tribunal did not specifically address this issue in the detailed analysis. The Tribunal's overall conclusion that the profits on the sale of investments are not taxable would imply that any related deductions would also not be relevant. 6. Disallowance of the Appellant's Claim for Deduction in Respect of Investments Written Off Contrary to the Provisions of Section 44 of the Income-tax Act, 1961, Read with Rule 5 of the First Schedule: The Tribunal emphasized that the taxability of income in the case of insurance companies is governed by section 44 read with the First Schedule to the Income-tax Act. Under these provisions, only specific adjustments can be made to the profits disclosed by the annual accounts drawn up under the Insurance Act, 1938. Since there were no specific provisions for making adjustments on account of profits on the sale of investment after the removal of clause 5(b) with effect from 1-4-1989, there was no occasion to make such an adjustment. The Tribunal concluded that the profits on the sale of investments are not taxable in the hands of the assessee unless there is a specific provision for exemption of such profits. Conclusion: The Tribunal directed the Assessing Officer to exclude profits on the sale of investments from the income of the assessee liable to be taxed. The appeals were allowed in the terms indicated above, providing relief to the assessee.
|
