2014 (1) TMI 1030 - AT - Income Tax

Profits on sale of investments - Held that - 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 for the assessment years under consideration - Decided in favour of assessee. Interest on tax free bonds and dividend income - Held that - Decision in General Insurance Corporation of India, Mumbai Versus The Deputy Commissioner of Income Tax, 1(3) Mumbai & Anr. 2011 (12) TMI 70 - BOMBAY HIGH COURT followed - As per clarification brought by CBDT - The exemption u/s 10 is available to any other assessee under any clauses of Section 10 is also available to a person carrying on non-life insurance business subject to the fulfillment of the conditions, if any, under a particular clause of Section 10 under which exemption is sought - Decided in favour of assessee. Non-applicability of provision of Section 115AB - Held that - The accounts of appellant are prepared in accordance with the Insurance Act and not in accordance with Schedule VI of the Companies Act - As per the proviso to sub- section 1 to section 211 - The provisions of section 211 shall not be applicable for an insurance or banking company - The proviso to sub-section 2 of this section relating to the profit and loss account also specifies that schedules VI part II shall not be applicable to any insurance or banking company - The basic premise of applicability of section 115JB does not stand and consequently this section does not apply to appellant company - Decided in favour of assessee.

Issues Involved:
1. Addition on account of profits on sale of investments.
2. Deduction in respect of investments written off.
3. Addition on account of interest on tax-free bonds and dividend income.
4. Non-applicability of the provision of Section 115JB.

Detailed Analysis:

1. Addition on account of profits on sale of investments:
The assessee claimed an exemption for profit on the sale of investments amounting to Rs. 9,26,67,16,815/-. The AO treated this as taxable income under Section 44 and Rule 5 of the First Schedule to the Income Tax Act, 1961. The CIT(A) upheld this decision. However, the Tribunal noted that similar issues in the assessee's own cases for previous assessment years (2002-03 to 2007-08) had been consistently decided in favor of the assessee by the Tribunal. The Tribunal reiterated that profits on the sale of investments were not taxable for years prior to the amendment effective from the assessment year 2011-12. Consequently, the Tribunal allowed the appeal, following its earlier decisions and those of other similar cases like Bajaj Allianz General Insurance Co. Ltd. and HDFC ERCO GIC.

2. Deduction in respect of investments written off:
The assessee argued that if the issue of profit on the sale of investments was decided in their favor, then the grounds regarding deductions for investments written off would become irrelevant. Since the Tribunal decided the profit on the sale of investments issue in favor of the assessee, the related grounds were dismissed as infructuous.

3. Addition on account of interest on tax-free bonds and dividend income:
The assessee claimed exemptions for interest on tax-free bonds (Rs. 3,71,64,388/-) and dividend income (Rs. 2,31,44,10,397/-) under Sections 10(15) and 10(34) respectively. The AO, following directions under Section 144A, added these amounts to taxable income, a decision upheld by the CIT(A). The Tribunal noted that the Hon'ble Jurisdictional High Court had already decided similar issues in favor of the assessee for the assessment year 2006-07, and the Tribunal had followed this for the assessment year 2007-08. The High Court had emphasized that exemptions under Section 10 were available to insurance companies, and reopening assessments based on a change of opinion was invalid. Following these precedents, the Tribunal allowed the appeal, granting the exemptions under Section 10.

4. Non-applicability of the provision of Section 115JB:
The assessee contended that as an insurance company, its profits were computed under Section 44 read with Rule 5 of the First Schedule, making Section 115JB inapplicable. The AO had computed book profits under Section 115JB, which the CIT(A) partially upheld. The Tribunal referenced its earlier decision for the assessment year 2007-08, where it was held that Section 115JB did not apply to insurance companies, as their accounts were not prepared under Schedule VI of the Companies Act. The Tribunal directed the AO to exempt the assessee from Section 115JB, following the precedent set in Krung Thai Bank PCL vs. Jt DIT and other similar cases.

Conclusion:
The appeal was allowed, with the Tribunal ruling in favor of the assessee on all relevant issues, following consistent precedents in the assessee's own cases and similar judgments. The Tribunal directed the AO to exclude profits on the sale of investments from taxable income, grant exemptions under Section 10, and exempt the assessee from the applicability of Section 115JB.

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