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2018 (12) TMI 836 - HC - Income TaxDis-allowance of bad debts written off u/s 36(1)(vii) - Held that - In South Indian Bank Ltd. v. CIT 2018 (12) TMI 682 - KERALA HIGH COURT already found the issue against the assessee and in favour of the Revenue. This Court had also noticed the decision of the Hon'ble Supreme Court in Southern Technologies Ltd. v. Joint CIT 2010 (1) TMI 5 - SUPREME COURT OF INDIA wherein the Gujarat High Court decision was reversed. Disallowance of expenditure incurred u/s 14A - Held that - As decided in ESSAR TELEHOLDINGS LTD. THROUGH ITS MANAGER 2018 (2) TMI 115 - SUPREME COURT OF INDIA Section 14A would be applicable only from the year 2007-08. In the present appeals arising from the prior years, the dis-allowance made by the AO under Section 14A as affirmed by the Tribunal, has to be set aside. The question is answered in favour of the assessee and against the Revenue. Levy of interest under Section 234B - Held that - The question has already been answered in favour of the Revenue and against the assessee in South Indian Bank Ltd. v. CIT 2014 (2) TMI 1080 - KERALA HIGH COURT . Dis-allowance of provision for leave encashment under Section 43B - Held that - Section 43B spoke of certain deductions only on actual payment. Sub-clause (f) is with respect to any sum payable by the assessee as an employer in lieu of any leave at the credit of his employee. The deduction, hence, is allowable only on actual payment. It is submitted that the Calcutta High Court has struck down the said provision. Admittedly a Special Leave Petition was filed before the Hon'ble Supreme Court and there is also a stay order granted. In such circumstances, the provision applies and this Court has also in a similar case answered the question in favour of the Revenue and against the assessee in South Indian Bank Ltd. v. CIT 2009 (12) TMI 394 - KERALA HIGH COURT . Dis-allowance of bad debts of non-rural Banks written off under Section 36(1)(vii) - Held that - In considering the allowance of deduction of actual written off debts under sub-clause (vii) of Section 36(1) with respect to urban bad debts as distinguished from rural bad debts, for which provision is allowable under sub-clause (viia), the same cannot be with reference to the provision under sub-clause (viia). The write off of non-rural bad debts under sub-clause (vii) has been found by the Hon'ble Supreme Court in CATHOLIC SYRIAN BANK LTD. 2012 (2) TMI 262 - SUPREME COURT OF INDIA to be independent of the provision for rural bad debts made under sub-clause (viia). In such circumstances, the question has to be answered in favour of the assessee and against the Revenue, with only reservation as to examination of whether any provision for non-rural bad debts has been granted deduction in the previous assessment year. If there is a deduction allowed for provision for non-rural bad debts, then necessarily the allowance for write off has to be only that in excess of the deduction granted for the provision. We make it clear that what we have directed the AO to examine is only as to whether there is an allowance granted for provision of non-rural bad debts in the earlier assessment year; without any reference to the rural bad debts, the provision for which has been granted deduction under sub-clause (viia). Addition of amortisation of expenses incurred in connection with the issue of public subscription of shares under Section 35D - whether assessee being not an 'industrial undertaking' - Held that - this Court would answer the question in favour of the assessee and against the Revenue, finding the appellant-assessee to be eligible for the claim under Section 35D. The actual expenditure, whether it comes within Section 35D(2)(c)(iv) would be left for consideration by the AO. Disallowance of expenses relating to right issue in view of the decision of the Supreme Court in the case of Brooke Bond India Ltd. vs. CIT 1997 (2) TMI 11 - SUPREME COURT - decided against assessee.
Issues Involved:
1. Disallowance of bad debts written off under Section 36(1)(vii). 2. Disallowance of expenditure incurred under Section 14A. 3. Levy of interest under Section 234B. 4. Disallowance of provision for leave encashment under Section 43B(f). 5. Disallowance of bad debts of non-rural Banks written off under Section 36(1)(vii). 6. Deduction under Section 35D of the Act. 7. Disallowance of expenses relating to right issue. Issue-wise Detailed Analysis: 1. Disallowance of Bad Debts Written Off under Section 36(1)(vii): The specific contention of the assessee was that having debited the sums in the separate assessment years, in the P&L account and netted the same from the total advances outstanding in the balance sheet, there is a complete write-off and there is no warrant to look into whether there has been a credit made to the specific account. The assessee relied on the Gujarat High Court decision in Vithaldas H. Dhanjibhai Bardanwala v. C.I.T. However, this Court, in I.T.A.No.264 of 2009 [South Indian Bank Ltd. v. CIT], found the issue against the assessee and in favor of the Revenue, noting the Supreme Court decision in Southern Technologies Ltd. v. Joint CIT. Thus, the question for all these years has been answered in favor of the Revenue. 2. Disallowance of Expenditure Incurred under Section 14A: For the years 2001-02, 2005-06, and 2006-07, the issue of disallowance of expenditure under Section 14A was raised. The Supreme Court in Commissioner of Income Tax v. Essar Teleholdings Ltd. held that Section 14A would be applicable only from the year 2007-08. Therefore, for the present appeals arising from the prior years, the disallowance made by the AO under Section 14A, as affirmed by the Tribunal, has to be set aside. The question is answered in favor of the assessee. 3. Levy of Interest under Section 234B: For the year 2006-07, the issue of levy of interest under Section 234B was raised. This question has already been answered in favor of the Revenue and against the assessee in South Indian Bank Ltd. v. CIT. Hence, the question stands answered against the assessee. 4. Disallowance of Provision for Leave Encashment under Section 43B(f): For the year 2006-07, another issue was the disallowance of provision for leave encashment under Section 43B(f). Section 43B allows certain deductions only on actual payment. Sub-clause (f) pertains to any sum payable by the employer in lieu of any leave at the credit of his employee. The deduction is allowable only on actual payment. The Calcutta High Court had struck down the said provision, but a Special Leave Petition was filed before the Supreme Court, and a stay order was granted. Therefore, the provision applies, and this Court has also answered the question in favor of the Revenue in South Indian Bank Ltd. v. CIT. The question is answered against the assessee. 5. Disallowance of Bad Debts of Non-Rural Banks Written Off under Section 36(1)(vii): For the years 2005-06 and 2006-07, the issue of disallowance of bad debts of non-rural Banks written off under Section 36(1)(vii) was raised. The AO declined the same, and the Tribunal relied on a Full Bench decision of this Court in Commissioner of Income Tax v. The South Indian Bank Ltd. However, the Supreme Court reversed this decision in Catholic Syrian Bank Ltd. v. Commissioner of Income Tax. The Supreme Court found that the write-off of non-rural bad debts under sub-clause (vii) is independent of the provision for rural bad debts under sub-clause (viia). Therefore, the question is answered in favor of the assessee, with the reservation that the AO must examine whether any provision for non-rural bad debts has been granted deduction in the previous assessment year. 6. Deduction under Section 35D of the Act: The issue was whether the Tribunal was correct in declining amortization of expenses incurred in connection with the issue of public subscription of shares under Section 35D, for the reason that the assessee was not an "industrial undertaking." The Finance Act, 2008, amended Section 35D to substitute "industrial undertaking" with "undertaking," effective from 01.04.2009. The learned Counsel for the appellant argued that this amendment should be deemed retrospective. However, the Notes on Clauses and the Memorandum Explaining the Provisions in the Finance Bill, 2008, indicated that the amendment would apply from the assessment year 2009-10 onwards. The Court considered various High Court decisions and found that the term "industrial undertaking" should be understood in a wide sense. Thus, the question was answered in favor of the assessee, finding the appellant-assessee eligible for the claim under Section 35D, with the actual expenditure to be considered by the AO. 7. Disallowance of Expenses Relating to Right Issue: For the assessment year 2002-03, the issue was whether the Tribunal was correct in dismissing the issue relating to the disallowance of expenses relating to the right issue in view of the Supreme Court decision in Brooke Bond India Ltd. vs. CIT. The Court answered this question in favor of the Revenue and against the assessee. Conclusion: In light of the findings, I.T.A.Nos.456/2009, 643/2009, 498/2009, 635/2009, 712/2009, 98/2012, and 148/2012 are allowed, and I.T.A.Nos.1108/2009, 651/2009, 1691/2009, 717/2009, 1318/2009, 126/2012, and 116/2012 are partly allowed, with parties left to suffer their respective costs.
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