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2018 (4) TMI 1207 - AT - Income TaxRevision u/s 263 - Deduction wrongly allowed in respect of provisions for nonperforming assets, even though it was a mere contingent liability - deduction towards loss of interest rate swap was incorrectly allowed - Held that - For provisions for nonperforming assets as out of total provision of ₹ 1114.68 lacs, a sum of ₹ 7,60,76,105/- was suo moto added back in the computation of income and a further sum of ₹ 73,46,160- was disallowed by the AO in the original assessment order dated 30.3.2005. Therefore, out of ₹ 1114.68 lacs, ₹ 834.22 lacs already stood disallowed in the original assessment order. The balance amount represented actual write off which was palpably clear from page 2 of the impugned order itself. No deduction on account of any such provision was, therefore, allowed to the assessee. Hence, there is no error or prejudice to the interest of revenue. For interest rate swap as an actual loss and only the net loss of ₹ 114.05 lacs after setting of gain of interest rate swap was claimed as deduction. However, we find that both these issues were duly examined by the AO vide Questionnaire dated 2.11.2004 to which replies dated 9.12.2004, 20.12.2004 and 6.1.2005 were furnished and, therefore, the finding of the Ld. CIT that the issues were not examined properly was not correct. CIT has not pointed out the definite and specific error in the original assessment order and observed that the inquiry made by the AO was inadequate or improper without first pointing out the error in the original assessment order passed by the AO, particularly because both the aforesaid issues were duly examined at the stage of the original assessment proceedings, hence, the impugned order is beyond jurisdiction, bad in law and void-ab-initio. - Decided in favour of assessee.
Issues Involved:
1. Jurisdiction and validity of the order under Section 263 of the Income-tax Act, 1961. 2. Examination of deductions allowed for provisions and write-offs for non-performing assets. 3. Examination of deductions allowed for loss on interest rate swaps. 4. Examination of disallowance of loss incurred on cross currency swap arrangements. Issue-wise Detailed Analysis: 1. Jurisdiction and Validity of the Order under Section 263 of the Income-tax Act, 1961: The Assessee challenged the order under Section 263 of the Act, claiming it was beyond jurisdiction, bad in law, and void ab-initio. The Tribunal noted that the Commissioner of Income Tax (CIT) had not pointed out any definite and specific error in the original assessment order. The CIT's order was based on the assertion that the Assessing Officer (AO) had not examined the issues properly. However, the Tribunal found that the AO had indeed examined the issues through a detailed questionnaire and replies during the original assessment proceedings. The Tribunal emphasized that mere inadequacy of inquiry does not justify the invocation of Section 263 unless a specific error is pointed out, citing the Hon’ble Jurisdictional High Court's decision in CIT vs. Sunbeam Auto and other relevant case laws. 2. Examination of Deductions Allowed for Provisions and Write-offs for Non-performing Assets: The CIT held that the deduction of ?1114.68 lakhs for provisions for non-performing assets was wrongly allowed as it was a contingent liability. However, the Tribunal found that out of the total provision, ?7,60,76,105/- was suo moto added back by the Assessee, and ?73,46,160/- was disallowed by the AO in the original assessment. Thus, ?834.22 lakhs had already been disallowed, and the balance was an actual write-off. The Tribunal concluded that no deduction for any provision was allowed, and hence, there was no error or prejudice to the revenue. 3. Examination of Deductions Allowed for Loss on Interest Rate Swaps: The CIT argued that the deduction of ?114.06 lakhs towards loss on interest rate swaps was incorrectly allowed. The Tribunal noted that the interest rate swap represented an actual loss, and only the net loss after setting off gains was claimed as a deduction. The Tribunal found that this issue was also duly examined by the AO during the original assessment proceedings. The Tribunal reiterated that the CIT had not pointed out any specific error in the original assessment order, making the invocation of Section 263 unjustified. 4. Examination of Disallowance of Loss Incurred on Cross Currency Swap Arrangements: The Assessee also challenged the disallowance of ?2,28,35,593/- incurred on account of cross currency swap arrangements, which was held as a capital loss by the CIT(A). The Assessee argued that the cross currency swap was for loans taken for working capital requirements and should be considered as revenue in nature. The Tribunal did not find a detailed discussion on this issue in the provided judgment text, but it was mentioned that the appeal related to this issue was consequential in nature. Conclusion: The Tribunal concluded that the CIT's order under Section 263 was not sustainable as the AO had duly examined the issues during the original assessment proceedings. The Tribunal emphasized that the CIT had not demonstrated any specific error or prejudice to the revenue. Consequently, the Tribunal allowed the Assessee's appeal and cancelled the impugned order. The related appeal was deemed infructuous and dismissed. Order Pronounced: The Tribunal allowed ITA No. 2697/Del/2007 and dismissed ITA No. 231/Del/2012 as infructuous. The order was pronounced on 23/04/2018.
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