9911796707
TMI Blog2013 (8) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of the assessee for want of details whereas in the present case the assessee has submitted these details, hence, the decision of the Tribunal in that year is not applicable - Both the Revenue Authorities have treated this expenditure as opposed to the public policy, however, in our view the same cannot be a valid reason for disallowing the expenditure because this aspect does not come within the provisions of I.T. Act, 1961 - It is a matter of corporate policy where policies of this type are framed after due consultation with employees/officers association, hence, it cannot be treated as arbitrary. Further, the officers of the bank do not get any bonus whereas the employees get bonus which can also be treated as arbitrary in the similar manner, if the contentions of the Revenue are accepted - Expenditure incurred by the assessee is allowable as revenue expenditure. Double disallowance of profit tax of Frankfurt office – Held that:- Proper verification is required regarding fact pointed out by the assessee that the provision for profit tax at Frankfurt branch was also part of the provision for foreign tax for all foreign branches of ₹ 32,38,34,950/- and thus there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee – Also, as per RBI Circular No. FSCBC 18/24- 01-001/93-94 dated 14.02.1994 which inter alia deals with equipment leasing do not find any scope for argument that the instant lease agreement be treated as that of operating lease – the transaction in question is finance lease and not operating lease. - Therefore, no depreciation on asset will be allowed – Rental income from the lease will not be considered as income of the assessee for the income tax purpose and only the finance interest portion will be considered as income of the Assessee. Depreciation on matured securities – Held that:- Diminution in the value of securities which had matured and become due for redemption during the year but were not redeemed - There may be some delay on the part of the companies or the State Governments in paying the redemption amount. But, whenever the payment would be made it cannot be expected to be less than the face value - Any liability de futuro is not an ascertained liability in praesenti and cannot be allowed as deduction under the Income-tax Act as held in the case of Indian Molasses Co. Pvt. Ltd. vs. CIT [1959 (5) TMI 5 - SUPREME Court] and Standard Mills Co. Ltd. Vs.CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e addition of ₹ 2,61,53,579 under the head Deferred Payment Guarantee Commission . He erred in holding that the income from guarantee commission becomes final and irrevocable as soon as guarantee is given and does not depend on the liability that may eventually arise under the guarantee contract. 3. The learned CIT(A) erred in confirming the disallowance of ₹ 2,76,68,512 under section 37(4) of the Income-tax Act, 1961 ( the Act ), being expenditure incurred on repairs maintenance, rates and taxes relating to the guest house and depreciation on the assets of the guest house, as under: Rates taxes ₹ 2,06,689 Repairs maintenance ₹ 40,70,360 Depreciation ₹ 5,93,759 Rent ₹ 93,93,094 ₹ 1,42,63,902 4. The learned CIT(A) erred in upholding the action of the Assessing Officer in treating 50% of entertainment expenses attributable to employees as entertainment expenses for the purpose of disallowance under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rights and liabilities of ownership remain vested with the lessee . The CIT(A) erred in observing that despite entering into the so-called lease agreement which only secured finance, the lessee retained the asset in its own dominion at the exclusion of others including the so-called lessor. In order to get finance, it made an arrangement to issue a sale invoice but retained the asset for itself. The above conclusions are without any basis and contrary to the facts of the case. The appellant objects to these observations/conclusions. 9. The learned CIT(A) erred in not directing the Assessing Officer to exclude a sum of ₹ 7,02,21,455 being the interest recovered during the year out of interest credited to Interest Suspense A/c in earlier years. He further erred in holding that as the matter relating to interest credited to Interest Suspense A/c is still sub judice, the question of exclusion of recovered will arise only when the disallowance made by the A.O. in the relevant years is finally confirmed. Hence, at this stage, no definite relief can be allowed to the appellant. 10. The learned CIT(A) erred in holding that the interest on securities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter bringing the amount to tax under the head Business , the department taxed the Broken Period Interest Received on sale, but at the same time, disallowed Broken Period Interest Payment at the time of purchase and this led to the dispute. Having assessed the amount received by the assessee under section 28, the only limited dispute was - whether the impugned adjustments in the method of accounting adopted by the assessee-Bank should be discarded. Therefore, the judgement in Vijaya Bank s case has no application to the facts of the present case. If the department had brought to tax, the amounts received by the assessee-Bank under section 18, then Vijaya Bank s case was applicable. But, in the present case, the department brought to tax such amounts under section 28 right from inception. Therefore, the Tribunal was right in coming to the conclusion that the judgement in Vijaya Bank s case did not apply to the facts of the present case. The Hon ble Court finally held as under: That the judgement in the case of Vijaya Bank had no application to the facts of the case. That, having assessed the income under section 28, the department ought to have taxed interest for Broken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arantee commission did not accrue or rose in the relevant Assessment year 1984-85. However, this issue has been decided by the Tribunal against assessee in case of assessee itself. Now it is stated that in case of Bank of Tokyo (supra) the Hon ble Calcutta High Court has decided this issue in favour of the assessee. The counsel of assessee has stated that decision of the Hon ble Supreme Court in the case of Madras Industrial Corpn. (supra) also support the case of the assessee. These decisions were not available, when Tribunal decided the issue against assessee. To meet the ends of justice we restore this issue to the file of the AO and that the Assessing Officer `to decide the issue a fresh after taking into consideration the decision in case of Bank of Tokyo and in case of Madras Industrial Corpn. (supra) and if it is found that facts are identical then the decision of the Hon ble High Court in case of Bank of Tokyo (supra) has to be followed. We order accordingly. 5. As it is clear from the above order of the Tribunal for the assessment year 1984-85 that in the earlier years upto the assessment year 1983-84 this issue was decided by the Tribunal against the assessee. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue is regarding guest house expenses and depreciation thereon. At the time of hearing, the learned Authorised Representative of the assessee has submitted that the issue was decided against the assessee by the judgment of Hon ble Supreme Court in the case of Britannia Industries Ltd. Vs CIT, reported in 278 ITR 546 (SC). Accordingly, we are not inclined to interfere with the findings of the CIT(A). The same is upheld. Following the earlier order of this Tribunal we decide this issue against the assessee and in favour of the revenue. Accordingly the order of CIT(A) qua this issue is upheld. 8. Ground No. 4 is regarding disallowance of 50% of entertainment expenses. We have heard the Ld. AR as well as Ld. DR and considered the relevant material on record. We note that an identical issue has been considered and decided by this Tribunal in assessee s own case for the assessment year 1984-85 vide order dated 22.8.2006 in para 3 as under: 3. Ground 2 relates to disallowance of entertainment expenses on adhoc basis ₹ 25,00,000/-. The learned Counsel of the assessee submitted before us that in the earlier years i.e., 1977- 78 to 1983-84, 25% of such expenses attributable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order for A.Y. 1987- 88, also confirmed the same. Aggrieved by this, the assessee is in appeal before us. 32. The ld. Counsel submitted that the officers of the assessee bank were subject to frequent transfers, hence, to avoid difficulty to ..in getting admission for their children in god educational institutions, the assessee had made a policy to contribute to few institutions for some seats in various cities and, therefore, the expenditure incurred on this account was allowable as staff welfare expenses. The ld. Counsel contended that it was available to all officers of the bank and not merely to few officers of the bank as held by the A.O. The ld. Counsel contended that in A.Y. 1987-88 this issue arose before the Tribunal and was decided against the assessee for the reason that the assessee did not furnish details of expenditure before the Revenue authorities, however, in the present year, the details of payments were available and referred to the relevant pages of compilation. Accordingly, he contended that the aforesaid decision of the Tribunal was not applicable for the year under consideration. The ld. Counsel, thereafter, placed strong reliance on the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business purpose is concerned, that is not doubted. In this back ground, we hold that the expenditure incurred by the assessee is allowable as revenue expenditure. Thus, this ground of the assessee stands accepted. 10. As it is clear from the above order of the Tribunal that for the assessment year 1992-93 this issue was decided in favour of the assessee. The ground of disallowance for the year under consideration is treating the same as gratitudes payment. We note that as per the policy of the bank the arrangements are made for the reservation of seats in the schools for the children of the officer who are frequently transferred. Thus there is no discrimination in the policy as far as the officers subjected to transfer. A similar view has been taken by the Tribunal for the assessment year 1995-96 vide order dated 17.9.2009. Accordingly, following the order of this Tribunal for the assessment year 1992-93, we allow this claim of the assessee. 11. Ground No. 6 is regarding denial of deduction for interest paid u/s 234B, 220(2) and 215 of Income Tax Act. We have heard the Ld. AR as well as Ld. DR and considered the relevant material on record. The Ld. AR of the assessee has r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 88/- because the provisions for foreign tax for all branches amounting to ₹ 32,38,34,950/- was also disallowed by the AO which includes the provision for profit tax at Frankfurt of ₹ 1,45,93,174/- . Hence, the Ld. AR has submitted that there is a double disallowance to the extent of ₹ 1,40,78,488/-. 14. Having considered the rival submissions we are of the view that a proper verification is required regarding fact pointed out by the assessee that the provision for profit tax at Frankfurt branch was also part of the provision for foreign tax for all foreign branches of ₹ 32,38,34,950/- and thus there is double disallowance of ₹ 1,40,78,488/- being the profit tax paid by the assessee in respect of Frankfurt Branch. According the AO is directed to verify the point whether there is a double disallowance in this regard and decide the same as per law. 15. Ground No. 8 is regarding depreciation on lease assets given to Konkan Railway Corporation Ltd. The assessee has entered into an agreement dated 30.3.1996 with Konkan Railway Corporation Ltd. for leasing transaction with respect to the asset of ₹ 25,00,00,000/-. The assets have been categorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the genuineness of the transaction when the transaction has been sanctioned by the Government of India and between the two public sector undertaking. He has referred various clauses of the agreement and submitted that the interest and the title in respect of the lease asset are specifically mentioned under clause 8 of the agreement. According to the terms and conditions of clause 8 of the agreement the lessee is not permitted to sell, assign, sub-let, pledge, mortgage or create charge or otherwise part with possession of the asset in question and therefore the assessee Bank has pre-dominance over the assets. In case of any breach of terms and conditions of the agreement the assessee is entitled to recover to asset from the lessee, therefore the assessee holds the lien over the asset. He has submitted that the terms and conditions of the agreement clearly demonstrate the real attributes of the ownership of asset with the assessee. He has referred clause 8.1 of the agreement and submitted that the lease asset shall continue in the ownership of the assessee, notwithstanding that the same may have affixed to any land or building. He has referred clause 12 of the agreement and submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of ICDS Ltd. (supra). Therefore the issue of depreciation is covered in favour of the assessee by the decision of Hon ble Supreme Court as well as the Co-ordinate Bench of this Tribunal. 17. On the other hand, the Ld. DR has referred the findings of the CIT(A) as well as Assessing Officer wherein the nature of arrangement has been discussed in detail and submitted that the issue is covered against the assessee by the decision of Special Bench of this Tribunal in case of IndusInd Bank Ltd. Vs ACIT 135 ITD 165. He has submitted that the Special Bench has decided the issue in case of bank by following the decision of Hon ble Supreme Court in case of Asian Brown Boveries Ltd. Vs Incorporation India as well as in case of Association of leasing and Financial Services Vs Union of India wherein their lordships have laid down the distinguishing features of financial lease from operating lease. 18. In rebuttal the Ld. Counsel for the assessee has submitted that the decision of Special Bench in case of IndusInd Bank is not applicable in the case of the assessee because of various reasons including the lease period in case of the assessee is fix to 84 months with a liberty of renewal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties and the surroundings circumstances under which the transaction took place. Undisputedly in the case in hand the asset in question is the railway track which is already owned by the lessee Konkan Railway Corporation Ltd. (KRCL) but because of the requirement of funds the KRCL decided to raise the funds by making the arrangement of sale and lease back of the asset. Thus, the real object as far as KRCL is concerned for entering into the transaction of sale and lease back is to raise/arrange the funds. The two transaction of sale of the asset in question to the assessee bank and lease back cannot be separated as there was no choice with either of the party to restrict the transaction of sale alone independently because it was neither possible nor permissible to sell out the asset in question by the Konkan Railway Corporation being the integral part of their railway system which is the very basis of the existence of the KRCL. Thus, we have not doubt that the sale transaction in question is merely on paper and to facilitate the financial arrangement by the assessee to the KRCL without involving any real intention of transfer of the asset in question. Even otherwise the transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roughout the term of this Agreement against loss or damage by accident, lighting, fire, flood, storm, earthquake, tempest, falling aircraft, malicious damage, riot, strike, civil commotion, explosion, implosion and where necessary against third party claims in respect of Equipment used in hazardous industries and those requiring environmental protection as also for other risks usually covered by insurance in the type of business for which the Equipment is for the time being used to the satisfaction of the Lessor upto the full replacement value thereof under a Comprehensive Policy of Insurance, in the joint names of the Lessor and the Lessee with an endorsement showing the Lessor as the owner and Loss payee. 8. Lessor s Interest and Title: The Lessee agrees and undertakes that it will- 8.1 ensure that in so far as the Equipment is installed in or affixed to any land or building, such Equipment shall be capable of being removed without material injury to the said land or building and that all such steps shall be taken as are necessary to prevent title to the Equipment from passion to the Owner/Lessor/Occupier of the said land or building: 8.2 Keep the Equipment at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or for storage, installation, or use thereof, or in respect of any premises in which the Equipment form time to time may be placed or kept and produce to the Lessor, on demand, the latest receipts for all such payments and in the event of the Lessee making default under this sub-clause the Lessor shall be at liberty to make all or any of such payments and to recover the amount thereof from the Lessee forthwith. 8.8 not claim any relief by way of any deduction, allowance or grant available to the Lessor as the owner of the Equipment, under the Income Tax Act, 1961 or under any other Statute, rule, regulation or guideline issued or that may be issued by the Government of India or any Statutory Authority and not do or omit to do or be done any act, deed or thing whereby the Lessor is deprived, whether wholly or partly of such relief by way of deduction, allowance or grant. The Lessee shall at the end of each financial year of the Lessor provide to the Lessor such information as it may require to claim relief by way of any deduction allowance or grant as the owner of the Equipment under the Income Tax Act, 1961 and the Lessee undertakes to comply with and observe at all times a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Agreement had not been terminated to the end and intent that the Lessee shall pay to the Lessor not only arrears of instalments of lease rentals upto the date of termination of this Agreement but also such further instalments for the then unexpired residue of the term which the Lessee would have been bound to pay to the Lessor had this Agreement continued. 14. Redelivery/Repossession of Equipment: 14.1 Upon the expiration of this Agreement if the Lessee does not propose to renew the lease for further fixed period or secondary period the Lessee shall if required by the Lessor deliver the Equipment to the Lessor at the address of the Lessor stated in this Agreement or at such other addresses as the Lessor may specify or if not so required shall hold the Equipment in trust for the lessor so as to make it available to the Lessor for collection by itself or by its employees or agents; the Lessor or its employees or agents shall be entitled to retake possession of the Equipment and may for that purpose enter upon any land or building Lessor or its employees or agents to be situated and if the Equipment or any part thereof is affixed to such land or buildings, the Lessor or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en in the schedule to the lease agreement the period of 84 months is a fixed non-concealable period. As per clause 5 of the agreement the lessee is required to take out the insurance on the asset in question and also bear all the damages, loss and risk attached to the leased asset, therefore, it is agreement between the parties that all the risk and reward attach to the lease asset shall be born and enjoyed by the lessee. The so-called restrictions on the sale, creating charge, lien by the lessee are necessary being a security against the funds provided by the assessee to the lessee. Even otherwise in case of simple finance, the asset which is being financed is always kept as a security/mortgage with the bank to protect the interest of the bank till the repayment of the finance. Therefore, the restrictions provided in the lease agreement are only to secure the interest of the bank till the recovery of the full amount along with the interest. Some of the terms of the agreement appear to be only for sake of the conditions as to protect to the interest of the bank but the same could not be given effect in practical. For instance, in case of default if the assessee terminates the lease ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing but the return of his investment with interest. d. Operating lease is cancellable, whereas tinance lease is always non- cancellable. In a case of finance lease, the lessor is interested in lease rentals and not the asset. e. In the case of an operating lease, substantial risks and rewards of ownership of the asset remain with the lessor, whereas in the case of finance lease these ab initio vest with the lessee. f. In the case of an operating lease, the fixation of lease rental bear no symmetry with the economic life of the asset and the possibility of the asset reverting back to the lessor can never be ruled out. However in the case of a finance lease, the lease period is ordinarily equal to the economic life of the asset and lease rentals are fixed in such a way so as to recover the investment with interest during the lease peiod itself. The possibility of the asset reverting back to the lessor is never there. g. In the case of an operating lease, the asset is ordinarily common use utility whereas in case of finance lease the asset is normally selected by the lessee himself so as to suit his particular requirements h. Normally an operating lease is non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available to one lessee after another. 5.23 Now let us try to find out the substance of the extant lease agreement as to whether it predominantly satisfies the conditions of an operating lease. On reading the lease agreement as a whole, we find that except for naming the lessor as owner at some places in the agreement and inserting certain cosmetic clauses to give the colour of operating lease, there is nothing in substance which satisfies the inherent requisites of operating lease. It can be observed that the lease is not cancellable prior to the expiry period of seven years. The cost of repairs and insurance is to be borne by the lessee. Sum total of the lease rentals by the lessee recoups the amount invested by the lessor plus interest. There is a clause that after the expiry of seven years period, the boiler will be sold to the lessee at predetermined value. It is the lessee who has to bear the loss due to obsolescence. All the risks and rewards vest with the lessee. When we consider the cumulative effect of all the factors for and against the operating lease, it can be easily found out that if one has to choose between the finance lease and operating lease, there can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and circular notes; the buying, selling and dealing in bullion and specie; the buying and selling of foreign exchange including foreign bank notes; the acquiring, holding, issuing on commission, underwriting and dealing in stock, funds, shares, debentures, debenture stock, bonds, obligations, securities and investments of all kinds; the purchasing and selling of bonds, scrips or other forms of securities on behalf of constituents or others, the negotiating of loans and advances; the receiving of all kinds of bonds, scrips or valuables on deposit or for safe custody or otherwise; the providing of safe deposit vaults; the collecting and transmitting of money and securities; (b) acting as agents for any Government or local authority or any other person or persons; the carrying on of agency business of any description including the clearing and forwarding of goods, giving of receipts and discharges and otherwise acting as an attorney on behalf of customers, but excluding the business of a 1[managing agent or secretary and treasurer] of a company; (c) contracting for public and private loans and negotiating and issuing the same; (d) the effecting, insuring, guaranteein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 that no banking company shall engaged in any form of business other than those referred in subsection 1 of section 6. However, as per circular dated 19.2.1994 the Reserve Bank of India has allowed the banking companies to undertake the activities of equipment leasing but the same should be treated on par with the loan and advances. Therefore, the activity of equipment leasing permitted by the RBI vide said circular is only in the nature of finance lease. The said circular has also been considered and discussed by the Special Bench in para 5.24-5.27 as under: 5.24 Our view is fortified by the RBI Circular No. FSCBC 18/24- 01-001/93-94 dated 14.02.1994 which inter alia deals with equipment leasing. It is needless to say that this circular is binding on the assessee bank. Para 1(i) of it provides that the activities like equipment leasing, hire purchase and factoring services should be undertaken only by certain selected branches of the Bank. Para 1 (ii) which is relevant for our purpose reads as under: (ii) These activities should be treated on par with loans and advances and should accordingly be given risk weight of 100 per cent for calculation of capital to risk asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt the contention that the RBI permits claiming depreciation on the leased assets. It is in fact not so because the Circular as a whole treats the activity of equipment leasing as that of loans and advances and the reference to full depreciation in para 1 (vi) should be read in juxtaposition to para 1(v) which talks of the second component of the lease rental being the replacement cost of the asset. When we read this Circular in entirety, there remains no doubt that the activity of equipment leasing has to be considered by a bank on par with the loans and advances. 5.26 In view of the above circular we do not find any scope for argument that the instant lease agreement be treated as that of operating lease. Since the loans and advances encompass finance lease, naturally such type of equipment leasing cannot be given any name other than the finance lease. Here it is relevant to note that the assessee claimed depreciation on leased asset and also showed full amount of lease rental as income in contravention of para 1(v) of the afore noted RBI Circular. When the Assessing Officer concluded that the instant lease cannot be characterized as finance lease, the assessee requested the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India (RBI) as a non-banking finance company. It is engaged in the business of hire purchase, leasing and real estate etc. The vehicles, on which depreciation was claimed, are stated to have been purchased by the assessee against direct payment to the manufacturers. The assessee, as a part of its business, leased out these vehicles to its customers and thereafter, had no physical affiliation with the vehicles. In fact, lessees were registered as the owners of the vehicles, in the certificate of registration issued under the Motor Vehicles Act, 1988 (hereinafter referred to as the MV Act ). 28. Therefore the Hon ble Supreme Court has decided the issue in the case of non-banking financial company which is engage in the business of leasing whereas in the case of bank it is not permitted under the Banking Regulation Act to engage in the business of leasing of equipments. Following the decision of Special Bench of this Tribunal in case of IndusInd Bank Ltd., we hold that the transaction in question is finance lease and not operating lease. Accordingly, we uphold the orders of the authorities below qua this issue. 29. Ground No. 9 is regarding interest credited to Interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the course of the arguments, the ld. Counsel for the assessee had made a submission that though in the profit loss account the Interest on Govt. securities are credited on day to day basis, for purposes of computation of total income under the Income Tax Act, the credit entries are deleted from the net profit and are substituted by the interest that has become due during the year on specified dates and offered to tax. It was pointed out that the interest that is offered to tax in the return of income has also been assessed to tax by the A.O. In order to verify the submission, we directed the assessee to furnish the relevant statements to us. These were filed along with a covering letter which was taken on record. We find that in the profit loss account the year ended 31.12.1987, interest on Govt. securities amounting to ₹ 138,06,30,075/-has been included in the credit side. However, in the computation of total income for income tax purposes, the interest has been reduced from the net profit and interest of ₹ 138,06,30,075/- has been included in the coupon date basis. In the assessment order for the A.Y. 1988-89, a copy of which was also filed before us. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was taxable on the due basis only. In this view of the matter, we accept this ground of the assessee. 17. Moreover, as rightly submitted by the learned counsel for the assessee, the decision of Mumbai bench of Income Tax Appellate Tribunal in the case of Dy. CIT Vs Housing Development Finance Corporation Ltd. 98 ITD 319 and that of the Hon ble Kerala High Court in the case of C.I.T Vs Federal bank Ltd., 301 ITR 188 also support the assessee s case on this issue. Respectfully following these judicial pronouncements, we delete the addition made by the A.O. and confirmed by the ld. CIT(A) on this issue and allow ground No. 8 of assessee s appeal. Following the earlier order of this Tribunal, we decide this issue in favour of the assessee and against the revenue. 32. Ground No. 11 is regarding provision for doubtful debts. The assessee has claimed deduction for provision for bad and doubtful debts u/s 36(1)(viia) amounting to ₹ 5,63,32,54,326/-. The said provision was stated to be made on the basis of RBI guidelines. The AO allowed a sum of ₹ 5,36,21,32,507/- u/s 36(1)(viia) of the Income Tax Act. On appeal, the CIT(A) has confirmed the action of the AO an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to tax in India in terms of the relevant tax treaties in light of various judicial pronouncements. It is submitted that necessary directions may be given to the Assessing Officer to not tax income of foreign branches based in countries with which India has a tax treaty. 4. The learned CIT(A) erred in upholding the action of the Assessing Officer in disallowing a sum of ₹ 2,23,86,418 towards depreciation on matured securities. 5. The learned CIT(A) erred in upholding the action of the Assessing Officer in not allowing a deduction of ₹ 32,64,283 claimed by the appellant on account of loss on revaluation of permanent category investments. 35. We have heard the Ld. AR as well as Ld. DR on the admissibility of the additional ground raised by the assessee. The Ld. DR has objected on the ground that the assessee has not obtained the approval of CoD for filing the appeal in respect of the additional ground. On the other hand, the Ld. AR has submitted that in view of the decision of Hon ble Supreme Court in case of Electronics Corporation of India Ltd. Vs Union of India, the direction for permission of CoD given in the earlier decisions has been recalle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount of redemption money becomes due under the mercantile system of accounting followed by the appellant unless a portion of this amount is written off as bad debt. It is a real income and hence has to be taxed as such under the mercantile system followed by the appellant. Reliance in this regard is placed on State Bank of Travancore vs. CIT 158 ITR 102, 155 (SC) which was followed in Western India Oil Distributing Co. Ltd. Vs. CIT 206 ITR 359 (Bom). It was held in this decision that the concept of real income should not be so read as to defeat the provisions of the Act. Extension of the concept of real income to a field so as to negate accrual after the amount had become receivable is contrary to the postulates of the Act, the Supreme Court held (p. 146 of 158 ITR). Moreover, as held in the case of Navin R. Karnani vs. CIT 185 ITR 408 (Bom), it was not possible to waive any amount of income which had accrued under the mercantile system of accounting on the ground of diminished hope of recovery. Furthermore, any liability de futuro is not an ascertained liability in praesenti and cannot be allowed as deduction under the Income-tax Act as held in the case of Indian Molasses Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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