TMI Blog2019 (10) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... of First Schedule, coupled with non- obstante clause and in these circumstances, the AO is not empowered to travel beyond these provisions. Even otherwise, section 14A contemplates an exception for deduction as allowable under the Act are those contained under sections 228 to 438 of the Act and section 44 creates special application of these provisions in case of the insurance companies. The ld. AR for the assessee stated at Bar that the decision rendered by coordinate Bench of the Tribunal right from AYs 2000-01 to 2005-06 have not been challenged in the Hon ble High Court. So, finding no illegality or perversity in the findings deletion made by the ld. CIT (A) , ground no.3 is determined against the Revenue. Disallowance on account of expenses incurred on Guest House maintenance - CIT (A) deleted 50% of the disallowance - HELD THAT:- As following the decision rendered by the coordinate Bench of the Tribunal , we are of the considered view that when the expenditure incurred by the assessee company for maintenance of company s own guest houses, the same is covered u/s 30(a) of the Act. The repair expenses thereof would al so be allowed as deduction as section 30(a) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings:- 9. We have heard both the parties and gone through the material available on record. ITAT in order dated 27T H February, 2009 deleted the addition on the ground that income of insurance company is to be computed in accordance with the provisions of section 44 of the Act. The Bench while deleting the addition held as under:- 17. We have heard rival submissions of the parties and have gone through the material available on record. Identical issue arose in assessee's own case for AY 1985-86. The Tribunal accepted the plea of the assessee and in fact the issue went up to the Hon'ble. Delhi High Court in AY 1986-87 to 1988-89,which is reported as 125 Taxman 1094 (Del.), decided the issue in favour of the assessee by holding that section 44 of the Act is a special provision dealing with the computation of profits and gifts of business of insurance. It being a non obstinate provision has to prevail over other provisions in the Act. It clearly provides that income from insurance business has to be computed in accordance with the rules contained in the First Schedule. It is not the case of the Revenue that the assessee has not computed the profits and gains of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of the First Schedule.A plain reading of rule 5(a) of the First Schedule makes it clear that in order to attract the applicability of the said provision the amount should firstly be an expenditure or allowance. Secondly, it should be one not admissible under the provisions of sections 30 to 43A. If the amount is not an expenditure or allowance, the question of testing its eligibility for adjustment by reference to rule 5(a) of the First Schedule would not arise at all. (p.144) 10. In view of the said authoritative pronouncement, and in the absence of any finding by the Assessing Officer that the taxable income has not been computed in accordance with section 44 of the Act , no fault can be found with the view taken by the Tribunal. No question of law , much less a substantial question of law, survives for our consideration Consequently, both the appeals are dismissed. 9. So, respectfully following the decision rendered by the coordinate Bench of the Tribunal as well as Hon ble High Court in the assessee s own case, as discussed in the preceding paras , we are of the considered view that the assessee company had rightly not recognised an amount of ₹ 92, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof would al so be allowed as deduction as section 30(a) of the Act. So, we find no ground to interfere with the findings returned by the ld. CIT (A) and consequently ground no.2 is determined against the Revenue. Disallowance u/s 14A: 10. The ld. CIT (A) deleted the addition of ₹ 38,43,09,793/- made by the AO by invoking the provisions contained u/s 14A read with Rule 9D by following the decision rendered by the coordinate Bench of the Tribunal in AYs 2001-02, 2002-03, 2003-04, 2004-05 and 2005-06. However, on the other hand , ld. DR for the Revenue filed the written submissions on this ground by relying upon the decision rendered by the Hon ble Apex Court in the case of Maxopp Investment Ltd. vs. CIT (2018) 91 taxmann.com 154 (SC) and contended that since Maxopp Investment Ltd. (supra) judgment was rendered by Hon ble Supreme Court on February 12, 2018, the Tribunal was not having its benefit to rely upon. 13. The coordinate Bench of the Tribunal in AY 2005-06 decided this i sue in favour of the assessee by relying upon the decision in AYs 2000-01 2001-02 by returning following findings:- 18. The next common dispute relates to the order of the CIT(A) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an insurance business. 21. The learned Departmental Representative strongly justified the action of the AO and that of the CIT(A) in the light of the clear provisions of s. 44A of the Act . 22. We have considered the rival contentions and gone through the records . The provisions of s. 44 read as under: 44. Insurance business.-Notwithstanding anything to the contrary contained in the provisions of this Act relating to the computation of income chargeable under the head Interest on securities , Income from house property , Capital gains or Income from other sources , or in s. 199 or in ss. 28 to 43B, the profits and gains of any business of insurance, including any such business carried on by a mutual insurance company or by a co-operative society, shall be computed in accordance with the rules contained in the First Schedule. 23. The above provision makes it very clear that s. 44 applies notwithstanding anything to the contrary contained within the provisions of the IT Act relating to computation of income chargeable under different heads. We agree with the learned counsel that there is no requirement of head wise bifurcation called for while computing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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