TMI Blog2018 (6) TMI 1770X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee bank as the issue was decided in favour of the assessee by a decision of the coordinate bench in the assessee s own case. As , the decision of the CIT (A) was based on the decision rendered in the assessee s own case by the Tribunal in earlier years, therefore the assessee had preferred the appeal before us. If the decision is rendered by the superior court in the earlier appeal for AY 2007-08 [ 2015 (4) TMI 727 - ITAT BANGALORE] , thereby reversing the decision of the Tribunal for AY 2007-08, in that eventuality in the opinion of the bench, this issue will be required to be decided by the CIT (A), as no decision was rendered by the CIT (A) or by the Tribunal. In our view, it is for the assessee to move an appropriate application for seeking a direction from the Tribunal for adjudication of these issues namely, ground nos.8 to 15, in case the decision is reversed by the superior court in earlier appeal and sought appropriate direction for adjudication of these grounds on merit by the CIT(A) . At this stage, we do not find any error in the decision recorded by the CIT (A). Therefore this ground of the assessee is decided in terms of the above said observation, against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank in ITA No.58/Bang/2004, dt.28.06.2008, held inter alia to the following effect in Para 5.13 : 5.13 Since as per the decision of the Hon ble High Court of Punjab Haryana and Bangalore ITAT decision in the case of Canara Bank (supra), the claim for deduction of provision, over and above what is debited in the books of account if not admissible, the same is disallowed. As against the deduction of ₹ 918,82,49,133/0 claimed, the provision to be considered is only ₹ 107,30,00,000/-. Excess amount claimed of ₹ 811,52,49,133/- is disallowed. Feeling aggrieved by the order of the AO, the assessee preferred an appeal before the CIT (A). 04. The CIT (A) after considering the submissions made by the assessee and various decisions of the Hon ble Supreme Court as well as the coordinate bench, in paras 5.9 to 5.11 of his order held as under : 5.9 As mentioned above, the assessee has made a claim, for deduction u/s.36(1)(viia) amounting to ₹ 918,82,49,133/- whereas the assessee has debited in the books only ₹ 107,30,00,000/- as Provision for Bad and Doubtful Debts made at rural branches. Hence there is an excess claim for provision. The claim of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11, in the assessee s own case. 07. We have heard the rival contentions and perused the material. Since there is no change in facts. Following the decision of the Tribunal in the assessee s own case (supra), we hereby dismiss ground.2 of the assessee s appeal. 08. The common ground for both AY 2011-12 and 2011-12 pertain to computation of income for the purposes of allowing deduction u/s.36(1)(viia) of the Act. In this regard the AO at page 33 and 34 of his order in AY 2011-12, had dealt with the issue as under : (b) Total Income : Total income has not been defined for this purpose. Section 2(45) defines total income as the total amount of income referred to in section 5 computed in the manner laid down in the Act. As the expression Total Income is used, the limit should be applied to the total income as defined in section 2(45) which means after setoff of brought forward losses under the head profits gains of Business. Hence, under 7.5% of Total income the deduction u/s.36(1)(viia) is allowed after setoff of B/F Losses under Business. While computing the total income below, no separate addition is made to the returned income in respect of the above two issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts decision in the case of Distributors (Baroda) (P.) Ltd. (supra) held in the case of H.H. Sir Rama Verma v. CIT [1994] 205 ITR 433/[1993] 71 Taxman 237(SC) held that in the context of deduction u/s 80E long term capital loss brought forward from earlier years has to be first set-off against long term gains of current assessment year before deduction contemplated u/s 80T of the Act is allowed. The relief under the said Act is to be given only for the amount of long term capital gains of the current year after long term capital loss of earlier years brought forward is set-off. Therefore, having regard to the law laid down by the Hon'ble Apex Court in the above cases, it must be held that the total income computed in accordance with provisions of the Act i.e. in accordance with provisions except provisions of sec. 36(1)(viia) and Chapter VIA is alone to be considered for the purpose of calculating amount of deduction under the said provision. The reliance placed by the learned counsel for the assessee-bank on the decision in the case of Kerala State Industrial Development Corpn.(supra) and Bihar State Financial Corpn. (supra) is misplaced. Those decisions were rendered in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of the Act and the reasoning adopted by the CIT(A) is also in consonance with the clear provisions of the Act. Hence, we confirm the addition made by the AO. The grounds of appeal raised by the assessee on this issue are dismissed. Following the above decision of the coordinate bench, this ground is decided against the assessee for both the impugned assessment years before us. Ground No.4 12. The ground no.4 taken in AY 2012-13 is with respect to nonadjudication by the CIT (A) of various additions made while computing the book profit which are not covered by the Explanation 1 to section 115JB(2). 13. In this regard the CIT (A) in para 11.3 11.4, held as under : 11.3 Appellant's written submissions The provisions of section 115JB can only come into play when the assessee is required to prepare its profit and loss account in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act. The starting point of computation of MAT under section 115J13 is the result shown by such a profit and loss account. In the case of banking companies, however, the provisions of Schedule VI are not applicable in view of exemption set out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the assessee had not adjudicated the remaining grounds no.8 to 15, on the ground that as the provision of Section 115JB are not applicable, therefore, there is no occasion for him to decide the various grounds as raised in grounds 8 to 15 as they had become infructuous and academic in character. 15. On the other hand the Ld. DR has submitted that there is no necessity to adjudicate all these grounds since the basis issue had been decided in favour of the assessee i.e., the provisions of Section 115JB are not applicable to the assessee for the assessment year under consideration. 16. We have heard the rival contentions and perused the material. Admittedly, as per the decision of the CIT (A) the provisions of Section 115JB are not applicable to the assessee bank as the issue was decided in favour of the assessee by a decision of the coordinate bench in the assessee s own case. As , the decision of the CIT (A) was based on the decision rendered in the assessee s own case by the Tribunal in earlier years, therefore the assessee had preferred the appeal before us. 17. In our view, if the decision is rendered by the superior court in the earlier appeal for AY 2007-08 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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