2019 (2) TMI 1693 - HC - Income Tax

Court Affirms Tribunal: Section 44C Does Not Restrict NRI Mobilization Costs for Respondent Bank.

Commissioner of Income Tax (IT) 2 Versus M/s. Hongkong and Shanghai Banking Corporation Ltd.

The HC dismissed the tax appeal, affirming the Tribunal's decision that Section 44C of the Income Tax Act, 1961, did not restrict NRI Mobilization ... Addition made on NRI Mobilization expenses on the basis of decision of Bombay High Court in the case of Emirates Commercial Bank Ltd [2003 (4) TMI 2 - BOMBAY HIGH COURT] - HELD THAT:- The respondent assessee is a bank. For Assessment Year 200001, the assessee had claimed expenditure of ₹ 4.56 crores under the head 'NRI Deposit Mobilization'. According to the assessee to assist and facilitate the investments by NRIs, such a branch was set up. The said amount was expended towards administrative and other related expenses and the entire expenditure was for the purposes of head office and, therefore, no restrictions in terms of Section 44C should be imposed. The Tribunal accepted the view of the assessee relying upon the decision in the case of this very assessee for the earlier AY 1989-90 and 1990-91. The Tribunal also referred to certain other decisions. Revenue submitted that the Tribunal has erred in not applying the provisions of Section 44C of the Act. On the other hand, learned Counsel for the assessee supported the view of the Tribunal and contended that in an identical situation for the earlier assessment years, the Revenue had not carried the matters in appeal before the High Court. We note that non-filing of the appeals by the Revenue could not have been on the ground of low tax effect. Under the circumstances, the decisions of the Revenue not to challenge the Tribunal's judgment in earlier years in respect of this very assessee, can be seemed as conscious decision of accepting the proposition involved. This question is, therefore, not entertained. Issues:1. Interpretation of Section 44C of the Income Tax Act, 1961 in relation to NRI Mobilization expenses.2. Application of precedents and decisions in determining tax liability.3. Consideration of past judgments and decisions by the Revenue in similar cases.Analysis:1. The main issue in this case revolved around the interpretation of Section 44C of the Income Tax Act, 1961 concerning NRI Mobilization expenses. The respondent, a bank, claimed an expenditure of &8377; 4.56 crores under the head 'NRI Deposit Mobilization' for the relevant assessment year. The expenditure was incurred to facilitate investments by NRIs, and the Tribunal accepted the view of the assessee based on previous decisions in favor of the assessee for earlier assessment years. The Tribunal held that no restrictions under Section 44C should be imposed as the expenditure was for the purposes of the head office. However, the Revenue contended that the Tribunal erred in not applying the provisions of Section 44C, raising the question of whether the Tribunal's decision was correct in this context.2. The second issue involved the application of precedents and decisions in determining the tax liability of the assessee. The appellant challenged the Tribunal's decision by questioning whether the Tribunal erred in concurring with the decision of CIT(A) while deleting the addition made by the AO on NRI Mobilization expenses. The appellant argued that the Tribunal overlooked the differences in facts between the present case and the case of Emirates Commercial Bank Ltd, emphasizing the need to follow the ratio in the case of CIT Vs. Jansampark Advertising & Marketing Pvt. Ltd. The conflicting interpretations of previous judgments and their applicability to the current case raised a significant legal issue for consideration.3. The final issue pertained to the consideration of past judgments and decisions by the Revenue in similar cases. The counsel for the assessee pointed out that in earlier assessment years, the Revenue did not challenge the Tribunal's judgment regarding the same assessee, indicating a conscious decision to accept the proposition involved. The counsel argued that the non-filing of appeals by the Revenue in previous years should be viewed as a deliberate acceptance of the position taken by the assessee. This raised questions about the consistency and precedent set by the Revenue in dealing with similar cases over time.In conclusion, the High Court dismissed the tax appeal, emphasizing the importance of consistent application of legal provisions and precedents in determining tax liabilities and the significance of past decisions by the Revenue in assessing current cases.