2016 (5) TMI 1134 - AT - Income Tax

Provision for Non-Performing Assets not same as bad debts under Income Tax Act

M/s. Bank of Ceylon Versus The Deputy Director of Income Tax, International Taxation-I

The Tribunal upheld the CIT(A)'s decision, ruling that the provision for Non-Performing Assets (NPA) cannot be equated with the provision for bad and ... Disallowance of provision for bad and doubtful debts made under section 36(1)(viia)(b) for provisions for Non-Performing Assets - Held that:- CIT(A) has rightly held that the provisions for Non-Performing Assets cannot be equated with provision for bad and doubtful debts and since such provisions was not made, the assessee is not entitled for deduction, we find no infirmity in the order passed by the ld. CIT(A) - Decided against assessee. Issues Involved:1. Confirmation of disallowance of Rs. 42,36,327/- representing the provision for bad and doubtful debts under section 36(1)(viia)(b) of the Income Tax Act, 1961.Detailed Analysis:Issue 1: Confirmation of Disallowance of Provision for Bad and Doubtful DebtsBackground:The appellant, a branch of a foreign bank, filed an appeal against the order of the Commissioner of Income Tax (Appeals) [CIT(A)], which sustained the disallowance of a deduction claimed under section 36(1)(viia)(b) of the Income Tax Act, 1961, amounting to Rs. 42,36,327/-. The primary contention was whether the provision for Non-Performing Assets (NPA) could be equated with the provision for bad and doubtful debts.Provisions of Section 36(1)(viia):Section 36(1)(viia) provides for deductions in respect of provisions for bad and doubtful debts made by banks. Specifically, clause (b) allows a deduction for foreign banks up to 5% of the total income before making any deductions under this clause and Chapter VIA.Assessing Officer's (AO) Stand:The AO observed that the appellant did not create any provision for bad and doubtful debts as required under section 36(1)(viia)(b). The appellant argued that the provision was made in compliance with Reserve Bank of India (RBI) norms, but the AO rejected this argument, stating that these norms apply only to banks incorporated in India.CIT(A)'s Observations:The CIT(A) noted that the appellant claimed both the actual bad debt written off and the provision for bad and doubtful debts, which was contradictory. The CIT(A) emphasized that the provision for NPA cannot be equated with the provision for bad and doubtful debts, as they serve different purposes.Tribunal's Analysis:The Tribunal analyzed the statutory provisions and legislative history of section 36(1)(viia). It was noted that the provision for NPA is not the same as the provision for bad and doubtful debts. The Tribunal referenced several judicial precedents, including the Supreme Court's decision in Southern Technologies Ltd. vs. JCIT, which clarified that RBI directions do not override the provisions of the Income Tax Act.Quantum of Deduction:The Tribunal observed that the appellant had made a provision of only Rs. 20,17,436/- under the head provisions for NPA, which was significantly less than the claimed amount of Rs. 42,36,327/-. The Tribunal concluded that the appellant failed to establish that the provision was made for bad and doubtful debts as required under the Act.RBI's Directives:The appellant argued that the provision for NPA was made in compliance with RBI's IRAC norms. However, the Tribunal held that RBI guidelines are for financial reporting purposes and do not determine the taxable income under the Income Tax Act.Proviso to Section 36(1)(vii):The Tribunal referred to the Supreme Court's decision in Catholic Syrian Bank Ltd. vs. CIT, which held that the provisions of sections 36(1)(vii) and 36(1)(viia) are distinct and operate in their respective fields. The proviso to section 36(1)(vii) limits the deduction to the extent of the difference between the debt written off and the provision made under section 36(1)(viia).Conclusion:The Tribunal upheld the CIT(A)'s decision, stating that the provision for NPA cannot be equated with the provision for bad and doubtful debts. Consequently, the appellant was not entitled to the claimed deduction under section 36(1)(viia)(b). The appeal was dismissed.Final Order:The appeal filed by the assessee was dismissed, and the order was pronounced on the 6th of May, 2016 at Chennai.