2021 (8) TMI 582 - AT - Income Tax

Tribunal allows appeals by bank, sets aside CIT(A) orders for assessment years 2011-12, 2012-13, 2013-14.

DCB Bank Limited Versus Asstt. Commissioner of Income Tax Circle–3 (1), Mumbai

The Tribunal allowed the appeals filed by the assessee, setting aside the orders passed by the CIT(A) for the assessment years 2011-12, 2012-13, and ... Rectification u/s 154 - MAT applicability u/s 115JB on banking companies - establishing / determining the MAT credit and application of the unabsorbed depreciation / brought forward losses for the purpose of computation of tax as per MAT - mistake of carry forward of unabsorbed depreciation - HELD THAT:- As per the Explanation–3 to section 115JB of the Act considering huge loss carried forward by the assessee and in few assessment years the assessee has earned net profit, the assessee is allowed to adjust the above said profits only to the extent of unabsorbed depreciation or business loss whichever is less. Keeping the Explanation in mind, in our considered view, the computation determined by the Assessing Officer is just and proper. However, we notice that the assessee is a scheduled bank and as per the decision of the Hon'ble Jurisdictional High Court in Union Bank of India [2019 (5) TMI 355 - BOMBAY HIGH COURT] held that the provisions of section 115JB of the Act as it stood prior to its amendment by virtue of Finance Act, 2012, would not be applicable to a banking company. We are inclined to allow the grounds of appeal raised by the assessee even though the calculation submitted by the assessee is not proper. However, the provisions of section 115JB of the Act are not applicable to a scheduled bank. Consequently, we set aside the impugned order passed by the learned CIT(A) and allow the grounds of appeal raised by the assessee. Issues Involved:1. Whether the order passed under section 154 of the Income Tax Act was barred by limitation.2. Whether there was an apparent error from the record justifying the rectification under section 154.3. Applicability of section 115JB of the Income Tax Act to a banking company.4. Legitimacy of the reduction/disallowance of unabsorbed depreciation by the Assessing Officer.5. Whether the rectification under section 154 amounted to a review of the assessment order.Detailed Analysis:1. Limitation of Order under Section 154:The assessee contended that the order passed under section 154 was barred by limitation, as it was delivered after the expiry of four years from the end of the financial year in which the original order was passed. The Commissioner of Income Tax (Appeals) [CIT(A)] rejected this argument, stating that the order was passed within the permissible period on 31.03.2018, and the date of delivery does not invalidate the order.2. Apparent Error from Record:The assessee argued that there was no apparent error justifying rectification under section 154. The Assessing Officer (AO) identified an error in the carry forward of unabsorbed depreciation and issued a notice for rectification. The CIT(A) upheld the AO's decision, stating that the mistake was apparent from the record and rectifiable under section 154.3. Applicability of Section 115JB to Banking Companies:The assessee claimed that section 115JB, which pertains to Minimum Alternate Tax (MAT), was not applicable to banking companies. The CIT(A) disagreed, but the Tribunal, referencing the decision of the Hon'ble Jurisdictional High Court in CIT v. Union Bank of India, concluded that section 115JB was not applicable to banking companies before its amendment by the Finance Act, 2012.4. Reduction/Disallowance of Unabsorbed Depreciation:The AO reduced the claim of unabsorbed depreciation, which the assessee argued was done incorrectly. The CIT(A) upheld the AO's decision, but the Tribunal found that the calculation method adopted by the AO was just and proper, although section 115JB was not applicable to the assessee, being a banking company.5. Rectification Amounting to Review:The assessee contended that the rectification under section 154 amounted to a review of the assessment order. The CIT(A) and AO maintained that it was a correction of an apparent error, not a review. The Tribunal, however, held that since section 115JB was not applicable to the assessee, the rectification was not justified.Conclusion:The Tribunal allowed the appeals filed by the assessee, setting aside the orders passed by the CIT(A) for the assessment years 2011-12, 2012-13, and 2013-14. The Tribunal concluded that section 115JB was not applicable to the assessee, a scheduled bank, and thus the grounds raised by the assessee were valid. The appeals were allowed in favor of the assessee.