2012 (5) TMI 683

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....o same assessee, they were heard together and disposed of by this consolidated order for the sake of convenience and brevity. 3. The brief facts of the case are as follows; The assessee is a nationalized commercial bank. For the assessment year 2004- 05, the return of income was filed on 28-10-2004 declaring a total income of Rs. 611,96,02,505/-. Regular assessment was completed u/s 143(3) of the IT Act on 30-12-2005. Later notice u/s 148 was issued on 28-04-2008. The re-assessment order was passed on 29-12-2009, wherein the AO made a disallowance of Rs. 7,19,63,737/- on account of estimated expenditure on earning income exempt u/s 10(23G) of the IT Act, 1961 and determined the total income of the assessee bank at Rs. 639,28,92,737/-. ....

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....enditure on earning income exempt u/s 10(23G) by placing reliance on the following; a) Rajasthan State Warehousing Corp. Vs CIT (2000) 42 ITR 450 b) Wimco Seedings (P)Ltd., Vs DCIT(2007) 107 ITD 267(Del.Bench of ITAT) c) Maruti Udyog Ltd., Vs DCIT(2005) 92 ITD 119 (Del.Bench of ITAT) 2.2 The ld. CIT(A) failed to appreciate the fact that the department has taken a stand of disallowing proportionate expenditure in earning the exempted income for the earlier AY also. 2.3 The ld. CIT(A) failed to appreciate the fact that the issue is still in dispute for various assessment years before the appellate authorities. 2.4 The ld. CIT(A) failed to appreciate the fact that the assessee bank's contention that being a ....

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....matter back to the file of the AO for fresh consideration. The Tribunal directed the AO to follow the ratio laid down in the judgment of the Hon'ble Bombay High Court in the case of M/s Godrej and Boyce Mfg. Co.,Ltd., The relevant findings of the Tribunal in the assessee's own case in ITA No.504(B)/2004 dated 13-01-2012 reads as follows; " 32. We have heard the rival submissions and considered the facts and material on record. We find that in the assessee's own case for asst. years 2002-01 and 2001-02 in ITA No.1283 and 1284(B)/2007 the Tribunal allowed the claim of the assessee that prior to the insertion of Rule 8D, there was no basis to make disallowance on estimate basis. However, now the Bombay High Court in the case of M/s Go....