1/4 itxa-1355-12.doc IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION rt INCOME TAX APPEAL NO.1355 OF 2012 ou Commissioner of Income Tax-2 ...Appellant v/s. Dena Bank ...Respondent C Mr.P.C.Chhotaray for Appellant. Ms.A.Vissanji with Mr.S.J.Mehta for Respondent. ... CORAM : S.C.DHARMADHIKARI & h A.A. SAYED, JJ. P.C. ig DATED : 26 NOVEMBER 2014 Having heard both sides, we are of view that H Tribunal's order raises only one substantial question of law, which is also admitted in case of M/s. Trent Ltd. (Income Tax Appeal y No.1341 of 2012) on 21 November 2014. ba 2. Appeal is, therefore, admitted on following om substantial question of law: Whether on facts and in circumstances of case and in law, ITAT was justified in holding that provision made for Non Performing Assets (NPAs) u/s B 36(viia) amounting to Rs.275.57 crores cannot be added back to net profit as shown in profit and loss account prepared under sub-section (2) of section 115 JB in spite of clear mandate of clause (I) of Explanation 1 to section 115JB(2)? Uday Kambli 1/4 ::: Downloaded on - 11/08/2015 15:43:07 ::: 2/4 itxa-1355-12.doc 3. It is argued that question (c) at page 5 of Paper rt Book is also substantial question of law. 4. That question reads as under: ou ITAT erred in not appreciating that both provisions for NPA of Rs.275.57 crores and investment depreciation of Rs.81.32 crores clearly fall under scope of said C clause (I) of Explanation I to section 115JB (2) and have been rightly held by Commissioner to be added back while computing book profit for purpose of MAT. h 5. In relation to that question there is finding of fact, ig which has been rendered by Tribunal. Tribunal opined that H section 263 could not have been invoked by Commissioner in respect of depreciation of investment and to extent of Rs.81.32 crores, that amount has already been added back to Assessee's y income and by giving effect to Appellate order dated ba 5 March 2010. powers of revision under section 263 of Income Tax Act, 1961, therefore, ought to have been invoked in om respect of this issue. Such finding of fact and in relation to that Tribunal may have further opined that appeal effect order B stands merged with assessment order and once adjustment is carried out, powers under section 263 could not have invoked. appeal effect order is passed on 5 March 2010. Revision order is passed on 29 March 2010. Uday Kambli 2/4 ::: Downloaded on - 11/08/2015 15:43:07 ::: 3/4 itxa-1355-12.doc 6. This was possible view and which could be taken in rt relation to this question. Further, claim of Department that ou section 115JB applies also to Dena Bank, which may be banking company, cannot be prima facie straightway accepted. In relation to that we find that section 115JB refers to in its sub-section (2) clause C (b), sub-section (2) of section 211 of Indian Companies Act, 1956. Having perused both these sub-sections, namely sub-section h (2)(b) of section 115JB of Income Tax Act, 1961 and sub-section ig (2) of section 211 of Companies Act, 1956, it is extremely doubtful as to why these powers under section 263 of Income H Tax Act, 1961 have been invoked by Commissioner. Prima facie Commissioner should have recorded satisfaction that such y provisions of Income Tax Act would be attracted even to ba nationalized banks. It is surprising that Department maintains this stand and even before this Court that Books of Account, om Balance Sheets of nationalized banks, as maintained in terms of legal provisions, do not reflect true, correct and fair picture of B its financial affairs. 7. For all these reasons, we refuse to entertain question, as that is not substantial question of law. Appeal is dismissed to that extent. Uday Kambli 3/4 ::: Downloaded on - 11/08/2015 15:43:07 ::: 4/4 itxa-1355-12.doc 8. Mr.Mehta waives service for Respondent. rt ou 9. Registrar (Judicial)/Registrar, High Court, Original Side, Bombay to ensure that original record in relation to this Appeal is summoned from Tribunal and offered for inspection of C parties. This paper book is treated sufficient for purpose of admission of this Appeal. However, Registry must further ensure h preparation of complete paper book in accordance with Rules. ig Registry in first instance must send intimation of admission of this Appeal enclosing therewith copy of this order so as to H enable Tribunal to act accordingly. y (A.A. SAYED, J.) (S.C.DHARMADHIKARI,J.) ba om B Uday Kambli 4/4 ::: Downloaded on - 11/08/2015 15:43:07 ::: Commissioner of Income-tax-2 v. Dena Bank