India coffee Board workers co-op society ltd, Trichur V. ITO, Thrissur

CO 1/COCH/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8493 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 3 month(s) 9 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 12-04-2013
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 19-02-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 02-01-2012
• Court: TRIBUNAL
• Department Lawyers: SUSAN GEORGE VARGHESE
• Assessee Lawyers: T M SREEDHARAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM I.T.A. NO. 590/COCH/2011 ASSESSMENT YEAR : 2008-09 I.T.O., WARD-2(2), RANGE-2, TRICHUR. VS. M/S. INDIAN COFFEE BOARD WORKERS CO-OP SOCIETY, MACHINGAL LANE, TRICHUR. [PAN: AAATI 0917L] (REVENUE -APPELLANT) (ASSESSEE-R ESPONDENT) C.O. NO. 01/COCH/2012 (ARSG. OUT OF I.T.A. NO. 590/COCH/2011) ASSESSMENT YEAR : 2008-09 M/S. INDIAN COFFEE BOARD WORKERS CO-OP SOCIETY, MACHINGAL LANE, TRICHUR. [PAN: AAATI 0917L] VS. I.T.O., WARD-2(2), RANGE-2, TRICHUR. (ASSESSEE -APPELLANT) (REVENUE-R ESPONDENT) REVENUE BY SMT. SUSAN GEORGE VARGHESE, SR. DR ASSESSEE BY SHRI T.M. SREEDHARAN, SR. ADV. DATE OF HEARING 19/02/2013 DATE OF PRONOUNCEMENT 12/04/2013 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL FILED BY THE REVENUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 28-06-2011 PASSED BY THE LD. CIT(A)-V, KOCHI AND THEY RELATE TO THE ASSESSMENT YEAR 2008-09. THE AP PEAL OF THE REVENUE IS BARRED BY LIMITATION BY 60 DAYS AND THE CROSS OBJECTION OF TH E ASSESSEE IS BARRED BY LIMITATION BY 10 DAYS. BOTH THE PARTIES HAVE MOVED PETITIONS BEF ORE THE BENCH REQUESTING THE BENCH P I.T.A. NO. 590/COCH/2011 & C.O. NO. 01/COCH/2012 2 TO CONDONE THE DELAY. HAVING REGARD TO THE SUBMISS IONS MADE IN THEIR RESPECTIVE PETITION, WE CONDONE THE DELAY IN BOTH THE CASES AN D ADMIT THEM FOR HEARING. 2. THE REVENUE IS ASSAILING THE DECISION OF THE LD. CIT(A) IN HOLDING THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S. 80P(2)(A)(V I) OF THE ACT AND IS ALSO ASSAILING HIS DECISION IN GRANTING PARTIAL RELIEF U/S 40(A)(IA) OF THE ACT. IN THE CROSS OBJECTION THE ASSESSEE IS ASSAILING THE DECISION OF THE LD. CIT(A ) IN PARTIALLY CONFIRMING THE DISALLOWANCE MADE U/S. 40(A)(IA) OF THE ACT. 3. THE FACTS RELATING TO THE CASE ARE STATED IN BRI EF. THE ASSESSEE IS A CO-OPERATIVE SOCIETY AND IS ENGAGED MAINLY IN RUNNING RESTAURANT S, UNDER THE NAME AND STYLE OF INDIAN COFFEE HOUSE. IT FILED ITS RETURN OF INCO ME FOR THE YEAR UNDER CONSIDERATION DECLARING A LOSS OF RS. 2,97,446/-. DURING THE ASS ESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE DID NOT DEDUCT TA X AT SOURCE ON RENT PAYMENTS. ACCORDINGLY, HE DISALLOWED THE SUM OF RS. 12,19,536 /- BY INVOKING SEC. 40(A)(IA) OF THE ACT. THE ASSESSING OFFICER ALSO NOTICED THAT THE A SSESSEE DID NOT OFFER INTEREST RECEIVED FROM ITS MEMBERS AMOUNTING TO RS. 16,93,334/- AS IT S INCOME. WHEN THIS WAS POINTED OUT TO THE AUTHORISED REPRESENTATIVE OF THE ASSESSE E, HE ADMITTED THAT HE HAD NOTHING TO EXPLAIN IN THIS REGARD. ACCORDINGLY, THE ASSESS ING OFFICER ADDED THE ABOVE SAID SUM ALSO. THE ASSESSING OFFICER COMPUTED THE TOTAL INC OME BY MAKING A DEDUCTION OF RS. 50,000/- U/S. 80P OF THE ACT, APPARENTLY U/S. 80P(2 )(C)(II) OF THE ACT. 4. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN AP PEAL BEFORE THE LD. CIT(A) AND CONTENDED THAT THE ASSESSEE IS ENTITLED FOR DEDUCTI ON U/S. 80P(2)(A)(VI) OF THE ACT AS IT IS A SOCIETY ESTABLISHED FOR COLLECTIVE DISPOSAL O F LABOUR OF ITS MEMBERS. THE LD. CIT(A) ACCEPTED THE CLAIM OF THE ASSESSEE AND HELD THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION OF ITS ENTIRE INCOME U/S. 80P(2)(A)(VI) O F THE ACT. WITH REGARD TO THE DISALLOWANCE MADE U/S. 40(A)(IA) OF THE ACT, THE LD . CIT(A) GRANTED PARTIAL RELIEF BY FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCO COLA BEVERAGE P. LTD. VS. CIT (2007) 293 ITR 226. AGGRI EVED BY THE ORDER PASSED BY THE LD. I.T.A. NO. 590/COCH/2011 & C.O. NO. 01/COCH/2012 3 CIT(A), THE REVENUE HAS FILED THIS APPEAL BEFORE US AND THE ASSESSEE HAS FILED THE CROSS OBJECTION. 5. THE LD. DR SUBMITTED THAT THE TERM COLLECTIVE D ISPOSAL OF LABOUR WOULD ENVISAGE A SITUATION WHERE A SOCIETY IS FORMED FOR THE BENEFIT OF LABOURERS WHO CANNOT GET WORK ON THEIR OWN BUT THROUGH AN ORGANIZATION L IKE A CO-OPERATIVE SOCIETY. SHE QUOTED THE EXAMPLE OF RED CROSS SOCIETY, WHICH PR OVIDES NURSES TO PATIENTS AND TAKE A PORTION OF THE FEES COLLECTED ON BEHALF OF THE NU RSE/NURSES WHO HAS BEEN SENT FOR THE WORK IN A HOSPITAL OR A RESIDENCE. THE LD. DR FURT HER SUBMITTED THAT THE ASSESSEE- SOCIETY IS CLAIMED THAT IT WAS STARTED FOR THE BENE FIT OF THE EMPLOYEES WHO WERE RETRENCHED FROM THE COFFEE BOARD. HOWEVER, THE ASS ESSEE IS CARRYING ON THE BUSINESS OF PURCHASE AND SALE OF COFFEE AND IS ALSO ENGAGED IN OTHER TRADING ACTIVITIES LIKE SALE OF LOTTERY TICKETS. THE ASSESSEE IS ALSO RECEIVING RE NTAL AND INTEREST INCOME. ACCORDINGLY, THE LD. DR SUBMITTED THAT THE ASSESSEE CANNOT BE CL ASSIFIED AS A CO-OPERATIVE SOCIETY FORMED FOR COLLECTIVE DISPOSAL OF LABOUR. THE LD . DR FURTHER SUBMITTED THAT THE DEDUCTION U/S 80P(2)(A)(VI) CAN BE GRANTED ONLY IF THE PROVISO TO SEC. 80P(2) IS ALSO SATISFIED. SHE SUBMITTED THAT THE SAID PROVISO PUT S A CONDITION THAT THE SOCIETY FORMED FOR COLLECTIVE DISPOSAL OF LABOUR OF ITS MEMBERS SH OULD RESTRICT ITS VOTING RIGHTS TO FOLLOWING THREE CATEGORIES, VIZ., (1) THE INDIVIDUALS WHO CONTRIBUTE THEIR LABOUR OR , AS THE CASE MAY BE, CARRY ON THE FISHING OR ALLIED ACTIVITIES; (2) THE CO-OPERATIVE CREDIT SOCIETIES WHICH PROVID E FINANCIAL ASSISTANCE TO THE SOCIETY. (3) THE STATE GOVERNMENT. THE LD D.R SUBMITTED THAT THE BYE-LAWS OF THE SOCIE TY DID NOT MENTION ANYTHING ABOUT THE VOTING RIGHTS AND FURTHER THE BYE LAWS GIVE THE IMPRESSION THAT THE PERSONS WHO ARE NOT THE WORKERS CAN ALSO BECOME MEMBERS OF THE SOCI ETY. BY PLACING RELIANCE ON THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE C ASE OF GORA VIBHAJ JUNGLE KAMDAR MANDALI VS. CIT REPORTED IN 161 ITR 658, THE LD. DR SUBMITTED THAT THE ASSESSEE- SOCIETY SHALL NOT BE ENTITLED FOR EXEMPTION U/S. 80 P(2)(A)(VI) OF THE ACT IF THE VOTING I.T.A. NO. 590/COCH/2011 & C.O. NO. 01/COCH/2012 4 RIGHT IS EXTENDED TO INDIVIDUALS WHO DO NOT CONTRIB UTE THEIR LABOUR. THE LD. DR FURTHER SUBMITTED THAT THE EXEMPTION U/S. 80P(A)(VI) IS AVA ILABLE ONLY WHEN THE EARNING OF THE ASSESSEE-SOCIETY WAS THROUGH UTILISATION OF THE ACT UAL LABOUR OF ITS MEMBERS. FOR THIS PROPOSITION, THE LD. DR PLACED RELIANCE ON THE DECI SION OF THE HONBLE HIGH COURT OF ORISSA, NILAGIRI ENGINEERING CO-OPERATIVE SOCIETY LT D. VS. CIT, (1994) 208 ITR 326. 6. ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSESSE E SUBMITTED THAT THE ASSESSEE SOCIETY WAS FORMED TO GIVE EMPLOYMENT TO THE WORKER S WHO HAVE RETIRED FROM THE COFFEE BOARD AND THEY THEMSELVES CARRY ON THE ACTIV ITIES OF THE SOCIETY. FURTHER, AS PER THE CLAUSE 5 OF BYE-LAWS, THE MEMBERSHIP IS EXTENDE D TO THE PERMANENT EMPLOYEES OF THE SOCIETY ALSO. ACCORDINGLY, THE LD. AR SUBMITTE D THAT THE PERSONS WHO ARE ACTUALLY WORKING IN THE ESTABLISHMENT OF THE ASSESSEE-SOCIET Y CAN ONLY BECOME MEMBERS. THE LD. AR FURTHER SUBMITTED THAT ALL THE MEMBERS COLLE CTIVELY CONTRIBUTE THEIR LABOUR FOR RUNNING COFFEE HOUSES AND RESTAURANTS AND HENCE, TH E PROVISIONS OF SEC. 80P(2)(A)(VI) WOULD SQUARELY APPLY TO THE ASSESSEE. THE LD. AR R ELIED ON THE DECISION OF THE HONBLE KERALA HIGH COURT IN THE CASE OF M/S. URALUNGAL LAB OUR CONTRACT CO-OPERATIVE SOCIERTY (2010) KHC 59, WHEREIN THE HONBLE KERALA HIGH COUR T HELD THAT THE WORKERS SOCIETY UNDERTAKING CIVIL CONSTRUCTION WORK AND EXECUTING W ORK BY THEMSELVES RIGHTLY ANSWERS THE ACTIVITY REFERRED TO IN SEC. 80(P)2)(VI), I.E. COLLECTIVE DISPOSAL OF LABOUR OF THE MEMBERS OF THE SOCIETY. HE FURTHER SUBMITTED THAT T HE HONBLE KERALA HIGH COURT ALSO HELD THAT TRADING IN CONSTRUCTION MATERIALS LIKE SA ND ARE INCIDENTAL IN NATURE AND SINCE THE MEMBERS THEMSELVES ARE ENGAGED IN HANDLING THE GOODS, THE INCOME THEREFROM IS ALSO EXEMPT U/S. 80P(2)((VI) OF THE ACT. THE LD. C OUNSEL ALSO PLACED RELIANCE ON THE FOLLOWING CASE LAW:- CIT VS. GURDASPUR HARDOCHHANNI CO-OP L/C SOCIETY ( 2008) 303 ITR 145 P&H) CIT VS. SALEM DISTRICT PRINTERS SERVICE I NDUSTRIAL CO-OPERATIVE SOCIETY LTD. (2007) 290 ITR 371 (MAD.) NASIK DISTRICT LABOUR SOCIETIES CO-OP. FEDERATION LTD. VS. ITO, (1988) 18 ITD (PN) 354. I.T.A. NO. 590/COCH/2011 & C.O. NO. 01/COCH/2012 5 7. IN THE REJOINDER, THE LD D.R SUBMITTED THAT THE FACTS PREVAILING IN THE CASE OF URALUNGAL LABOUR CONTRACT CO-OPERATIVE SOCIETY ARE TOTALLY DIFFERENT AND HENCE THE RATIO OF THE SAID DECISION CANNOT BE APPLIED IN THE INSTA NT CASE. 8. WE HAVE HEARD THE RIVAL CONTENTIONS ON THIS ISSU E AND CAREFULLY PERUSED THE RECORD. WE HAVE ALSO GONE THROUGH THE VARIOUS CASE LAWS CITED BY BOTH THE PARTIES. FOR THE SAKE OF CONVENIENCE, WE EXTRACT BELOW THE R ELEVANT PROVISIONS OF SECTION 80P OF THE ACT:- 80P (1) WHERE, IN THE CASE OF AN ASSESSEE BEING A COOPERATIVE SOCIETY, THE GROSS TOTAL INCOME INCLUDES ANY INCOME REFERRED TO IN SUB-SECTION (2), THERE SHALL BE DEDUCTED, IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF THIS SECTION, THE SUMS SPECIFIED IN SUB-SECTION (2), IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE. 80P (2) THE SUMS REFERRED TO IN SUB-SECTION (1) S HALL BE THE FOLLOWING , NAMELY- (A) IN THE CASE OF A CO-OPERATIVE SOCIETY ENGAGED IN- (I).....(V) (VI) THE COLLECTIVE DISPOSAL OF THE LABOUR OF ITS M EMBERS, OR..... THE WHOLE OF THE AMOUNT OF PROFITS AND GAINS OF BUS INESS ATTRIBUTABLE TO ANY ONE OR MORE OF SUCH ACTIVITIES. PROVIDED THAT IN THE CASE OF A CO-OPERATIVE SOCIETY FALLING UNDER SUB- CLAUSE (VI), OR SUB-CLAUSE (VII), THE RULES AND BYE -LAWS OF THE SOCIETY RESTRICT THE VOTING RIGHTS TO THE FOLLOWING CLASSES OF ITS MEMBERS, NAMELY- (1) THE INDIVIDUALS WHO CONTRIBUTE THEIR LABOUR OR, AS THE CASE MAY BE, CARRY ON THE FISHING OR ALLIED ACTIVITIES; (2) THE CO-OPERATIVE CREDIT SOCIETIES WHICH PROVIDE FIN ANCIAL ASSISTANCE TO THE SOCIETY. (3) THE STATE GOVERNMENT. (B) ...... (C) IN THE CASE OF A CO-OPERATIVE SOCIETY ENGAGED IN A CTIVITIES OTHER THAN THOSE SPECIFIED IN CLAUSE (A) OR CLAUSE (B) (EITHER INDEPENDENTLY OF, OR IN ADDITION TO, ALL OR ANY OF THE ACTIVITIES SO SPE CIFIED), SO MUCH OF ITS PROFITS AND GAINS ATTRIBUTABLE TO SUCH ACTIVITIES A S DOES NOT EXCEED,- I.T.A. NO. 590/COCH/2011 & C.O. NO. 01/COCH/2012 6 (I) WHERE SUCH CO-OPERATIVE SOCIETY IS A CONSUMERSCO-O PERATIVE SOCIETY, ONE HUNDRED THOUSAND RUPEES; AND (II) IN ANY OTHER CASE, FIFTY THOUSAND RUPEES. IN THE INSTANT CASE, THE ASSESSEE IS CLAIMING EXEMP TION OF WHOLE OF ITS PROFITS AND GAINS U/S 80P(2)(A)(VI) OF THE ACT. HOWEVER, THE ASSESSI NG OFFICER HAS ALLOWED A DEDUCTION OF RS.50,000/- U/S 80P(C)(II) OF THE ACT. 9. THOUGH BOTH THE PARTIES HAVE PUT FORTH THEIR RESPECTIVE VIEW POINTS, WE NOTICE THAT THE ASSESSMENT ORDER IS SILENT ABOUT THE CLAIM OF T HE ASSESSEE FOR DEDUCTION U/S 80P(2)(A)(VI) OF THE ACT. BEFORE US ALSO, THE ASSE SSEE DID NOT FURNISH ANY MATERIAL TO SHOW THAT IT DID MAKE A CLAIM BEFORE THE ASSESSING OFFICER. EVEN IF IT IS ASSUMED THAT THE ASSESSEE WOULD HAVE MADE SUCH A CLAIM, WE NOTICE TH AT THE ASSESSING OFFICER DID NOT DISCUSS ANYTHING ABOUT THE ELIGIBILITY OF THE ASSES SEE FOR DEDUCTION U/S 80P(2)(VI) OF THE ACT. HENCE, WE ARE UNABLE TO EXAMINE THE VIEWS OF THE ASSESSING OFFICER ON THIS ISSUE. 10. BE THAT AS IT MAY, A CAREFUL READING OF THE RELEVANT PROVISIONS EXTRACTED WOULD SHOW THAT, IN THE CASE OF A CO-OPERATIVE SOCIETY EN GAGED IN THE COLLECTIVE DISPOSAL OF LABOUR OF ITS MEMBERS, THE WHOLE OF THE AMOUNT OF PROFITS AND GAINS OF BUSINESS ATTRIBUTABLE TO THE SAID ACTIVITY IS DEDUCTIBLE U/S 80P(2)(VI) OF THE ACT. HOWEVER, THE SAID DEDUCTION IS SUBJECT TO THE FULFILMENT OF THE CONDITIONS PRESCRIBED IN THE PROVISO TO SUB-SECTION (2) OF 80P, VIZ., THE VOTING RIGHTS SHO ULD BE RESTRICTED BY THE RULES AND BYE- LAWS OF THE SOCIETY TO THE THREE CLASS OF MEMBERS MENTIONED THEREIN. 11. AS SUBMITTED BY LD D.R, THE BYE-LAWS OF THE S OCIETY (TITLED AS SPECIAL CONDITIONS) IS SILENT ABOUT THE VOTING RIGHTS. HO WEVER CLAUSE 58 THERE OF STATES THAT THE MATTERS NOT SPECIFICALLY MENTIONED IN THE SPEC IAL CONDITIONS, WILL BE DEALT WITH AS PER THE ACT AND RULES . THE WORDS ACT AND RULES HAVE NOT BEEN DEFINED IN THE BYE- LAWS AND HENCE IT IS NOT CLEAR AS TO WHICH ACT AND RULES, THESE WORDS REFER TO. HENCE, ONE HAS TO MAKE A REFERENCE TO THE RELEVANT ACT AN D RULES IN ORDER TO FIND OUT THE LIST OF PERSONS WHO HAVE GOT VOTING RIGHTS IN THE ASSESS EE SOCIETY. AFTER CARRYING OUT SUCH AN EXAMINATION ONLY, ONE WOULD BE ABLE TO DECIDE AB OUT THE APPLICABILITY OR VIOLATION OF I.T.A. NO. 590/COCH/2011 & C.O. NO. 01/COCH/2012 7 THE PROVISO TO SEC. 80P(2), APART FROM THE MAIN QUE STION, VIZ., WHETHER THE ASSESSEE SOCIETY CAN BE CATEGORISED AS A SOCIETY ENGAGED IN THE COLLECTIVE DISPOSAL OF THE LABOUR OF ITS MEMBERS. THERE SHOULD NOT BE ANY DISPUTE TH AT THE ASSESSEE HAS TO CUMULATIVELY SATISFY BOTH THE CONDITIONS VIZ., THAT IT IS A SOCI ETY ENGAGED IN THE COLLECTED DISPOSAL OF LABOUR OF ITS MEMBERS AND FURTHER THE VOTING RIGHTS ARE RESTRICTED BY THE BYE-LAWS AND RULES OF THE SOCIETY TO THE THREE CLASSES OF THE ME MBERS SPECIFIED IN THE PROVISO TO SEC. 80P(2) OF THE ACT. AS ALREADY STATED, THE ASSESSIN G OFFICER DID NOT EXAMINE BOTH THE ISSUES DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 12. THE LD D.R ALSO FURNISHED A COPY OF PROFIT AN D LOSS ACCOUNT BEFORE US. ON A PERUSAL OF THE SAME, WE NOTICE THAT THE ASSESSEE IS DERIVING INCOME FROM SALES, COMMISSION ON SALE OF LOTTERY, LUCKY VAT COMMISSION , DIVIDEND INCOME, INTEREST INCOME AND RENTAL INCOME. HOWEVER, THE LD CIT(A) HAS HELD THAT THE MEMBERS OF THE SOCIETY THEMSELVES DO THE WORK AND RUN COFFEE HOUSE. THE O THER TYPES OF INCOME EARNED BY THE ASSESSEE SOCIETY HAS ESCAPED THE ATTENTION OF L D CIT(A). FURTHER THE LD CIT(A), WITHOUT EXAMINING THE BYE-LAWS OF THE SOCIETY, HAS GIVEN A FINDING THAT THE VOTING RIGHTS ARE CONFINED TO THE INDIVIDUALS WHO CONTRIBUTE THEI R LABOUR, WHERE AS THE FACT REMAINS THAT THE BYE-LAWS IS SILENT ABOUT THE VOTING RIGHTS . 13. ACCORDING TO LD D.R, THE BYE-LAWS PERMITS M EMBERSHIP TO PERSONS WHO ARE NOT WORKERS OF THE ASSESSEE SOCIETY ALSO. IN THIS REGA RD, THE LD D.R INVITED OUR ATTENTION TO CLAUSE 5, CLAUSE 9 AND CLAUSE 14 OF THE BYE-LAWS. HOWEVER, THE LD A.R STRONGLY DISPUTED THE CONTENTIONS PUT FORTH BY THE LD D.R AN D SUBMITTED THAT THE VOTING RIGHTS ARE RESTRICTED TO THE MEMBERS WHO CONTRIBUTE LABOUR ONLY. HOWEVER, NO MATERIAL WAS PLACED BEFORE US TO SUBSTANTIATE THE CONTENTIONS OF THE LD A.R. 14. THE FOREGOING DISCUSSIONS WOULD SHOW THAT THE ISSUE OF ELIGIBILITY OF THE ASSESSEE TO CLAIM DEDUCTION U/S 80P(2)(A)(VI) OF THE ACT CAN NOT BE DECIDED UNLESS A DETAILED EXAMINATION OF THE BYE-LAWS AND OTHER RELEVANT MATE RIALS ARE CARRIED OUT. BOTH THE ASSESSING OFFICER AND LD CIT(A) HAS NOT CARRIED OUT THE REQUIRED VERIFICATION/EXAMINATION. IN OUR VIEW, SUCH AN EXA MINATION IS REQUIRED TO BE CARRIED OUT I.T.A. NO. 590/COCH/2011 & C.O. NO. 01/COCH/2012 8 AT THE END OF THE ASSESSING OFFICER, SINCE THE ASSE SSMENT ORDER IS SILENT ABOUT THE ISSUE OF SEC. 80P(2)(A)(VI) OF THE ACT. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION. 15. SINCE WE HAVE RESTORED THE MAIN ISSUE, IN O UR VIEW, THE ISSUE RELATING TO SEC. 40(A)(IA) MAY ALSO BE EXAMINED AFRESH BY THE ASSESS ING OFFICER. FURTHER THE LD D.R SUBMITTED THAT THE LD CIT(A) WAS NOT CORRECT IN APP LYING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCO-COLA BE VERAGE P. LTD., REFERRED SUPRA. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE ALSO AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER FOR FRESH EXAM INATION. 16. IN THE RESULT, THE APPEAL OF THE REVENUE AND THE CROSS OBJECTION OF THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ACCORDINGLY ON 12 -04-2 013. SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 12TH APRIL, 2013 GJ COPY TO: 1. M/S. INDIAN COFFEE BOARD WORKERS CO-OP SOCIETY, MACHINGAL LANE, TRICHUR 2. THE I.T.O., WARD-2(2), RANGE-2, TRICHUR. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-VI, KOCH I. 4.THE COMMISSIONER OF INCOME-TAX, TRICHUR. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN I.T.A. NO. 590/COCH/2011 & C.O. NO. 01/COCH/2012 9