M/s.Kozhuvinal service co-op Bank Ltd,, Kottayam V. The ITO, Kottayam

CO 17/COCH/2014

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9349 (ITAT-COCHIN)
• Duration Of Justice: 11 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 14-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 04-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Assessee Lawyers: PA JOSEPH

Judgement Text

ITA NOS 03 & 04 AND CO 17/COCH/2014 1 IN THE INCOME TAX APPEL L A TE T R IBUNAL COCHIN BENCH , COCHIN BEFORE S/SH RI N.R.S. GANESAN, JM & B. R. BASKARAN, AM ITA NO. 03/COCH/2014 (ASST YEAR 2010 - 11 ) & ITA NO. 04/COCH/2014 (ASST YEAR 2010 11) THE INCOME TAX OFFICER WARD 2, KOTTAYAM VS THE KOZHUVANAL SERVICE COOP BANK LTD KOZHUVANAL - PO MEENACHIL KOTTAYAM 686 523 ( APPELLANT /RESPONDENT ) (RESPONDENT /APPELLANT ) & CROSS OBJECTION NO. 17/COCH/2014 ARISING OUT OF ITA NO. 03/COCH/2014 (ASST YEAR 2010 11) THE KOZHUVANAL SERVICE COOP BANK LTD KOZHUVANAL - PO MEENACHIL KOTTAYAM 686 523 VS THE INCOME TAX OFFICER WARD 2, KOTTAYAM ( CROSS OBJECTOR ) (RESPONDENT ) PAN NO. AABAT3141P ASSESSEE BY SHRI P A JOSEPH REVENUE BY SHRI K K JOHN DATE OF HEARING 6 TH MARCH 2014 DATE OF PRONOUNCEMENT 14 TH MARCH 2014 OR D ER PER B.R. BASKARAN, AM: THESE CROSS APPEALS AND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 21.10.2013 PASSED BY THE LD CIT(A) - IV, KOCHI AND THEY RELATE TO THE AY 2010 - 11. ITA NOS 03 & 04 AND CO 17/COCH/2014 2 2 THE GROUNDS URGED BY BOTH T HE PARTIES RELATE TO DEDUCTION U/S 80P OF THE ACT. IN THE GROUNDS O F APPEAL URGED BY THE REVENUE, IT IS STATED THAT IDENTICAL ISSUES WERE CONSIDERED BY THE BENCH OF THIS TRIBUNAL IN THE CASE OF THE ASSESSEE FOR THE AY 2008 - 09 AND 2009 - 10 AND ALL THE MATTE RS WERE SET ASIDE TO THE FILE OF THE AO FOR EXAMINING THE SAME AFRESH. 3 SINCE THE IDENTICAL ISSUES RAISED IN THE AYS 2008 - 09 AND 2009 - 10 HAVE BEEN SET ASIDE TO THE FILE OF THE AO FOR MAKING FRESH EXAMINATION OF THE SAME ; A SPECIFIC QUERY WAS PUT TO BOTH THE PARTIES AS TO WHETHER ALL THE ISSUES URGED IN THESE APPEALS CAN BE SET ASIDE TO THE FILE OF THE AO. BOTH THE PARTIES AGREED THAT THEY MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER WITH SIMILAR DIRECTIONS. 4 THE LD COUNSEL FOR THE ASSESSEE FURNISHED A COPY O THE ORDER DATED 13.9.2013 PASSED IN THE HANDS OF THE ASS ESSEE IN ITA NOS. 344 & 345/COCH/2013 RELATES TO AY S 2008 - 09 & 2009 - 10 . WE NOTICE THAT THIS BENCH OF THE TRIBUNAL HAS SET ASIDE THE MATTER TO THE FILE OF THE AO WITH THE FOLLOWING OBSERVATION: 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES. THE ASSESSING OFFICER FOUND THAT THERE IS NO EVIDENCE TO INDICATE THAT THE SALES WERE MADE ONLY TO MEMBERS OF THE SOCIETY. HOWEVER, THE ASSESSEE CLAIMS THAT ALL THE TRANSACTIONS WERE MADE ONLY WITH THE MEMBERS OF THE SOCIETY, WHO ARE AGRICULTURISTS . HOWEVER, NO ITA NOS 03 & 04 AND CO 17/COCH/2014 3 MATERIAL IS FILED BEFORE THIS TRIBUNAL FOR VERIFICATION. WHEN THE ASSESSING OFFICER, AFTER VERIFYING THE SALES RECEIPT SAYS THAT NO EVIDENCE IS AVAILABLE, HE OUGHT TO HAVE BROUGHT ON RECORD THE NAMES OF THE INDIVIDUAL PERSONS WITH WHOM THE ASSESSEE HAD SUCH TRANSACTIONS. UNFORTUNATELY, THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD THE NAMES OF THE INDIVIDUAL PERSONS, WHO ARE NON MEMBERS AND TRANSACTED WITH THE ASSESSEE SOCIETY. THEREFORE, THIS TRIBUNAL IS UNABLE TO FIND OUT WHETHER THE TRANSACTIONS DONE BY THE ASSESSEE WERE ONLY WITH THE MEMBERS OR THE ASSESSEE ALSO HAD TRANSACTIONS WITH NON MEMBERS. THIS FACT NEEDS VERIFICATION AT THE LEVEL OF THE ASSESSING OFFICER. MOREOVER, THOUGH THE ASSESSEE HAD SEVERAL SCHEMES OF LOANS, THE ASSESSING OFFICER HAS TAKEN ONLY KISAN CREDIT CARD LOAN SINCE THE WORD KISAN IS INDICATED IN THE SCHEME OF THE LOAN. IT IS TO BE REMEMBERED THAT WHEN T HE LOAN WAS GIVEN TO AN AGRICULTURIST ON PLEDGE OF GOLD JEWELLERY FOR THE PURPOSE OF AGRICULTURE, THAT LOAN HAS TO BE TREATED AS AGRICULTURAL LOAN EVEN THOUGH THE LOAN WAS SANCTIONED ON PLEDGE OF GOLD JEWELLERY. IN THE ABSENCE OF ANY MATERIAL TO SUGGEST TH AT THE TRANSACTION WAS MADE WITH AGRICULTURISTS, WHO ARE MEMBERS, THIS TRIBUNAL IS UNABLE TO EXPRESS ANY OPINION WITH REGARD TO THE NATURE OF LOAN ADVANCED BY THE ASSESSEE. THESE ARE ALL FACTUAL ASPECTS WHICH HAVE TO BE VERIFIED AND BROUGHT ON RECORD BY TH E ASSESSING OFFICER. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE STATUS OF THE INDIVIDUAL MEMBERS OF THE SOCIETY NEEDS TO BE EXAMINED AND THE ASSESSING OFFICER HAS TO SPECIFICALLY BRING ON RECORD THE DETAILS OF TRANSACTIONS ENTERED BY TH E ASSESSEE WITH NON MEMBERS. EVEN IN RESPECT OF TRANSACTIONS ENTERED WITH THE MEMBERS, THE ASSESSING OFFICER HAS TO SPECIFICALLY BRING ON RECORD THE NAMES OF THE PERSONS, WHO ARE NON AGRICULTURISTS. SINCE THIS MATTER NEEDS EXAMINATION AT THE LEVEL OF THE A SSESSING OFFICER, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ISSUE OF EXEMPTION U/S 80P IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE - EXAMINE THE ISSUE AFRESH AND BRING ON RECORD THE NATURE OF TRANSACTIONS ENTERED INTO BY THE ASSESSEE WITH MEMBERS AS WELL AS NON MEMBERS. THE ASSESSING OFFICER SHALL ALSO BRING ON RECORD AS TO WHETHER ANY NON AGRICULTURIST WAS MEMBER OF THE ASSESSEE SOCIETY. IF SO, THE TRANSACTIONS O F THE SOCIETY WITH NON AGRICULTURISTS, WHO ARE MEMBERS OF THE SOCIETY, SHALL ALSO BE BROUGHT ON RECORD SPECIFICALLY. THE ASSESSING OFFICER, AFTER DETAILED EXA MINATION ON THESE LINES SHALL DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. THE CROSS OBJECTIONS ARE FILED ONLY TO SUPPORT THE ORDERS OF CIT(A), THEREFORE, THIS TRIBUNAL IS OF THE CONSID ERED OPINION THAT TO SUPPORT THE ORDERS OF THE CIT(A) THE CROSS OBJECTIONS ARE NOT MAINTAINABLE. THIS ITA NOS 03 & 04 AND CO 17/COCH/2014 4 TRIBUNAL ALSO IS OF THE CONSIDERED OPINION THAT THE ASSESSEE IS ENTITLED TO SUPPORT THE ORDER OF THE CIT(A) EVEN WITHOUT FILING THE CROSS OBJECTION. THERE FORE, THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED AS NOT MAINTAINABLE. 5 CONSISTENT WITH THE VIEW TAKEN IN THE ABOVE SAID APPEAL, WE SET ASIDE THE ORDER OF THE LD CIT(A) AND RESTORE ALL THE MATTERS TO THE FILE OF THE AO WITH THE DIRECTION TO EXAMINE THE SAME IN THE LIGHT OF THE DISCUSSION MADE BY THE TRIBUNAL IN THE ORDER RELATING TO AY 2008 - 09 AND 2009 - 10 REFERRED SUPRA. 6 IN THE RESULT, THE APPEALS FILED BY BOTH THE PARTIES ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSE AND THE CROSS A PPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 TH , DAY OF MAR 2014 . SD/ - SD/ - ( N.R.S. GANESAN ) ( B.R. BASKARAN ) JUDICIAL M EMBER ACCOUNTANT MEMBER COCHIN: DATED 14 TH MAR 201 4 RAJ* ITA NOS 03 & 04 AND CO 17/COCH/2014 5 COPY TO: 1 APPELLANT THE INCOME TAX OFFICER, WARD 2, KOTTAYAM 2 RESPONDENT THE KOZHUVANAL SERVICE COOP BANK LTD - KOZHUVANAL - PO - MEENACHI L - KOTTAYAM 686 523 3 CIT(A) 4 CIT , - KOTTAYAM 5 DR 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN