M/s BBR & RDCC Bank Employees Co-operative Society Limited , Bangalore V. The Income Tax Officer Ward-5(2)(4), Bangalore

ITA 1076/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5918 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 28 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 03-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABDUL HAKEEM M
• Keywords: Opportunity of being heard; Set aside
• Section: 234B; 80P

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 1076 / BANG/201 8 ASSESSMENT YEAR : 20 1 3 - 14 M/S. BBR & RDCC BANK EMPLOYEES CO-OPERATIVE SOCIETY LTD., NO. 6, LAKSHMI SADANA, 5 TH MAIN ROAD, CHAMRAJPET, BANGALORE 560 018. PAN: AAAAB1346D VS. THE INCOME TAX OFFICER, WARD 5 (2) (4), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI NARENDRA SHARMA, ADVOCATE RESPONDENT BY : SHRI ABDUL HAKEEM .M, JCIT (DR) DATE OF HEARING : 2 6 . 0 4 .2018 DATE OF PRONOUNCEMENT : 04 . 0 5 .201 8 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME I S DIRECTED AGAINST THE ORDER OF LD. CIT(A)-5, BANGALORE DATED 16.01.2018 FOR ASS ESSMENT YEAR 2013-14. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER OF THE AUTHORITIES BELOW IN SO FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, EQUITY, WEIGHT OF EVID ENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE APPELLANT DENIES ITSELF LIABLE TO BE ASSESSE D ON TOTAL INCOME OF RS. 11,24,509/- AS DETERMINED BY THE LEARNED ASSESS ING OFFICER AS AGAINST THE RETURNED INCOME BY THE APPELLANT OF RS. NIL/- UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE 3. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN DISAL LOWING THE DEDUCTION OF RS.11,24,509/- CLAIMED U/S.80P[2][A][I] OF THE A CT BY THE APPELLANT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APP ELLANT'S CASE. 4. THE AUTHORITIES BELOW ARE FAILED TO APPRECIATE T HAT THE APPELLANT IS NOT A PRIMARY CO-OPERATIVE BANK WITHIN THE MEANING OF THE ITA NO.1076/BANG/2018 PAGE 2 OF 3 EXPLANATION TO SECTION 80P[4] OF THE ACT, CONSEQUEN TLY, THE PROVISIONS OF SECTION 80P[4] OF THE ACT ARE NOT APPLICABLE TO THE CASE OF THE APPELLANT. 5. THE AUTHORITIES BELOW ARE FAILED TO APPRECIATE T HAT THE INTEREST INCOME EARNED BY THE APPELLANT OUT OF THE DEPOSITS KEPT IN THE CO- OPERATIVE BANK BY THE APPELLANT ARE ALL OUT OF THE MONIES OF THE MEMBERS OF THE APPELLANT SOCIETY, CONSEQUENTLY THE LEARNED ASSESSING OFFICER OUGHT TO HAVE ALLOWED DEDUCTION UNDER SECTI ON 80P [2] OF THE ACT ON SUCH INTEREST INCOME EARNED BY THE APPELLANT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WI TH THE HONBLE CCIT/DG, THE APPELLANT DENIES ITSELF LIABLE TO BE C HARGED TO INTEREST U/S 234A & 234B OF THE ACT, WHICH UNDER THE FACTS A ND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE DESERVES TO B E CANCELLED. 7. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED. 3. IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THE LD. CIT(A) HAS DECIDED THE ISSUE AGAINST THE ASSESSEE BY FOLLOWING THE JUDGEME NT OF HONBLE APEX COURT RENDERED IN THE CASE OF THE CITIZEN CO-OPERATIVE SO CIETY LTD. VS. ACIT AS REPORTED IN 397 ITR 1 WITHOUT COMPARING THE FACTS O F THE PRESENT CASE WITH THE FACTS OF THAT CASE. HE SUBMITTED THAT IN THE INTER EST OF JUSTICE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DE CISION AFTER COMPARING THE FACTS OF THE PRESENT CASE WITH THE FACTS OF THAT CA SE. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. THIS I S SETTLED POSITION OF LAW THAT ANY JUDGEMENT CAN BE FOLLOWED ONLY IF THE FACTS OF THAT CASE ARE AT LEAST SIMILAR IF NOT IDENTICAL TO THE FACTS OF THE CASE ON HAND. IN THE PRESENT CASE, THE CIT(A) HAS FOLLOWED THE JUDGEMENT OF HONBLE APEX COURT RENDER ED IN THE CASE OF THE CITIZEN CO-OPERATIVE SOCIETY LTD. VS. ACIT (SUPRA) BUT THERE IS NO DISCUSSION REGARDING THE COMPARABILITY OF THE FACTS OF THE PRE SENT CASE WITH THE FACTS OF THAT CASE. HENCE I SET ASIDE THE ORDER OF CIT (A) AND R ESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION BY WAY OF A SPEAKING AND RE ASONED ORDER IN WHICH HE SHOULD COMPARE THE FACTS OF THE PRESENT CASE WITH T HE FACTS OF THAT CASE AND ITA NO.1076/BANG/2018 PAGE 3 OF 3 THEN DECIDE THE ISSUE AS PER LAW. NEEDLESS TO SAY, ADEQUATE OPPORTUNITY OF BEING HEARD SHOULD BE PROVIDED TO BOTH SIDES. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 04 TH MAY, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.