AGORA PLAZA COMMERCIAL PREMISES CHSL, MUMBAI V. INCOME TAX OFFICER, MUMBAI

ITA 1204/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8592 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 01-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BRAJENDRA KUMAR
• Assessee Lawyers: MEETA PANCHAL
• Keywords: Opportunity of being heard
• Section: 80P; 13; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA (AM) & SHRI AMARJIT SINGH (JM) I.T.A. NO. 1204/MUM/2019 (ASSESSMENT YEAR 2015-16) AGORA PLAZA COMMERCIAL PREMISES CO-OP SOCIETY LTD. AGORA PLAZA CHSL, SOCIETY OFFICE, S.V.ROAD, OPP. FLYOVER, BORIVALI(WEST) MUMBAI-400 092 PAN : AABAA2934K VS. ITO BKC, BUILDING NO.C-B MUMBAI-400 051 ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI MEETA PANCHAL DEPARTMENT BY SHRI BRAJENDRA KUMAR DATE OF HEARING 12.08 .20 21 DATE OF PRONOUNCEMENT 13 .08 .2021 O R D E R PER SHAMIM YAHYA (AM) :- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-44 DATED 31.12.2018 AND PERTAINS TO ASSESSMENT YEAR 20 15-16. 2. THE GROUNDS OF APPEAL READ AS UNDER : THE COMMISSIONER OF INCOME TAX (APPEAL) DISMI SSED THE CASE AS THE CHALLAN OF RS.1000/- WAS NOT PAID SEPARATELY. THE CHALLAN WAS PAID IMMEDIATELY AFTER THE HEA RING. HOWEVER, THE CASE WAS REJECTED BY FOLLOWING T HE DECISION OF HON'BLE HYDERABAD ITAT AS NOT MAINTAINABLE. THOUGH, THE CIT (A) HAD AGREED TO ALL THE EXPL ANATIONS AND CASE-LAWS PROVIDED BY US. AS PER SECTION 80P (2)(D) OF THE INCOME TAX A CT 1961,ONLY INTEREST OR DIVIDEND DERIVED BY A CO-OPERATIVE SOCIETY FROM ITS INVESTME NTS WITH ANY OTHER CO-OPERATIVE SOCIETY IS ELIGIBLE FOR DEDUCTION AND THE INTEREST IN RESPECT OF WHICH DEDUCTION IS DERIVED FROM BANK. AGORA PLAZA COMMERCIAL PREMISES CO-OP SOCIETY LTD. 2 HENCE, INTEREST RECEIVED BY CO-OPERATIVE SOCI ETY FROM CO-OPERATIVE BANK IS NOTHING BUT INTEREST RECEIVED FROM CO-OPERATIVE SOC IETY. THEREFORE, NO TAX IS TO BE PAID BY THE SOCIETY ON INTEREST RECEIVED FROM CO- OPERATIVE BANKS. 3. AT THE OUTSET, WE NOTE THAT IN THIS CASE, LD.CI T(A) HAS DISMISSED THE ASSESSEES APPEAL AS UNADMITTED DESPITE NOTING THAT ASSESSEE H AS DULY PAID THE PRESCRIBED FEE OF RS. 1000/- EVEN WHEN THE APPEAL WAS PENDING BEFORE HIM AS THERE WAS SOME CONFUSION REGARDING THE EARLIER PAYMENT, WHICH WAS ON ACCOUNT OF OUTSTANDING TAX. THE FACTS IN THIS REGARD RECORDED BY LD.CIT(A) HIM SELF READS AS UNDER:- 4. FROM APPEAL MEMO IT IS OBSERVED THAT IN THE COL UMN NO. 16, WHICH GIVES THE DETAILS OF APPEALS FEES PAID THE APPELLANT HAS SHOW N PAYMENT OF RS.76,508/- ON 10.08.2017. SINCE THE MAXIMUM APPEAL FEES PRESCRIBE D U/S 249 OF THE ACT IS RS. 1000/-, SO DURING THE COURSE OF HEARING THE LD. AR WAS ASKED TO EXPLAIN THE NATURE OF SAID PAYMENT OF RS. 76,508/- ON 10.08.2017 AND ALSO AS TO WHETHER, THE APPELLANT HAS FILED PRESCRIBED APPEAL FEES ON OR BEFORE THE DATE OF FILING OF PRESENT APPEAL. IN RESPONSE TO THE SAME, THE APPELLANT'S LD. AR VIDE O RDER SHEET ENTRY DATED 21.12.2018 EXPLAINED THAT THE SAID PAYMENT OF RS. 76,508/- ON 10.08.2017, AS MENTIONED IN THE APPEAL MEMO, REPRESENTS PAYMENTS TOWARDS OUTSTANDIN G DEMAND AND BY MISTAKE THE APPELLANT HAS NOT PAID THE APPEAL FEES ON OR BEFORE FILING OF PRESENT APPEAL. HE FURTHER SUBMITTED THAT ON 21.12.2018, THE APPELLANT HAS PAI D RS. 1000/- TOWARDS APPEAL FEES AND SUBMITTED A COPY OF CHALLAN THEREOF. IN VIEW OF THE SAME HE REQUESTED TO ADMIT THE PRESENT APPEAL. 4. THEREAFTER, LD.CIT(A) PROCEEDED TO EXAMINING T HE LAW IN THIS REGARD AND MEANING OF WORD SHALL IN PROVISIONS OF SEC. 249(1). THERE AFTER, REFER IN TO FEW TRIBUNALS DECISIONS WHERE TRIBUNAL HAS DISMISS THE APPEAL ON ACCOUNT NON PAYMENT REQUIRED FEE, HE DISMISSED THE ASSESSEES APPEAL AS NON MAIN TAINABLE. 5. AGAINST THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. WE FIND THAT IT IS SETTLED LAW THAT INTEREST OF JUSTICE SHOULD PREVAIL WHERE O VER THE WEB OF HYPER TECHNICALITIES. HERE, WE NOTE THAT IT WAS DULY STATED TO LD.CIT(A) THAT THE AMOUNT PAID BY THE AGORA PLAZA COMMERCIAL PREMISES CO-OP SOCIETY LTD. 3 ASSESSEE EARLIER OF RS. 76,508/- WAS MISTAKENLY TAK EN TO HAVE INCLUDED TO RS.1000/- APPEAL FEE PAID AND AFTER THE MISTAKE WAS FOUND DUR ING THE COURSE OF APPELLATE PROCEEDINGS ITSELF, THE ASSESSEE PAID AN AMOUNT AND PRODUCED CHALLAN BEFORE THE LD.CIT(A). WE FIND THAT ON THE FACTS AND CIRCUMSTAN CES OF THIS CASE, THE APPEAL WAS VALID AND LD.CIT(A) SHOULD HAVE ADJUDICATED THE ISS UE ON MERITS. THE CASE LAWS FROM ITAT REFERRED BY LD.CIT(A) ARE NOT RELEVANT AS IN THOSE FACTS ITAT HAS DECIDED ON THE APPEALS, WHICH WERE MADE BEFORE THE ITAT. MOREO VER, THE FACTS AS PREVAILING IN THIS CASE ARE NOT PARI MATERIA WITH THE FACTS APPEA RING THEREIN. WITHOUT EXAMINING THESE ASPECTS, LD.CIT(A) HAS ERRED IN DISMISSING TH E ASSESSEES APPEAL AS NOT MAINTAINABLE. ACCORDINGLY, WE REMIT THE ISSUE TO TH E FILE OF LD.CIT(A). LD.CIT(A) IS DIRECTED TO PASS AN ORDER ON MERITS OF THE CASE AFT ER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, APPEAL BY THE ASSESSEE STANDS A LLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON 13.08.2021 SD/- SD/- (AMARJIT SINGH) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTAN T MEMBER MUMBAI; DATED : 13/08/2021 SR.PS. THIRUMALESH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) ITAT, MUMBAI