D.C.I.T. Amravati Circle, Amaravati V. THE AMRAVATI ZILLA PARISHAD SHIKSHAK SAHAKARI BANK LTD., Amaravati

ITA 130/NAG/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1310 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 21-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Keywords: Opportunity of being heard
• Section: 147; 148; 144; 139

Judgement Text

1 ITA NOS. 130 TO 133/NAG/2016 & CO NOS. 01 TO 04/NAG/2016. IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER.. I.T.A. NOS. 130, 131, 132 & 133/NAG/2015 ASSESSMENT YEARS : 2009 - 10, 2010 - 11, 2011 - 12 & 2012 - 13. DY. COMMISSIONER OF INCOME - TAX, THE AMRAVATI ZILLA PARISHAD AMRAVATI CIRCLE, AMRAVATI. VS. SHIKSHAK SAH. BANK LTD., AMRAVATI. PAN AAAAT0593N. APPELLANT. RESPONDENT. C.O. NOS.01,02,03&04/NAG/2016 ( IN ITA NOS. 130,131,132&133/NAG/2015) ASSESSMENT YEARS : 2009 - 10, 2010 - 11, 2011 - 12 & 2012 - 13. THE AMRAVATI ZILLA PARISHAD DY. COMMISSIONER OF INCOME - TAX, SHIKSHAK SAH. BANK LTD., VS. AMRAVATI CIRCLE, AMRAVATI. AMRAVATI. CROSS OBJECTOR. RESPONDENT. DEPARTMENT BY : SHRI NARENDRA KANE. ASSESSEE BY : SHRI KAPIL HIRANI. DATE OF HEARING : 21 - 11 - 2016 DATE OF PRONOUNCEMENT : 23 RD NOV.., 2016 O R D E R. PER BENCH: THESE APPEALS HAVE BEEN FILED BY THE REVENUE AGAINST FOUR ORDERS PASSED BY THE CIT(A) NAGPUR - 1 PERTAINING TO THE ASSESSMENT YEARS 2009 - 10, 2010 - 11 , 2011 - 12 AND 2012 - 13. THE ASSESSEE HAS ALSO FILED CROSS OBJECTIONS. SINCE THE APPEALS AND CROSS OBJECTIONS PERTAIN TO THE SAME ASSESSEE FOR THE DIFFERENT ASSESSMENT YEARS AND THE ISSUES INVOLVED IN THESE APPEALS AND CROSS OBJECTIONS 2 ITA NOS. 130 TO 133/NAG/2016 & CO NOS. 01 TO 04/NAG/2016. ARE COMMON IN ALL THE ASSESSMENT YEARS, THE SAME WERE CLUBBED, HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 3. THE FACTS AND THE ISSUES INVOLVED IN ALL THE FOUR APPEALS AND CROSS OBJECTIONS ARE COMMON. HENCE, WE TAKE THE FACTS OF TH E CASE PERTAINING TO THE ASSESSMENT YEAR 2009 - 10 AS LEAD CASE. DURING THE RELEVANT YEAR THE ASSESSEE BANK FAILED TO FURNISH ITS RETURN OF INCOME U/S 139 OF THE INCOME TAX ACT (IN SHORT THE ACT). ACCORDINGLY, NOTICE U/S 148 OF THE ACT WAS ISSUED BY THE AO . THE ASSESSEE WAS REQUIRED TO FURNISH RETURN OF INCOME WITHIN 30 DAYS FROM THE DATE OF NOTICE. SINCE, THE ASSESSEE FAILED TO FURNISH THE RETURN OF INCOME DESPITE SEVERAL OPPORTUNITIES GIVEN TO HIM, THE AO PASSED THE ASSESSMENT ORDER U/S 144 READ WITH SECT ION 147 OF THE ACT. THE ASSESSEE HAD DEBITED RS.12,34,067/ - ON ACCOUNT OF PROVISION FOR NPA, CHECK LIST DIFFERENCE FUND, SHARE FUND, LIC, GROUP GRATUITY AND AAPHAR NIDHI (CHANDUR RLY.), HOWEVER, THE AO DISALLOWED THE SAME AND ADDED THE SAID AMOUNT TO THE I NCOME OF THE ASSESSEE AS PER THE PROFIT AND LOSS ACCOUNT AND DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.1,15,81,030/ - . 4. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE THE LEARNED CIT(APPEALS) WHO AFTER HEARING THE ASSESSEE, DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND ALLOWED THE DEDUCTION U/S 36(1)(VII A ). 5. THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) ON THE FOLLOWING EFFECTIVE GROUND: - (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(APPEALS) HAS ERRED IN ALLOWING THE DEDUCTION U/S 36(1)(VII A ) OF RS. 6, 29,12,950/ - (II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LD. CIT(APPEALS) IS PERVERSE IN LAW IN AS MUCH AS THE LD. CIT(APPEALS) HAS FAILED TO PROVIDE ANY REASONS OR FINDINGS AS TO 3 ITA NOS. 130 TO 133/NAG/2016 & CO NOS. 01 TO 04/NAG/2016. THE VERIFICATION AND CORRECTNESS OF DEDUCTION U/S 36( 1)(VIIA) OF RS. 6, 29,12,950/ - CLAIMED BY THE ASSESSEE. (III) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(APPEALS)WAS NOT JUSTIFIED IN ACCEPTING THE COMPUTATION OF DEDUCTION U/S 36(1)(VII A )AS GIVEN BY THE ASSESSEE WITHOUT GIVING ANY OPPO RTUNITY TO THE AO AND EVEN WITHOUT EXAMINING ITSELF THE CORRECTNESS OF THE SAID CLAIM. 6. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) RELYING ON THE FINDINGS OF AO SUBMITTED THAT THE IMPUGNED ORDER IS CONTRARY TO THE PROVISIONS OF THE LAW. THE DEPA RTMENT WAS NOT GIVEN AN OPPORTUNITY OF BEING HEARD WHILE PASSING THE IMPUGNED ORDER. MOREOVER, IN THIS CASE THE AO HAS PASSED THE ASSESSMENT ORDER U/S 144 OF THE ACT. 7. ON THE OTHER THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PRESENT APPEAL IS COV ERED BY THE DECISION RENDERED BY THE NAGPUR BENCH OF ITAT IN ASSESSEES OWN CASE (ITA NO 111/NAG/2012) FOR THE ASSESSMENT YEAR 2008 - 2009 AND VIDE ORDER DATED 8.3.2013, THE BENCH HAS DECIDED THE IDENTICAL ISSUE AGAINST THE REVENUE AND IN FAVOUR OF THE ASSES SEE. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSED THE DOCUMENTS PLACED BEFORE US INCLUDING THE CASES RELIED UPON BY THE PARTIES. THE SOLE GROUND RAISED BY THE REVENUE IS THAT THE LD. CIT(A) HAS WRONGLY ALLOWED THE DEDUCTION OF RS.6,29,12,950/ - U/S 36(1)(VII A ) OF THE ACT. WE NOTICE THAT IN THE ASSESSMENT YEAR 2008 - 09 THE ASSESSEES CLAIM OF DEDUCTION U/S 36(1)(VII A) OF THE ACT WAS DISALLOWED BY THE AO, HOWEVER IN APPEAL THE LD. CIT(A) ALLOWED THE SAME. THE REVENUE CHALLENGED THE ORDER OF THE LD. CIT(A) BEFORE THE ITAT NAGPUR BENCH (E - COURT MUMBAI). THE APPEAL OF THE REVENUE WAS DISMISSED BY THE TRIBUNAL HOLDING AS UNDER: - AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, WE FOUND THAT LEARNED CIT(A) WAS JUSTIFIED IN DIRECTING THE AO TO ALLOW THE DEDUCTION UNDER SECTION 36(1)(VII A ) AS PER 4 ITA NOS. 130 TO 133/NAG/2016 & CO NOS. 01 TO 04/NAG/2016. PROVISIONS OF LAW, WHICH ARE ITSELF VERY CLEAR. THEREFORE, FOR THIS PURPOSE, THERE IS NO NEED TO SEND THE MATTER BACK TO THE FILE OF THE AO. IF THERE IS SOME DIFFERENCEIN CALCULATION, THE AO W ILL RE - EXAMINE THE CALCULATION AND CAN RACTIFY THE DEDUCTION. WE ORDER ACCORDINGLY. 9. SINCE, THE IDENTICAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE ITAT IN ASSESSEES OWN CASE, ITA NO 111/NAG/2012 FOR THE ASSESSMENT YEAR 2008 - 09 (SUPRA), I N OUR CONSIDERED VIEW, THE LD. CIT(A) HAS RIGHTLY ALLOWED THE DEDUCTION IN QUESTION. HENCE, THE IMPUGNED ORDER DOES NOT SUFFER FROM ANY LEGAL INFIRMITY. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH UPHOLD THE ORDER PASSED BY T HE LD. CIT(A) AND DISMISS THE SOLE GROUND OF APPEAL RAISED BY THE REVENUE AND IN PRINCIPLE HOLD THAT THE ASSESSEE IS ENTITLED FOR BENEFIT OF DEDUCTION UNDER SECTION 36(1)(VII A ) OF THE ACT. HOWEVER, WE DIRECT THE AO TO CALCULATE THE QUANTUM OF DEDUCTION TO BE ALLOWED IN THIS CASE AS PER THE PROVISIONS OF LAW IN THE LIGHT OF THE DECISION RENDERED BY THE ITAT IN ASSESSEES OWN CASE AFORESAID. 10. THE ISSUES INVOLVED IN THE REMAINING THREE APPEALS I.E., ITA NOS 131,132 &133/NAG/2015 PERTAINING TO THE ASSESS MENT YEARS 2010 - 11, 2011 - 12 & 2012 - 13 RESPECTIVELY ARE IDENTICAL TO ITA NO 130/NAG/2015 AFORESAID. (EXCEPT THE AMOUNT OF DEDUCTION CLAIMED). SO FAR AS THE FACTS ARE CONCERNED AO HAS PASSED THE ASSESSMENT ORDERS U/S 144 OF THE ACT FOR THE ASSESSMENT YEARS 2 009 - 10 & 2010 - 11 AND U/S 144 READ WITH SECTION 147 OF THE ACT FOR THE ASSESSMENT YEARS 2011 - 12 & 2012 - 2013. SINCE WE HAVE DISMISSED REVENUES APPEAL ITA NO 130/NAG/2015 AND DECIDED THE ISSUE REGARDING DISALLOWANCE U/S 36(1)(VII A ) OF THE ACT IN FAVOUR OF T HE ASSESSEE, WE ALSO DISMISS ITA NOS 131,132 &133/NAG/2015 PERTAINING TO THE ASSESSMENT YEARS 2010 - 11, 2011 - 12 & 2012 - 13 RESPECTIVELY ON THE SAME GROUNDS AND ALSO DIRECT THE AO TO CALCULATE THE QUANTUM OF AMOUNT OF DEDUCTION TO BE ALLOWED TO THE ASSESSEE I N EACH ASSESSMENT YEAR. 5 ITA NOS. 130 TO 133/NAG/2016 & CO NOS. 01 TO 04/NAG/2016. 11. CROSS OBJECTION NOS.01,02,03&04/NAG/2016 FILED BY THE ASSESSEE ARE DISMISSED AS NOT PRESSED. 12. IN THE RESULT ALL THE FOUR APPEALS OF THE DEPARTMENT AS WELL AS CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF NOV., 2016. SD/ - SD/ - ( SHAMIM YAHYA) (RAM LAL NEGI) ACOUNTANT MEMBER. JUDICIAL MEMBER. NAGPUR, DATED: 23 RD NOV. , 2016. COPY FORWARDED TO : 1. THE AMRAVATI ZILLA PARISHAD SHIKSHAK SAH. ANK LTD., CONGRE SS NAGAR ROAD, NEAR RAILWAY STATION, AMRAVATI.. 1. D.C.I.T., AMRAVATI CIRCLE, AMRAVATI.. 2. C.I.T. - I, NAGPUR. 3. CIT(APPEALS), - I, NAGPUR. 4. D.R., ITAT, NAGPUR. 5. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.