Shri Shakambari Weavers Co-operative Society Ltd , Bagalkot V. Income Tax Officer Ward-1, Bagalkot

ITA 1335/BANG/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6737 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-12-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 25-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJEET SINGH CIT BENGALURU
• Assessee Lawyers: S V RAVISHANKAR
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3); 80P; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI , JUDICIAL MEMBER ITA NO. 1335 /BAN G/201 8 ASSESSMENT YEAR : 2009-10 M/S. SHRI SHAKAMBARI WEAVERS CO-OPERATIVE SOCIETY LTD., SULEBHAVI TQ: HUNGUND DIST: BAGALKOT. PAN : A A A BS 0497 H VS. INCOME TAX OFFICER, WARD - 1, BAGALKOT 587 103. APPELLANT RESPONDENT ASSESSEE BY : SHRI. S. V. RAVISHANKAR, ADVOCATE REVENUE BY : SHRI . MANJEET SINGH , ADDL. CIT (DR)(ITAT), BENGALURU DATE OF HEARING : 1 9 . 1 2 .201 9 DATE OF PRONOUNCEMENT : 07 . 0 2 .20 20 O R D E R PER A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS ARE FILED BY THE ASSESSEE AND THE SAME IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A), HUBBALLI, DATED 20.03.2018, FOR THE ASSESSMENT YEAR 2009-10. THE ASSESSEE HAS RAISED 3 GROUNDS OF APPEAL BUT THE ONLY GRIEVANCE OF THE ASSESSEE IS REGARDING DISALLOWANCE OF THE ASSESSEES CLAIM FOR DEDUCTION OF RS.20,72,110/- UNDER SECTION 80P OF THE INCOME TAX ACT, 1961. 2. IN THE COURSE OF HEARING, IT WAS SUBMITTED BY LEARNED AR OF THE ASSESSEE THAT AS PER THE ORDERS OF AUTHORITIES BELOW, TWO JUDGMENTS OF HONBLE APEX COURT HAVE BEEN FOLLOWED I.E., THE JUDGMENT RENDERED IN THE CASE OF CITIZENS ITA NO.1335/BANG/2018 PAGE 2 OF 4 CO- OPERATIVE SOCIETY LTD. AS REPORTED IN 397 ITR 1 AND IN THE CASE OF TOTGARS CO-OPERATIVE SALE SOCIETY LTD., 322 ITR 283 (SC). HE SUBMITTED THAT THERE IS NO DISCUSSION ON THIS ASPECT AS TO WHETHER THE FACTS IN THE PRESENT CASE AND IN THE CASE OF CITIZENS CO-OPERATIVE SOCIETY LTD. (SUPRA) ARE SIMILAR OR NOT. HE FURTHER SUBMITTED THAT THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF TOTGARS CO-OPERATIVE SALE SOCIETY LTD., (SUPRA) IS NOT APPLICABLE IN THE PRESENT CASE BECAUSE THE FACTS ARE DIFFERENT. HE SUBMITTED THAT IN THAT CASE, THE DECISION WAS ON THIS BASIS THAT THE MONEY INVESTED WAS OUT OF ASSESSEES LIABILITY AND NOT OUT OF ASSESSEES OWN FUNDS BUT IN THE CASE OF TUMKUR MERCHANTS SOUHARDA CREDIT CO-OPERATIVE LTD., 230 TAXMANN 309 (KARNATAKA), SIMILAR ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE BECAUSE IN THAT CASE, IT WAS FOUND THAT THE AMOUNT INVESTED WAS OUT OF ASSESSEES OWN FUNDS AND NOT OUT OF ASSESSEES LIABILITY. HE SUBMITTED THAT UNDER THESE FACTS, THE ENTIRE MATTER SHOULD BE RESTORED BACK TO THE AO FOR FRESH DECISION AFTER EXAMINING THE FACTS OF THE PRESENT CASE. AS AGAINST THIS, LEARNED DR OF THE REVENUE SUPPORTED THE ORDERS OF AUTHORITIES BELOW. HE ALSO SUBMITTED THAT IN THE PRESENT CASE, THERE IS AN ORDER OF CIT UNDER SECTION 263 WHICH HAS BECOME FINAL AND THE PRESENT ASSESSMENT ORDER IS UNDER SECTION 143(3) R.W.S. 263 OF THE INCOME TAX ACT, 1961. HE SUPPORTED THE ORDER OF CIT(A). 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT ALTHOUGH LEARNED CIT(A) DISCUSSED ABOUT THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF CITIZENS CO-OPERATIVE SOCIETY LTD., (SUPRA) IN PARA 10.2 OF HIS ORDER, BUT THERE IS NO DISCUSSION ON THIS ASPECT AS TO WHETHER THE FACTS IN THE PRESENT CASE AND IN THAT CASE ARE SIMILAR OR NOT. HENCE, WE FEEL IT PROPER TO SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR A FRESH DECISION AFTER EXAMINING THE FACTS OF PRESENT CASE IN THE LIGHT OF JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF CITIZENS CO-OPERATIVE SOCIETY LTD., (SUPRA). IF IT IS FOUND THAT THE FACTS ARE SIMILAR AND THIS JUDGMENT IS ITA NO.1335/BANG/2018 PAGE 3 OF 4 APPLICABLE, THEN OBVIOUSLY NO FURTHER DECISION IS REQUIRED BUT IF IT IS FOUND THAT THIS JUDGMENT IS NOT APPLICABLE IN THE PRESENT CASE BECAUSE OF DIFFERENCE IN FACTS, THEN THE ISSUE ON MERIT SHOULD ALSO BE DECIDED AFRESH, AFTER EXAMINING THE FACTS OF THE PRESENT CASE IN THE LIGHT OF THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF TOTGARS CO-OPERATIVE SALE SOCIETY LTD. (SUPRA) AND JUDGMENT OF HONBLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF TUMKUR MERCHANTS SOUHARDA CREDIT CO-OPERATIVE LTD. (SUPRA) AND IF IT IS FOUND THAT THE FACTS OF THE PRESENT CASE ARE IN LINE WITH THE FACTS IN THE CASE OF TOTGARS CO-OPERATIVE SALE SOCIETY LTD., (SUPRA), THEN IT SHOULD BE HELD THAT THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80P OF THE INCOME TAX ACT, 1961 BUT IF IT IS FOUND THAT THE FACTS ARE SIMILAR WITH THE FACTS IN THE CASE OF TUMKUR MERCHANTS SOUHARDA CREDIT CO-OPERATIVE LTD., (SUPRA), THEN IT SHOULD BE HELD THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80P OF THE INCOME TAX ACT, 1961. NEEDLESS TO SAY, LEARNED CIT(A) SHOULD PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES AND HE SHOULD PASS A SPEAKING AND REASONED ORDER. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- ( BEENA PILLAI ) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED: 07 TH FEBRUARY, 2020. /NS/* ITA NO.1335/BANG/2018 PAGE 4 OF 4 COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.