The Ranipet Town Co-operative Bank Limited, Vellore V. ACIT, Vellore

ITA 1340/CHNY/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6367 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 25-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K RAVI
• Keywords: Revised return

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.1340/MDS/2017 ' (' / ASSESSMENT YEAR : 2014-15 M/S THE RANIPET TOWN CO-OPERATIVE BANK LIMITED, NO.19-A, MAHATMA GANDHI ROAD, RANIPET, VELLORE 632 401. PAN : AAABT 2406 R V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, VELLORE. (*+/ APPELLANT) (,-*+/ RESPONDENT) ./ ITA NO.1341/MDS/2017 ' (' / ASSESSMENT YEAR : 2014-15 M/S THE SHOLINGHUR CO-OPERATIVE URBAN BANK LIMITED, NO.27/50, SANNATHI STREET, SHOLINGHUR 631 102. PAN : AAAAT 4646 C V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, VELLORE. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANTS BY : SHRI K. RAVI, ADVOCATE ,-*+ . / / RESPONDENT BY : SHRI AR.V. SREENIVASAN, JCIT 0 . 1$ / DATE OF HEARING : 02.08.2017 2!( . 1$ / DATE OF PRONOUNCEMENT : 23.08.2017 2 I.T.A. NOS.1340 & 1341/MDS/17 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: BOTH THE APPEALS OF DIFFERENT ASSESSEES ARE DIRE CTED AGAINST THE RESPECTIVE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-13, CHENNAI, AND PERTAIN TO ASSESSMENT YE AR 2014-15. SINCE COMMON ISSUE ARISES FOR CONSIDERATION IN BOTH THE APPEALS, WE HEARD BOTH THE APPEALS TOGETHER AND DISPOSING OF THE SAME BY THIS COMMON ORDER. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IN BOTH THE APPEALS IS DEDUCTION CLAIMED BY THE ASSESSEES UNDER SECTION 36 (1)(VIIA) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). 3. SHRI K. RAVI, THE LD.COUNSEL FOR THE ASSESSEE, S UBMITTED THAT THE ASSESSEES FAILED TO CLAIM DEDUCTION UNDER SECTI ON 36(1)(VIIA) OF THE ACT IN THE RETURN OF INCOME. THE ASSESSEES ALS O FAILED TO FILE THE REVISED RETURN. HOWEVER, IT WAS CLAIMED BEFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDING. THE ASSE SSING OFFICER BY APPLYING THE JUDGMENT OF APEX COURT IN GOETZE (I NDIA) LTD. V. CIT (2006) (284 ITR 323), REJECTED THE CLAIM OF THE ASS ESSEES. PLACING RELIANCE ON THE JUDGMENT OF MADRAS HIGH COURT IN CI T V. ABHINITHA FOUNDATION (P.) LTD. (2017) 83 TAXMANN.COM 100, THE LD.COUNSEL 3 I.T.A. NOS.1340 & 1341/MDS/17 SUBMITTED THAT EVEN IF THE CLAIM DOES NOT FORM PART OF ORIGINAL RETURN OR EVEN REVISED RETURN, STILL IT CAN BE CONSIDERED BY THE ASSESSING OFFICER AS WELL AS APPELLATE AUTHORITIES. THIS JUD GMENT OF MADRAS HIGH COURT WAS NOT FOLLOWED BY THE ASSESSING OFFICE R. THE LD.COUNSEL HAS ALSO PLACED RELIANCE ON THE DECISION OF MUMBAI BENCH OF THIS TRIBUNAL IN FRANCO-INDIAN PHARMACEUTI CALS (P) LTD. V. ITO (2010) 3 ITR (TRIB) 754. 4. ON THE CONTRARY, SHRI AR.V. SREENIVASAN, THE LD. DEPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASS ESSEES HAVE NOT MADE ANY CLAIM IN THEIR RETURN. MOREOVER, NO R EVISED RETURN WAS ALSO FILED BY THE ASSESSEES. THE ASSESSEES BY THEI R LETTER REQUESTED THE ASSESSING OFFICER TO ALLOW DEDUCTION UNDER SECTION 36(1)(VIIA) OF THE ACT. SINCE THE REVISED RETURN W AS NOT FILED, ACCORDING TO THE LD. D.R., THE ASSESSING OFFICER RE JECTED THE CLAIM OF THE ASSESSEES BY PLACING RELIANCE ON THE JUDGMEN T OF APEX COURT IN GOETZE (INDIA) LIMITED (SUPRA) AND THE CIT(APPEA LS) ALSO CONFIRMED THE ORDERS OF THE ASSESSING OFFICER. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEES HAVE NOT MADE ANY CLAIM FOR DEDU CTION UNDER 4 I.T.A. NOS.1340 & 1341/MDS/17 SECTION 36(1)(VIIA) OF THE ACT. IT IS ALSO NOT IN DISPUTE THAT NO REVISED RETURN WAS FILED MAKING THE CLAIM UNDER SECTION 36( 1)(VIIA) OF THE ACT. WE HAVE CAREFULLY GONE THROUGH THE JUDGMENT O F APEX COURT IN GOETZE (INDIA) LIMITED (SUPRA). THE APEX COURT FOU ND THAT THE ASSESSING OFFICER CANNOT CONSIDER ANY CLAIM UNLESS IT IS MADE IN THE RETURN / REVISED RETURN. THE APEX COURT OBSERVED T HAT THIS OBSERVATION WILL NOT IMPUGN THE POWER OF THE APPELL ATE AUTHORITIES. MOREOVER, TAX CAN BE LEVIED UNDER AUTHORITY OF LAW. WHEN THE ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER SECTION 36 (1)(VIIA) OF THE ACT, THE REVENUE CANNOT LEVY TAX, MERELY BECAUSE TH E ASSESSEES FAILED TO MAKE A CLAIM IN THEIR RETURN / REVISED RE TURN. IN OTHER WORDS, UNLESS THERE IS AN AUTHORITY OF LAW TO LEVY TAX IN RESPECT OF THE AMOUNT WHICH IS ELIGIBLE FOR DEDUCTION UNDER SE CTION 36(1)(VIIA) OF THE ACT, THE ASSESSING OFFICER CANNOT LEVY TAX T HEREON. THIS FACT CAN BE BROUGHT TO THE NOTICE OF THE ASSESSING OFFIC ER AT ANY TIME IN THE COURSE OF ASSESSMENT PROCEEDINGS AS HELD BY THE APEX COURT IN CIT V. SHELLY PRODUCTS AND ANOTHER (2003) 261 ITR 3 67. THEREFORE, WHEN THE ASSESSEES BROUGHT TO THE NOTICE OF THE ASS ESSING OFFICER IN THE COURSE OF ASSESSMENT PROCEEDINGS THAT A PART ICULAR AMOUNT IS ELIGIBLE FOR DEDUCTION UNDER SECTION 36(1)(VIIA) OF THE ACT, THE ASSESSING OFFICER IS BOUND TO CONSIDER THE SAME IN VIEW OF THE 5 I.T.A. NOS.1340 & 1341/MDS/17 JUDGMENT OF APEX COURT IN SHELLY PRODUCTS AND ANOTH ER (SUPRA). EVEN OTHERWISE, AS HELD BY APEX COURT IN GOETZE (IN DIA) LIMITED (SUPRA) ITSELF, THE APPELLATE AUTHORITY HAVE THE PO WER TO EXAMINE THE SAME. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERE D OPINION THAT THE MATTER HAS TO BE RECONSIDERED BY THE ASSESSING OFFI CER. ACCORDINGLY, THE ORDERS OF THE AUTHORITIES BELOW AR E SET ASIDE AND CLAIM OF DEDUCTION UNDER SECTION 36(1)(VIIA) OF THE ACT IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASS ESSING OFFICER SHALL EXAMINE THE MATTER AFRESH ON MERIT, AFTER GIV ING A REASONABLE OPPORTUNITY TO THE ASSESSEES. 6. IN THE RESULT, BOTH THE APPEALS STAND ALLOWED. ORDER PRONOUNCED ON 23 RD AUGUST, 2017 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 23 RD AUGUST, 2017. KRI. . ,156 76(1 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. 0 81 () /CIT(A)-13, CHENNAI 4. PRINCIPAL CIT-8, CHENNAI 5. 69 ,1 /DR 6. :' ; /GF.