The Seva Vikas Co-Op Bank Ltd, Pune V. Deputy Commissioner of Income-tax, Circle - 8, Pune

ITA 1565/PUN/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8809 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 28-09-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: N C LAHOTI
• Keywords: Rectification of order
• Section: 143(3); 64; 154

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENC H B , PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO, AM AND SHRI S. S. VISWANETHRA RAVI, JM ITA NO.1565/PUN/2018 / ASSESSMENT YEAR : 2007-08 THE SEVA VIKAS COOPERATIVE BANK LTD., SEVA BHAVAN NEAR SADHU VASWANI GARDEN, PIMPIRI, PUNE 411 017. PAN : AAATT1710G. . / APPELLANT V/S THE DY. COMMISSIONER OF INCOME TAX, CIRCLE 8, PUNE. . / RESPONDENT ASSESSEE BY : SHRI N.C. LAHOTI. REVENUE BY : SHRI SUDHENDU DAS. / DATE OF HEARING : 30.07.2021 / DATE OF PRONOUNCEMENT : 30.07.2021 / ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST T HE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 6, PUNE DAT ED 15.06.2018 FOR THE ASSESSMENT YEAR 2007-08. 2. BRIEFLY, THE FACTS OF THE CASE ARE AS UNDER : THE APPELLANT IS A CO-OPERATIVE SOCIETY ENGAGED IN THE BU SINESS OF BANKING. THE RETURN OF INCOME FOR THE A.Y. 2007-08 WAS FILED ON 31.10.2007 DISCLOSING A TOTAL INCOME OF RS.5,13,65,025/-. AGAINST THE SA ID RETURN OF INCOME, THE ASSESSMENT WAS COMPLETED BY THE ADDL. COMMISS IONER OF INCOME TAX, RANGE 10, PUNE (HEREINAFTER REFERRED TO ASSESSING OFFICER) VIDE ORDER 2 DT.30.12.2009 PASSED U/S 143(3) OF THE ACT AT A TOTAL INCO ME OF RS.6,72,33,490/- AFTER MAKING ADDITIONS BY DISALLOWING LOSS ON IN VESTMENTS OF RS.1,57,11,000/- AND ADDITION OF RS.1,57,464/-. UNDER THE PR OVISIONS OF SEC.40(A)(IA) OF THE INCOME TAX ACT (HEREINAFTER REFERRED TO THE ACT) . 3. BEING AGGRIEVED BY THE ABOVE ADDITIONS, THE APPEAL WA S PREFERRED BEFORE THE LD.CIT(A)-V, PUNE, WHO VIDE ORDER DATED 21.11.2011 DELE TED THE ADDITION ON ACCOUNT OF DISALLOWANCE OF LOSS ON INVESTMENTS. THE AS SESSING OFFICER WHILE PASSING THE CONSEQUENTIAL ORDER TO THE ORDER OF LD.C IT(A), CALCULATED THE TAX LIABILITY TREATING THE STATUS OF THE APPELLANT AS AN ASS OCIATION OF PERSONS (AOP). ON RECEIPT OF THE SAID CONSEQUENTIAL ORDER, THE APPE LLANT HAD MOVED AN APPLICATION U/S 154 OF THE ACT SEEKING RECTIFICATION OF TH E STATUS OF THE APPELLANT AND THE ASSESSING OFFICER HAD PASSED A RECTIFICATI ON ORDER U/S 154 OF THE ACT ON 30.03.2016 TREATING THE STATUS OF THE APPE LLANT AS AOP AND WORKED OUT THE REFUND AT RS.39,38,170/- INCLUSIVE OF INTERE ST OF RS.4,13,976/-. THEREAFTER, THE APPELLANT HAD FILED A GRIEVANCE PETITION THROUGH CPGRAM CLAIMING THAT THE APPELLANT HAD NOT RECEIV ED THE CORRECT INTEREST ON REFUND ISSUED AND SUBSEQUENTLY, IT IS FOUND TH AT THE PAN OF THE ASSESSEE SOCIETY WAS IN THE STATUS OF TRUST AND VIDE LETTER DT.26.07.2012 WAS DIRECTED TO GET THE STATUS CORRECTED AND ACCORDINGLY, A RECTIFICATION WAS CARRIED OUT ON 09.03.2012 AND REFUND AMOUNT WAS CORRECT LY ISSUED. HOWEVER, THE ASSESSING OFFICER HAD DENIED THE INTEREST ON THE REFUND ATTRIBUTING THE DELAY TO THE APPELLANT SOCIETY. 4. BEING AGGRIEVED, AN APPEAL WAS FILED BEFORE LD.CIT(A)- 6, P UNE, WHO VIDE IMPUGNED ORDER DISMISSED THE APPEAL IN LIMINE BY HOLDING TH AT THE APPEAL WAS FILED AGAINST THE GRIEVANCE PETITION DISPOSAL LETTER DT.0 8.06.2016 AND NOT AGAINST THE ORDER U/S 154 OF THE ACT. 3 5. BEING AGGRIEVED BY THE ORDER OF LD.CIT(A)-6, PUNE, THE A PPELLANT SOCIETY IS PRESENT BEFORE US IN THE APPEAL. 6. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATER IAL AVAILABLE ON RECORD. THE SHORT ISSUE IN THE APPEAL RELATES TO WHETH ER THE LD.CIT(A) WAS JUSTIFIED IN REJECTING THE APPEAL IN LIMINE BY HOLDING THAT THE APPEAL WAS FILED NOT AGAINST THE ORDER PASSED U/S 154 OF THE ACT BUT A GAINST THE ORDER PURSUANT TO THE GRIEVANCE PETITION. INDISPUTABLY, THE IM PUGNED ORDER BEFORE LD.CIT(A) RESULTS IN MODIFICATION OF AN EARLIER ORDER PASSED BY THE ASSESSING OFFICER. IT IS NOT NECESSARY THAT AN ORDER PASSED BY TH E ASSESSING OFFICER SHOULD CONTAIN A SPECIFIC REFERENCE TO THE SECTION. IN THIS REGARD, REFERENCE CAN BE MADE TO THE DECISION OF NARAYANA ROW (SAL) VS. MOD EL MILLS, NAGPUR (1967) 64 ITR 67 (SC). NEEDLESS TO SAY THAT THE LABELLING OF AN ORDER DOES NOT ALWAYS DECIDE THE QUESTION OF THE VALIDITY, AN ORDER CAN B E UPHELD OR VALID IF THERE IS A STATUTORY PROVISION TO WHICH IT CAN BE VALIDLY ATTRIBUTED AND MORE IMPORTANTLY, THE WORD ORDER IN THE EXPRESSION FROM TH E DATE OF ORDER SOUGHT TO BE AMENDED FINDING PLACE IN THE PROVISIONS OF SEC.154 IS NOT QUALIFIED IN ANY OTHER MANNER AND IT DOES NOT NECESSARILY MEAN THE ORIGINAL ORDER. IT CAN AS WELL BE AN ORDER WHICH IS AMENDED OR RECTIFIED ORDER AS HELD BY THE HONBLE MADRAS HIGH COURT IN THE CASES OF SALEM CO-OP SPINNING M ILLS LTD., VS. CIT (1998) 230 ITR 139 AND HENRI ISIDORE VS. CIT (1999) 240 ITR 247. THEREFORE, THE REASONING OF THE LD.CIT(A) THAT IMPUGNED ORDER BEFORE HIM IS NOT AN ORDER U/S 154 OF THE ACT AND CANNOT BE ACCEPTED. AS A CONS EQUENCE, DISMISSAL OF APPEAL IN LIMINE BY THE LD.CIT(A) IS ERRONEOUS AND UNJUSTIFIED. THEREFORE, WE REMIT THE MATTER BACK TO THE FILE OF LD.CIT(A) FOR DENOVO CO NSIDERATION OF THE ABOVE IN APPEAL IN ACCORDANCE WITH THE LAW. 4 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STAT ISTICAL PURPOSES. SD/- SD/- (S. S. VISWANETHRA RAVI) (IN TURI RAMA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 30 TH JULY, 2021. YAMINI / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-6, PUNE. 4. THE PR.CIT-5, PUNE. 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.