ACIT, Circle - 32, Kolkata, Kolkata V. M/s. W.B. State Co-op Agricultural & Rural Development Bank Ltd., Kolkata

ITA 1641/KOL/2010

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4960 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2016
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 02-03-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 19-08-2010
• Court: TRIBUNAL
• Department Lawyers: G MALLIKARJUNA CIT LD
• Assessee Lawyers: S JHAJHARIA FCA LD
• Section: 143(3); 10B

Judgement Text

ITA N O.1641 & 1317/KO L/2010 & ITA NO. 1109/KOL/2011-C-AM M/S. W.B STATE CO-OP AGRICULTUR AL & RURAL DEVELOPME NT BANK LTD 1 IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, K OLKATA BEFORE : SHRI MAHAVIR SINGH, JUDICIAL MEMBER , AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 1641/KOL/2010 A.Y 2007-08 A.C.I.T CIRCLE-32, KOLKATA VS. M/S. W.B S TATE CO-OP AGRICULTURAL & RURAL DEVELOPMENT BANK LTD PAN: AAAJT 0 468K (APPELLANT) ( RESPONDENT) ITA NO. 1317/KOL/2010 A.Y 2007-08 M/S. W.B STATE CO-OP VS. A.C.I.T CIRCLE-32, KO LKATA AGRICULTURAL & RURAL DEVELOPMENT BANK LTD (APPELLANT/ASSESSEE) (RESPONDENT) ITA NO. 1109/KOL/2011 A.Y 2008-09 M/S. W.B STATE CO-OP VS. A.C.I.T CIRCLE-32, KOLKATA AGRICULTURAL & RURAL DEVELOPMENT BANK LTD ( APPELLANT/ASSESSEE) (RESPONDENT/DEPARTMENT) FOR THE APPELLANT/DEPARTMENT: SHRI G . MALLIKARJUNA, CIT, LD.DR FOR THE RESPONDENT/ASSESSEE: SHR I S.JHAJHARIA, FCA, LD.AR DATE OF HEARING: 02-03-2016 DATE OF PRONOUNCEMENT: 02 -03 - 2016 ORDER SHRI M.BALAGANESH, AM THE ABOVE APPEALS OF THE REVENUE AND ASSESSEE A RE ARISING OUT OF THE SEPARATE ORDERS OF THE LEARNED CIT(A)-XIX, KOLKATA IN APPEAL NO.91/CIT(A)-XIX(A)/ACIT, CIR-32/09-10 DATED 06-05-2010 AND APPEAL NO. 138 /CIT(A)-XIX/ACIT, CIR- ITA N O.1641 & 1317/KO L/2010 & ITA NO. 1109/KOL/2011-C-AM M/S. W.B STATE CO-OP AGRICULTUR AL & RURAL DEVELOPME NT BANK LTD 2 32/KOL/10-11 DATED 14-06-2011 FOR THE ASSESSMENT YEARS 2007-08 AND 2008-09 RESPECTIVELY AGAINST THE SEPARATE ORDERS OF ASSESSM ENT FRAMED BY THE LD.AO U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT). 2. AS THE ISSUES INVOLVED ARE IDENTICAL IN ALL THE ASSESSMENT YEARS UNDER APPEAL, ALL THE APPEALS OF THE REVENUE AND ASSESSEE ARE TAKEN U P TOGETHER AND DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. THE ASSESSEE HAS RAISED VARIOUS GROUNDS WITH REG ARD TO ITS ELIGIBILITY FOR CLAIM OF DEDUCTION U/S. 80P(2)(A)(I) OF THE ACT. 4. THE BRIEF FACTS OF THIS ISSUE ARE THAT THE ASS ESSEE IS A CO-OPERATIVE SOCIETY ENGAGED IN THE BUSINESS OF BANKING AND PROVIDING C REDIT FACILITIES TO ITS MEMBERS. THE ASSESSEE FOR THE FIRST TIME IN ASSESSMENT YEAR 2007 -08 MADE A FRESH CLAIM BEFORE THE LD.CIT(A) BY WAY OF ADDITIONAL GROUND THAT THE ASSE SSEE IS A CO-OPERATIVE SOCIETY ENGAGED IN THE BUSINESS OF BANKING AND ACCORDINGLY , IT IS ENTITLED FOR DEDUCTION U/S. 80P(2)(A)(I) OF THE ACT. WE FIND THAT THE LD. CIT(A ) HAD NOT ENTERTAINED THIS ADDITIONAL GROUND OF THE ASSESSEE BY PLACING RELIANCE ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD VS. CIT REP ORTED IN (2006) 284 ITR 323 (SC). ACCORDINGLY, THE CLAIM OF DEDUCTION U/S. 80P(2)(A)( I) WAS DENIED FOR THE ASSESSMENT YEAR 2007-08. FOR THE ASSESSMENT YEAR 2008-09, THE ASSESEE MADE A SIMILAR CLAIM BEFORE THE LD.AO, WHO DECLINED TO ACCEPT THE SAME. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. DURING THE COURSE OF HEARING BEFORE US, THE LD.DR ARGUED THAT THE ASSESSEE HAS MADE A FRESH CLAIM FOR THE AY 2007-08 AS A CO-OPERA TIVE SOCIETY ENGAGED IN THE BUSINESS OF BANKING AND PROVIDING CREDIT FACILITIES TO ITS MEMBERS PURSUANT TO THE ITA N O.1641 & 1317/KO L/2010 & ITA NO. 1109/KOL/2011-C-AM M/S. W.B STATE CO-OP AGRICULTUR AL & RURAL DEVELOPME NT BANK LTD 3 AMENDMENT BROUGHT IN FINANCE ACT 2006 W.E.F 1-4-200 7 BY INSERTION OF SUB-SECTION (4) IN SECTION 80P OF THE ACT, WHICH READS AS UNDER:- THE PROVISIONS OF THIS SECTION SHALL NOT APPLY I N RELATION TO ANY CO-OPERATIVE BANK OTHER THAN A PRIMARY AGRICULTURAL CREDIT SOCIETY OR A PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DE VELOPMENT BANK. 6. WHEN IT WAS ASKED TO BOTH THE PARTIES BY THE B ENCH THAT THE FRESH CLAIM MADE BY THE ASSESSEE NEEDS TO BE ADJUDICATED BY THE LOWE R AUTHORITIES, BOTH THE PARTIES BEFORE US AGREED FOR THE SAME. IN VIEW OF THESE FACTS AN D CIRCUMSTANCES, WE DEEM IT FIT AND APPROPRIATE, IN THE INTEREST OF JUSTICE AND FAIR PL AY, TO SET ASIDE THE ENTIRE ASSESSMENT TO THE FILE OF THE LD.AO, FOR DENOVO ADJUDICATION AND TO DECIDE THE SAME, IN THE CONTEXT OF THE AMENDMENT MADE IN SECTION 80P(4) OF THE ACT BY THE FINANCE ACT 2006 AND TO VERIFY THE CLAIM OF THE ASSESSEE AS TO WHETH ER THE ASSESSEE IS A COOPERATIVE SOCIETY ENGAGED IN THE BUSINESS OF BANKING OR A CO -OPERATIVE BANK. THE CLAIM OF DEDUCTION U/S. 80P WILL DEPEND UPON CATEGORICAL FI NDING TO BE GIVEN BY THE LD.AO WITH REGARD TO STATUS OF THE ASSESSEE AS TO WHETHER IT IS A CO-OPERATIVE SOCIETY OR A CO- OPERATIVE BANK. ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE AND ASSESSEE IN ALL THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT, THE APPEALS OF THE REVENUE AND AS SESSEE ARE ALLOWED FOR STATISTICAL PURPOSE AS STATED ABOVE. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 02 - 0 3 - 2016 SD/- ( MAHAVIR SINGH, JUDICIAL MEMBER ) SD/- (M. BALAGANESH, ACCOUNTANT MEMBER) DATE: DATE 02 -03-2016 ITA N O.1641 & 1317/KO L/2010 & ITA NO. 1109/KOL/2011-C-AM M/S. W.B STATE CO-OP AGRICULTUR AL & RURAL DEVELOPME NT BANK LTD 4 1.. THE APPELLANT/DEPARTMENT: THE ACIT, CIR-32, K OLKATA 10B MIDDLETON ROW, KOL-71. 2 THE RESPONDENT/ASSESSEE- M/S.W.B STATE CO-OP AGRI CULTURAL & RURAL DEVELOPMENT BANK LTD 25D SHAKESPEARE SARANI, KOL-17. 3 /THE CIT, 4.THE CIT(A ) 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT REGISTRAR **PRADIP SPS COPY OF THE ORDER FORWARDED TO:-