The ITO, Ward-6(3), Ahmedabad V. Dhandhuka Taluka Co, Op. Cotton Sale Gining & Pressing Soc. Ltd., Ahmedabad

ITA 166/AHD/2013

• Counselvise Citation: 16620514 RSA 2013
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 31-07-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 17-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Assessee Lawyers: S N DIVATIA

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD . , ! ' ' ' ' # $%, ! BEFORE SHRI A.MOHAN ALANKAMONY,ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.166/AHD/2013 ( ' '(' ' '(' ' '(' ' '(' / / / / ASSESSMENT YEAR : 2009-10) THE INCOME TAX OFFICER WARD-6(3) AHMEDABAD / VS. DHANDUKA TALUKA CO- OP.COTTON SALE GINNING & PRESSING SOCIETY LTD. 215, BHAVNAGAR ROAD OPP.VAISHNAV SOCIETY DHANDUKA 382 460 !) ./*+ ./ PAN/GIR NO. : AAAAD 6391 C ( ), / // / APPELLANT ) .. ( -.), / RESPONDENT ) ), / / APPELLANT BY : SHRI O.P. BATHEJA, SR. DR -.), 0 / / RESPONDENT BY : SHRI S.N. DIVATIA, AR #'1 0 %2 / / / / DATE OF HEARING : 31/ 7 /2013 3( 0 %2 / DATE OF PRONOUNCEMENT : 02/08/2013 4 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-XI, AHMEDABA D (CIT(A) FOR SHORT) DATED 09/11/2012 PERTAINING TO ASSESSME NT YEAR (AY) 2009- 10. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- I) THE LD.COMMISSIOENR OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF DEDUCTION OF INTEREST OF RS.28,64,359/- U/S.80P OF THE I.T.ACT, EARNED BY TH E ASSESSEE FROM THE INVESTMENTS MADE WITH AHMEDABAD DISTT.CO-O P.BANK LTD. ITA NO.166//AHD /2013 ITO VS. DHANDUKA TALUKA CO-OP. COTTON SALE GINNING & PRESSING SOC.LTD. ASST.YEAR 2009-10 - 2 - II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. III) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD.C OMMISSIONER OF INCOME TAX (A) MAY BE SET-ASIDE AND THAT OF THE ASS ESSING OFFICER BE RESTORED. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 28/12/2011, THEREBY THE ASSESSING OFFICER(AO) MADE DISALLOWANCES INCLUDING A SUM OF RS.28,64,359/- REC EIVED AS INTEREST FROM CO-OPERATIVE BANK. THE ASSESSEE PREFERRED AN APPEAL BEFORE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS, D IRECTED THE AO TO ALLOW THE DEDUCTION U/S.80-P ON THE INTEREST RECEIP T OF RS.28,64,359/-. AGAINST THIS, THE REVENUE IS NOW IN APPEAL BEFORE U S. 3. THE LD.SR.DR HAS STRONGLY SUPPORTED THE ASSESSME NT ORDER AND SUBMITTED THAT LD.CIT(A) WAS NOT JUSTIFIED IN ALLOW ING THE DEDUCTION IN RESPECT OF THE INTEREST RECEIVED FROM THE AHMEDABAD DISTRICT CO-OP.BANK LTD. ON THE CONTRARY, LD.COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE CO-ORDINATE BENCH AHMEDABAD IN ITA NO.95/A HD/2012 FOR AY 2008-09 IN ASSESSEES OWN CASE, DATED 14/05/2013. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. ITA NO.166//AHD /2013 ITO VS. DHANDUKA TALUKA CO-OP. COTTON SALE GINNING & PRESSING SOC.LTD. ASST.YEAR 2009-10 - 3 - WE FIND THAT IN ITA NO.95/AHD/2012 IN ASSESSEES OW N CASE (SUPRA) SIMILAR GROUND WAS RAISED BY THE REVENUE, WHICH REA DS AS UNDER:- 1. THE LD.COMMISSIONER OF INCOME TAX (A) HAS ERRE D IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF DEDUCT ION OF INTEREST OF RS.19,17,883/- U/S.80P OF THE IT ACT, E ARNED BY THE ASSESSEE FROM THE INVESTMENTS MADE WITH AHMEDAB AD DIST.CO-OP.BANK LTD. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.COMMISSIONER OF INCOME TAX (A) OUGHT TO HAVE UPH ELD THE ORDER OF THE ASSESSING OFFICER. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(A) MAY BE SET-ASIDE A ND THAT OF THE ASSESSING OFFICER BE RESTORED. 4.1. THE HONBLE CO-ORDINATE BENCH HAS DECIDED THIS ISSUE BY OBSERVING AS UNDER:- 25. DURING THE YEAR THE ASSESSEE RECEIVED RS.19,17 ,883/- AS INTEREST FROM INVESTMENTS MADE WITH AHMEDABAD DIST. CO-OP.BANK LTD. AO DENIED THE DEDUCTION U/S.80P AS HE WAS OF T HE VIEW THAT AS PER PROVISIONS OF SECTION 80P(4), CO-OP. BANKS OTHE R THAN PRIMARY AGRICULTURAL CREDIT SOCIETY OR PRIMARY CO-OP. AND A GRICULTURAL AND RURAL DEVELOPMENT BANKS ARE NOT ELIGIBLE FOR DEDUCT ION U/S80P. ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE ALLOWED THE DEDUCTION BY HOLDING AS UNDER: 4.2. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMIS SIONS. I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE LD.A.R. I AM INCLINED TO AGREE WITH THE SUBMISSIONS OF THE LD.A.R. FOR THE FOLLOWING REASON S. (I) IT IS AN UNDISPUTED FACT THAT INTEREST OF RS.19,17, 883/- HAS BEEN RECEIVED FROM INVESTMENTS MADE BY THE APPELLANT WIT H AHMEDABAD DISTRICT CO-OP.BANK LTD. THIS INCOME IS E XEMPT AS PER THE EXPRESS PROVISIONS OF SEC. 80P(2)(D) OF THE I.T.ACT. ITA NO.166//AHD /2013 ITO VS. DHANDUKA TALUKA CO-OP. COTTON SALE GINNING & PRESSING SOC.LTD. ASST.YEAR 2009-10 - 4 - RELIANCE IN THIS REGARD IS PLACED CIT VS. HARYANA C O-OP.SUGAR MILLS LTD. (1990) 180 ITR 631 (P&H). (II) IN THE CASE OF ADDL.CIT VS. ROYATS AGRICULTURE PROD UCE CO- OP.MARKETING SOC.LTD. (1978) REPORTED AT 115 ITR 70 9 (KAR), IT WAS HELD THAT IF INCOME FALLS WITHIN ONE HEAD OF EX EMPTION, IT WOULD BE FREE FROM TAX NOTWITHSTANDING THE FACT THA T CONDITIONS OF ANOTHER HEAD OF EXEMPTION ARE NOT SATISFIED. IT WA S FURTHER HELD BY HONBLE SUPREME COURT IN THE CASE OF KERALA STAT E CO- OP.MARKETING FEDERATION LTD. & OTHERS VS. CIT (1998 ) 231 ITR 814 (SC), THAT WHEREVER A QUESTION ARISE AS TO WHET HER ANY PARTICULAR CATEGORY OF INCOME OF A CO-OPERATIVE SOC IETY IS EXEMPT FROM TAX WHAT HAS TO BE SEEN IS WHETHER INCOME FALL WITHIN ANY OF THE SEVERAL HEADS OF THE EXEMPTION. IF IT FALLS WI THIN ONE HEAD OF EXEMPTION, IT WOULD BE FREE FROM TAX. NOTWITHSTAND ING THE FACT THAT CONDITIONS OF OTHER HEADS OF EXEMPTION ARE NOT SATISFIED. 4.3. SINCE APPELLANTS INCOME OF INTEREST RS.19,17, 883/- IS EXEMPT AS PER PROVISIONS OF SECTION 80P(2)(D) OF I. T.ACT, ACCORDINGLY, DEDUCTION U/S.80P ON INTEREST RECEIPTS OF RS.19,17,883/- IS ALLOWED. THIS GROUND OF APPEAL I S ALLOWED. AGGRIEVED BY THE ORDER FO CIT(A), REVENUE IS NOW IN APPEAL BEFORE US. 26. BEFORE US, LD.D.R. RELIED ON THE ORDER OF THE AO, WHEREAS ON THE OTHER HAND LD.A.R REITERATED THE SUBMISSIONS MA DE BEFORE CIT(A). HE THUS, SUPPORTED THE ORDER OF THE CIT(A) . 27. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD. CIT(A) WHILE DELETING THE ADDITION HAS RELIED ON THE DECISION OF APEX COURT IN THE CASE OF KERALA STATE MARKETING FEDERATION (1998) 231 ITR 814 (SC). BEFORE US, THE LD.D.R. COULD NOT CONTROVERT THE FINDINGS OF CIT(A). WE, THEREFO RE, FIND NO REASON TO INTERFERE WITH THE ORDER OF CIT(A). THUS , THIS GROUND OF REVENUE IS DISMISSED. 5. SINCE NO DIFFERENCE IN THE FACTS AND CIRCUMSTANC ES HAS BEEN POINTED OUT BY THE LD.SR.DR, THEREFORE, RESPECTFULL Y FOLLOWING THE ITA NO.166//AHD /2013 ITO VS. DHANDUKA TALUKA CO-OP. COTTON SALE GINNING & PRESSING SOC.LTD. ASST.YEAR 2009-10 - 5 - DECISION OF HONBLE CO-ORDINATE BENCH IN ITA NO.95/ AHD/2012(SUPRA), THIS GROUND OF REVENUES APPEAL IS HEREBY REJECTED. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE SD/- SD/- (. ) (# $%) ! ! ( A. MOHAN ALANKAMONY ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 02/ 08 /2013 72.., '.../ T.C. NAIR, SR. PS 4 0 -%8 98(% 4 0 -%8 98(% 4 0 -%8 98(% 4 0 -%8 98(%/ COPY OF THE ORDER FORWARDED TO : 1. ), / THE APPELLANT 2. -.), / THE RESPONDENT. 3. % #: / CONCERNED CIT 4. #:() / THE CIT(A)-XI, AHMEDABAD 5. 8'$; -% , , / DR, ITAT, AHMEDABAD 6. ;<' =1 / GUARD FILE. 4# 4# 4# 4# / BY ORDER, .8% -% //TRUE COPY// > >> >/ // / * * * * ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 31.7.13 (DICTATION-PAD 5 PAG ES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 31.7.13 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.02/08/13 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 02/08/13 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER