SIKAR SAHAKAR BHOOMI VIKAS BANK LTD, Sikar V. ITO, Sikar

ITA 183/JPR/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99428 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 07-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Opportunity of being heard; Revised return
• Section: 143(3); 148; 263

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA -@ ITA NO. 183/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11. SIKAR SAHAKARI BHOOMI VIKAS BANK LTD., SIKAR. CUKE VS. INCOME TAX OFFICER, WARD-1, SIKAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AAAAS 1603 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE (DATE OF NOTED) (W.S. FILED BY SHRI MAHENDRA GARGIEYA, ADV.) JKTLO DH VKSJ LS@ REVENUE BY : SHRI KAILASH MANGAL (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21/10/2015. MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 30/10/2015. VKNS'K@ ORDER PER T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 24/01/2014 OF THE LEARNED C.I.T.(A)-III, JAIPUR FOR A.Y. 2010-11. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN: I) DENYING DEDUCTION OF RS. 83,67,254/- U/S 80P(2)( A)(I) OF IT ACT, 1961 OUT OF TOTAL INCOME OF THE SOCIETY I N 2 ITA NO. 183/JP/2014 SIKAR SAHAKARI BHOOMI VIKAS BANK VS. ITO TOTAL DISREGARD TO THE FACT THAT ASSESSEE IS A COOP ERATIVE SOCIETY AND FULFILLS ALL THE CONDITION LAID DOWN IN THE AFORESAID SECTION. II) FOLLOWING THE ILLEGAL AND ERRONEOUS FINDING OF H IS LD PREDECESSOR IN OFFICE DESPITE THE FACT THAT EVERY ASSESSMENT UNDER THE IT ACT IS INDEPENDENT AND IT WA S OPEN TO APPRECIATE EVIDENCE TENDERED BEFORE HIM. III) HOLDING THAT ASSESSEE IS NOT A PRIMARY COOPERA TIVE AGRICULTURAL CREDIT SOCIETY AND THUS DENYING EXEMPT ION U/S 80P(2)(A)(I) OF IT ACT, 1961 AS CLAIMED BY THE APPELLANT. 2. ALL THE GROUNDS OF THE APPEAL ARE INTERLINKED AN D AGAINST DENYING DEDUCTION OF RS. 83,67,254/- U/S 80P(2)(A)(I) OF TH E INCOME TAX ACT, 1961 (IN SHORT THE ACT) BY THE LD CIT(A). THE ASSESSEE F ILED ITS RETURN ON 29/09/2010 DECLARING TOTAL INCOME OF RS. 83,59,650/ -, WHICH WAS REVISED BY THE ASSESSEE ON 03/8/2011 AND DECLARING INCOME AT N IL. THE CASE WAS SCRUTINIZED U/S 143(3) OF THE ACT. THE ASSESSEE IS E NGAGED IN THE BUSINESS OF BANKING. DURING THE YEAR UNDER CONSIDERATION, TH E ASSESSEE EARNED INCOME OF RS. 83,67,254/-. AGAINST THIS INCOME, THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80P OF THE ACT IN THE REVISED RETURN FILED ON 03/8/2011 ON THE SAME AMOUNT AND DECLARED NIL INCOME. THE ASSESSE E WAS GIVEN REASONABLE OPPORTUNITY OF BEING HEARD BY THE ASSESS ING OFFICER BUT NO REPLY WAS FILED FROM THE ASSESSEE, THEREFORE, HE ASSESSED THE ASSESSEES INCOME 3 ITA NO. 183/JP/2014 SIKAR SAHAKARI BHOOMI VIKAS BANK VS. ITO AT RS. 83,67,254/-. FURTHER THE ASSESSEE CLAIMED BE FORE THE ASSESSING OFFICER THAT IT IS A PRIMARY AGRICULTURAL CREDIT SO CIETY AND PRIMARY COOPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK. AFTER CONSIDERING THE ASSESSEES SUBMISSION, THE LD ASSESSING OFFICER HEL D THAT IN A.Y. 2008-09 AND 2009-10, THE DEDUCTION U/S 80P HAD BEEN DENIED BY THE ASSESSING OFFICER, WHICH WAS UPHELD BY THE LD CIT(A) IN BOTH THE YEARS. THE LD ASSESSING OFFICER HELD THAT THE ASSESSEE BANK NEITH ER FULFILLS THE CONDITION OF PRIMARY AGRICULTURAL CREDIT SOCIETY OR PRIMARY C OOPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK NOR DOES IT FUNCTIONS AS A P RIMARY AGRICULTURAL CREDIT SOCIETY OR PRIMARY COOPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK BUT ENGAGED IN THE ACTIVITY AS DEFINED IN EXPL ANATION 2 TO SUB-SECTION (4) OF SECTION 80P OF THE ACT, THEREFORE, HE HAS NO T ALLOWED DEDUCTION U/S 80P(2)(A)(I) OF THE ACT. 3. BEING AGGRIEVED BY THE ORDER OF THE LD ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WH O HAD CONFIRMED THE ADDITION BY OBSERVING AS UNDER:- 4.3 I HAVE CAREFULLY CONSIDERED THE FINDINGS OF T HE A.O. AS ALSO THE SUBMISSION OF THE APPELLANT. IT MAY BE NOTED TH AT THE IDENTICAL ISSUE IN THE CASE OF THE APPELLANT IN RES PECT OF A.Y. 4 ITA NO. 183/JP/2014 SIKAR SAHAKARI BHOOMI VIKAS BANK VS. ITO 2008-09 WAS DECIDED BY WORTHY CIT(APPEALS) IN ITA NO. 314/JPR/10-11 VIDE ORDER DATED 29/08/2011 AND ADDIT ION MADE BY THE A.O. ON THE SAME PATTERN WAS CONFIRMED. THE WORTHY CIT(APPEALS) HAS HELD THAT THE APPELLANT WAS N OT ILLEGIBLE FOR DEDUCTION 80P AFTER AMENDMENT W.E.F. 01/04/2007. FOLLOWING THE DECISION IN RESPECT OF A.Y . 2008- 09, THE IDENTICAL ISSUE OF THE APPELLANT IN RESPECT OF A.Y. 2009-10 WAS ALSO DECIDED AGAINST THE APPELLANT IN IT A NO. 752/JPR/11-12 VIDE ORDER DATED 23/11/2012. THE FACTS OF THE APPELLANT IN RESPECT OF ASSESSMENT YEAR UNDER CONSIDERATION ARE SAME AS IN A.Y. 2008-09 AND 2009- 10 AND THEREFORE THE DISALLOWANCE FOR DEDUCTION U/S 80P MAD E BY THE A.O. AMOUNTING TO RS. 83,67,254/- IS CONFIRMED FOR THE REASONS GIVEN IN THE APPELLATE ORDER OF A.Y. 2008-0 9. 4. NOW THE ASSESSEE IS APPEAL BEFORE US. NO ONE APPE ARED ON BEHALF OF ASSESSEE BUT WRITTEN SUBMISSIONS HAS BEEN FILED BY S HRI MAHENDRA GARGIEYA, ADVOCATE. IN WRITTEN SUBMISSIONS, IT HAS B EEN SUBMITTED THAT IN ASSESSEES CASE FOR A.Y. 2008-09 AND 2009-10, THE S AME ISSUE HAS BEEN CONSIDERED BY THE HONBLE BENCH WHEREIN THE LD ASSES SING OFFICER AS WELL AS LD CIT(A) HAD NOT ALLOWED THE DEDUCTION U/S 80P(2)(A) (I) OF THE ACT IN BOTH THE YEAR, WHICH WAS CHALLENGED BEFORE THE HONBLE IT AT. THE HONBLE ITAT HAS DECIDED THE ASSESSEES OWN CASE IN ITA NO. 999/J P/2011 FOR A.Y. 2008- 09 ORDER DATED 17 TH JULY, 2015 AND ITA NO. 1777/JP/2013 FOR A.Y. 2009- 10 5 ITA NO. 183/JP/2014 SIKAR SAHAKARI BHOOMI VIKAS BANK VS. ITO ORDER DATED 11/08/2015 AND PRAYED TO ALLOW THE APPEA L IN FAVOUR OF THE ASSESSEE. 5. AT THE OUTSET, THE LD DR HAS VEHEMENTLY SUPPORT ED THE ORDER OF THE LOWER AUTHORITIES AND PRAYED TO UPHOLD THE ORDER OF THE LD CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THIS BENCH HAS ALREADY CONSIDERED THIS ISSUE IN ITA NO. 999/JP/2011 FOR A.Y. 2008-09 AND I TA NO. 177/JP/2013 FOR A.Y. 2009-10. THE OPERATIVE PORTION OF THE OF ORDER DATED 11/08/2015 IS REPRODUCED AS UNDER:- 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AFTER GOI NG THROUGH THE CASE LAWS CITED BY THE ASSESSEE AS WELL AS BYELA WS OF SOCIETY, REVEALED THAT THE ASSESSEE IS NOT A COOPER ATIVE BANK BUT COOPERATIVE SOCIETY. THE EXCLUSIVE PROVISION TO SUB-SECTION (4) OF SECTION 80P IS NOT APPLICABLE IN THE CASE OF THE ASSESSEE. THE CASE LAW REFERRED BY THE ASSESSEE IN THE CASE OF CIT VS. JAFARI MOMIN VIKAS COOPERATIVE CREDIT SOCIETY LTD. (SUPRA) IS SQUARELY APPLICABLE. THE HONBLE GUJARAT HIGH COURT HAS HELD AS UNDER:- FROM THE ABOVE CLARIFICATION, IT CAN BE GATHERED T HAT SUB-SECTION (4) OF SECTION 80P WILL NOT APPLY TO AN ASSESSEE WHICH IS NOT A COOPERATIVE BANK. IN THE CAS E 6 ITA NO. 183/JP/2014 SIKAR SAHAKARI BHOOMI VIKAS BANK VS. ITO CLARIFIED BY CBDT, DELHI COOP URBAN THRIFT & CREDIT SOCIETY LTD. WAS UNDER CONSIDERATION. CIRCULAR CLARI FIED THAT THE SAID ENTITY NOT BEING A COOPERATIVE BANK, SECTION 80P(4) OF THE ACT WOULD NOT APPLY TO IT. IN VIEW OF SUCH CLARIFICATION, WE CANNOT ENTERTAIN THE REVEN UES CONTENTION THAT SECTION 80P(4) WOULD EXCLUDE NOT ONL Y THE CO-OPERATIVE BANKS OTHER THAN THOSE FULFILLING THE DESCRIPTION CONTAINED THEREIN BUT ALSO CREDIT SOCIE TIES, WHICH ARE NOT COOPERATIVE BANKS. IN THE PRESENT CASE , RESPONDENT ASSESSEE IS ADMITTEDLY NOT A CREDIT SO- OPERATIVE BANK BUT A CREDIT CO-OPERATIVE SOCIETY. EXCLUSION CLAUSE OF SUB-SECTION (4) OF SECTION 80P, THEREFORE, WOULD NOT APPLY. IN THE RESULT, TAX APPEAL S ARE DISMISSED. THE DEPARTMENT ITSELF HAS ALLOWED DEDUCTION U/S 80P(2 )(A)(I) OF THE ACT IN A.Y. 2007-08, WHICH HAS NOT BEEN REOPE NED U/S 148 AND NO ORDER U/S 263 WAS PASSED BY THE DEPARTMEN T. THE LD DR HAD NOT BROUGHT ON RECORD ANY EVIDENCE THAT I N PRECEDING YEAR, THE ASSESSING OFFICERS ORDER IN A.Y. 2007-08 HAD NOT BEEN ACCEPTED BY THE DEPARTMENT. BY RESPECTFULLY FO LLOWING THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. JAFARI MOMIN VIKAS COOPERATIVE CREDIT SOCIETY LTD.( SUPRA) ON IDENTICAL ISSUE, WE HOLD THAT THE ASSESSEE IS A COOP ERATIVE SOCIETY NOT A COOPERATIVE BANK AND IS ENTITLED FOR DEDUCTION U/S 80P(2)(A)(I) OF THE ACT. 7 ITA NO. 183/JP/2014 SIKAR SAHAKARI BHOOMI VIKAS BANK VS. ITO AS THE FACTS AND CIRCUMSTANCES OF THE CASE ARE IDEN TICAL TO THE EARLIER YEARS, THEREFORE, BY RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH, WE ALLOW THE ASSESSEES APPEAL. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/10/2015. SD/- SD/- YFYR DQEKJ VH-VKJ-EHUK (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 TH OCTOBER, 2015 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SIKAR SAHAKARI BHOOMI VIKAS BANK LTD. , SIKAR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD-1, SIKAR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO.183/JP/2014) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR