Shri Rishabh Sahkari Sakh Sanstha Maryadit, Shujalpur Mandi District Shajapur V. Income Tax Officer, , Shajapur

ITA 194/Ind/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0498 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SB
• Next Hearing Date: 11-12-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 05-03-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PUNEET KUMAR
• Assessee Lawyers: YOGESH BHARGAV
• Keywords: Business expenditure; Reason to believe; Co-operative Credit Society
• Section: 43B; 80P; 148

Judgement Text

[ITA NO.194/IND/2018] [SHRI RISHABH SAHKARI SAKH SANSTHA MYDT. DIST. SHAJ APUR] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.194/IND/2018 ASSESSMENT YEAR: 2012-13 SHRI RISHABH SAHKARI SAKH SANSTHA MYDT. TRIPOLIYA BAZAR, SHUJALPUR MANDI DIST. SHAJAPUR (M.P.) / VS. ITO SHAJAPUR ( APPELLANT ) ( REVENUE ) P.A. NO. AACAS 1966L APPELLANT BY SHRI YOGESH BHARGAV, A.R. RESPONDENT BY SHRI PUNEET KUMAR, SR. D.R. DATE OF HEARING: 11.12.2019 DATE OF PRONOUNCEMENT: 26.12.2019 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE IS AGAINST ORDER OF THE CIT(A), UJJAIN DATED 14.12.2017 PERTAINING TO THE ASSESSMENT YEAR 2012-13. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: [ITA NO.194/IND/2018] [SHRI RISHABH SAHKARI SAKH SANSTHA MYDT. DIST. SHAJ APUR] 2 1. THE LD. CIT(A) ERRED IN LAW AS MUCH AS ON THE FACTS OF THE CASE BY HOLDING THAT THE A.O. WAS JUSTIFIED IN NOT ALLOWING THE DEDUCTION U/S 80P OF THE I.T. ACT ON THE ADDITION MADE, IN SPITE OF THE FACT THAT DEDUCTION U/S 80P HAD BEEN CLAIMED BY THE ASSESSEE IN THE RETURN OF INCOME FILED. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) HAS ERRED IN LAW BY UPHOLDING THE ADDITIONS FOR RS.3,95,032/- MADE BY THE A.O., WHEN THE INCOME FOR WHICH THE LD. A.O. HAD INITIALL Y FORMED A REASON TO BELIEVE THAT IT HAD ESCAPED ASSESSMENT, HAD BEEN FO UND BY HIM AS NOT HAVING ESCAPED ASSESSMENT THEN IT WAS NOT OPEN TO H IM TO ASSESS SOME OTHER INCOME, AND IF HE INTENDED TO DO SO, A FRESH NOTICE U/S 148 WAS NECESSARY. 3. THAT THE LD. CIT(A) HAS ERRED IN LAW AS MUCH AS ON THE FACTS OF THE CASE BY CONFIRMING THE UNWARRANTED ADDITION MADE BY THE LD. A.O. BY HOLDING THE DAILY DEPOSIT AGENTS COMMISSION EXPENSES FOR RS.95 ,032/- AS DISALLOWABLE. 4. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR MODI FY THE ABOVE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING O F THE APPEAL, IF IT IS CONSIDERED NECESSARY. 5. IT IS, THEREFORE, PRAYED THAT THE UNWARRANTED ADDIT IONS MADE BY THE LD. A.O. AND ERRONEOUSLY UPHELD BY THE LD. CIT(A) OF RS .3,95,032/- MAY KINDLY BE DELETED. 2. THE FACTS GIVING RISE THE PRESENT APPEAL ARE THAT THE CASE OF THE ASSESSEE WAS REOPENED ON THE BASIS OF AIR INFORMATION REGARDING CASH DEPOSITS IN THE SAVINGS BANK ACCOUNT OF THE ASSESSEE SOCIETY. THEREAFTER, AFTER ISS UING THE REQUISITE NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) WAS PASSED VIDE ORDER DATED 28.6.2016, THEREBY THE A.O. MADE ADDITION OF RS.50,00 0/- U/S 43B OF THE ACT IN RESPECT OF UNKESHAN FEES DISALLOWANCE OF RS.95,032/-, COMMISSION PAID TO SHRI MANOJ JAIN AND AN AMOUNT OF RS.3 LAKHS ON ACCOUNT OF [ITA NO.194/IND/2018] [SHRI RISHABH SAHKARI SAKH SANSTHA MYDT. DIST. SHAJ APUR] 3 DISALLOWANCE OF PROVISION FOR BAD DEBT. AGGRIEVED AGAI NST THIS ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS, PARTL Y ALLOWED THE APPEAL, THEREBY THE ADDITION OF RS.3,00,000 /-, RS.50,000/- AND RS.95,002/- WERE CONFIRMED. NOW TH E ASSESSEE IS IN APPEAL AGAINST THIS ORDER. 3. GROUND NO.1 IS AGAINST ALLOWING THE DEDUCTION U/S 80P OF THE ACT. LD.COUNSEL FOR THE ASSESSEE REITERAT ED THE SUBMISSIONS AS MADE BEFORE THE AUTHORITIES BELOW. L D. COUNSEL PLACED RELIANCE ON THE DECISION OF THE COORDI NATE BENCH RENDERED IN THE CASE OF ACIT CIRCLE-4 VS. BULD ANA URBAN CO-OPERATIVE CREDIT SOCIETY LTD. IN SUPPORT OF THE CONTENTION THAT THE ASSESSEE SOCIETY IS ELIGIBLE FOR DEDUCTION U/S 80P OF THE ACT. 4. LD. D.R. OPPOSED THESE SUBMISSIONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE HAS RELIED UPO N THE DECISION OF THE COORDINATE BENCH RENDERED IN THE CASE OF ACIT VS. BULDANA URBAN CO-OPERATIVE CREDIT SOCIETY LTD. [ITA NO.194/IND/2018] [SHRI RISHABH SAHKARI SAKH SANSTHA MYDT. DIST. SHAJ APUR] 4 (SUPRA), WHEREIN THE COORDINATE BENCH HAS DECIDED THE ISSUE AS UNDER: [ITA NO.194/IND/2018] [SHRI RISHABH SAHKARI SAKH SANSTHA MYDT. DIST. SHAJ APUR] 5 [ITA NO.194/IND/2018] [SHRI RISHABH SAHKARI SAKH SANSTHA MYDT. DIST. SHAJ APUR] 6 6. HOWEVER, WE FIND THAT BEFORE LD. CIT(A) ALSO, THE ASSESSEE HAD MADE THE CLAIM OF DEDUCTION U/S 80P OF THE ACT IN THE GROUND NO.5 BEFORE THE LD. CIT(A). HOWE VER, THE [ITA NO.194/IND/2018] [SHRI RISHABH SAHKARI SAKH SANSTHA MYDT. DIST. SHAJ APUR] 7 LD. CIT(A) REJECTED THE CLAIM OF THE ASSESSEE IN PARA 4 .5, WHICH IS REPRODUCED AS UNDER: GROUND NO.5:- THROUGH THIS GROUND OF APPEAL THE APPELLANT HAS CHALLENGED FOR NOT ALLOWING THE DEDUC TION U/S 80P OF THE I.T. ACT ON THE ADDITION MADE. THE A.O. MADE T HE ADDITION ON THE EXPENSES WHICH ARE NOT ALLOWABLE. THE A.O. IS JUST IFIED IN NOT ALLOWING THE EXEMPTION U/S 80P OF THE I.T. ACT ON T HE ADDITION MADE. THEREFORE, THE APPEAL ON THIS GROUND IS DISMISSED. 6. FROM THE ABOVE FINDING OF THE LD. CIT(A), IT CAN BE INFERRED THAT THE DEDUCTION U/S 80P OF THE ACT IS NO T ALLOWED ON THE GROUND THAT THE EXPENSES CLAIMED BY THE ASSESSEE ARE NOT ALLOWABLE. THE COORDINATE BENCH OF TH IS TRIBUNAL HAS DECIDED THE ISSUE RELATED TO ALLOWANCE OF DEDUCTION U/S 80P OF THE ACT AND THE EXPENDITURE DISALLOWED BY THE A.O. WHETHER THIS WOULD QUALIFY FOR DEDUCTION U/S 80P OF THE ACT. A BARE READING OF PROV ISION OF SECTION 80P(2) OF THE ACT MAKES IT CLEAR THAT THE DEDUCTION WOULD BE AVAILABLE IN RESPECT OF THE PROFIT & GAINS OF BUSINESS ATTRIBUTABLE TO ANY ONE OR MORE OF SE ARCH ACTIVITIES, WHICH IS PRESCRIBED U/S 80P(2) OF THE AC T. AS PER [ITA NO.194/IND/2018] [SHRI RISHABH SAHKARI SAKH SANSTHA MYDT. DIST. SHAJ APUR] 8 THE ASSESSEE, THE ASSESSEE IS PROVIDING CREDIT FACILIT IES TO ITS MEMBERS. THEREFORE, IT WOULD QUALIFY FOR CLAIM OF DED UCTION U/S 80P OF THE ACT. THE COORDINATE BENCH UNDER THE IDENTICAL FACTS HAS ALLOWED DEDUCTION U/S 80P OF THE AC T IN RESPECT OF THE ACTIVITY SIMILAR OR SAME, WHICH IS BEIN G UNDERTAKEN BY THE ASSESSEE SOCIETY. NOW THE ISSUE WO ULD BE WHETHER THE DISALLOWANCES MADE IN RESPECT OF BAD DEB TS AND COMMISSION PAYMENT CLAIMED BY THE ASSESSEE WOULD QUALIFY FOR DEDUCTION U/S 80P OF THE ACT OR NOT? IN RESPECT OF THE BAD DEBT, THE ASSESSEE IS REQUIRED TO DEMONSTRAT E THAT THE DEBT WHICH IS CLAIMED IS IN THE NATURE OF PRO FIT & GAINS AND BUSINESS ATTRIBUTABLE TO SUCH ACTIVITY. IN T HE PRESENT CASE, THE ASSESSEE HAD MADE PROVISION FOR BAD DEBT. IF THE ASSESSEE HAD NOT DONE THIS PROVISION, THIS AMOUNT WOULD HAVE NOT BEEN DEDUCTED FROM THE PROFIT & LOSS ACCOUNT. THEREFORE, IN MY CONSIDERED VIEW, THI S AMOUNT IS CERTAINLY ATTRIBUTABLE TO THE PROFIT & GAINS OF THE [ITA NO.194/IND/2018] [SHRI RISHABH SAHKARI SAKH SANSTHA MYDT. DIST. SHAJ APUR] 9 ASSESSEE SOCIETY. FURTHER, DISALLOWANCE OF PAYMENT OF COMMISSION. THE COMMISSION IS CLAIMED AS BUSINESS EXPENDITURE, DEDUCTED FROM THE PROFIT & GAINS ACCOUNT . THEREFORE, THIS WOULD ALSO BE IN THE NATURE OF PROFIT & GAINS OF THE ASSESSEE SOCIETY. THEREFORE, I AM OF THE CONS IDERED VIEW THAT IN THE LIGHT OF THE DECISION OF THE COORDI NATE BENCH RENDERED IN THE CASE OF ACIT CIRCLE-4 VS. BULD ANA URBAN CO-OPERATIVE CREDIT SOCIETY LTD. (SUPRA), THE ASSESSEE IS ENTITLED FOR BENEFIT OF DEDUCTION U/S 80 P OF THE ACT. I THEREFORE, DIRECT THE A.O. TO GRANT DEDUCTI ON U/S 80P OF THE ACT TO THE ASSESSEE. 7. THE OTHER GROUNDS ARE AGAINST SUSTAINING THE ADDITION BY THE LD. CIT(A). I HAVE ALREADY ALLOWED CLAIM OF DEDUCTION U/S 80P OF THE ACT. THESE GROUNDS WOULD BECOME OF ACADEMIC NATURE ONLY. HENCE, GROUND NOS.2 & 3 NEEDS NO SEPARATE ADJUDICATION. [ITA NO.194/IND/2018] [SHRI RISHABH SAHKARI SAKH SANSTHA MYDT. DIST. SHAJ APUR] 10 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 26. 12.2019. SD/- (KUL BHARAT) JUDICIAL MEMBER INDORE; DATED : 26/12/2019 VG/SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE