The Kasargode Dist Co-op Bank Ltd, Kasargode V. ITO, Kannur

ITA 203/COCH/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81332 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 09-09-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 19-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Keywords: Principle of natural justice
• Section: 201(1)

Judgement Text

1 ITA NO.203/COCH/2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI CHANDRA PO OJARI (AM) I.T.A NO. 203/COCH/2013 (ASSESSMENT YEAR 2010-11) THE KASARGOD DIST. CO-OPERATIVE VS ITO (TDS) BANK LTD, KASARGOD 671 121 KANNUR PAN : CHNTO1654C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MATHEW JOSEPH RESPONDENT BY : SHRI K.K. JOHN, SR DR DATE OF HEARING : 09-09-2014 DATE OF PRONOUNCEMENT : 10-10-2014 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E COMMON ORDER PASSED BY THE CIT(A)-III, KOCHI DATED 18-02-2013 FO R THE ASSESSMENT YEAR 2008-09, 2009-10 AND 2010-11. 2. SHRI MATHEW JOSEPH, THE LD.REPRESENTATIVE FOR TH E ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER TREATED THE AS SESSEE AS AN ASSESEE IN DEFAULT U/S 201(1) AND LEVIED INTEREST U/S 201(1A) OF THE ACT. ACCORDING TO THE LD.REPRESENTATIVE, INTEREST WAS PAID TO SIX CON CERNS, VIZ. (1) KASARAGOD 2 ITA NO.203/COCH/2013 DIST. CO-OP. BANK EMPLOYEES WELFARE FUND; (2) KERAL A HEAD LOAD WORKERS WELFARE FUND; (3) KERALA BLDG & OTHER CONST RUCTION WORKERS WELFARE FUND; (4) KERALA CO-OP. EMPLOYEES WELFARE B OARD; (5) KERALA STATE CO.OP.EMPLOYEES PENSION BOARD; (6) KERALA TOD DY WORKERS WELFARE FUND BOARD. ACCORDING TO THE LD.REPRESENTATIVE, AL L THE PAYMENTS, EXCEPT KASARGOD DISTRICT CO-OPERATIVE BANK EMPLOYEES WELFA RE FUND WAS A BODY INCORPORATE ESTABLISHED UNDER THE KERALA STATE ENAC TMENT. REFERRING TO THE NOTIFICATION ISSUED BY THE CBDT IN F.NO.12/164/ 68-ITCC/ITJ, COPY OF WHICH IS AVAILABLE AT PAGE 4 OF THE PAPER BOOK, THE LD.REPRESENTATIVE SUBMITTED THAT THE ASSESSEE IS NOT EXPECTED TO DEDU CT TAX WHEN THE PAYMENT WAS MADE TO CORPORATION ESTABLISHED BY A CE NTRAL, STATE OR PROVINCIAL ACT. DURING THE COURSE OF FIRST APPELLAT E PROCEEDINGS, THE CIT(A) CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER . ACCORDING TO THE LD.REPRESENTATIVE, DURING THE REMAND PROCEEDINGS, T HE ASSESSING OFFICER HAS NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE TO PL ACE ITS SUBMISSIONS. COPY OF THE REMAND REPORT WAS ALSO NOT FURNISHED TO THE ASSESSEE. THE LD.REPRESENTATIVE FOR THE ASSESSEE FURTHER SUBMITTE D THAT NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO FILE OBJECTION TO THE REMAND REPORT EITHER. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, AN O PPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO FILE ITS OBJECTION TO THE REMAND REPORT SAID TO BE FILED BY THE ASSESSING OFFICER. 3 ITA NO.203/COCH/2013 3. ON THE CONTRARY, SHRI K.K. JOHN, THE LD.DR SUBMI TTED THAT THE HIGH COURT IN THE CASE OF KERALA TODDY WORKERS WELFARE F UND BOARD FOUND THAT THE KERALA TODDY WORKERS WELFARE FUND BOARD CONSTIT UTED UNDER THE WELFARE LEGISLATION CANNOT BE TREATED AS A STATUTOR Y CORPORATION. MOREOVER, IN THE CASE OF ASPINWALL & COMPANY LTD WP NO.5227 OF 2010(C), COPY OF WHICH IS AVAILABLE AT PAGE 11 OF THE PAPER BOOK, TH E KERALA HIGH COURT FOUND THAT THE KERALA HEADLOAD WORKERS WELFARE FUND BOARD IS ALSO NOT A BODY CORPORATE. SINCE THE PAYMENTS SAID TO BE MADE BY THE ASSESSEE TO THE WORKERS WELFARE FUND BOARD WHICH DOES NOT COME WITHIN THE CORPORATIONS ESTABLISHED UNDER THE CENTRAL STATE OR PROVINCIAL ENACTMENT, ACCORDING TO THE LD.DR, THE CIT(A) HAS RIGHTLY CONF IRMED THE ORDER OF THE LOWER AUTHORITY. ON A QUERY FROM THE BENCH, WHETHE R ANY OPPORTUNITY WAS GIVEN TO THE ASSESSEE DURING THE COURSE OF REMAND P ROCEEDINGS BEFORE THE ASSESSING OFFICER AND WHETHER ANY COPY OF THE REMAN D REPORT WAS FURNISHED TO THE ASSESSEE SO AS TO ENABLE THE ASSES SEE TO FILE ITS OBJECTION TO THE REMAND REPORT, THE LD.DR CONCEDED THAT THERE IS NO MATERIAL AVAILABLE ON RECORD TO SUGGEST THAT ANY OPPORTUNITY WAS GIVEN TO THE ASSESSEE DURING THE REMAND PROCEEDINGS AS ALSO COPY OF THE REMAND REPORT WAS FURNISHED TO THE ASSESSEE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NO T IN DISPUTE THAT DURING THE 4 ITA NO.203/COCH/2013 PENDENCY OF THE FIRST APPELLATE PROCEEDINGS BEFORE THE CIT(A), A REMAND REPORT WAS CALLED FOR BEFORE THE ASSESSING OFFICER. WHEN NO MATERIAL WAS AVAILABLE ON RECORD TO SUGGEST THAT AN OPPORTUNITY WAS GIVEN TO THE ASSESSEE DURING THE REMAND PROCEEDINGS THERE IS VIO LATION OF NATURAL JUSTICE. THE ASSESSING OFFICER WITHOUT HEARING THE ASSESSEE FILED THE REMAND REPORT BEFORE THE CIT(A). FURTHER, NO MATER IAL IS AVAILABLE ON RECORD TO SUGGEST THAT THE COPY OF THE REMAND REPOR T WAS FURNISHED TO THE ASSESSEE SO AS TO ENABLE THE ASSESSEE TO FURNISH IT S OBJECTIONS BEFORE THE CIT(A). IT IS WELL SETTLED PRINCIPLES OF LAW THAT WHENEVER A REMAND REPORT WAS CALLED FOR BY THE CIT(A), COPY OF THE SAME SHAL L BE FURNISHED TO THE ASSESSEE AND AN OPPORTUNITY SHALL BE GIVEN TO THE A SSESSEE TO FILE ITS OBJECTION. IN THIS CASE, THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT COPY OF THE REMAND REPORT WAS NOT FURNISHED TO THE ASSESSEE AND NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO FILE ITS OBJECTION. T HEREFORE, THERE IS A GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. EVEN F OR FOLLOWING JUDGMENT OF THE JURISDICTIONAL HIGH COURT OR SUPREME COURT, AN OPPO RTUNITY SHALL BE GIVEN TO THE ASSESSEE BY FURNISHING COPY OF THE REMAND REPOR T. SINCE SUCH AN OPPORTUNITY WAS NOT GIVEN, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE IS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE . ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE IN ALL THE APPE ALS AND THE ENTIRE MATTER IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFIC ER. THE ASSESSING OFFICER SHALL FURNISH THE COPY OF THE REMAND REPORT TO THE ASSESSEE AND GIVE 5 ITA NO.203/COCH/2013 SUFFICIENT OPPORTUNITY TO FILE ITS OBJECTION TO THE REMAND REPORT AND THEREAFTER THE ASSESSING OFFICER SHALL DECIDE THE I SSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPORTUNITY TO T HE ASSESSEE. THIS TRIBUNAL MAKE IT CLEAR THAT THIS TRIBUNAL IS NOT EX PRESSING ANY OPINION ON MERIT. THE ASSESSING OFFICER SHALL DECIDE THE ISSU E IN ACCORDANCE WITH LAW WITHOUT BEING INFLUENCED BY ANY OF THE OBSERVATIONS MADE BY THIS TRIBUNAL. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH OCTOBER, 2014. SD/- SD/- (CHANDRA POOJARI) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 10 TH OCTOBER, 2014 PK/- COPY TO: 1. THE KASARGOD DIST. CO-OPERATIVE BANK LTD, KASARG OD 2. THE ITO (TDS), KANNUR 3. THE COMMISSIONER OF INCOME-TAX, KOZHIKODE 4. THE COMMISSIONER OF INCOME-TAX(A)-III, KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH