The Perumanna Klari Service Co-op Bank Ltd, Cochin V. The ITO, Tirur

ITA 204/COCH/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8582 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-05-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 31-01-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K P GOPAKUMAR
• Assessee Lawyers: M RAMKUMAR MENON
• Keywords: Question of law
• Section: 142(1); 69; 148; 139

Judgement Text

ITA NOS.203 TO 205/COCH/2015 & SP NOS. 69 TO 71/COCH/2015 1 IN THE INCOME TAX APPEL L A TE T R IBUNAL COCHIN BENCH , COCHIN BEFORE S/SH RI B P JAIN , A M & G EORGE GEORGE.K , J M ITA NO S . 203 TO 205/COCH/2015 (ASST YEAR S 2009 - 10 TO 2011 - 12 ) & STAY PETITION NOS. 69 TO 71/COCH/2015 THE PERUMANNA KLARI SERVICE COOPERATIVE B ANK LTD NO. F 770 KUTTIPALA POST MALAPPURAM KERALA 676 501 VS THE INCOME TAX OFFICER WARD 1 TIRUR ( APPELLANT) (RESPONDENT) PAN NO. AABAT8360N ASSESSEE BY SH M RAMKUMAR MENON REVENUE BY SH K P GOPAKUMAR, SR DR DATE OF HEARING 24 TH MAY 2016 DAT E OF PRONOUNCEMENT 1 ST JUNE 2016 OR D ER PER GEORGE GEORGE. K. J M: THESE APPEALS, AT THE INSTANCE OF THE ASSESSEE, ARE DIRECTED AGAINST SEPARATE ORDERS OF THE CIT(A), ALL DATED 7.1.2015. THE RELEVANT ASSESSMENT YEARS ARE 2009 - 10 TO 2011 - 12. 2 SINC E COMMON ISSUES ARE INVOLVED IN THESE APPEALS AND THEY PERTAIN TO THE SAME ASSESSEE, THEY WERE HEARD TOGETHER AND DISPOSE OFF BY THIS CONSOLIDATED ORDER. THOUGH SEVERAL GROUNDS ARE RAISED IN THE MEMORANDUM OF ITA NOS.203 TO 205/COCH/2015 & SP NOS. 69 TO 71/COCH/2015 3 LTD & OTHERS IN ITA NO.212 OF 2013 (JUDGMENT DATED 15 TH FEBRUARY 2016). THE LD DR PRESENT WAS DULY HEARD. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE INSTANT CASE, THE ASSESSEE HAD FILED RETURN OF INCOME FOR THE AYS 2009 - 10 TO 2011 - 12 , PURSUANT TO ISSUANCE OF NOTICE U/S 148 OF THE ACT. THE RETURN OF INCOME, BEING BELATED, THE SAME WAS TREATED AS NON - EST AND THE CLAIM OF DEDUCTION U/S 80 A(5) WAS DENIED BY INVOKING THE P ROVISIONS OF SECTION 80P(5) OF THE ACT. THE HONBLE JURISDICTIONAL HIGH COURT, IN THE RECENT JUDGMENT IN THE CASE OF THE CHIRAKKAL SERVICE COOPERATIVE BANK LTD & OTHERS ( SUPRA ) , HAVE HELD THAT WHEN THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80P(2) OF THE ACT IN THE RETURN OF INCOME, THOUGH THE SAME IS FILED BELATEDLY, THE DEDUCTION U/S 80P(2) HAS TO BE NECESSARILY CONSIDERED ON MERITS BY THE AUTHORITIES. . THE HONBLE JURISDICTIONAL HIGH COURT WAS CONSIDERING THE FOLLOWING QUESTION OF LAWS: B) WHETHER THE TRI BUNAL IS JUSTIFIED IN DENYING THE EXEMPTION U/S 80P OF THE I T ACT, 1961ON THE MERE GROUND OF BELATED FILING OF RETURN BY THE ASSESSEE ? C) WHETHER A RETURN FILED BY THE ASSESSEE BEYOND THE PERIOD STIPULATED US 139(1)/(4) OR SECTION 142(1)/148 CAN BE HELD AS NON - EST IN LAW AND INVALID FOR THE PURPOSE OF DECIDING EXEMPTION US 80P OF THE I T ACT, 1961 ? 6 .1 IN DECIDING THE ABOVE TWO QUESTIONS OF LAW, THE HONBLE JURISDICTIONAL HIGH COURT RENDERED THE FOLLOWING FINDINGS: 18 QUESTIONS B & C RELATE TO DENIAL OF EXEMPTION ON GROUND REFERABLE TO BELATED FILING OF RETURN , THAT IS TO SAY, RE TURN S FILED BEYOND THE PERIOD STIPULATED UNDER SECTION 139(I) OR SECTION 139 (4), AS THE CASE MAY BE, AS WELL AS SECTION 142 (1) OR SECTION 148; AS THE CASE MAY BE. THERE ARE N O CASES AMONG ITA NOS.203 TO 205/COCH/2015 & SP NOS. 69 TO 71/COCH/2015 5 UNDER SUCH CIRCUMSTANCES, THE TRIBUNAL WAS NOT JUSTIFIED IN DENYING EXEMPTION U/S 80P OF THE I T ACT ON THE MERE GROUND OF BELATED FILING OF RE TURN BY THE ASSESSEE CONCERNED. A RETURN FILED BY THE ASSESSEE BEYOND THE PERIOD STIPULATED UNDER SECTION39(1) OR 139(4) OR U/S 142(1) OR SECTION 148 CAN ALSO BE ACCEPTED AND ACTED UPON PROVIDED FURTHER PROCEEDINGS IN RELATION TO SUCH ASSESSMENTS ARE PEND ING IN THE STATUTORY HIERARCHY OF ADJUDICATION IN TERMS OF THE PROVISIONS OF THE I T ACT. IN ALL SUCH SITUATIONS, IT CANNOT BE TREATED THAT A RETURN FILED AT ANY STAGE OF SUCH PROCEEDINGS COULD BE TREATED AS NON - EST IN LAW AND INVALID FOR THE PURPOSE OF DE CIDING EXEMPTION U/S 80P OF THE I T ACT. WE THUS ANSWER SUBSTANTIAL QUESTIONS OF LAW B & C FORMULATED AND ENUMERATED ABOVE. 6 .2 IN THE INSTANT CASE , PURSUANT TO NOTICE U/S 148 OF THE ACT, THE ASSESSEE HAD FILED RETURN OF INCOME AND CLAIMED DEDUCTION U/S 80P(2) OF THE ACT. THE CLAIM OF DEDUCTION U/S 80P(2) WAS REJECTED FOR THE REASON THAT THE RETURN OF INCOME WAS FILED BELATEDLY. THE HONBLE JURISDICTIONAL HIGH COURT HELD THAT EVEN WHEN THE RETURN OF INCOME IS FILED BELATEDLY, THE CLAIM OF DEDUCTION U/S 80P(2) HAS TO BE CONSIDERED ON MERITS. IN VIEW OF THE ABOVE FINDINGS OF THE HONBLE JURISDICTIONAL HIGH COURT, WE HOLD THAT THE AO IS NOT JUSTIFIED IN REJECTING THE ASSESSEES CLAIM OF DEDUCTION U/S 80P(2) IN LIMINE, FOR THE REASON THAT THE RETURN OF IN COME WA S FILED BELATEDLY. IT IS ORDERED ACCORDINGLY. 6.3 THE PLEA OF THE ASSESSEE THAT IT IS ENTITLED TO DEDUCTION U/S 80P(2) WAS NOT CONSIDERED BY THE AO NOR THE CIT(A). THEREFORE, IN THE INTEREST OF JUSTICE AND EQUITY, WE REMAND THE MATTER TO THE AO TO CONSIDER THE PLEA OF THE ASSESSEE WHETHER THE ASSESSEE IS ENTITLED TO THE BENEFIT OF DEDUCTION U/S 80P(2) OF THE ACT. THE ASSESSEE SHALL PROVIDE THE NECESSARY MATERIAL, INCLUDING THE CERTIFICATE FROM THE REGISTRAR OF COOPERATIVE SOCIETIES AND ITS BYE L AWS TO PROVE THAT THE ITA NOS.203 TO 205/COCH/2015 & SP NOS. 69 TO 71/COCH/2015 7 COPY TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT , 5 . DR 6 . GUARD FILE BY ORDER ASSISTANT REGIST RAR ITAT, COCHIN