ACIT, Salem V. M/s. The Uthangari Co.op Primary Agricultural & Rural Development Bank Ltd., Uthangari

ITA 2084/CHNY/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5270 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-04-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 08-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: M SWAMINATHAN
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI A BENCH, CHENNAI. BEFORE SHRI.U.B.S. BEDI J.M. & SHRI. N.S. SAINI A.M. I.T.A. NO. 2084/MDS/2010 ASSESSMENT YEAR: 2007-08 THE ASSISTANT COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE I, CHENNAI 600 034. VS. M/S. THE UTHANGARI CO.OP. PRIMARY AGRICULTURAL & RURAL DEVELOPMENT BANK LTD., NO. 40/52A, ANNA NAGAR, UTHANGARI 635 207. [PAN:AAAJU0100D] (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SHAJI P. JACOB ASSESSEE BY : SHRI M. SWAMINATHAN ORDER PER U.B.S. BEDI, J.M . THIS APPEAL OF THE D EPARTMENT ARISES OUT OF T HE ORDER PASSED BY THE LD. CIT(A), SALEM, DATED 17.09.2010 RELEVA NT TO THE ASSESSMENT YEAR 2007-08, WHEREBY BESIDES CHALLENGING THE CONDONATI ON OF DELAY OF 33 DAYS, THE DEPARTMENT HAS ALSO CHALLENGED THE ACTION OF THE LD. CIT(A) IN DIRECT ING THE ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSESSEE UNDER SE CTION 80(P)(2)(A)(I) OF THE ASSESSEE ON MERITS, WHEN THERE IS NO PROVISION WHICH AUT HORIZES THE LD. CIT(A) TO SET ASIDE THE ISSUE ON THE FILE OF THE ASSESSING OFFI CER WITH EFFECT FROM 2001 ONWARDS. 2. AT THE VERY OUTSET, THE LD. DR SUBMITT ED THAT SINCE THE POWER TO SET ASIDE THE ISSUE ON THE FILE OF THE ASSESSING OFFICER IS NOT VE STED WITH THE LD. CIT(A) AFTER AMENDMENT OF RELEVANT PROVISI ONS W.E.F. 2001, THEREFORE, T HE ORDER OF THE LD. CIT(A) IS NOT LEGALLY CORRECT AND IF THE GROUND AB OUT CONDONATION OF DELAY IN FILING THE APPEAL IS NOT CONTESTED EVEN THEN THE ORDER OF THE LD. CIT(A) ON THE 2 ND ISSUE IS NOT TENABLE AND REQUIRES TO BE SET ASIDE ON THE FILE OF THE LD. CIT(A) WITH THE DIRECTION TO I.T.A. NO.2084/MDS/10 2 PASS THE ORDER IN ACCORDANCE WITH LAW AND TO THIS PLEA OF THE LD. DR, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THOUGH IN STRI CT SENSE IT IS NOT SETTING ASIDE OF THE ISSUE, YET IN ALL FAIRNESS, THE MATTER CAN BE RESTORED BACK ON THE FILE OF THE LD. CIT(A) FOR RECONSIDERATION OF THE ISSUE. 3. WE HAVE HEARD BOTH THE SIDES, CONSIDERED THE MATERIAL ON RECORD AND FIND THAT THE LD. CIT(A) HAS GIVEN DIRECTION WHILE ALLOWING THE APPEAL AS UNDER: .. IN VIEW OF THE ABOVE, I AGREE W ITH THE SUBMISSIONS OF THE APPELLANT AND DIRECT THE AO TO EXAMINE THE CLAIM OF DEDUCTION U/S 80(P)(2)(A)(I) OF THE APPELLANT ON MERITS. THESE GROUNDS OF APPEAL ARE ALLOWED. 4. SINCE THE POWER TO SET ASIDE ANY PROCEEDING TO THE ASSESSING OFFICER IS NOT VESTED WITH THE LD. CIT(A) IN VIEW OF THE AMENDMENT VIDE FINANCE ACT, 2001 W.E.F. 01.06.2001, THEREFORE, T HE ORDER OF THE LD. CI T(A) PASSED IN THIS REGARD IS HELD TO BE NOT PROPER AND JUSTIFIED. AS SUCH, WHILE ACCEPTING THE APPEAL OF THE DEPARTMENT, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER ON T HE FILE OF THE LD. CIT(A) WITH THE DIRECTION TO DECIDE THE APPEAL AFRESH AFTE R GIVING OPPORTUNITY TO THE ASSESSEE AS WELL AS TO THE ASSESSING OFFICE R. WE HOLD AND DIRECT ACCORDINGLY. 5. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS ALLOW ED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED SOON AFTER THE C ONCLUSION OF HEARING ON 26.04.2011. SD/- SD/- (N.S. SAINI) ACCOUNTANT MEMBER (U.B.S. BEDI) JUDICIAL MEMBER CHENNAI, DATED, THE. 26.04.2011 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.