Income Tax Officer, Ward -5, Margao V. M/s The Goa Shipyard Employees Co-op. Credit Society Ltd., Goa

ITA 218/PAN/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84731 (ITAT-PANAJI)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 26-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NISHANT K LD
• Assessee Lawyers: ELSON SEQUEIRA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P.K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 218/PNJ/2014 : (ASST. YEAR : 2010 - 11) INCOME TAX OFFICER, WARD - 5, MARGAO, GOA (APPELLANT) VS. M/S. THE GOA SHIPYARD EMPLOYEES CO - OPERATIVE CREDIT SOCIETY LTD., VADDEM, VASCO - DA - GAMA, GOA 403 802 (RESPONDENT) PAN : AAAAT9557G ASSESSEE BY : ELSON SEQUEIRA , CA REVENUE BY : NISHANT K., LD. DR DATE OF HEARING : 01/10/2014 DATE OF PRONOUNCEMENT : 01/10/2014 O R D E R PER P.K. BANSAL 1. THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DT. 5.3.2014 BY TAKING THE FOLLOWING EFFECTIVE GROUNDS O F APPEAL : 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OPPOSED TO LAW AND FACT OF THE CASE. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE AMOUNTING TO RS.41,33,170/ - IN RESPECT OF DISALLOWANCES OF DEDUCTION MADE BY THE ASSESSING OFFICER U/S 80P(2)(A)(I) OF THE IT ACT. 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATES TO THE CLAIM OF DEDUCTION U/S 80P(2)(A)(I) . 3. AFTER HEARING THE RIVAL SUBMISSION WE NOTED THAT THE AO HAS DISALLOWED THE CLAIM OF THE ASSESSEE U/S 80P(2)(A)(I) BY OBSERVING AS UNDER : 2 ITA NO. 218/PNJ/2014 (ASST. YEAR : 2010 - 11) 1. IT WAS NOTICED THAT ASSESSEE IS NOT ENTITLED FOR THE CLAIMED DEDUCTION U/S 80P(2)(A)(I) IN VIEW OF LATEST AMENDME NT IN THE SECTION 80P(4) W.E.F. 01/04/2007. THE ASSESSEE IS A CO - OPERATIVE SOCIETY REGISTERED UNDER THE MAHARASHTRA CO - OPERATIVE SOCIETIES ACT 1960. DURING THE COURSE OF HEARING, IT WAS CLAIMED ON BEHALF OF THE SOCIETY THAT THE MAIN OBJECT OF THE SOCIETY WAS TO PROVIDE FINANCIAL ASSISTANCE TO THE MEMBERS, WHO ARE EMPLOYEES OF THE GOA SHIPYARD LTD ONLY. 2. HOWEVER, THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80P(2)(A)(I) IS HEREBY REJECTED. 4. WHEN THE MATTER WENT BEFORE CIT(A), CIT(A) FOLLOWI NG OUR DECISION IN THE CASE OF DCIT, CENTRAL CIRCLE VS JAYALAXMI MAHILA VIVIDODESHGALA, REPORTED IN (2012) 137 ITD 163 (PANAJI) ALLOWED THE DEDUCTION TO THE ASSESSEE U/S 80P(2)(A)(I) BY OBSERVING AS UNDER : 7. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSION OF THE APPELLANT. THE A.O. DISALLOWED THE CLAIM OF THE APPELLANT TREATING IT AT PAR WITH BANKS AND DECIDED THAT PROVISIONS, AS AMENDED, OF SECTION 80P(4) ARE APPLICABLE ON THE APPELLANT. ON THE OTHER HAND, THE APPELLANT EXPLAINED AS UNDER : I) THE APPELLANT IS A CO - OPERATIVE SOCIETY AND NOT A CO - OPERATIVE BANK. II) THE APPELLANT IS REGISTERED WITH THE REGISTRAR OF GOA CO - OPERATIVE SOCIETIES AND ARE GOVERNED BY GOA CO - OPERATIVE SOCIETIES ACT. III) THE APPELLANT CO - OPERATIVE SOCIETY DOES NOT AND CAN NOT ISSUE CHEQUES AND DRAFTS LIKE BANKS. IV) THE APPELLANT OPERATES THROUGH ITS ACCOUNT IN GOA STATE CO - OPERATIVE BANK. V) THE APPELLANT DOES NOT ACCEPT DEPOSITS FROM ANYONE EXCEPT ITS OWN MEMBERS. VI) THE APPELLANT DOES NOT GIVE LOANS TO ANYONE EXCEPT ITS OWN MEMBERS. IN VIEW OF THE ABOVE FACTS, I HAVE NO DOUBTS THAT THE APPELLANT IS NOT A CO - OPERATIVE BANK AND PROVISIONS OF S. 80P(4) SHALL NOT BE APPLICABLE ON THE APPELLANT SOCIETY. THE PRINCIPLE OF MUTUALITY AP PLIES ON THE CASE AND THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80P(2)(A)(I). THE APPELLANT HAS ALSO PLACED RELIANCE ON THE DECISION OF JURISDICTIONAL ITAT, AT PANAJI IN THE CASE OF DCIT, CENTRAL CIRCLE VS JAYALAXMI MAHILA VIVIDODESHGALA, REPORTED IN (20 12) 137 ITD 163 (PANAJI). THIS CASE SQUARELY COVERS THE INSTANT CASE. IN VIEW OF ABOVE FACTS, THE A.O IS DIRECTED TO ALLOW THE CLAIM OF DEDUCTION OF THE APPELLANT MADE U/S 80P(2)(A)(I) AMOUNTING TO RS.41,33,170/ - . 5. FROM THE ORDER OF THE AO IT IS APPA RENT THAT THE AO HAS NOT POINTED OUT ANY REASON WHY THE CLAIM OF DEDUCTION CLAIMED BY THE ASSESSEE U/S 80P(2)(A)(I) 3 ITA NO. 218/PNJ/2014 (ASST. YEAR : 2010 - 11) HAS BEEN REJECTED. ONCE THE ASSESSEE HAS CLAIMED A DEDUCTION, THE ONUS IS ON THE AO TO GIVE THE REASONS WHY THE ASSESSEE DID NOT COMPLY WIT H THE PROVISIONS OF SEC. 80P(2)(A)(I) . IN OUR OPINION, MERELY OBSERVING HOWEVER, THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80P(2)(A)(I) IS HEREBY REJECTED. PROVES THAT THE AO WHILE PASSING THE ORDER HAS NOT DISCHARGED HIS DUTIES AS A QUASI - J UDICIAL OFFICER. THE AO IS A QUASI - JUDICIAL OFFICER AND HE HAS TO WORK UNDER THE INCOME TAX ACT UNDER WHICH HE HAS CERTAIN DUTIES, AS THE ASSESSEE HAS. REJECTING THE CLAIM OF THE ASSESSEE IN SUCH A MANNER IS AGAINST THE BASIC PRINCIPLES OF LAW AND NATURA L JUSTICE. IN THE ABSENCE OF ANY REASON GIVEN BY THE AO FOR REJECTING THE CLAIM OF DEDUCTION CLAIMED BY THE ASSESSEE U/S 80P(2)(A)(I) WE DO NOT HAVE ANY OTHER ALTERNATIVE EXCEPT TO DISMISS THE APPEAL OF THE REVENUE. HOWEVER, WE MAY OBSERVE THAT THE DEPAR TMENT SHOULD TAKE PROPER CARE THAT THE OFFICER WHO PASSES THE ORDER WHEREVER THEY WANT TO REJECT THE CLAIM OF THE ASSESSEE SHOULD DO SO BY GIVING PROPER REASONS. THE AO IS NOT SUPREME UNDER THE INCOME TAX ACT. CIT SHOULD ALSO BEFORE GIVING PERMISSION FOR FILING APPEAL APPLY HIS MIND. IN OUR OPINION, I T IS A FIT CASE WHERE COSTS COULD HAVE BEEN AWARDED TO THE ASSESSEE BUT SINCE THE ASSESSEE DID NOT DEMAND OR PRESS FOR THE SAME, WE ARE NOT AWARDING ANY COSTS IN FAVOUR OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. 7. ORDER PRONOUNCED IN THE OPEN COURT ON 01/10/2014. S D / - (D.T.GARASIA) JUDICIAL MEMBER S D / - (P.K. BANSAL) ACCOUNTANT MEMBER PLACE : PANAJI / GOA DATED : 0 1 /10/ 201 4 *SSL* 4 ITA NO. 218/PNJ/2014 (ASST. YEAR : 2010 - 11) COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT CONCERNED (4) CIT(A) (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER