NDDB Employees Credit & Consumer Co.Op.So.Ltd., Anand V. The Income tax Officer,Ward-4, Anand

ITA 2186/AHD/2011

• Counselvise Citation: 218620514 RSA 2011
• Duration Of Justice: 2 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-09-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 02-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Keywords: Revised return
• Section: 139(5)

Judgement Text

, , , , , , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD .., BEFORE SHRI B.P.JAIN, ACCOUNTANT MEMBER !./ I.T.A.NO.2186/AHD/2011 ( # $%# # $%# # $%# # $%# / / / / ASSESSMENT YEAR : 2007-08) NDDB EMPLOYEES CREDIT & CONSUMER CO- OP.SOCIETY LTD. JAGNATH ROAD ANAND 388 001 / VS. THE INCOME TAX OFFICER WARD-4 ANAND & !./' !./ PAN/GIR NO. : AAAAN 2883 R ( &( / // / APPELLANT ) .. ( )*&( / RESPONDENT ) &( + / APPELLANT BY : MS.ARTI SHAH, A.R. )*&( , + / RESPONDENT BY : SHRI B.L. YADAV, SR.D.R. -$. , /0 / / / / DATE OF HEARING : 19/09/2013 12% , /0 / DATE OF PRONOUNCEMENT : 19/09/2013 3 / O R D E R THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE LD.CIT(APPEALS)-IV, BARODA DATED 01/07/2011 FOR THE ASSTT.YEAR 2007- 08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV , BARODA HAS ERRED IN LAW AND ON FACTS OF THE CASE BY CONFIRMING THE DISALLOWANCE OF CLAIM OF RS.1,83,742 /- FOR DEDUCTION U/S.80P(2)(A)(I) OF THE INCOME TAX ACT, 1 961 MADE BY THE ASSESSING OFFICER. 2. YOUR APPELLANT RESERVES THE RIGHT TO ADD, ALTER, AM END AND/OR WITHDRAW ANY OF THE ABOVE GROUNDS OF APPEAL. ITA NO.2186/AHD /2011 NDDB EMPLOYEE CREDIT & CONSUMER CO-OP.SOCIETY LTD. VS. ITO ASST.YEAR 2007-08 - 2 - 2. THE BRIEF FACTS OF THE CASE AS ARISING FROM THE ORDER OF AO ARE THAT THE ASSESSEE IS A CO-OPERATIVE CREDIT SOCIETY AND F ILED ITS RETURN OF INCOME DECLARING TOTAL INCOME AT RS.1,13,020/-. T HE RETURN WAS PROCESSED U/S.143(1) TAKING THE INCOME AT RS.NIL WH ICH RESULTED INTO REFUND OF RS.60,950/- AND REFUND OF RS.60,950/- WAS GRANTED TO THE ASSESSEE ON 02/04/2008 INSTEAD OF CORRECT REFUND OF RS.27,160/- CLAIMED IN COMPUTATION OF INCOME FILED WITH ORIGINAL RETURN . THE CASE WAS PICKED UP FOR SCRUTINY ASSESSMENT AS PER BOARDS GUIDELINE S AND NOTICES WERE SENT TO THE ASSESSEE ALONG WITH QUESTIONNAIRE. DUR ING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, IT WAS SUBMITTED B Y THE LD.AR OF THE ASSESSEE THAT THE ASSESSEE IS A CO-OPERATIVE CREDIT SOCIETY DOING BUSINESS OF PROVIDING CREDIT FACILITY TO ITS MEMBERS AND IS ALSO ENGAGED IN THE ACTIVITIES OF CONSUMER CO-OPERATIVE SOCIETY BY DOIN G PURCHASE AND SALE OF CONSUMABLE ITEMS. ON VERIFICATION OF THE COMPUTATI ON OF INCOME FILED WITH THE ORIGINAL RETURN AND ALSO THE COMPUTATION O F INCOME FILED ALONG WITH THE SUBMISSIONS IN RESPONSE TO NOTICE U/S.143( 2) & 142(1), IT WAS NOTICED BY THE A.O. THAT IN THE ORIGINAL RETURN, TH E APPELLANT HAD SHOWN TOTAL INCOME AT RS.1,13,020/-, WHEREAS IN THE COMPU TATION AS FILED LATER ON DURING THE COURSE OF ASSESSMENT PROCEEDINGS BY T HE ASSESSEE, THE TOTAL INCOME WAS SHOWN AT RS.NIL. THE ASSESSEE HAD CLAIM ED DEDUCTION OF RS.29,281/- UNDER SEC.80P(2)(C) & RS.1,83,742/- U/S .80P(2)(A)(I) OF THE IT ACT IN SUCH REVISED COMPUTATION OF INCOME AND TH US HAD CLAIMED FURTHER REFUND OF RS.59,890/-. THE AR OF THE ASSES SEE COULD NOT THROW ANY LIGHT AS HE WAS NOT SURE ABOUT HAVING FILED THE REVISED RETURN FOR THE YEAR UNDER CONSIDERATION. THE AO WAS OF THE VIEW T HAT DEDUCTIONS CLAIMED BY THE ASSESSEE UNDER ABOVE SECTIONS THROUG H REVISED ITA NO.2186/AHD /2011 NDDB EMPLOYEE CREDIT & CONSUMER CO-OP.SOCIETY LTD. VS. ITO ASST.YEAR 2007-08 - 3 - COMPUTATION OF INCOME IS NOT ALLOWABLE UNLESS AND U NTIL SUCH CLAIM IS MADE THROUGH FILING OF REVISED RETURN OF INCOME AS PER PROVISIONS OF SECTION 139(5) OF THE ACT. THE AO IN THE ASSESSMEN T ORDER HAS REFERRED TO THE PROVISIONS OF SECTION 139(5) WHICH CLEARLY S TATE THAT IF ANY PERSOPN, HAVING FURNISHED A RETURN UNDER SUB-SECTIO N (1) OF SECTION OR IN PURSUANCE OF A NOTICE ISSUED UNDER SUB-SECTION(1) O F SEC.142, DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT THEREIN, HE MAY FURNISH A REVISED RETURN AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FR OM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION O F THE ASSESSMENT, WHICHEVER IS EARLIER. IN THE ASSESSEES CASE, NO STEP REGARDING FILING OF REVISED RETURN WITHIN THE PRESCRIBED TIME LIMIT AS PER SECTION 139(5) WAS TAKEN. INSTEAD THE ASSESSEE PLACED HIS RELIANCE ON THE DECISIONS OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. A HMEDABAD KAISER-I- HIND MILLS CO. LTD. [1981] 128 ITR 486 AND HONBLE SUPREME COURT IN THE CASE OF ELLERMAN LINERS LTD. VS CIT [1971] 82 I TR 913. THE AO HAS PASSED THE ORDER AND WHEREIN HE HAS CLARIFIED T HAT THE RELIANCE PLACED BY THE ASSESSEE IN THIS REGARD IS NOT AT ALL APPLIC ABLE IN ITS CASE AND, THEREFORE, THE SAME CANNOT BE TAKEN INTO CONSIDERA TION FOR ASSESSEES CLAIM OF DEDUCTION U/S.80P(2)(A). THE DEDUCTION CL AIMED U/S.80P(2)(A) IN THE REVISED COMPUTATION WAS REJECTED BY THE AO AS T HE TIME FOR FILING THE REVISED RETURN HAD ALREADY EXPIRED. AS REGARDS THE DEDUCTION OF RS.1 LAKH U/S.80P(2)(C)(I), THE AO RESTRICTED THE SAME TO THE PROFIT EARNED OF RS.29,281/-. THE LD.CIT(A) CONFIRMED THE ACTION OF THE AO. 3. THE LD.COUNSEL FOR THE ASSESSEE MS.ARTI SHAH, C. A. ARGUED THAT THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF GO ETZE (INDIA) LTD. VS. ITA NO.2186/AHD /2011 NDDB EMPLOYEE CREDIT & CONSUMER CO-OP.SOCIETY LTD. VS. ITO ASST.YEAR 2007-08 - 4 - CIT [2006] 284 ITR 323 (SC) :: [2006] 157 TAXMAN 01 WHICH THE LD.CIT(A) HAS RELIED UPON THAT THE ASSESSEE CANNOT AMEND A RETURN FILED BY HIM FOR MAKING A CLAIM FOR DEDUCTION OTHER THAN BY FILING A REVISED RETURN. THE LD.COUNSEL FOR THE ASSESSEE RELIED ON THE ORDER OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT (SUPRA), THAT THE RESTRICTION IS ON THE ASSESSING AUTHORITY TO TH AT DOES NOT IMPINGE THE POWER OF THE APPELLATE TRIBUNAL U/S.254 OF THE IT A CT. THEREFORE, THE TRIBUNAL HAS THE POWER TO ADMIT THE CLAIM OF THE AS SESSEE AND, ACCORDINGLY, THE MATTER MAY BE SENT TO THE FILE OF AO FOR EXAMINATION OF THE ISSUE. 3.1. ON THE OTHER HAND, LD.DR OF THE REVENUE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE FA CTS OF THE CASE. THE ISSUE BEFORE ME IS THAT THE ASSESSEE HAS NOT MADE A CLAIM IN THE ORIGINAL RETURN FILED BY IT. THE CLAIM WAS MADE THROUGH A R EVISED COMPUTATION OF INCOME WHICH WAS NOT ALLOWED BY THE AO AND THE LD.C IT(A) CONFIRMED THE ACTION OF THE AO. 5. NOW, THE ISSUE BEFORE ME IS THAT A CLAIM WHICH I S LEGALLY ALLOWABLE HAS NOT BEEN CLAIMED BY THE ASSESSEE IN THE ORIGIN AL RETURN OF INCOME BUT HAS BEEN CLAIMED IN THE REVISED COMPUTATION OF INCO ME WITHOUT FILING ANY REVISED RETURN, WHETHER SUCH CLAIM IS ALLOWABLE OR NOT. FOR THE SAKE OF READY REFERENCE, THE RELEVANT PORTION OF THE ORDE R OF HONBLE APEX ITA NO.2186/AHD /2011 NDDB EMPLOYEE CREDIT & CONSUMER CO-OP.SOCIETY LTD. VS. ITO ASST.YEAR 2007-08 - 5 - COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT(SU PRA) IS REPRODUCED HEREINBELOW:- 2. THE QUESTION RAISED IN THIS APPEAL RELATES TO WHETH ER THE APPELLANT-ASSESSEE COULD MAKE A CLAIM FOR DEDUCTION OTHER THAN BY FILING A REVISED RETURN. THE ASSESSMENT YEAR IN QUE STION WAS 1995- 96. THE RETURN WAS FILED ON 30TH NOV., 1995, BY THE APPELLANT FOR THE ASSESSMENT YEAR IN QUESTION. ON 12TH JAN., 1998 , THE APPELLANT SOUGHT TO CLAIM A DEDUCTION BY WAY OF A LETTER BEFO RE THE AO. THE DEDUCTION WAS DISALLOWED BY THE AO ON THE GROUND TH AT THERE WAS NO PROVISION UNDER THE IT ACT TO MAKE AMENDMENT IN THE RETURN OF INCOME BY MODIFYING AN APPLICATION AT THE ASSESSMEN T STAGE WITHOUT REVISING THE RETURN. 3. THIS APPELLANTS APPEAL BEFORE THE CIT(A) WAS ALLOW ED. HOWEVER, THE ORDER OF THE FURTHER APPEAL OF THE DEP ARTMENT BEFORE THE TRIBUNAL WAS ALLOWED. THE APPELLANT HAS APPROAC HED THIS COURT AND HAS SUBMITTED THAT THE TRIBUNAL WAS WRONG IN UPHOLDING THE AOS ORDER. HE HAS RELIED UPON THE DECISION OF THIS COURT IN NATIONAL THERMAL POWER CO. LTD. VS. CIT (1999) 157 CTR (SC) 249 : (1998) 229 ITR 383 (SC), TO CONTEND THAT IT W AS OPEN TO THE ASSESSEE TO RAISE THE POINTS OF LAW EVEN BEFORE THE TRIBUNAL. 4. THE DECISION IN QUESTION IS THAT THE POWER OF THE T RIBUNAL UNDER S. 254 OF THE IT ACT, 1961, IS TO ENTERTAIN FOR THE FIRST TIME A POINT OF LAW PROVIDED THE FACT ON THE BASIS OF WHICH THE ISSUE OF LAW CAN BE RAISED BEFORE THE TRIBUNAL. THE DECISION DOES NO T IN ANY WAY RELATE TO THE POWER OF THE AO TO ENTERTAIN A CLAIM FOR DEDUCTION OTHERWISE THAN BY FILING A REVISED RETURN. IN THE C IRCUMSTANCES OF THE CASE, WE DISMISS THE CIVIL APPEAL. HOWEVER, WE MAKE IT CLEAR THAT THE ISSUE IN THIS CASE IS LIMITED TO THE POWER OF THE ASSESSING AUTHORITY AND DOES NOT IMPINGE ON THE POWER OF THE TRIBUNAL UNDER S. 254 OF THE IT ACT, 1961. THERE SHALL BE NO ORDER AS TO COSTS. THEREFORE, THE RESTRICTION IS ON THE ASSESSING AUT HORITY AND NOT ON THE APPELLATE TRIBUNAL U/S.254 OF THE ACT AND, ACCO RDINGLY, AS PER ITA NO.2186/AHD /2011 NDDB EMPLOYEE CREDIT & CONSUMER CO-OP.SOCIETY LTD. VS. ITO ASST.YEAR 2007-08 - 6 - DECISION OF HONBLE APEX COURT RENDERED IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT(SUPRA), THE CLAIM OF THE ASSESSEE IS A LLOWABLE, BUT THE GENUINENESS OF THE SAME HAS NOT BEEN EXAMINED BY TH E ASSESSING AUTHORITY, THEREFORE LOOKING TO THE FACTS AND CIRCU MSTANCES OF THE CASE, I SET ASIDE THE MATTER TO THE FILE OF AO WHO WILL EXA MINE THE GENUINENESS OF THE CLAIM OF THE ASSESSEE ON MERITS AND DECIDE T HE ISSUE ACCORDINGLY. THUS, THE SOLITARY GROUND RAISED BY THE ASSESSEE IS ALLOWED BUT FOR STATISTICAL PURPOSES. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FO R STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE SD/- ( .. ) ( B.P. JAIN ) ACCOUNTANT MEMBER AHMEDABAD; DATED 19 / 09 /2013 60.., $.../ T.C. NAIR, SR. PS 3 , )/7 87%/ 3 , )/7 87%/ 3 , )/7 87%/ 3 , )/7 87%// COPY OF THE ORDER FORWARDED TO : 1. &( / THE APPELLANT 2. )*&( / THE RESPONDENT. 3. !! / -9 / CONCERNED CIT 4. -9() / THE CIT(A)-IV, BARODA 5. 7$:; )/ , , / DR, ITAT, AHMEDABAD 6. ;<# =. / GUARD FILE. 3- 3- 3- 3- / BY ORDER, *7/ )/ //TRUE COPY// > >> >/ // / ! ! ! ! ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD