Ahmednagar District Central Co-op Bank Ltd, Ahmednagar V. Deputy Commissioner of Income-tax, Ahmednagar Circle , Ahmednagar

ITA 2191/PUN/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3947 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-10-2021
• Assessment Year: 2012-2013
• Appeal Filed On: 18-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO.2191/PUN/2017 / ASSESSMENT YEAR: 2012-13 AHMEDNAGAR DISTRICT CENTRAL COOP. BANK LTD., MS. SHANTILAL GANDHI, 146, AMBER PLAZA, STATION ROAD, AHMEDNAGAR PAN : AAAAA1281G VS. DCIT, AHMEDNAGAR CIRCLE, AHMEDNAGAR APPELLANT RESPONDENT / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DA TED 15-05-2017 PASSED BY THE COMMISSIONER OF INCOME-TAX (AP PEALS)- 2, PUNE IN RELATION TO THE ASSESSMENT YEAR 2012-13. 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST NOT ALLO WING CLAM OF DEPRECIATION ON GOVERNMENT SECURITIES AT RS.60,00,000 /- WHICH WAS NOT RAISED AT THE TIME OF FILING INCOME-TAX RETURN. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSE E IS A COOPERATIVE SOCIETY. THE RETURN WAS FILED DECLARING TOTAL INCOME OF ASSESSEE BY SHRI C.H. NANIWADEKAR REVENUE BY SHRI A.M. MAHADEVAN KRISHNAN DATE OF HEARING 07-10-2021 DATE OF PRONOUNCEMENT 08-10-2021 ITA NO.2191/PUN/2017 AHMEDNAGAR DIST. CENTRAL CO.OP BANK LTD., 2 RS.30.91 CRORE. THE ASSESSMENT WAS COMPLETED AT RS.31 .00 CRORE. IN THE FIRST APPEAL, THE ASSESSEE TOOK A PLEA THAT IT OUGHT TO HAVE BEEN ALLOWED DEPRECIATION ON GOVERNMENT SECURITIES AT RS.60.0 0 LAKHS. THE LD. CIT(A) REJECTED THE ASSESSEES CLAIM ON THE GROUND THAT THIS ISSUE DID NOT AROSE FROM THE ORDER OF THE AO. FOR DOING SO, HE RELIED ON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF GOETZ (INDIA) LTD. VS. CIT (2006) 284 ITR 323 (SC). 4. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE RELE VANT MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT THE ASSESSE E DID NOT TAKE UP A PLEA OF DEPRECIATION ON GOVERNMENT SECURITIES A T RS.60.00 LAKHS BEFORE THE AO AND THE SAME ALSO DID NOT FO RM PART OF ITS INCOME-TAX RETURN. SIMPLY BECAUSE A CLAIM WHICH IS OTHERWISE VALID BUT NOT TAKEN UP IN THE RETURN OF INCOME, CANN OT BE NEGATIVED SIMPLY ON THE SCORE THAT IT WAS NOT EARLIER. BE THA T AS IT MAY, EVEN THOUGH THE JUDGMENT IN GOETZE (SUPRA) PROVIDES THAT THE AO HAS NO POWER TO ENTERTAIN CLAIM MADE OTHERWISE THAN BY WAY OF A REVISED RETURN, IT CATEGORICALLY PROVIDES: `THAT THE ISSUE IN THIS CASE IS LIMITED TO THE POWER OF THE ASSESSING AUTHORITY AND D OES NOT IMPINGE ON THE POWER OF THE TRIBUNAL UNDER S. 254 OF THE IT ACT, 1961. THUS IT IS EVIDENT, THAT THERE IS NO SUCH CONSTRAINT O N THE ITA NO.2191/PUN/2017 AHMEDNAGAR DIST. CENTRAL CO.OP BANK LTD., 3 POWER OF THE TRIBUNAL AND IT CAN GRANT RIGHTFUL RELIEF ON A PO INT FOR WHICH NO CLAIM WAS MADE IN THE RETURN OF INCOME. IN VIEW OF THE FACT THAT THE CLAIM OF THE ASSESSEE IN THIS REGARD HAS NOT BE EN EXAMINED BY THE AUTHORITIES BELOW, WE CONSIDER IT FIT TO SET-AS IDE THE IMPUGNED ORDER AND REMIT THE MATTER TO THE FILE OF THE AO FOR EXAMINING THE ASSESSEES CLAIM ON MERITS AS PER LAW. IF TH E CLAIM IS FOUND TO BE SUSTAINABLE, THEN THE SAME SHOULD BE ALLOWED NOTWITHSTANDING THE FACT THAT IT WAS NOT MADE IN THE INCOME-TAX RETURN. NEEDLESS TO SAY, THE ASSESSEE WILL BE ALLOWED A REA SONABLE OPPORTUNITY OF HEARING. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 08 TH OCTOBER, 2021. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VICE P RESIDENT PUNE; DATED : 08 TH OCTOBER , 2021 SATISH ITA NO.2191/PUN/2017 AHMEDNAGAR DIST. CENTRAL CO.OP BANK LTD., 4 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-2, PUNE 4. 5. THE PCIT-2, PUNE , , A / DR A, ITAT, PUNE 6. / GUARD FILE / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 07-10-2021 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 08-10-2021 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *