M/s Yelburga Taluk Government Primary Teachers Credit Co-operative Society , Koppal V. Income Tax Officer Ward-1 , Koppal

ITA 2468/BANG/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3965 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Appeal Filed On: 30-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H.L. SOUMYA ACHAR
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3); 201; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BANGALORE BENCH C BEFORE S HRI JASON P BOAZ , ACCOUNTANT MEMBER I.T . A. NO. 2468/BANG/2018 (ASSESSMENT YEAR : 20 15 - 16 ) M/S. YELBURGA TALUK GOVERNMENT PRIMARY TEACHERS CREDIT CO - OPERATIVE SOCIETY, YELBU RGA . . APPELLANT. VS. INCOME TAX OFFICER, WARD 1,KOPPALA. .. RESPONDENT. AP PELLANT BY : SHRI R.E. BALASUBRAMANIYAN, C.A R E SPONDENT BY : SMT. H.L. SOUMYA ACHAR, ADDL.CIT (D.R) DATE OF H EARING : 20.09.2018. DATE OF P RONOUNCEMENT : 05 .10 .201 8 . O R D E R PER SHRI JASON P BOAZ, A .M . : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE EX - PARTE ORDER OF THE CIT(APPEALS), GULBARGA DT.22.6.2018 FOR ASSESSMENT YEAR 2015 - 16. 2. BRIEFLY STATED, THE FAC TS OF THE CASE, RELEVANT FOR DISPOSAL OF THIS APPEAL, ARE AS UNDER : - 2 IT A NO. 2468 /BANG/201 8 2.1 THE ASSESSEE, A CO - OPERATIVE SOCIETY, ENGAGED IN PROVIDING CREDIT FACILITIES TO ITS MEMBERS, FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2015 - 16 ON 24.9.2015 DECLARING NIL INCOME AFTER CLAIMING DEDUCTION OF RS.32,76,478 UNDER SECTION 80P(2) OF THE INCOME TAX ACT, 1961 ('THE ACT'). THE CASE WAS TAKEN UP FOR SCRUTINY AND THE ASSESSMENT WAS CONCLUDED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DT.29.11.2017, WHEREIN THE ASSESSE E'S INCOME WAS DETERMINED AT RS.9,47,120. THIS IS IN VIEW THE NON - GRANT OF DEDUCTION UNDER SECTION 80P(2 ) OF THE ACT, OF A SIMILAR AMOUNT, ON ACCOUNT OF INTEREST EARNED ON INVESTMENTS FROM DEPOSITS WITH SCHEDULED BANKS / CO - OPERATIVE BANKS, BY THE ASSESSI NG OFFICER BY RELYING ON THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF TOTGARS CO - OPERATIVE SALE SOCIETY IN ITA NO.100066/2016 DT.16.6.2017. 2.2 AGGRIEVED BY THE ORDER OF ASSESSMENT DT.29.11.2017 FOR ASSESSMENT YEAR 2015 - 16, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(APPEALS), GULBARGA, WHO DIS MISSED THE ASSESSEE'S APPEAL EX - PARTE FOR NON - PROSECUTION. 3 IT A NO. 2468 /BANG/201 8 3. THE ASSESSEE, BEING AGGRIEVED BY THE ORDER OF CIT(APPEALS), GULBARGA DT.22.6.2018 HAS FILED THIS APPEAL BEFORE THE TR IBUNAL; WHEREIN IT HAS RAISED THE FOLLOWING GROUNDS : - 4 IT A NO. 2468 /BANG/201 8 4.1 AT THE OUTSET, I HAVE HEARD BOTH THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE AND THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR REVENUE ON THE ISSUE OF THE SUSTAINABILITY OF THE IMPUGNED EX - PARTE ORDER OF THE LEARNED CIT(APPEALS) DT.22.6.2018 FOR ASSESSMENT YEAR 2015 - 16 WHICH WAS DISMISSED FOR NON - PROSECUTION. THIS ISSUE WAS RAISED AND AGITATED BY THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE IN TERMS OF GROUND NO.1; I.E. THAT THE IMPUGNED ORDER WAS LEGALLY UNSUSTAINABLE IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE ASSESSEE AS IT WAS DECIDED WITHOUT HEARING THE ASSESSEE IN THE MATTER ON MERITS. ACCORDING TO THE LEARNED AUTHORISED REPRESENTATIVE, A PERUSAL OF PARAS 2 & 3 OF THE IMPUGNED ORDER WOULD SHOW THAT WHILE THE ASSESSEE'S APPEAL WAS FILED ON 24.4.2018, TWO HEARINGS WERE FIXED ON 5 IT A NO. 2468 /BANG/201 8 12.6.2018 AND 21.6.2018 AND DUE TO NON - APPEARANCE BY THE ASSESSEE, THE APPEAL WA S DISMISSED EX - PARTE ON THE VERY NEXT DAY, 2 2.6.2018. ALL THESE EVENTS TOOK PLACE WITH IN A PERIOD OF 9 DAYS. IT WAS PRAYED THAT IN THE CIRCUMSTANCES, AS MENTIONED ABOVE, THE IMPUGNED ORDER OF THE LEARNED CIT(APPEALS) BE SET ASIDE AND THE MATTER RESTORED TO HIS FILE TO HEAR AND DISPOSE OFF THE AS SESSEE'S APPEAL ON MERITS OF ITS CLAIM FOR DEDUCTION UNDER SECTION 80P(2) OF THE ACT. THE LEARNED DEPARTMENTAL REPRESENTATIVE WAS ALSO HEARD IN THE MATTER AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4.2.1 I HAVE GIVEN CAREFUL CONSIDERATION TO THE SUBMISSIONS PUT FORTH BY BOTH PARTIES AND PERUSED THE IMPUGNED ORDER OF THE LEARNED CIT(APPEALS) AS WELL AS THE OTHER MATERIAL ON RECORD. THE LEARNED CIT(APPEALS) DISMISSED THE ASSESSEE'S APPEAL FOR NON - PROSECUTION FOLLOWING THE DECISION OF THE ITAT, DELHI BENCH IN THE CASE OF MULTIPLAN INDIA LTD. (38 ITD 320) (DEL). IN THIS REGARD, IT IS RELEVANT THAT PARAS 2 & 3 OF THE IMPUGNED ORDER OF THE LEARNED CIT(APPEALS) IS EXTRACTED HEREUNDER : - 6 IT A NO. 2468 /BANG/201 8 4.2.2 FROM A PERUSAL OF PARAS 2 & 3 OF THE IMPUGNED O RDER EXTRACTED (SUPRA), IT IS EVIDENT THAT THE ASSESSEE FILED ITS APPEAL BEFORE THE LEARNED CIT(APPEALS) ON 20.4.2018; THE HEARINGS WERE FIXED ON 12.6.2018 AND 7 IT A NO. 2468 /BANG/201 8 21.6.2018 AND THE IMPUGNED EX - PARTE ORDER WAS PASSED ON 22.6.2018. THE TWO HEARINGS AFFORDED BY CIT(APPEALS) TO THE ASSESSEE AND THE PASSING OF THE IMPUGNED EX - PARTE ORDER WERE ALL WITHIN A PERIOD OF 10 DAYS AND APPEAR TO HAVE BEEN PASSED IN GREAT HASTE. BE THAT AS IT MAY, THE IMPUGNED ORDER DISMISSING THE ASSESSEE'S APPEAL FOR ASSESSMENT YEAR 201 5 - 16 HAS BEEN PASSED EX - PARTE, FOR NON - PROSECUTION, WITHOUT THE BENEFIT OF THE ASSESSEE'S SUBMISSIONS IN SUPPORT OF GROUNDS RAISED BY IT BEFORE THE LEARNED CIT(APPEALS). THIS FACT ITSELF IS ACKNOWLEDGED BY THE LEARNED CIT(APPEALS) AT PARA 4 OF HIS ORDER W HEN HE OBSERVES THAT THE MATERIAL ON RECORD IS NOT SUFFICIENT TO ALLOW ANY RELIEF TO THE APPELLANT . IN THESE FACTUAL CIRCUMSTANCES OF THE CASE ON HAND, AS MENTIONED ABOVE, I AM OF THE CONSIDERED OPINION THAT THE INTERESTS OF SUBSTANTIAL JUSTICE WOULD BE SERVED IF THE EX - PARTE ORDER OF THE LEARNED CIT (APPEALS) FOR ASSESSMENT YEAR 2015 - 16, ORDERING DISMISSAL OF THE ASSESSEE'S APPEAL FOR NON - PROSECUTION BE SET ASIDE. I ACCORDINGLY SET ASIDE THE IMPUGNED EX - PARTE ORDER OF THE CIT(APPEALS) DT.22.6.2018 F OR ASSESSMENT YEAR 2015 - 16 IN THE CASE ON HAND AND RESTORE THE SAME TO HIS FILE FOR ADJUDICATION OF THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE APPEAL BEFORE HIM ON 8 IT A NO. 2468 /BANG/201 8 MERITS, AFTER AFFORDING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD AND TO FIL E DETAILS /SUBMISSIONS REQUIRED IN SUPPORT OF THE GROUNDS RAISED WHICH SHALL BE DULY CONSIDERED BY THE CIT (APPEALS) BEFORE DECIDING THE ISSUES RAISED. THE ASSESSEE IS ALSO REQUESTED TO CO - OPERATE WITH THE DEPARTMENT BY ATTENDING THE HEARINGS FIXED AND F ILING DETAILS CALLED FOR, FAILING WHICH THE LEARNED CIT(APPEALS) MAY TAKE AN ADVERSE VIEW IN ACCORDANCE WITH LAW. IT IS ACCORDINGLY ORDERED. 5. IN THE RESULT, THE ASSESSEE'S APPEAL FOR ASSESSMENT YEAR 2015 - 16 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 5 TH DAY OF OCT., 201 8 . S D/ - ( JASON P BOAZ ) ACCOUNTANT MEMBER BANGALORE, DT. 05 .10.2018. *REDDY GP 9 IT A NO. 2468 /BANG/201 8 COPY TO : 1 APPELLANT 4 CIT(A) 2 RESPONDENT 5 DR. ITAT, BANGALORE 3 CIT 6 GUARD FILE CERTIFIED TRUE COPY A SST. REGISTRAR INCOME TAX APPELLATE TRIBUNAL BANGALORE.