The Bhildi Nagrik Sarafi Sahakari Mandli Ltd., Banaskantha V. The ACIT.,BK Circle, Palanpur

ITA 2638/AHD/2012

• Counselvise Citation: 263820514 RSA 2012
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-04-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 23-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMIT KUMAR
• Assessee Lawyers: S N DIVETIA
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.2638-2639/AHD/2012 ASSESSMENT YEARS :2008-09 & 2009-10 THE BHILDI NAGARIK SARAFI SAHAKARI MANDLI LTD., AT & P.O. BHILDI, TAL. DEESA DIST. BANASKANTHA 385535 [ PAN NO. AAAAT 1126 H ] V/S . ASST. COMMISSIONER OF INCOME TAX, B.K. CIRCLE, PALANPU8R 385001 / APPELLANT .. / RESPONDENT) /BY ASSESSEE SHRI S.N.DIVETIA, AR /BY RESPONDENT SHRI SUMIT KUMAR, DR /DATE OF HEARING 18-04-2013 ! /DATE OF PRONOUNCEMENT 26-04-2013 ' ' ' ' / // / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THESE TWO APPEALS BY THE ASSESSEE PERTAINING TO AS SESSMENT YEAR (AY) 2008-09 AND 2009-10 ARE DIRECTED AGAINST THE DIFFER ENT ORDERS OF COMMISSIONER OF INCOME-TAX (APPEALS)-XX, AHMEDABAD (CIT(A) FOR SHORT) OF EVEN DATED I.E., 21-09-2012. ALL THESE ARE HEARD TO GETHER AND ARE BEING DISPOSED OF BY WAY OF COMMON ORDER FOR THE SAKE OF CONVENIENCE. THE GROUNDS RAISED BY ASSESSEE IN BOTH APPEALS ARE IDENTICAL AND HENCE, WE REPRODUCE OF GROUNDS OF APPEAL FROM THE APPEAL FILE D BY ASSESSEE FOR AY 2008-09. THE GROUNDS RAISED BY ASSESSEE ARE AS UNDE R:- [1] THE DIRECTION GIVEN TO THE LD. AO BY THE LD. C IT(A) ON PARA 25 OF THE APPELLATE ORDER IN RESPECT OF THE PROPOSED ADDI TION OF THE INTEREST ITA NO.2638-39/AHD/2012 A.YS. 08-09 & 09-10 THE BHILDI NAGARIK SARAFI SAHAKARI MANDLI LTD. V. ACIT PLP PAGE 2 UNDER THE HEAD INCOME FROM OTHER SOURCES IS ILLEG AL, UNLAWFUL AND HENCE BAD IN LAW. [2] THE LD. CIT(A) HAS GROSSLY EXCEEDED THE JURISDI CTION IN GIVING THE DIRECTION TO THE LD. AO FOR VERIFYING ANY INTEREST RECEIVED BY THE APPELLANT ON SHORT TERM DEPOSIT AND GOVERNMENT SECU RITIES AND ASSESS SUCH INTEREST UNDER THE HEAD INCOME FROM OTHER SOU RCES WITHOUT GIVING ANY OPPORTUNITY TO THE APPELLANT FOR DEFEND HIS CASE. [3] THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN RELYING ON THE DIRECTION OF THE HON. SUPREME COURT IN THE CASE OF TOTGARS CO.OP. SA LES SOCIETY LTD., WHICH IS NOT RELEVANT IN THE CASE OF THE APPELLANT. 2. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS A CO-O PERATIVE SOCIETY AND IS CARRYING ON THE BUSINESS OF GIVING CREDIT FACILITY TO ITS MEMBERS BUT NOT DOING THE BANKING BUSINESS. THE ASSESSMENT U/S. 143(3) R. W.S. 148 OF THE INCOME- TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) WAS FRAMED THEREBY THE DEDUCTION U/S. 80P(2)(I) AND 80P(2)(D) OF THE ACT W AS DISALLOWED. THE ASSESSEE FILED APPEAL AGAINST THE DISALLOWANCES BEF ORE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS PARTLY ALLOWED THE PENA LTY. 3. LD. AR OF THE ASSESSEE SUBMITTED THAT LD. CIT(A) FAILED TO GIVE OPPORTUNITY TO DEFEND. HE SUBMITTED THAT UNDER THE IDENTICAL FACTS IN ITA NO.1491/AHD/2012 AND CO NO. 138/AHD/2012 DATED 31-10-2012, THE HONBLE CO-ORDINATE B BENCH OF THIS TRIBUNAL IN THE CASE OF ITO WARD-2 PATAN V. M/S JAFARI MOMIN VIKAS CO-OP CREDIT SOCIETY LTD. HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. ON THE CONTRARY, LD. DR OF THE REV ENUE SUPPORTED THE ORDERS OF AUTHORITIES BELOW AND VEHEMENTLY ARGUED THAT THE ORDER OF LD. CIT(A) IS JUSTIFIED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND THE CASE LAW CITED BY LD. AR OF THE A SSESSEE. WE FIND THAT AFTER CONSIDERING THE TOTALITY OF THE FACTS AND IN VIEW O F THE FACT THAT ONE OF THE GROUNDS OF ASSESSEE IS THAT IT WAS NOT GIVEN SUFFIC IENT OPPORTUNITY TO DEFEND ITS CASE AND THEREFORE IN THE INTEREST OF JUSTICE THIS APPEAL IS RESTORED BACK TO THE ITA NO.2638-39/AHD/2012 A.YS. 08-09 & 09-10 THE BHILDI NAGARIK SARAFI SAHAKARI MANDLI LTD. V. ACIT PLP PAGE 3 FILE OF LD. CIT(A) TO DECIDE AFRESH IN THE LIGHT OF DECISION OF THE HONBLE CO- ORDINATE BENCH RENDERED IN THE CASE OF ITO WARD-2 PATAN V. M/S JAFARI MOMIN VIKAS CO-OP CREDIT SOCIETY LTD. (SUPRA) AND PASS A SPEAKING ORDER AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. THIS GROUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSED IN TERMS OF ABOVE DIRECTION. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. COMING TO ITA NO.2639/AHD/2012 (AY) 2009-10. 6. TAKING A CONSISTENT VIEW IN ASSESSEES APPEAL IN ITA NO.2638/AHD/2012 IN PARA-4 OF THIS ORDER, HENCE, TH IS GROUND OF ASSESSEES APPEAL IS ALSO ALLOWED IN TERMS OF ABOVE DIRECTION. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN COMBINED RESULT, ASSESSEES APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP #$%- 26/04/2013 -./ 0 ' ' ' ' 112 112 112 112 32 32 32 32 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. $/$15 6 / CONCERNED CIT 4. 6- / CIT (A) 5. 2 89 1115, 15!, -./ / DR, ITAT, AHMEDABAD 6. 9;< => / GUARD FILE. BY ORDER/ ' , /TRUE COPY/ ?/- $ 15!, ITA NO.2638-39/AHD/2012 A.YS. 08-09 & 09-10 THE BHILDI NAGARIK SARAFI SAHAKARI MANDLI LTD. V. ACIT PLP PAGE 4 -./ 0 STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 25/04 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 25/04, 26/04 4) DATE OF CORRECTION 26/04 5) DATE OF FURTHER CORRECTION - - 6) DATE OF INITIAL SIGN BY MEMBERS 26/04 7) ORDER UPLOADED ON 26/04 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 26/04