ANNASAHEB PATIL MATHADI KAMGAR SAHAKAR PATPEDHI MARYADIT, MUMBAI V. CIT 13, MUMBAI

ITA 2774/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2782 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 22-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI . . , , !' #$, % , & BEFORE SHRI R.C.SHARMA, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.2774/MUM/2014 ( %' ( / ASSESSMENT YEAR: 2009-10) ANNASAHEB PATIL MATHADI KAMGAR SAHAKARI PATPEDHI MARYADIT JIVRAJ BHANJI SHAH MARKET, 3 RD FLOOR, YUSUF MEHERALI ROAD, MUSJID BUNDER, MUMBAI - 400009 ' / VS. COMMISSIONER OF INCOME TAX 13 ROOM NO.468, 4 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI - 400020 ./ ./ PAN/GIR NO. : AAAAB0167G ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 12.05.2016 !' /DATE OF PRONOUNCEMENT:23.09.2016 #$ / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE ORDER DATED 25.03.2014 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) 13, ASSESSEE BY: SHRI VANESH KUMAR NADAR DEPARTMENT BY: SHRI SANJAY BAHADUR ITA NO.2774/M/2014 A.Y. 2009-10 2 MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO THE A.Y.2009-10. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. (A) THE LEARNED COMMISSIONER OF INCOME TAX ERRE D IN LAW AND ON FACTS IN SETTING ASIDE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER. (B) ON THE FACTS AND UNDER THE CIRCUMSTANCES OF TH E CASE THE ORDER PASSED U/S.263 OF THE ACT BY THE COMMISSIONER OF INCOME TAX 13 WAS NOT PASSED IN ACCORDANCE WITH THE PROVISIONS OF LAW AS HE FAILED TO CONSIDER ALL RELEVANT SUBMISSIONS MADE BEFORE HIM. 2. THE LEARNED COMMISSIONER OF INCOME TAX HAS PASSE D ORDER U/S.263 OF THE ACT IN CAUSAL MANNER WITHOUT CONSIDE RING ALL RELEVANT FACTS STATING THE STATUS OF THE APPELLANT AS FIRM INSTEAD OF CO-OPERATIVE SOCIETY. 3. THE LEARNED COMMISSIONER OF INCOME TAX HAS ARBIT RARILY SET ASIDE ASSESSMENT ORDER OF THE ASSESSING OFFICER WHICH WAS PASSED AFTER DUE INQUIRY AND FOLLOWING JUDGEMEN TS AVAILABLE AT THE TIME OF PASSING ASSESSMENT ORDER, WITHOUT STATING HOW THE SAID ORDER IS ERRONEOUS AND PREJUDI CIAL TO THE INTEREST OF THE REVENUE. 4. THE LEARNED COMMISSIONER OF INCOME-TAX HAS FAILE D TO TAKE INTO ACCOUNT THE DOCUMENTS FILED BEFORE THE ASSESSI NG OFFICER BY THE APPELLANT SOCIETY RELATING TO ITS CL AIM U/S.80- P OF THE ACT FOR DEDUCTION OF THE ENTIRE INCOME FRO M THE ACTIVITIES OF PROVIDING CREDIT FACILITIES TO THE ME MBERS OF THE SOCIETY AND OTHER MATTERS RELATED THERETO. 5. (A) THE LEARNED COMMISSIONER OF INCOME TAX HAS F AILED TO CONSIDER THE APPELLATE ORDER PASSED BY THE LEARN ED COMMISSIONER OF INCOME TAX (APPEALS) 24, MUMBAI F OR A.Y.2010-11 IN THE CASE OF APPELLANT SOCIETY WHEREI N HE HAS UPHELD THE SUBMISSIONS MADE BY THE SOCIETY AS WELL AS THE ITA NO.2774/M/2014 A.Y. 2009-10 3 FINDINGS OF THE ASSESSING OFFICER FOR A.Y.2009-10 H AVING IDENTICAL FACTS. (B) HE HAS FAILED TO FOLLOW THE JUDICIAL DECISION CITED BEFORE HIM OF JURISDICTIONAL HONBLE INCOME TAX APP ELLATE TRIBUNAL, MUMBAI HAVING IDENTICAL FACTS AS OF THE APPELLANT SOCIETY AS WELL AS VARIOUS OTHER DECISION S ON THE IMPUGNED ISSUE. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE PROPOSA L DATED 12.12.2013 U/S.263 OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT) WAS SUBMITTED BY THE ITO 13(2)(2), MUMBAI AND THE S AME WAS FORWARDED TO THE JT. CIT RG.13(2) VIDE LETTER DATED 13.12.2013. IT WAS SUBMITTED IN THE SAID PROPOSAL THAT THE ASSESSE ES CLAIM OF DEDUCTION U/S.80P OF THE ACT HAS WRONGLY BEEN ALLOW ED TO THE ASSESSEE. THE CLAIM FOR SIMILAR DEDUCTION WAS DISA LLOWED BY THE ASSESSING OFFICER FOR THE A.Y.2010-11 AFTER DOING T HROUGH INVESTIGATION. IN THE A.Y.2010-11 THE BASIS FOR DI SALLOWANCE OF THE CLAIM OF THE ASSESSEE WAS THE LETTER RECEIVED FROM THE OFFICE OF THE ASSISTANT REGISTRAR OF THE CO-OPERATIVE SOCIETY, MU MBAI WHERE THE ASSESSEE WAS CATEGORIZED AS A CO-OPERATIVE BANK AND WAS FURTHER CLASSIFIED AS OTHER BANK. 4. IT WAS THEREFORE CONTENDED BY THE ASSESSING OFFI CER THAT THE ORDER PASSED U/S.143(3) OF THE ACT FOR THE A.Y.2009 -10 IS ERRONEOUS IN SO FAR AS IS PREJUDICIAL TO THE INTEREST OF REVENU E. ON RECEIPT OF THE PROPOSAL U/S.263 OF THE ACT THE AUTHORITY WAS OF TH E VIEW THAT THE ASSESSEES BUSINESS WAS LIABLE TO BE PROPERLY ANALY SIS BECAUSE AS PER ITA NO.2774/M/2014 A.Y. 2009-10 4 THE CERTIFICATE OF REGISTRATION ISSUED BY THE OFFIC E OF THE REGISTRATION CO-OPERATIVE SOCIETY DATED 08.07.1969, THE CLASSIFI CATION OF THE ASSESSEE HAS BEEN DONE AS THE CO-OPERATIVE BANK AND SUB CLASSIFICATIONS HAS BEEN DONE AS OTHER BANKS. HOWEV ER, AS PER THE FRESH CERTIFICATE DATED 26.08.1996, THE CLASSIFICAT ION OF THE ASSESSEE HAS BEEN DONE AS SAGAR SANSTHA SADHAN AND SUB-CLA SSIFICATION AS PAGARDAR PATSANSTHA. THE CIRCUMSTANCES UNDER WHI CH CLASSIFICATION WAS CHANGED AND THE ACTUAL NATURE OF THE BUSINESS W AS BEING CARRIED BY THE ASSESSEE HAS NOT BEEN EXAMINED BY THE ASSESS ING OFFICER. THE CIT WAS OF THE VIEW THAT THE DEDUCTION WAS ERRONEOU S AND PREJUDICIAL TO THE INTEREST OF REVENUE, THEREFORE, THE CASE IS LIABLE TO BE VIEWED AGAIN IN VIEW OF THE PROVISION U/S.263 OF THE ACT. HOWEVER THE ASSESSEE WAS NOT SATISFIED THEREFORE FILED THE PRES ENT APPEAL. ISSUE NO.1 TO 5:- 5. ALL THE ISSUES ARE INTERCONNECTED, THEREFORE AR E BEING TAKEN TOGETHER FOR ADJUDICATION. INFACT IN ALL THE ISSUES THE ASSESSEE HAS CHALLENGED THE VALIDITY OF ORDER DATED 263 OF THE A CT. THE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE MATTER OF CONTROVERSY HAS BEEN ADJUDICATED BY THE INCOME TAX APPELLATE TRIBUNAL IN THE ASSESSEES OWN CASE IN ITA NO.2515/ MUM/2014 DATED 20.05.2016 FOR THE A.Y.2010-11 IN WHICH IT HAS BEEN CATEGORICALLY HELD THAT THE ASSESSEE CO-OPERATIVE SOCIETY DOES N OT FALL WITHIN THE RESTRICTION PLACED IN SUBSECTION (4) OF SECTION 80P OF THE ACT. ITA NO.2774/M/2014 A.Y. 2009-10 5 HOWEVER, ON THE OTHER HAND THE LEARNED REPRESENTATI VE OF THE DEPARTMENT HAS STRONGLY RELIED UPON THE ORDER PASS ED BY THE CIT(A) IN QUESTION. ORDER DATED 20.05.2016 HAS BEEN PERUS ED IN WHICH THE INCOME TAX APPELLATE TRIBUNAL IN THE ASSESSEES OWN CASE IN ITA NO.2515/MUM/2014 HAS HELD THAT THE ASSESSEE CO-OPE RATIVE SOCIETY DOES NOT FALL WITHIN THE RESTRICTION PLACED WITH TH E SECTION 80P OF THE ACT. THE RELEVANT PARA 8 AND 9 OF THE SAID ORDER I S HEREBY REPRODUCED BELOW FOR READY REFERENCE:- 8. WE HAVE GONE THROUGH THE DECISION OF A BENCH OF THE MUMBAI TRIBUNAL RENDERED IN THE CASE OF M/S.KULSWAM I CO-OPERATIVE SOCIETY (SUPRA) TO FIND THAT THE CO-OR DINATE BENCH, RELYING ON AN EARLIER DECISION OF THE BENCH IN KULSWAMI CO-OPERATIVE (ITA NOS.3223/MUM/2011 FOR THE ASSESSMENT YEAR 2007-08 AND ITA NO.505/MUM/2012 FOR THE ASSESSMENT YEAR 2008-09), HELD THAT ASSESSE E CO- OPERATIVE SOCIETY DOES NOT FALL WITHIN THE RESTRICT ION PLACED IN SUB-SECTION (4) OF SECTION 80P OF THE ACT , AND DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESS EE. 9. WE ARE, THEREFORE, OF THE CONSIDERED VIEW THAT T HE ISSUE ARISING IN THE PRESENT CASE IS IDENTICAL TO THE ISS UE DECIDED BY THE CO-ORDINATE BENCH IN KULSWAMI CO-OPERATIVE SOCIETY (SUPRA). FOLLOWING THE CONSISTENT VIEW TAK EN ON THE IDENTICAL ISSUE, WE RESPECTFULLY FOLLOW THE SAM E AND ITA NO.2774/M/2014 A.Y. 2009-10 6 HELD THAT THE ASSESSEE CO-OPERATIVE SOCIETY DOES NO T FALL WITHIN THE RESTRICTION PLACED UNDER SUB-SECTION (4) OF SECTION 80P OF THE ACT. ACCORDINGLY, WE DECIDE BOT H THE GROUNDS OF APPEAL. 6. IN VIEW OF THE SAID CIRCUMSTANCES WE ARE OF THE VIEW THAT THE IDENTICAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE A SSESSEE IN THE ASSESSEES OWN CASE MENTIONED ABOVE. FOLLOWING THE CONSISTING VIEW TAKEN ON THE IDENTICAL ISSUE, WE ARE OF THE VIEW TH AT THE ASSESSEE CO- OPERATIVE SOCIETY DOES NOT FALL WITHIN THE RESTRICT IONS PLACED U/S. 80P OF THE ACT. IN VIEW OF THE SAID CIRCUMSTANCES WHEN THE CONTROVERSY IS QUITE CLEAR WHICH HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE, WE ARE OF THE VIEW THAT THE ORDER U/S.263 OF THE ACT IS NOT L IABLE TO BE SUSTAINABLE IN THE EYES OF LAW BECAUSE THE ORDER IS NOT ERRONEO US NOR PREJUDICIAL TO THE INTEREST OF REVENUE. ACCORDINGLY WE SET ASIDE THE ORDER IN QUESTION DATED 25.03.2014. THE APPEAL OF THE ASSESSEE IS HE REBY ALLOWED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD SEPTEMBER , 2016. SD/- SD/- (R.C.SHARMA) (AMARJIT SINGH) # / ACCOUNTANT MEMBER %& # /JUDICIAL MEMBER ' ( MUMBAI; )# DATED : 23 RD SEPTEMBER, 2016 MP MP MP MP ITA NO.2774/M/2014 A.Y. 2009-10 7 * +%'#, -,(' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- 4. * / CIT 5. -./ &&01 , 01' , ' ( / DR, ITAT, MUMBAI 6. /34 5 / GUARD FILE. ' / BY ORDER, - & //TRUE COPY// ./$ ! /(DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI