The Sarvoday Credit Com , Banaskantha V. ACIT,B K.Circle, Palanpur

ITA 3091/AHD/2014

• Counselvise Citation: [2018] 130 COUNSELVISE.COM (IT) 0028 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 23-06-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 21-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA.NO.3091/AHD/2014 / ASSTT. YEAR: 2010-2011 THE SARVODAY CREDIT CUM CONSUMERS COOPERATIVE SOCIETY LTD. OPP: NAYA MANDIR AT : DEESA DIST. BANASKANTHA. VS ACIT, B.K. CIRCLE PALANPUR. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI TEJ. SHAH, CA REVENUE BY : SHRI PRASOON KABRA, SR.DR / DATE OF HEARING : 12/03/2018 / DATE OF PRONOUNCEMENT: 19/03/2018 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: PRESENT APPEAL IS DIRECTED AT THE INSTANCE OF THE A SSESSEE AGAINST ORDER OF THE LD.CIT(A)-XX, AHMEDABAD DATED 9.9.2014 PASSE D FOR THE ASSTT.YEAR 2010-11. 2. BEFORE ADVERTING TO THE SPECIFIC GRIEVANCE, WE W OULD LIKE TO TAKE NOTE OF BRIEF FACTS. THE ASSESSEE HAS FILED ITS RETURN OF INCOME ELECTRONICALLY ON 30.9.2010 DECLARING TOTAL INCOME AT NIL. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND NOTICE UNDER S ECTION 143(2) WAS ISSUED AND SERVED UPON THE ASSESSEE. THE LD.AO HARBOURED A BELIEF THAT THE ASSESSEE-SOCIETY IS CARRYING OUT BUSINESS OF BANKIN G AND HAS ERRONEOUSLY ITA NO.3091/AHD/2014 2 CLAIMED DEDUCTION UNDER SECTION 80P(2) OF THE INCOM E TAX ACT. THE LD.AO IN A BRIEF ASSESSMENT ORDER HAS WORKED OUT TAXABLE INC OME OF THE ASSESSEE AT RS.14,13,330/- BY OBSERVING AS UNDER: 4. THE ASSESSEE WAS ASKED TO EXPLAIN WHY DEDUCTION CLAIMED U/S. 80P(2)(A)(I) SHOULD NOT BE WITHDRAWN AS PER THE AME NDMENT. THE ASSESSEE REPLIED VIDE ITS LETTER DATED RELEVANT PAR T OF THE SAME IS REPRODUCED AS UNDER : DETAILS OF GROSS RECEIPT OF BUSINESS: BIFURCATION O F INTEREST INCOME FROM MEMBERS ON LOANS AND OTHERS ARE ENCLOSED. DETAILS OF INTEREST RECEIVED FROM CO-OPERATIVE OF R S.75,37,061/- IS ENCLOSED. PLEASE FIND THE SAME AND. GRANT DEDUCTION U/S.80P(2 )(A)(I) PROFIT FROM LOANING TO MEMBERS, AND U/S.80P(2)(D) INTEREST OF R S. 11,47,263/- RECEIVED BY US FROM CO-OP BANK I.E. FROM BANASKANTH A DIST. CENTRAL CO-OPERATIVE BANK LTD. 5. THE VIEW POINT OF THE ASSESSEE IS NOT ACCEPTABLE AS THE CO-OPERATIVE SOCIETY IS NEITHER A PRIMARY AGRICULTURE CO OPERATI VE SOCIETY NOR A PRIMARY CO. OP. AGRICULTURAL AND RURAL DEVELOPMENT BANK. HENCE IN THE' LIGHT OF THE DISCUSSION ABOVE DEDUCTION U/S. 8 0P(2)(A)(I) IS DENIED AND ADDED TO THE TOTAL INCOME. PENALTY PROCEEDINGS SU/S.271(L)(C) INITIATED FOR CLAIMING WRONG DEDUCTION U/S.80P(2)(A )(I) AND THERE BY FURNISHING INACCURATE PARTICULARS OF INCOME. 6. ACCORDINGLY, THE TOTAL INCOME OF THE ASSE SSEE IS DETERMINED AS UNDER :- GROSS TOTAL INCOME RS. 25,60,597 LESS: DEDUCTION U/S. 80P(2)(D) RS. 11,47,263 TOTAL INCOME RS. 14,13.334/- ROUNDED OFF RS. 14,13,330/- 3. DISSATISFIED WITH THIS ORDER, ASSESSEE CARRIED T HE MATTER IN APPEAL BEFORE THE LD.CIT(A). ITS APPEAL WAS TIME BARRED BY 20 DA YS, AND ACCORDING TO THE LD.CIT(A) IN SPITE OF NOTICE THE ASSESSEE FAILED TO APPEAR BEFORE HIM AND FAILED TO SUBMIT ANY EXPLANATION FOR CONDONATION OF DELAY. BEFORE US, ALONG WITH ITA NO.3091/AHD/2014 3 APPEAL PAPERS THE ASSESSEE HAS FILED CERTIFICATE IS SUED BY DR.PARIND S. MEWADA, M.S. (ORTHO.) EXHIBITING THAT SHRI RAJENDRA SINH JASUBHA CHAUHAN WAS SUFFERING DISC PROBLEM AND HE WAS ADVISED FOR B ED-REST FOR A PERIOD OF ONE-AND-HALF MONTHS. THIS CERTIFICATE WAS ISSUED O N 10.2.2013. THUS, ACCORDING TO THIS CERTIFICATE, SOCIETY-MANAGER WAS SUFFERING FROM DISC PROBLEM, AND THEREFORE APPEAL COULD NOT BE FILED WI THIN THE TIME. IT WAS SUBMITTED ON 5.4.2013. ON THE OTHER HAND, THE LD.D R CONTENDED THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED AGAINST THE ASSESSEE BY DECISION OF THE HONBLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF PR.CIT VS. THE TOTAGARS CO-OP. SALE SOCIETY, IN INCOME TAX APPEALS NOS.100064 TO 6 8 AND OTHERS OF 2016. HE PLACED ON RECORD A COPY OF THE ABOVE JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT. 4. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. GRIEVANCE OF THE ASSESSEE BEFORE US IS THAT THE LD.CIT(A) HAS ERRED IN DISMISSING APPEAL EX PARTE AND DENYING DEDUCTION UNDER SECTION 80P(2)(A)(I) OF RS.9,69,130/-. IT IS PERTINENT TO OBSERVE THAT THE LD.CIT(A) HAS DISMISSED THE APPEAL BEING TIME BARRED. THUS, THE LD.CIT(A) HAS NOT ENTERED INTO ADJUDICATION ON MERITS OF THE CLAIM. CONSIDER ING THE MEDICAL CERTIFICATE ISSUED BY ORTHOPEDIC SURGEON SHOWING THAT MANAGER O F THE ASSESSEE WAS NOT IN GOOD HEALTH AND SHORT DELAY OF 20 DAYS, WE DEEM IT APPROPRIATE THAT ENDS OF JUSTICE WILL BE MET IF THE ASSESSEE IS BEING PROVID ED ONE MORE OPPORTUNITY FOR EXPLAINING ITS POSITION ABOUT CONDONATION OF DELAY. THEREFORE, WE SET ASIDE ORDER OF THE LD.CIT(A), RESTORE THIS ISSUE TO THE F ILE OF THE LD.CIT(A) WITH AN OPPORTUNITY TO THE ASSESSEE THAT IF SO ADVISED, ASS ESSEE MAY FILE APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL BEFORE TH E LD.CIT(A). THE LD.CIT(A) SHALL DECIDE APPLICATION FOR CONDONATION OF DELAY I N ACCORDANCE WITH, AND IF ITA NO.3091/AHD/2014 4 CONVINCED BY THE REASONS GIVEN BY THE ASSESSEE, THE LD.CIT(A) SHALL CONDONE THE DELAY AND ADJUDICATE ISSUE ON MERIT. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 19 TH MARCH, 2018 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 19/03/2018