The Azhikode Service Co-op bank Ltd, Kannur V. ITO, Kannur

ITA 326/COCH/2012

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7297 (ITAT-COCHIN)
• Duration Of Justice: 4 year(s) 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 05-12-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A DHANARAJ
• Keywords: Question of law; Benefit of exemption
• Section: 142(1); 260A; 144; 139

Judgement Text

ITA NO 326/C/2012 1 IN THE INCOME TAX APPEL L A TE T R IBUNAL COCHIN BENCH KOCHI BEFORE S/ SH RI ABRAHAM P GEORGE , A M & GEORGE GEORGE K, JM ITA NO 326/COCH/2012 ( A SST YEAR 2009 - 10 ) THE AZHIKODE SERVICE COOP BA N K LTD AZHIKODE KANNUR 670 009 VS THE INCOME T A X OFFICER WARD 1 KANNUR ( APPELLANT) (RESPONDENT) PAN NO. AAAA A 7103M ASSESSEE BY NONE REVENUE BY SH A DHANARAJ, SR DR DATE OF HEARING 14 TH MARCH 2017 DATE OF PRO NOUNCEMENT 14 TH MARCH 2017 OR D ER PER GEROGE GEORGE K, JM : THIS APPEAL IS RESTORED TO THE TRIBUNAL BY THE HONBLE KERALA HIGH COURT VIDE JUDGME NT DATED 16.2.2016 IN ITA NO. 14 OF 201 4 . 2 BRIEF FACTS OF THE CASE ARE AS FOLLOWS: THE ASSESSEE IS A COOPERATIVE SOCIETY REGISTERED UNDER THE KERALA COOPERATI VE SOCIETIES ACT, 1969. THE ASSESSEE HAD FAILED TO FILE RETURN OF INCOME FOR THE AY 20 09 - 10 ; THE AO ISSUED A NOTICE U/S 142(1) REQUIRING THE ASSESSEE TO FILE RETURN OF INCOME. THE ASSESSEE NEITHER COMPLIED WITH THIS NOTICE NOR FILED RETURN OF INCOME IN TERMS OF SECTION 139 OR 142(1) OF THE ACT AND HENCE, BEST JUDGMENT ASSESSMENT U/S 144 OF THE A CT WAS COMPLETED BY ITA NO 326/C/2012 2 DENYING THE BENEFIT OF DEDUCTION U/S 80P OF THE I T ACT. THE AO HELD THAT BY VIRTUE OF SECTION 80A(5) OF THE ACT, THE ASSESSEE WAS NOT ENTITLED TO THE BENEFIT OF DEDUCTION CLAIMED U/S 80P OF THE ACT, SINCE THE RETURN OF INCOME WAS NOT FURNISHED WI THIN THE TIME LIMIT PRESCRIBED U/S 139 OF THE ACT. 3 AGGRIEVED BY THE ASSESSMENT, THE ASSESSEE PREFERRED AN APPEAL TO THE FIRST APPELLATE AUTHORITY. THE CIT(A) CONFIRMED THE ASSESSMENT ORDER. 4 AGGRIEVED BY THE ABOVE ORDER OF THE CIT(A), THE ASSESSEE PREFERRED APPEA L TO THE TRIBUNAL. THE TRIBUNAL , VIDE ORDER DATED 24 TH MAY 2015 , DISMISSED THE APPEAL OF THE ASSESSEE. THE TRIBUNAL HELD THAT SINCE THE RETURN WAS NOT FILED WITHIN THE TIME PRESCRIBED U/S 139(1)OR U/S 139(4), THE ASSESSEE WAS NOT ENTITLED TO THE BENEFIT OF DEDUCTION U/S 80P OF THE ACT IN VIEW OF SECTION 80A(5) OF THE ACT. 5 AGGRIEVED BY THE ORDER OF THE TRIBUNAL, THE ASSESSEE PREFERRED FURTHER APPEAL U/S 260A OF THE ACT. THE HONBLE KERALA HIGH COURT, VIDE JUDGMENT DATED 16.2.2016 IN ITA NO. 14 OF 2015, RESTORED THE MATTER TO THE TRIBUNAL. IT IS IN T HIS CONTEXT, THE CASE WAS HEARD ON 1 4 TH MARCH 2017. 6. A T T H E T I M E O F H E A R I N G N O N E A P P E A R E D O N B E H A L F O F T H E A S S E S S E E . H O W E V E R , W E H A V E HEARD THE L D D R AND PERUSED THE MATERIAL ON RECORD. AS REGARDS THE BELATED FILING OF RETURN, THE HONBLE HIGH COURT IN THE CASE OF CHIRAKKAL SERVICE CO - OP BANK LTD VS CIT REPORTED IN 384 ITR 490 HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE HONBLE HIGH COURT HAD HELD THAT THE ITA NO 326/C/2012 3 TRIBUNAL WAS NOT JU STIFIED IN DENYING THE BENEFIT OF EXEMPTION U/S 80P OF THE ACT ON THE MERE GROUND OF BELATED FILING OF RETURN OF INCOME. THE HONBLE HIGH COURT WAS CONSIDERING THE FOLLOWING SUBSTANTIAL QUESTION OF LAW: B WHETHER THE TRIBUNAL IS JUSTIFIED IN DENYING TH E EXEMPTION U/S 80P OF THE I T A CT 1961 ON THE MERE GROUND OF BELAYED FILING OF RETURN BY THE ASSESSEE? C. WHETHER A RETURN FILED BY THE ASSESSEE BEYOND THE PERIOD STIPULATED U/S 139(1)/(4) OR SECTION 142(1)/148 CAN BE HELD AS NON - EST IN LAW AND INVALID FOR THE PURPOSE OF DECIDING EXEMPTION U/S 80P OF THE I T ACT, 1961? 6.1 IN CONSIDERING THE ABOVE SUBSTANTIAL QUESTION OF LAW, THE HONBLE HIGH COURT RENDERED THE FOLLOWING FINDINGS: 18. QUESTIONS B & C RELATE TO DENIAL OF EXEMPTION ON GROUND REFERABLE TO BE LATED FILING OF RETURN, THAT IS TO SAY, RETURNS FILED BEYOND THE PERIOD STIPULATED UNDER SECTION 139)1) OR SECTION 139(4) AS THE CASE MAY BE AS WELL AS SECTION 142 (1) OR SECTION 148, AS THE CASE MAY BE. THERE ARE NO CASES AMONG THESE APPEALS WHERE RETUR NS WERE NOT FILED. THERE ARE CASES WHERE CLAIMS HAVE BEEN MADE ALONG WITH THE RETURNS AND THE RETURNS WERE FILED WITHIN TIME. STILL FURTHER, THERE ARE CASES WHERE RETURNS WERE FILED BELATEDLY, THAT IS TO SAY, BEYOND THE PERIOD STIPULATED UNDER SUB SECTION 1 OR 4 OF SECTION 139; AND THERE ARE ALSO RETURNS FILED AFTER THE PERIOD WITH REFERENCE TO SECTIONS 142(1) AND 148 OF THE I T ACT. 19. SECTION 80A(5) PROVIDES THAT WHERE THE ASSESSEE FAILS TO MAKE A CLAIM IN HIS RETURN OF INCOME FOR ANY DEDUCTION, INTER ALIA, , UNDER ANY PROVISION OF CHAPTER VIA UNDER THE HEADING 'C - DEDUCTIONS IN RESPECT OF CERTAIN INCOMES', NO DEDUCTION SHALL BE ALLOWED ' TO HIM THEREUNDER. THEREFORE, IN CASES WHERE NO RETURNS HAVE BEEN FILED FOR A PARTICULAR ASSESSMENT YEAR, NO DEDUCTIO NS SHALL BE ALLOWED. THIS EMBARGO IN SECTION 80A(5) WOULD APPLY, THOUGH SECTION 80P 1 S NOT INCLUDED I N SECTION 80AC. THIS IS SO BECAUSE, THE INHIBITION AGAINST ALLOWING DEDUCTION IS WORDED IN QUITE SIMILAR TERMS IN SECTIONS 80A(5) AND 80AC, OF WHICH SEC TION 80A(5) IS A PROVISION INSERTED THROUGH THE FINANCE ACT 33/2009 WITH EFFECT FROM 1.4.2013 AFTER THE INSERTION OF SECTION 80AC AS PER THE FINANCE ACT OF 2006 WITH EFFECT FROM 1.4.2006. THIS CLEARLY EVIDENCES THE LEGISLATIVE INTENDIMENT THAT THE INHIBITI ON CONTAINED IN SUB SECTION 5 OF ITA NO 326/C/2012 4 SECTION 80A WOULD OPERATE BY ITSELF. IN CASES WHERE RETURNS HAVE BEEN FILED, THE QUESTION OF EXEMPTIONS OR DEDUCTIONS REFERABLE TO SECTION 80P WOULD DEFINITELY HAVE TO BE CONSIDERED AND GRANTED IF ELIGIBLE. 20 HENCE, QUEST ION WOULD ARISE AS TO WHETHER BELATED RETURNS FILED BEYOND THE PERIOD STIPULATED UNDER SECTION 139(1) OR SECTION 139(4) AS WELL AS FOLLOWING SECTIONS 142(1) AND 148 PROCEEDINGS COULD BE CONSIDERED FOR EXEMPTION. IF THOSE RETURNS ARE ELIGIBLE TO BE ACCEPTE D IN TERMS OF LAW, GOING BY THE PROVISIONS OF THE STATUE AND THE GOVERNING BIND PRECEDENTS, IT GOES WITHOUT SAYING THAT THE CLAIM FOR EXEMPTION WILL ALSO STAND EFFECTUATED AS A CLAIM DULY MADE AS PART OF THE RETURNS SO FILED, FOR DUE CONSIDERATION. 21 WH EN A NOTICE UNDER SECTION 142(1) IS ISSUED, THE PERSON MAY FURNISH THE RETURN AND WHILE DOING SO, COULD ALSO MAKE CLAIM FOR DEDUCTION REFERABLE TO SECTION 80P. NOT MUCH DIFFERENT IS THE SITUATION WHEN PRE - ASSESSMENT ENQUIRY IS CARRIED FORWARD BY ISSUANCE O F NOTICE UNDER SECTION 142 (1) OR WHEN NOTICE 1 S ISSUED ON THE PREMISE OF ESCAPED ASSESSMENT REFERABLE TO SECTION 148 OF THE IT ACT. THIS POSITION NOTWITHSTANDING, WHEN AN ASSESSMENT IS SUBJECTED TO FIRST APPEAL OR FURTHER APPEALS UNDER THE IT ACT OR ALL QUESTIONS GERMANE FOR CONCLUDING THE ASSESSMENT WOULD BE RELEVANT AND CLAIMS WHICH MAY RESULT 1N M ODIFICATION OF THE RETURNS ALREADY FI 1 ED COULD ALSO BE ENTERTAINED, PARTICULARLY WHEN IT RELATES TO CLAIMS FOR EXEMPTIONS. THIS IS SO BECAUSE THE FINA 1 IY OF A SSESSMENT WOULD NOT BE ACHIEVED IN ALL SUCH CAS E S, UNTIL THE TERMINATION OF ALL S U CH APPE LL ATE REMEDIES. UNDER SUCH CIRCUMSTANCES, THE TRIBUNAL WAS NOT JUSTIFIED IN DENYING EXEMPTION UNDER SECTION 80P OF THE I T ACT ON THE MERE GROUND OF BELATED FILING OF RETURN BY THE ASSESSEE CONCERNED. A RETURN FI 1 ED BY THE ASSESSEE BEYOND THE PERIOD STIPULATED UNDER SECTION 139(1) OR 139(4) OR UNDER SECTION 142(1) OR SECTION 148 CAN ALSO BE ACCEPTED AND ACTED UPON PROVIDED FURTHER PROCEEDINGS IN RELATION TO SUCH ASSES SMENTS ARE PENDING IN THE STATUTORY HIERARCHY OF ADJUDICATION IN TERMS OF THE PROVISIONS OF THE IT ACT. IN ALL SUCH SITUATIONS, IT CANNOT BE TREATED THAT A RETURN FILED AT ANY STAGE OF SUCH PROCEEDINGS COULD BE TREATE D A S NON - EST IN LAW AND INVALID FOR T HE PURP O S E OF DECIDING EXEMPTION UNDER SECTION 80P O THE I T ACT. WE THUS, ANSWER SUBSTANTIAL QUESTIONS OF LAW BAND C F ORMULATED AND ENUMERATED ABOVE. 6.2 IN LIGHT OF THE ABOVE JUDGMENT OF THE HONBLE HIGH COURT, THE BELATED FILING OF RETURN OF INCOME BY THE ASSESSEE DOES NOT DISENTITLE IT FROM THE BENEFIT ITA NO 326/C/2012 5 OF DEDUCTION U/S 80P(2) OF THE ACT. FURTHER, THE ASSESSEE, IN THE INSTANT CASE, IS A PRIMARY AGRICULTURAL CREDIT SOCIETY REGISTERED UNDER THE KERALA COOPERATIVE SOCIETIES ACT, 1969. THE CERTIFICATE H AS BEEN ISSUED BY THE REGISTRAR OF COOPERATIVE SOCIETIES TO THE ABOVE SAID EFFECT AND THE SAME IS ON RECORD. THE HONBLE HIGH COURT, IN ASSESSEES OWN CASE AND OTHER BATCH OF CASES, HAD HELD THAT PRIMARY AGRICULTURAL CREDIT SOCIETY, REGISTERED UNDER THE KE RALA COOPERATIVE SOCIETIES ACT, 1969, IS ENTITLED TO THE BENEFIT OF DEDUCTION U/S 80P(2). SINCE THERE IS A CERTIFICATE ISSUED BY THE REGISTRAR OF COOPERATIVE SOCIETIES, STATING THAT THE ASSESSEE IS A PRIMARY AGRICULTURAL CREDIT SOCIETY, WE HOLD THAT THE AS SESSEE IS ENTITLED TO THE BENEFIT OF DEDUCTION U/S 80P(2) OF THE ACT. IT IS ORDERED ACCORDINGLY. 7 NO OTHER ISSUES WERE ARGUED BY THE L D D R DURING THE COURSE OF HEARING OF TH I S A P P E A L . 8 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 TH DAY OF MARCH 2017 . SD/ - SD/ - ( ABRAHAM P GEORGE ) ( GEORGE GEORGE K ) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN: DATED 14 TH MARCH 2017 RAJ* ITA NO 326/C/2012 6 COPY TO: 1 . AP PELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT , 5 . DR 6 . GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN