Janata Grahak Madhyavarti Sahakari Sangh Maryadit, Pune V. Deputy Commissioner of Income tax, Pune

ITA 331/PUN/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9935 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-08-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 09-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Rule of consistency
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI ANIL CHATURVEDI , AM AND SHRI PARTHA SARATHI CHAUDHURY , JM . / I TA NO S . 331 & 332 /PUN/20 17 / ASSESSMENT YEAR S : 2012 - 13 & 2013 - 14 JANATA GRAHAK MADHYAVARTI SAHAKARI SANGH MARYADIT, GRAHAK BHAVAN, 2020, SADHASIV PETH, TILAK ROAD, PUNE - 411 030. PAN : AACFJ1835C ....... / APPELLANT / V/S. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 12, PUNE. / RESPONDENT A SSESSEE BY : SHRI NIKHIL PATHAK REVENUE BY : SHRI S.P WALIMBE / DATE OF HEARING : 0 2 .01.2020 / DATE OF PRONOUNCEMENT : 02 .01.2020 / ORDER PER PARTHA SARATHI CHAUDHU RY, JM: THESE TWO APPEALS PREFERRED BY THE COMMON ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(APPEALS), PUNE - 5, PUNE DATED 24.10.2016 FOR THE ASSESSMENT YEARS 2012 - 13 & 2013 - 14 AS PER THE GROUNDS OF APPEAL ON RECORD. 2 ITA NO S . 331 & 332 /PUN/20 17 A.YS.2012 - 13 & 2013 - 14 2. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN BOTH THESE APPEALS, THE ISSUES ARE IDENTICAL. THAT FURTHER, FOR BOTH THE ASSESSMENT YEARS, THE ASSESSEE HAS SUBMITTED ADDITIONAL GROUND S WITH RESPECT TO THE ISSUE ON PRINCIPLE S OF MUTUALITY . THE LD. COUNSEL FOR THE ASSE SSEE FURTHER SUBMITTED THAT FOR ASSESSMENT YEAR 2009 - 10 & 2011 - 12 IN ASSESSEES OWN CASE IN ITA NOS.1064 & 1065/PUN/2016 DATED 29.10.2018 , SIMILAR ADDITIONAL GROUNDS WERE RAISED REGARDING PRINCIPLE S OF MUTUALITY WHEREIN THE TRIBUNAL ADMITTED THE ADDITION AL GROUNDS BY OBSERVING AS FOLLOWS: 5. W E HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. THE ASSESSEE IN APPEAL HAS ASSAILED THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN CO NFIRMING THE ADDITION OF RS.82, 35,000/ - IN RESPECT OF UN - UTILIZED REBATE BEING WRITTEN OFF AND TRANSFERRED TO RESERVE ACCOUNT. THE ADDITION HAS BEEN MADE BY REVENUE UNDER THE PROVISIONS OF SECTION 41(1) OF THE ACT. THE ASSESSEE BEFORE US HAS RAISED ADDIT IONAL GROUND OF APPEAL INVOKING THE PRINCIPLES OF MUTUALITY. WE FIND THAT THE FRESH PLEA OF MUTUALITY RAISED IN ADDITIONAL GROUND BY THE ASSESSEE EMANATES FROM THE FACTS ALREADY ON RECORD. NO FRESH EVIDENCE IS REQUIRED TO BE ADDUCED TO ADJUDICATE THIS GR OUND. THE ADDITIONAL GROUND RAISED WOULD HAVE BEARING ON THE TAX LIABILITY OF THE ASSESSEE. THEREFORE, IN THE LIGHT OF DECISION OF HONBLE SUPREME COURT OF INDIA IN THE CASE OF NTPC LTD. VS. COMMISSIONER OF INCOME TAX REPORTED AS 229 ITR 383. WE ARE ADM ITTING ADDITIONAL GROUND RAISED BY THE ASSESSEE. 2.1 THAT THEREAFTER, THE TRIBUNAL OBSERVED THAT BEFORE APPLYING PRINCIPLES OF MUTUALITY IT WOULD BE APPROPRIATE IF THE ISSUE IS FIRST EXAMINED BY THE AUTHORITIES BELOW. THEREFORE, THE MATTER WAS REMITTED TO THE FILE OF ASSESSING OFFICER TO EXAMINE THE APPLICABILITY OF PRINCIPLES OF MUTUALITY ON T HE ADDITION MADE. AS PER PARAS 6 & 7 OF THE SAID ORDER, THE TRIBUNAL HAS OBSERVED AS FOLLOWS: 6. BOTH THE SIDES ARE UNANIMOUS IN ADMITTING THAT SINCE THE PLEA OF PRINCIPLES OF MUTUALITY HAS BEEN RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL, IT HAS TO BE FIRST EXAMINED BY THE AUTHORITIES BELOW. WE ARE ALSO OF CONSIDERED VIEW THAT BEFORE APPLYING PRINCIPLES OF MUTUALITY IT WOULD BE APPROPRIATE IF THE ISSUE IS FIRS T EXAMINED BY AUTHORITIES BELOW. THUS, THE PRESENT APPEAL BY THE ASSESSEE IS REMITTED TO THE FILE OF ASSESSING OFFICER TO EXAMINE THE APPLICABILITY OF PRINCIPLES OF MUTUALITY ON THE ADDITION MADE. 3 ITA NO S . 331 & 332 /PUN/20 17 A.YS.2012 - 13 & 2013 - 14 7. IN THE RESULT, THE APPEAL OF ASSESSEE FOR ASSESSMENT Y EAR 2009 - 10 IS ALLOWED FOR STATISTICAL PURPOSE. 2.2 THE LD. COUNSEL FOR THE ASSESSEE PRAYED THAT FOR BOTH THE ASSESSMENT YEARS I.E. 2012 - 13 & 2013 - 14 WHEREIN THE SAME ADDITIONAL GROUND REGARDING PRINCIPLES OF MUTUALITY HAS COME UP BEFORE THE TRIBUNAL AND HENCE, THE MATTER MAY BE REMITTED TO THE FILE OF ASSESSING OFFICER FOR EXAMINING THE APPLICABILITY OF SAID PRINCIPLES OF MUTUALITY WITH REGARD TO THE ADDITION MADE. 3. THE LD. DR FAIRLY CONCEDED TO THE PRAYER MADE BY THE LD. AR OF THE ASSESSEE. 4. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL CONTENTIONS. WE FIND THAT EVEN FOR ASSESSMENT YEARS 2009 - 10 & 2011 - 12 IN ITA NOS.1064 & 1065/PUN/2016 (SUPRA.), THE TRIBUNAL FIRST HAS ADMITTED THE ADDITIONAL GROUND WITH REGARD TO PRINCIPLES OF MUTUALIT Y FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF NTPC LTD. VS. COMMISSIONER OF INCOME TAX REPORTED AS 229 ITR 383. THEREAFTER, THE TRIBUNAL HAS REMITTED THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER FOR EXAMINING THE APPLICAB ILITY OF THE PRINCIPLES OF MUTUALITY WITH REGARD TO THE ADDITION MADE. 5. BOTH THE PARTIES AGREED THAT FACTS AND CIRCUMSTANCES FOR THESE TWO ASSESSMENT YEARS 2012 - 13 AND 2013 - 14 ARE ABSOLUTELY SIMILAR WITH REGARD TO ASSESSMENT YEARS 2009 - 10 & 2011 - 12. THE PRINCIPLE OF CONSISTENCY HAS TO BE MAINTAINED. THE LD. DR HAS NO OBJECTION WITH REGARD TO REMITTING THE MATTER BACK TO THE FILE OF ASSESSING OFFICER AND THEREFORE, IN THE INTEREST OF JUSTICE, AFTER HEARING BOTH THE PARTIES HEREIN FOR BOTH THE ASSESSMENT Y EARS I.E. 2012 - 13 AND 2013 - 14, WE REMIT THE MATTER BACK TO THE FILE OF ASSESSING OFFICER IN 4 ITA NO S . 331 & 332 /PUN/20 17 A.YS.2012 - 13 & 2013 - 14 TERMS OF OUR FINDINGS GIVEN IN ASSESSEES OWN CASES FOR ASSESSMENT YEAR 2009 - 10 & 2011 - 12 IN ITA NOS.1064 & 1065/PUN/2016 (SUPRA.) 6. IN THE RESULT, APPEALS OF THE ASSESSEE FOR ASSESSMENT YEARS 2012 - 13 & 2013 - 14 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED ON 02 ND DAY OF JANUARY , 20 20 . SD/ - SD/ - ANIL CHATURVEDI PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 02 ND JANUARY, 2020. SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS), PUNE - 5, PUNE. 4. THE PR. CIT, PUNE - 4, PUNE. 5 . , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE . 5 ITA NO S . 331 & 332 /PUN/20 17 A.YS.2012 - 13 & 2013 - 14 DATE 1 DRAFT DICTATED ON 02 .01.2020 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 02 . 01 .20 20 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER