M/s.Kodiyeri Service Co-op Bank Ltd, Kannur V. ITO, Kannur

ITA 340/COCH/2012

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5509 (ITAT-COCHIN)
• Duration Of Justice: 4 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 10-12-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A DHANARAJ
• Assessee Lawyers: T M SREEDHARAN
• Keywords: Question of law; Benefit of exemption
• Section: 142(1); 260A; 144; 139

Judgement Text

ITA NO 340 C/201 2 1 IN THE INCOME TAX APPEL L A TE T R IBUNAL COCHIN BENCH KOCHI BEFORE S/ SH RI P.K. BANSAL VICE PRESIDENT & GEORGE GEORGE K, JM ITA NO 340 /COCH/2012 ( A SST YEAR 2009 - 10 ) M/S KODIYERI SERVICE COOP BANK LTD THALASSERY, KANNUR - 71. VS THE INCOME TAX OFFICER WA R D 2 KAN N UR ( APPELLANT) (RESPONDENT) PAN NO. AAAA BK 0213F ASSESSEE BY S HRI T.M. SREEDHARAN, SR. ADV. REVENUE BY SHRI A. DHANARAJ, SR. DR DATE OF HEARING 05/10/2017 DATE OF PRONOUNCEMENT 05/10/2017 OR D ER PER GEO R GE GEORGE K, JM : T HIS APPEAL IS RESTORED TO THE TRIBUNAL BY THE HONBLE KERALA HIGH COURT VIDE JUDGMENT DATED 27 - 02 - 2017 IN ITA NO 135 OF 2016 . 2 BRIEF FACTS OF THE CASE ARE AS FOLLOWS: THE ASSESSEE IS A COOPERATIVE SOCIETY REGISTERED UNDER THE KERALA COOPERATIVE SOCIETI ES ACT, 1969. THE ASSESSEE HAD FAILED TO FILE RETURN OF INCOME FOR THE AY 2009 - 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 SECT ION 139 OR 142(1) OF THE ACT AND HENCE, BEST JUDGMENT ASSESSMENT U/S 144 OF THE ACT WAS COMPLETED BY ITA NO 340 C/201 2 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 BEN EFIT OF DEDUCTION CLAIMED U/S 80P OF THE ACT, SINCE THE RETURN OF INCOME WAS NOT FURNISHED WITHIN 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 APPEAL TO THE TRIBUNAL. THE TRIBUNAL, VIDE ORDER DATED 22 - 04 - 2013 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 AP PEAL U/S 260A OF THE ACT. THE HONBLE KERALA HIGH COURT, VIDE JUDGMENT DATED 7 TH APRIL 2016 IN ITA NO 57 OF 2016, RESTORED THE MATTER TO THE TRIBUNAL. IT IS IN THIS CONTEXT, THE CASE WAS HEARD ON 05 - 10 - 2017. 6. WE HAVE HEARD THE RIVAL PARTIES AND PER USED 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 TRIBUNAL WAS NOT JUSTIFIED IN DENYING THE BENEFIT OF EXEMPTION U/S 80P OF THE ACT ITA NO 340 C/201 2 3 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 N ON - 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 EXEMPT ION ON GROUND REFERABLE TO BELATED 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 AM ONG THESE APPEALS WHERE RETURNS 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 INC OME 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 DEDUCTIONS 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 SECTION 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 INHIBITION CONTAINED IN SUB SECTION 5 OF SECTION 80A WOULD OPERATE BY ITSELF. IN CASES WHERE RETURNS HAVE BEEN FILED, THE QUESTION OF EXEMPTIONS OR DEDUCTIONS REFERABLE TO SECTION 80P ITA NO 340 C/201 2 4 WOULD DEFINITELY HAVE TO BE CONSIDERED AND GRANTED IF ELIGIBLE. 20 HENCE, QUESTION 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 RETUR NS ARE ELIGIBLE TO BE ACCEPTED 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 WHEN 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 OF 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 APP EALS 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 I S SO BECAUSE THE FINA 1 IY OF ASSESSMENT 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 PROCEEDIN GS IN RELATION TO SUCH ASSESSMENTS 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 THE 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 F ILING OF RETURN OF INCOME BY THE ASSESSEE DOES NOT DISENTITLE IT FROM THE BENEFIT OF DEDUCTION U/S 80P(2) OF THE ACT. FURTHER, THE ASSESSEE, IN THE INSTANT CASE, IS A ITA NO 340 C/201 2 5 PRIMARY AGRICULTURAL CREDIT SOCIETY REGISTERED UNDER THE KERALA COOPERATIVE SOCIETIES AC T, 1969. THE CERTIFICATE HAS 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 SOC IETY, REGISTERED UNDER THE KERALA 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 ASSESSEE 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 LD COUNSEL FOR THE ASSESSEE DURING THE COURSE OF HEARING OF THESE APPEAL. 8 IN THE RE SULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF OCTOBER 2017 . SD/ - SD/ - (P.K.BANS AL) (GEORGE GEORGE K.) VICE PRESIDENT JUDICIAL MEMBER COCHIN: DATED 5 TH OCTOBER 2017 ITA NO 340 C/201 2 6 COPY TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT , 5 . DR 6 . GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN