ITO 21(3)(3), MUMBAI V. SHREE VISHVESHWAR SAHAKARI PATHPEDHI MARYADIT, MUMBAI

ITA 3929/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0971 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2017
• Appeal Filed By: Department
• Bench Allotted: SMC
• Next Hearing Date: 13-04-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 09-06-2016
• Court: TRIBUNAL
• Department Lawyers: BEENA SANTOSH
• Assessee Lawyers: VIKAS AGARWAL
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NO.3929/M/2016 (AY 2012 - 2013) ITO - 21(3)(3), MUMBAI. / VS. SHRI VISHWESHWAR SAHAKARI PATPEDHI MARYADIT, TELLI SEWA SAMAJ, SHANKAR RAO NARAM PATH, LOWER PAREL, MUMBAI - 400013. ./ PAN : AABAS5610G ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : MS. BEENA SANTOSH, DR / RESPONDENT BY : SHRI VIKAS AGARWAL / DATE OF HEARING : 13.04.2017 / DATE OF PRONOUNCEMENT : 19 .04.2017 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 9.6.2016 IS AGAINST THE ORDER OF THE CIT (A) - 33, MUMBAI DATED 28.3.2016. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: - 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN HOLDING THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 8 0P(2)(A)(I) OF THE ACT. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD CIT (A) ERRED IN DELETING THE ADDITION OF RS. 32,51,070/ - WITHOUT CONSIDERING THE PROVISIONS OF THE NEW SUB - SECTION WHICH HAS BEEN INSERTED IN SECTION 80P W .E.F 1.4.2007 WHICH PROVIDES THAT THE PROVISIONS OF SUB - SECTION SHALL NOT APPLY IN RELATION TO ANY COOPERATIVE BANK OTHER THAN A PRIMARY AGRICULTURAL AND RURAL DEVELOPMENT BANK. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE L D CIT (A) ERRED IN NOT APPRECIATING THE FACTS THAT AS PER DEFINITION GIVEN UNDER SUB - CLAUSE (CCI) & (CCII) OF THE CLAUSE (C) OF SECTION 5 OF THE BANKING REGULATION ACT, THE ASSESSEE HAS TO BE TREATED AS COOPERATIVE BANK BY VIRTUE OF THE ACTIVITIES BEING CA RRIED OUT BY THE ASSESSEE AND THEREBY ATTRACTS THE PROVISIONS OF SECTION 80P(4) MAKING THE ASSESSEE INELIGIBLE FOR DEDUCTION U/S 80P OF THE ACT. 2. AT THE OUTSET, COUNSEL FOR THE ASSESSEE DEMONSTRATED THAT THE TAX EFFECT INVOLVED IN THE APPEAL IS BELOW RS. 10 LAKHS PROVIDED EDUCATION CESS IS NOT INCLUDED. 2 REGARDING SUCH EXCLUSION OF THE EDUCATION CESS FOR THE PURPOSE OF EXAMINING THE TAX EFFECT, ASSESSEE RELIED ON THE ORDER OF THE TRIBUNAL IN THE CASE OF DCIT VS. M/S. DOME BELL ELECTRONICS INDIA LTD, ITA NO. 2480/M/2012 (AY 2007 - 2008), DATED 22.7.2016. LD AR FILED A COPY OF THE SAID TRIBUNALS ORDER AND READ OUT THE RELEVANT PARA 3.3, WHICH IS AS UNDER: - 3.3. WE HAVE GONE THROUGH THE SUB - SECTION (43) OF SECTION 2 WHICH DEFINES TAX. THE PERUSAL OF THE DEFINITION SHOWS THAT WHATEVER WAS INTENDED TO BE INCLUDED IN TAX HAS BEEN MENTIONED THEREIN. WHEN THE LEGISLATURE HAS MENTIONED THE WORDS SUPER - TAX AND FRINGE BENEFIT TAX, THEN, IT COULD HAVE ALSO MENTIONED THE WORDS SURCHARGE AND EDUCATION CE SS AS WELL, IF THERE WAS ANY INTENTION TO INCLUDE THE IN THE WORD TAX. THUS, WE RESPECTFULLY AGREE WITH THE DECISION TAKEN BY THE CHENNAI BENCH. IN OUR VIEW, SURCHARGE AND EDUCATION CESS SHALL NOT BE INCLUDED IN THE WORD TAX FOR THE PURPOSE OF EXAMI NING OF THE TAX EFFECT AS ENVISAGED IN CIRCULAR OF BOARD DT 10 TH DECEMBER, 2015 NO.21/2015........ 3. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED DECISION OF THE TRIBUNAL (SUPRA), I AGREE WIT H THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S. DOME BELL ELECTRONICS INDIA LTD (SUPRA). CONSIDERING THE SAME, I AM OF THE CONSIDERED OPINION, SINCE THE TAX EFFECT INVOLVED IN THIS A PPEAL IS BELOW RS. 10 LAKHS THEREFORE, THE APPEAL IS REQUIRED TO BE DI SMISSED AS NOT MAINTAINABLE AS PER THE CBDT CIRCULAR NO.21/2015, DATED 10.12.2015. ACCORDINGLY WE ORDER. THUS, GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 4. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 9 T H APRIL, 2017. S D / - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBAI ; 19.04.2017 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, 3 ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI