U.P Civil Secretariat Primary Co-operative Bank, Lucknow V. Income Tax Officer-2(3), Lucknow

ITA 41/LKW/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4681 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 03-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 234B; 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.41/LKW/2016 ASSESSMENT YEAR:2009-10 INCOME TAX OFFICER-2(3), LUCKNOW. VS U.P. CIVIL SECRETARIAT PRIMARY COOPERATIVE BANK, VIDHAN BHAWAN, HAZARATGANJ, LUCKNOW. PAN:AAAJU0257B (RESPONDENT) (APPELLANT) SHRI R. C. JAIN, F.C.A. APPELLANT BY SHRI AMIT NIGAM, D. R. RESPONDENT BY 24/02/2016 DATE OF HEARING 03 /0 3 /2016 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE OR DER PASSED BY LEARNED CIT(A), LUCKNOW DATED 18/11/2015 FOR THE ASSESSMENT YEAR 2009-2010. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS: 1.1 BECAUSE THE LEARNED 1 ST APPELLATE AUTHORITY ERRED IN HOLDING THAT ADEQUATE OPPORTUNITY WAS GIVEN BY THE ASSESSING OFFICER TO THE APPELLANT FOR PASSING THE ORDER U/S 154/143(3) OF THE IT ACT, 1961. 1.2 BECAUSE THE LEARNED ASSESSING OFFICER OUGHT TO HAVE HELD THAT THE ASSESSING OFFICER DID NOT ALLOW ADEQUATE OPPORTUNITY TO THE ASSESSEE BEFORE PASSING THE ORDE R DATED 15-04-2014 UNDER SECTION 154/143(3). 2.1 BECAUSE THE LEARNED 1ST APPELLATE AUTHORITY OUGHT T O HAVE APPRECIATED THAT THE ASSESSEE DID NOT GET AN OPPORTUNITY TO RAISE THE ISSUE OF ALLOWABILITY OF D EDUCTION U/S SOP BEFORE THE ASSESSING OFFICER. 2 2.2 THE POWERS OF THE LEARNED 1ST APPELLATE AUTHORITY B EING CO-TERMINUS WITH THE POWERS OF THE ASSESSING OFFICE R, THE CLAIM OF THE ASSESSEE U/S 80P WAS LIABLE TO BE CONS IDERED BY THE LEARNED 1ST APPELLATE AUTHORITY. 2.3 BECAUSE THE LEARNED CIT (APPEALS) HAVING ALLOWE D THE CLAIM OF THE ASSESSEE U/S 80P IN THE IMMEDIATELY PRECEDING ASSESSING YEAR, I.E., AY 2008-09, IT WAS ALL THE MORE REASON FOR THE LEARNED 1ST APPELLATE AUTHORITY TO HAVE CONSIDERED THE CLAIM OF THE ASSESSEE FOR DEDUC TION U/S 80P. 3. BECAUSE THE LEARNED 1 ST APPELLATE AUTHORITY OUGHT TO HAVE HELD THAT NO INTEREST WAS CHARGEABLE U/S 234B OF IT ACT, 1961. 4. BECAUSE THE ORDER APPEALED AGAINST IS CONTRARY T O FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 3. IT WAS SUBMITTED BY LEARNED A. R. OF THE ASSESSE E THAT ALTHOUGH VARIOUS GROUNDS ARE RAISED BUT THE MAIN ISSUE INVOL VED IS REGARDING DEDUCTION U/S 80P OF THE ACT. HE FURTHER SUBMITTED THAT BEFORE CIT(A), GROUND NO. 4 WAS RAISED IN WHICH THE CLAIM WAS MADE REGARDING DEDUCTION U/S 80P BUT CIT(A) HAS NOT DECIDED THIS ISSUE ON ME RIT AND HE HAS SIMPLY REJECTED THIS GROUND BY SAYING THAT SINCE THE CLAIM OF THE ASSESSEE HAS NOT BORNE OUT FROM THE ORDER PASSED BY ASSESSING OFFICE R U/S 154 OF THE ACT, NO ADJUDICATION IS REQUIRED. HE SUBMITTED THAT THIS I SSUE MAY BE RESTORED BACK TO THE FILE OF LEARNED CIT(A) FOR DECIDING THE ISSU E ON MERIT ABOUT ALLOWABILITY OF DEDUCTION U/S 80P OF THE ACT BECAUS E SINCE IN THE ASSESSMENT ORDER, THE INCOME ASSESSED WAS NIL, THERE WAS NO OC CASION ON THE PART OF THE ASSESSEE TO CLAIM DEDUCTION U/S 80P AND THEREFO RE, WHEN THIS CLAIM WAS MADE BY THE ASSESSEE BEFORE CIT(A) IN COURSE OF PRO CEEDINGS U/S 154, THIS ISSUE SHOULD HAVE BEEN DECIDED ON MERIT. 4. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDER S OF THE AUTHORITIES BELOW. 3 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT AS PER THE ASSESSMENT ORDER DATED 15/12/2011, INCOME OF THE AS SESSEE WAS ASSESSED BY THE ASSESSING OFFICER AT NIL. THEREAFTER, THE A SSESSING OFFICER INITIATED PROCEEDINGS U/S 154 OF THE ACT AND IN THE ORDER PAS SED BY HIM U/S 154, HE DID NOT ALLOW SET OFF OF BROUGHT FORWARD LOSSES AND AS A RESULT, THE INCOME OF THE ASSESSEE WAS ASSESSED AT A POSITIVE INCOME. HE SUBMITTED THAT AFTER PASSING OF THIS ORDER U/S 154 ASSESSING THE INCOME AT A POSITIVE FIGURE, THE ASSESSEE HAD THE FIRST OCCASION TO RAISE THE CLAIM FOR DEDUCTION U/S 80P OF THE ACT AND BECAUSE BEFORE EXHAUSTING THE B/F LOSSE S, DEDUCTION U/S 80 P CANNOT BE CLAIMED. THEREFORE, THE ISSUE SHOULD HAVE BEEN DECIDED BY CIT(A) ON MERIT INSTEAD OF BRUSHING ASIDE THE SAME ON THIS BASIS THAT THERE IS NO DISCUSSION IN THE ASSESSMENT ORDER. THEREFORE, WE SET ASIDE THE ORDER OF LEARNED CIT(A) AND RESTORE THE MATTER BACK TO HIS F ILE WITH THE DIRECTION TO DECIDE THE ISSUE REGARDING ALLOWABILITY OF DEDUCTIO N U/S 80P OF THE ACT ON MERIT. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GAROD IA ) JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED:03/03/2016 *SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR