B.S.P Employee Co-Operative & Wellfare society, BHILAI(CG) V. Asstt.Commissioner Circle -1, BHILAI(CG)

ITA 44/BIL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8539 (ITAT-RAIPUR)
• Duration Of Justice: 2 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 18-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K JAIN
• Assessee Lawyers: M C OSWAL
• Keywords: Rectification of order; Principle of natural justice; Revised return
• Section: 54; 154

Judgement Text

INCOME TAX APPELLATE TRIBUNAL,BENCH -RAIPUR . .. . . .. . , ,, , ! ! ! !, ,, , . .. . . .. . BEFORE S/SH.H.L.KARWA, PRESIDENT A ND RAJENDRA, ACCOUNTANT MEMBER ./ ITA NO. 44/BLPR/2012- # # # # / // / ASSESSMENT YEAR- 2007-08 BSP EMPLOYEE CO- OPERATIVE & WELFARE SOCIETY, SEC. 4, BHILAI PAN: AAAJB 0384 G V/S. ASSTT. COMMISSIONER, CIRCLE-1, BHILAI. ( ) / // / APPELLANT ) ( *+) / RESPONDENT ) ASSESSEE BY : SH. M.C. OSWAL, ADVOCATE REVENUE BY : SH. D.K. JAIN, D.R. - /DATE OF HEARING : 15-12-2014 - /DATE OF PRONOUNCEMENT : 15-12-2014 # # # # , 1961 1961 1961 1961- - - - 254 254254 254( (( (1 11 1) )) ) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM < << < = = = =, ,, , ! ! ! ! : CHALLENGING THE ORDER DT. 04.01.2012 OF THE COMMISS IONER OF INCOME-TAX (APPEALS), ASSESSEE HAS RAISED FOLLOWING GROUND OF APPEAL: 1. THAT THE LEARNED A.O. HAS ERRED IN LAW IN REJECTIN G THE APPLICATION U/S. 154 OF THE I.T. ACT AND THE LEARNED C.I.T. APPEAL HAS ALSO ERRED IN MAINTAINING THE ORDER OF THE LEARNED A.O. 2. THAT THE APPELLANT RESERVED THE RIGHT TO ADD, AMEND OR ALTER THE GROUND OF APPEAL AT THE TIME OF HEARING. 2 . THE ASSESSEE,A CO-OPERATIVE SOCIETY,FILED ITS RETUR N OF INCOME ON 29.03.2008, DISCLOSING INCOME OF RS.6,55,591/-.THE ASSESSING OFFICER (AO) PROCESS ED THE RETURN OF INCOME U/S. 143(1) OF THE ACT, ACCEPTING THE RETURN FILED BY THE ASSESSEE. TH E ASSESSEE WAS DOING THE BUSINESS OF PROVIDING CREDIT FACILITIES TO ITS MEMBERS. IT WAS CLAIMING E XEMPTION U/S. 80P(2)(A)(I) UPTO THE ASSESSMENT YEAR 2006-07. DUE TO THE AMENDMENT IN THE SECTION W .E.F. 01.04.2007, THE ASSESSEE DID NOT CLAIM EXEMPTION U/S. 80P(2).LATER ON, AFTER RECEIVING A C OPY OF LETTER NO. F/30688/2007, THE ASSESSEE MOVED AN APPLICATION BEFORE THE AO U/S. 154 OF THE ACT. HOWEVER, THE AO REJECTED THE CLAIM MADE BY THE ASSESSEE RELYING UPON THE DECISION OF S AGAR CO-OPERATIVE BANK LIMITED VS. CIT (85 CTR 206) DELIVERED BY HONBLE M.P. HIGH COURT AND H ELD THAT THE ISSUE OF ALLOWANCE OR WITHDRAWAL OF RELIEF U/S. 80P WAS NOT A MATTER OF C ONSIDERATION U/S. 154 OF THE ACT. 3 .AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FIL ED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA).BEFORE HIM, IT WAS ARGUED THAT THE A O DID NOT GIVE AN OPPORTUNITY TO IT BEFORE DISMISSING THE APPLICATION FILED U/S. 154, THAT THE ACTION BY THE AO WAS AGAINST THE PRINCIPLES OF NATURAL JUSTICE,THAT CBDT VIDE LETTER NO.95/2007 (F .NO. 133/06/2007) HAD CLARIFIED THAT DEDUCTION U/S. 80P WOULD NOT BE AVAILABLE TO ANY CO-OPERATIVE BANK OTHER THAN A PRIMARY AGRICULTURAL CREDIT SOCIETY, PRIMARY CO-OPERATIVE AGRICULTURAL A ND RURAL DEVELOPMENT BANK. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE A ND THE RECTIFICATION ORDER OF THE AO, THE FAA HELD THAT THE LETTER ISSUED BY THE CBDT DID NOT AMO UNT TO INSTRUCTION, THAT THERE WAS NO MISTAKE APPARENT FROM RECORD THAT COULD BE RECTIFIED U/S. 1 54 OF THE ACT, THAT IN CASE UNDER CONSIDERATION, THE INVESTIGATION HAD TO BE MADE WHETHER THE ASSESS EE WAS A PRIMARY AGRICULTURAL CREDIT SOCIETY OR NOT, THAT OMISSION OF CLAIMING EXEMPTION WAS NOT A MISTAKE APPARENT FROM RECORD. FINALLY, 2 ITA NO. 44/BLPR/2012 BSP EMPLOYEE CO-OP. WELFARE SO CIETY RELYING UPON THE DECISION OF HONBLE APEX COURT DEL IVERED IN THE CASE OF GOETZ INDIA LTD. (284 ITR 223), HE HELD THAT EXEMPTION/DEDUCTION COULD BE ENTERTAINED ONLY ON A REVISED RETURN. 4 .BEFORE US,THE AUTHORIZED REPRESENTATIVE (AR) OF TH E ASSESSEE ARGUED THAT THE DEDUCTION U/S. 80P(2)(A)(I) OF THE ACT WAS ALLOWED BY THE AO IN TH E EARLIER AS WELL AS SUBSEQUENT YEARS, THAT THERE WAS CONFUSION AT THE TIME OF FILING THE APPEAL,THAT AS ABUNDANT PRECAUTION THE ASSESSEE HAD NOT CLAIMED DEDUCTION, THAT AFTER GETTING THE CLARIFICA TION FROM THE BOARD IT MADE AN APPLICATION TO THE AO FOR CLAIMING THE DEDUCTION.HE REFERRED TO PAGE N O. 2 & 3 OF THE PAPER BOOK. HE STATED THAT IN THE CASE OF SAGAR CO-OPERATIVE BANK LTD.(SUPRA), HO NLE HIGH COURT WAS DEALING WITH THE PROVISIONS OF SECTION 254(2) AND NOT SECTION 154.TH E DEPARTMENTAL REPRESENTATIVE (DR) LEFT THE ISSUE TO THE DISCRETION OF THE BENCH. 5 .WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL BEFORE US. WE FIND THAT THE ASSESSEE WAS FILING ITS RETURN OF INCOME AS COOPERA TIVE SOCIETY, THAT IN THE SUBSEQUENT YEAR AND IN EARLIER YEAR, IT HAD FILED THE RETURN UNDER THE SAM E STATUS AND THE AO HAD ACCEPTED THE CLAIM MADE BY IT, THAT THE AO HAD ISSUED A REFUND WHILE PROCES SING THE RETURN FOR THE ASSESSMENT YEAR 2008- 09. IT IS FURTHER FOUND THAT THE ASSESSEE MADE AN A PPLICATION U/S. 154 ONCE HE GOT CLARIFICATION FROM THE CBDT,THAT THE FAA HAD REJECTED THE CLAIM MADE B Y THE ASSESSEE RELYING UPON THE ORDER OF THE HONBLE SUPREME COURT DELIVERED IN THE CASE OF GOET EZ INDIA LTD.(SUPRA).THERE IS NO DOUBT THAT THE AO IS NOT AUTHORISED TO ENTERTAIN ANY FRESH CLA IM WITHOUT A REVISED RETURN OF INCOME,BUT APPELLATE AUTHORITIES I.E. FAA AND THE ITAT CAN ENT ERTAIN ANY FRESH CLAIM OF DEDUCTIONS/ EXEMPTIONS,AS HELD BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF PRUTHVI BROKERS LTD. (349 ITR336).IN OUR OPINION, THE ASSESSEE WAS ENTITLED T O CLAIM DEDUCTION,AS IT IS AN EMPLOYEES CO- OPERATIVE AND WELFARE SOCIETY AND THE PROVISIONS OF SECTION 80P(2)(A)(I) ARE SQUARELY APPLICABLE TO IT. CONSIDERING THE FACT THAT THE ASSESSEE IS A CRE DIT CO-OPERATIVE SOCIETY AND AFTER GETTING THE CLARIFICATION FROM CENTRAL BOARD OF DIRECT TAXES, I T HAD MADE AN ELIGIBLE CLAIM,WE ARE OF THE OPINION THAT THE ORDER OF THE FAA CANNOT BE ENDORSE D.THEREFORE, REVERSING HIS ORDER, WE DECIDE THE EFFECTIVE GROUND OF APPEAL IN FAVOUR OF THE ASS ESSEE. AS A RESULT, APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. > > > > #> #> #> #> @ @@ @ A AA A - -- - . ORDER PRONOUNCED IN THE OPEN COURT TODAY ON 15 TH DECEMBER, 2014. - E 15 F ,2014 - SD/- SD/- (H.L.KARWA/ . .. . . .. . ) ( ! ! ! ! / RAJENDRA) PRESIDENT/ = = = = /ACCOUNTANT MEMBER /RAIPUR. F DATE: 15.12.2014 - -- - *#GH *#GH *#GH *#GH IH IH IH IH / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / ) 2. RESPONDENT / *+) 3. THE CONCERNED CIT(A)/ J K , 4. THE CONCERNED CIT / J K 5. DR ITAT,RAIPUR BENCH/ H *## , . . . , 6. GUARD FILE/ . +H *# //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, RAIPUR