Asstt. Commissioner of Income Tax, Faizabad V. M/s. Sahkari Ganna Vikas Samiti Ltd., Faizabad

ITA 451/LKW/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83299 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-07-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 09-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Revised return
• Section: 234B

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.451/LKW/2012 ASSESSMENT YEAR:2008 - 09 A.C.I.T., CIRCLE - FAIZABAD. VS. M/S SAHKARI GANNA VIKAS SAMITI LTD., GANAULI, FAIZABAD. PAN:AAAAC3185D (APPELLANT) (RESPONDENT) APPELLANT BY SHRI AMIT NIGAM, D. R. RESPONDENT BY NONE DATE OF HEARING 17/07/2014 DATE OF PRONOUNCEMENT 0 5 /0 9 /2014 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - I, LUCKNOW DATED 11/05/2012 FOR THE ASSESSMENT YEAR 2008 - 2009. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. LD. CIT(A) HAS ERRED ON FACTS AND IN LAW ALLOWING DEDUCTION U/S 80 P(2)(A) OF THE ACT, IGNORING THE FACT THAT THE ABOVE DEDUCTION WAS CLAIMED NOWHERE IN THE RETURN. 2. LD. CIT(A) HAS ERRED ON FACTS AND IN LAW ALLOWING DEDUCTION U/S 80P(2)(A) OF THE ACT, IGNORING THE FACT THAT THE ABOVE DEDUCTION WAS CLAIMED NOWHERE IN TH E RETURN AND SUCH DEDUCTION CANNOT BE CLAIMED OTHERWISE THAN FILING A REVISED RETURN AS PER DECISION OF HON'BLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. VS CIT (284 ITR 323) (2006) WHICH WAS NOT DONE BY THE ASSESSEE. 2 3. NONE APPEARED ON BEHALF O F THE ASSESSEE ON THE APPOINTED DATE OF HEARING INSPITE OF NOTICE AND HENCE, WE PROCEED TO DECIDE T HE APPEAL OF THE REVENUE EX - PARTE QUA THE ASSESSEE. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED D.R. OF THE REVENUE, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ISSUE WAS DECIDED BY LEARNED CIT(A) AS PER PARA 2 OF HIS ORDER WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: 2. THE SOLE ISSUE DISPUTED IN APPEAL RELATES TO DENIAL OF DEDUCTION U/S 80P BY THE ASSESSING OFFICER. THE ASSESSING OFFICER IS SEEN TO HAVE REJECTED THE APPELLANTS CLAIM FOR DEDUCTION U/S 80P ON THE GROUND THAT IN THE COMPUTATION OF INCOME FILED WITH THE R ETURN NO AMOUNT OF DEDUCTION CLAIMED U/S 80 P WAS INDICATED. THUS THE OMISSION OF THE ASSESSEE TO INDICATE THE AMOUNT OF DEDUCTION IN THE COMPUTATION FILED WITH THE RETURN IS THE SOLE BASIS ON WHICH THE CLAIM HAS BEEN DISALLOWED. THE ASSESSING OFFICER HIMSELF HAS ACKNOWLEDGED IN THE BEGINNING OF HIS ORDER THAT THE RETURN WAS FILED DECLARING NIL INCOME AFTER CLAIMING EXEMPTION U/S 80P. THUS IT IS NOT THE CASE OF THE AO THAT THE DEDUCTION U/S 80P WAS NOT CLAIMED IN THE RETURN. THE AO HAS ALSO NOT HELD THA T THE APPELLANT IS OTHERWISE NOT ENTITLED TO DEDUCTION U/S 80P. THE AO HAS SOLELY RELIED UPON THE COMPUTATION FILED WITH THE RETURN AND IGNORED THE FACT THAT THE DEDUCTION U/S 80P WAS INDICATED IN THE RETURN AND THIS FACT HAS BEEN ACKNOWLEDGED BY THE AO IN HIS ORDER. UNDER THESE CIRCUMSTANCES, I DO NOT FIND ANY MERIT IN THE AO'S ACTION IN REJECTING THE APPELLANT'S CLAIM FOR DEDUCTION U/S 80P WHICH IT HAS BEEN GETTING IN THE PAST ALSO. THE GROUND OF THE APPEAL IS, THEREFORE, ALLOWED. 5.1 FROM THE ABOVE PARA FROM THE ORDER OF CIT(A), WE FIND THAT A CLEAR FINDING IS GIVEN BY CIT(A) THAT THE ASSESSING OFFICER HAS ALSO NOTED IN THE ASSESSMENT ORDER THAT THE RETURN WAS FILED BY THE ASSESSEE DECLARING NIL INCOME AFTER CLAIMING DEDUCTION U/S 80P OF THE ACT. FR OM THE ASSESSMENT 3 ORDER, WE ALSO FIND THAT IT IS NOTED BY THE ASSESSING OFFICER I N THE VERY FIRST SENTENCE THAT THE ASSESSEE HAS DECLARED NIL INCOME IN THE RETURN AFTER CLAIMING DEDUCTION U/S 80P OF THE ACT BUT NO AMOUNT OF DEDUCTION HAS BEEN MENTIONED. I N THIS REGARD, WE FEEL THAT PARA 4 OF THE ASSESSMENT ORDER IS VERY MUCH RELEVANT AND THE SAME IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: 4. NO CLAIM OF DEDUCTION U/S 80P WITH ANY SPECIFIC AMOUNT IS MADE IN THE RETURN. IN THE COMPUTATION FILED WITH THE RETURN, FOLLOWING NARRATION IS AVAILABLE: - (I) INCOME DURING THE YEAR NIL (II) EXEMPT U/S 80 P 100% --- (III) TAX DUE NIL IN THE PROFIT & LOSS A/C FILED WITH THE RETURN, TOTAL CREDITS OF RS.66,75,732 / - HAVE BEEN SHOWN AND AFTER DEDUCTING EXPENSES, PROFIT OF RS.11,42,525 / - HAS BEEN ARRIVED. IN ABSENCE OF CLAIM OF DEDUCTION, ENTIRE INCOME OF RS. 11 ,42,525/ - IS TREATED AS TAXABLE AND ASSESSMENT IS ACCORDINGLY COMPLETED ON TOTAL INCOME OF RS.11,42,525 / - . ASSESSMENT IS MADE ON INCOME OF RS.11,42,530 / - AS DISCUSSED ABOVE. CHARGE INTEREST U/S 234A AND 234B AS PER RULES. ISSUE NOTICE OF DEMAND AND CHALLAN. INITIATE PENALTY PROCEEDINGS U/S 274 READ WITH 271( 1 )(C) FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE CO - OPERATIVE SOCIETY, AS SESSEE HAS FAILED TO COMPLY WITH THE PROVISIONS OF SECTION 44AB OF THE I.T. AS REQUIRED TO GET ITS ACCOUNTS AUDITED. ISSUE PENALTY NOTICE U/S 271B OF THE I.T. ACT, 1961 FOR VIOLATING PROVISIONS LAID DOWN U/S 44AB OF THE INCOME TAX ACT. 5.2 FROM THE ABOVE PARA OF THE ASSESSMENT ORDER, WE FIND THAT IN THE COMPUTATION OF INCOME FILED ALONG WITH THE RETURN OF INCOME, THE ASSESSEE HAS STATED NIL INCOME AND IT IS ALSO STATED IN THE SAME COMPUTATION THAT EXEMPTION U/S 80P @100% AND BLANK ( --- ) IS GIVEN THEREAFTE R. FROM THE ABOVE, IT IS SEEN THAT THE INCOME ITSELF HAS BEEN DECLARED BY THE ASSESSEE AT NIL IN THE COMPUTATION OF INCOME AND ALTHOUGH , IT IS CLAIMED THAT EXEMPTION IS AVAILABLE U/S 80P @100% BUT NO AMOUNT OF SUCH EXEMPTION IS 4 MENTIONED. CONSIDERING ALL THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT EVEN IF NO SPECIFIC CLAIM WAS MADE BY THE ASSESSEE IN THE RETURN OF INCOME REGARDING DEDUCTION U/S 80P AND THE SAME IS RAISED BY THE ASSESSEE BEFORE THE CIT(A) THEN ALSO , IT IS OBLIGATORY ON THE PART OF THE CIT(A) TO EXAMINE SUCH CLAIM FOR DEDUCTION U/S 80P OF THE ACT. IN THE ORDER OF CIT(A), THERE IS NO FINDING GIVEN BY HIM AS TO WHETHER SUCH DEDUCTION U/S 80P IS ALLOWABLE TO THE ASSESSEE OR NOT. IN THE ABSENCE OF ANY SUCH FINDING OF CIT(A), THE ORDER OF CIT(A) IS NOT SUSTAINABLE BECAUSE WHEN NO SPECIFIC CLAIM WAS MADE BY THE ASSESSEE FOR DEDUCTION U/S 80P OF THE ACT IN THE RETURN OF INCOME FILED BY THE ASSESSEE, THE ASSESSING OFFICER WAS NOT SUPPOSE D TO GIVE ANY FINDING REGARDING ALLOWABILITY OF DEDUCT ION BUT CIT(A) SHOULD HAVE PASSED A REASONED ORDER WITH A DECISION REGARDING ALLOWABILITY OF DEDUCTION U/S 80P OF THE ACT. HENCE, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION. WE WANT TO MAKE IT CLEAR THAT T HE CIT(A) SHOULD GIVE A CLEAR FINDING WHETHER THE DEDUCTION IS ALLOWABLE TO THE ASSESSEE OR NOT. HE SHOULD PASS A WELL REASONED AND SPEAKING ORDER AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES . 6. IN THE RESULT, THE APPEAL OF THE REVENUE 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. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 5 /0 9 /2014. *C.L.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