M/s. Muzaffarnagar District Cooperative Bank Ltd., Muzaffarnagar V. Addl CIT, Muzaffarnagar

ITA 4663/DEL/2011

• Counselvise Citation: 466320114 RSA 2011
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 22-12-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 21-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S NEGI SENIOR
• Keywords: Earning of tax free income; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.4663/DEL./2011 (ASSESSMENT YEAR : 2008-09) M/S. MUZAFFARNAGAR DISTRICT COOPERATIVE BANK LTD., VS. ADDL. CIT, RANGE 2, C/O ANIL DEEP AND COMPANY, CAS MUZAFFARNAGAR (U.P.). 41/85, SADAR BAZAR, MUZAFFARNAGAR 251 001 (U.P.). (PAN : AAAAM4327P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANIL GARG, FCA REVENUE BY : SHRI R.S. NEGI, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE ARISES OUT OF THE ORDER OF CIT (APPEALS), MUZAFFARNAGAR DATED 24.08.2011 FOR THE A SSESSMENT YEAR 2008-09. THE GROUNDS OF APPEAL READ AS UNDER :- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO FOR NOT GIVING THE RELIEF OF DIVID END INCOME OF RS.20.02 LACS, WHICH IS NOT TAXABLE UNDER THE INCOM E TAX ACT AND WHICH WAS CLAIMED BY THE APPELLANT DURING THE ASSES SMENT PROCEEDINGS. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO FOR CHARGING THE INCOME TAX ON DIV IDEND ITA NO.4663/DEL./2011 2 INCOME, WHICH IS DEDUCTABLE U/S 80 P (2) (D) OF THE INCOME TAX ACT WHICH WAS CLAIMED DURING THE ASSESSMENT PROCEED INGS AND NOT CLAIMED IN THE INCOME TAX RETURN MISTAKENLY. TH E INCOME TAX IS NOT CHARGEABLE ON THE EXEMPT INCOME/ INCOME NOT CHARGEABLE TO INCOME TAX. 3. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER L D. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT QUASHING T HE IMPUGNED ASSESSMENT ORDER PASSED BY LD. AO, AS THE ASSESSMEN T ORDER IS NOT SUSTAINABLE ON VARIOUS LEGAL AND FACTUAL GROUND S AND MORE SO BY RECORDING INCORRECT FACTS AND FINDING. 4. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODI FY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. THE ASSESSEE IS A COOPERATIVE SOCIETY REGISTERED UNDER SECTION U.P. COOPERATIVE SOCIETY ACT ENGAGED IN THE BUSINESS OF BANKING. 3. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE. THE ASSESSEE CLAIMED BENEFIT OF DIVIDEND INCOME AT RS.20,02,000/- BEING EXEMPTED U/S 80P(2)(D) OF THE INCOME-TAX ACT BEFORE THE ASSESSING OFFICER. T HE ASSESSING OFFICER DID NOT CONSIDER THE SUBMISSIONS MADE DURING THE PROCEE DINGS TO GIVE THE RELIEF IN RESPECT OF THE DIVIDEND INCOME OF RS.20,02,000/- T HE CIT (A) CONFIRMED THE ADDITION BY HOLDING AS UNDER :- JUST TO DISTINGUISH ITS OWN CASE FROM THAT OF M/S GOETZE (INDIA) LTD., THE APPELLANT TRIED TO INFER FROM THE . ASSESSMENT ORDER, THAT SINCE THE A.O. HAS NOT WRITTEN A SINGLE WORD ABOUT ITS CLAIM MADE BEFORE HIM DURING THE ASSESSMENT PROCEED INGS, HIS SILENCE ON !THE ISSUE SHOULD BE TAKEN AS ACCEPTANCE OF APPELLANT'S CLAIM AND ONLY ITS EFFECT SHOULD BE GIVEN WHICH TH E A.O. OMITTED. HOWEVER, THE APPELLANT'S SUCH INFERENCE IS NOT A FACT AND HENCE REJECTIBLE. ITA NO.4663/DEL./2011 3 IN VIEW OF THE ABOVE FACTS AND FOLLOWING THE DECIS ION OF THE HON'BLE SUPREME COURT (SUPRA), ON MERITS OF THE CASE ALSO, IT IS HELD THAT THE A,O. WAS PERFECTLY JUSTIFIED IN NO T ALLOWING THE CLAIM OF DEDUCTION U/S 80P(2)(D) OF THE ACT AT RS.2 0.02 LACS. THE ACTION OF THE A.O. EVEN IF CONSIDERED DEEMED REJECT ION OF APPELLANT'S CASE IS HEREBY CONFIRMED. GROUND NOS.2& 3 ARE DISMISSED. IN THE WRITTEN SUBMISSIONS, THE APPELLANT HAS TAKE N A STAND THAT NO TAX CAN BE COLLECTED. IF NOT DUE ON THE ASS ESSEE, EVEN IF HE HAS WRONGLY PAID IN HIS INCOME TAX RETURN THROUGH I GNORANCE OF LAW OR OTHERWISE AND CLAIMED DURING THE ASSESSMENT PROCEEDINGS. THE REFERENCE HAS BEEN MADE TO ARTICLE 265 OF THE CONSTITUTION OF INDIA WHICH IMPOSE AN EMBARGO ON IM POSITION AND COLLECTION OF TAX IF THE SAME IS WITHOUT AUTHOR ITY OF LAW. IN THIS RESPECT, IT IS OBSERVED THAT EVERY TAX PAYER ( INCLUDING THE APPELLANT) IS BOUND TO FOLLOW THE PROVISIONS OF LAW IN LETTER AND SPIRIT. THERE ARE RECTIFICATORY MEASURES ALREADY AV AILABLE TO THE TAX PAYER. EVEN IF THE APPELLANT COULD NOT REVISE I TS RETURN IN TIME U/S 139(4), IT COULD HAVE APPROACHED THE APPROPRIAT E AUTHORITY U/S 119 OF THE I.T. ACT FOR REMEDIAL ACTION IN ITS' CASE. ALTERNATIVELY, THE APPELLANT COULD HAVE INVOKED THE PROVISIONS OF SECTION 264 OF THE ACT AND REQUESTED FOR REMEDIAL A CTION. HOWEVER, ENTERTAINING THE APPELLANT'S CLAIM AT ASSE SSMENT STAGE OR APPELLATE STAGE WOULD BE TRANSGRESSING INTO THE JURISDICTION OF ADMINISTRATIVE HIERARCHY WHICH WOULD BE AGAINST THE SPIRIT AND ARRANGEMENTS MADE UNDER THE LAW. THUS, THE CIT (A) HAS APPLIED THE CASE OF GOETZE IN DIA LIMITED REPORTED IN 284 ITR 323. IN THIS CASE, THE HON'BLE SUPREME COU RT HAS HELD AS UNDER :- THE SUPREME COURT DISMISSED THE APPEAL, MAKING I T CLEAR THAT THE DECISION WAS RESTRICTED TO THE POWER OF THE ASSESSING AUTHORITY TO ENTERTAIN A CLAIM FOR DEDUCT ION OTHERWISE THAN BY A REVISED RETURN, AND DID NOT IMPINGE ON TH E POWER OF THE APPELLATE TRIBUNAL UNDER SECTION 254 OF THE INCOME- TAX ACT, 1961. DECISION OF THE DELHI HIGH COURT AFFIRMED. ITA NO.4663/DEL./2011 4 THE HON'BLE SUPREME COURT HAS HELD THAT THERE IS NO LIMITATION TO THE POWER OF ITAT U/S 254 OF THE INCOME-TAX ACT, 1961. THE A SSESSEE COULD NOT CLAIM THE ALLOWABLE DEDUCTION IN THE RETURN OF INCOME. H E HAS MADE APPLICATION BEFORE ASSESSING OFFICER. THE HON'BLE SUPREME COUR T IN THE CASE OF NATIONAL THERMAL POWER CO. LIMITED VS. CIT REPORTED IN 229 I TR 383 (SC) HAS HELD THAT IT IS OPEN TO THE ASSESSEE TO RAISE THE POINT OF LAW EVEN BEFORE THE TRIBUNAL. THE ASSESSEES CLAIM PRIMA FACIE APPEARS TO BE GENUINE. THEREFORE, WE SET ASIDE THE ORDER OF AUTHORITIES BELOW AND RES TORE THE ISSUE TO THE FILE OF ASSESSING OFFICER TO EXAMINE THE ALLOWABILITY OF AS SESSEES CLAIM AND DECIDE THE ISSUE AFRESH. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 22 ND DAY OF DECEMBER, 2011 AFTER THE CONCLUSION OF THE HEARING. SD/- SD/- (RAJPAL YADAV) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 22 ND DAY OF DECEMBER, 2011/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XVI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.