YOUTH FOUNDATION NAGARI SAHAKARI PATSANSTHA MARYADIT, Pune V. PRINCIPAL COMMISSIONER OF INCOME TAX -6 , PUNE, Pune

ITA 515/PUN/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9717 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 30-03-2021
• Assessment Year: 2015-2016
• Appeal Filed On: 26-08-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order
• Section: 263; 143(3); 142(1); 201; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI R. S. SYAL, VICE PRESIDENT AND SHRI S. S. VISWANETHRA RAVI, JUDICIAL MEMBER . / ITA NO.515/PUN/2020 / ASSESSMENT YEAR : 2015-16 YOUTH FOUNDATION NAGARI SAHAKARI PATSANSTHA MARYADIT, NEAR DURGA THEATRE BARAMATI, TALUKA- BARAMATI, DISTRICT- PUNE 413102. PAN: AAAAY2958A .. /APPLICANT / V/S. PR. CIT-6, PUNE. .. / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE REVENUE BY : SHRI MOHIT JAIN / DATE OF HEARING : 11.05.2021 / DATE OF PRONOUNCEMENT : 13.05.2021 / ORDER PER S. S. VISWANETHRA RAVI, JM: THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 11.03.2020 PASSED BY THE PCIT-6, PUNE FOR A.Y. 2015-16 U/S 263 OF THE ACT. 2. WE NOTE THAT THIS APPEAL WAS FILED WITH A DELAY OF 108 DAYS. AN AFFIDAVIT FILED SEEKING CONDONATION OF THE SAID DELAY. IT WAS SUBMITTED BY THE LD. AR THAT THE SAID DELAY WAS OCCURRED DUE TO NATIONAL LOCKDOWN ON ACCOUNT OF PANDEMIC COVID-19 AND PLACED RELIANCE ON SUO MOTO ORDER OF THE HONBLE SUPREME COURT DATED 21.04.2021. WE NOTE THAT THE ASSESSEE RECEIVED IMPUGNED ORDER ON 18.03.2020 AND NATIONAL LOCKDOWN WAS IMPOSED FROM 23.03.2020. UPON 2 ITA NO.515/PUN/2020 EXAMINING THE AFFIDAVIT AND HEARING BOTH THE PARTIES, WE CONDONE THE DELAY OF 108 DAYS. 3. THE ONLY ISSUE RAISED BY THE ASSESSEE CHALLENGING THE ACTION OF THE PCIT IN INVOKING JURISDICTION U/S 263 OF THE ACT FOR THOSE ISSUES WHICH WERE ALREADY EXAMINED BY THE LD. ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT PROCEEDINGS U/S 143(3) OF THE ACT PRESUMING CERTAIN INCORRECT FACTS IN CIRCUMSTANCES OF THE CASE. 4. HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT THE BASIS FOR INITIATION OF 263 PROCEEDINGS BY THE PCIT WAS THAT THE ASSESSEE HAVE ACCEPTED THE DEPOSITS AND ADVANCED LOANS FROM/TO NON- MEMBERS. IN RESPONSE TO THE NOTICE U/S 263 OF THE ACT, THE ASSESSEE CONTENDED THAT THE ASSESSEE HAS NOT GIVEN ANY LOANS TO NON-MEMBERS AND LIST OF ALL NOMINAL MEMBERS AND SUPPORTING DOCUMENTS ETC ALONG WITH APPLICATION FOR NOMINAL MEMBERSHIP FEES AND RECEIPT ISSUED FOR ACCEPTING THE NOMINAL MEMBERSHIP. THE PCIT WAS OF THE OPINION THAT AS PER THE PROVISIONS OF THE INCOME TAX ACT, THE DEDUCTION U/S 80P(2)(A)(I) IS AVAILABLE TO ONLY TO MEMBERS OF COOPERATIVE CREDIT SOCIETY ENGAGED IN PROVIDING CREDIT FACILITIES. THE ASSESSING OFFICER ALLOWED DEDUCTION IN CONTRAVENTION TO THE PROVISION OF SECTION 80P(2)(A)(I) AND PLACED RELIANCE ON THE RECENT JUDGEMENT IN THE CASE OF CITIZEN CO-OPERATIVE SOCIETY LTD. VS. ACIT REPORTED IN 397 ITR 1 (SC) OF HONBLE SUPREME COURT. FURTHER, HE WAS OF THE OPINION THAT THE ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY IN THAT RESPECT NOR VERIFIED AS TO WHETHER CLAIM OF DEDUCTION U/S 80P(2)(A)(I) IS ALLOWABLE TO THE ASSESSEE, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT WITHOUT PROPER APPLICATION OF MIND. THE PCIT DIRECTED THE ASSESSING OFFICER TO DO A FRESH ASSESSMENT BY CARRYING OUT PROPER VERIFICATION REGARDING THE BANKING AND CREDIT FACILITIES PROVIDED BY THE ASSESSEE BY CALLING RELEVANT DETAILS AND DOCUMENTS BY DECIDING THE ISSUE AFRESH. 3 ITA NO.515/PUN/2020 5. THE CONTENTION OF THE LD. AR IS THAT IN THE ASSESSMENT PROCEEDINGS THE ASSESSEE SUBMITTED ALL THE DETAILS RELATING TO ITS MEMBERS WHICH ARE IN PAGE NO. 138 TO 201 AND SUBMITTED THE LIST FROM PAGE 138 TO 201 CONTAINS THE MEMBERS OF THE SOCIETY WHICH INCLUDES MEMBERS AS WELL AS NOMINAL MEMBERS. HE REFERRED TO PAGE NO.200 AND COMPARED WITH THE CHART REPRODUCED BY THE PCIT IN HIS ORDER AT PAGE NO.3. HE ARGUED THAT THE NAMES REPRODUCED BY THE PCIT IN HIS IMPUGNED ORDER AND NAMES FURNISHED BEFORE THE ASSESSING OFFICER AT PAGE NO.200 IN ASSESSMENT PROCEEDINGS ARE ONE AND THE SAME. THE ASSESSING OFFICER APPLIED HIS MIND AND EXAMINED THE DETAILS OF ALL THE MEMBERS AND ALLOWED THE DEDUCTION IN RESPECT OF THE SAID MEMBERS REPRODUCED BY THE PCIT IN PAGE NO.3 OF THE IMPUGNED ORDER. WE NOTE THAT THE ASSESSING OFFICER ISSUED NOTICE U/S 142(1) OF THE ACT WHICH IS AT PAGE NO.211 WHEREIN HE ASKED THE ASSESSEE TO FURNISH ACCOUNTS AND DOCUMENTS AND DETAILS OF LOANS RECEIVED FROM MEMBERS AS DEPOSITS AND DETAILS OF LOANS GIVEN TO MEMBERS WHICH ARE AT PAGE NO.212 OF THE PAPER BOOK. IN RESPONSE TO THE SAID TWO NOTICES, THE ASSESSEE HAS GIVEN LIST AS DISCUSSED BY US ABOVE REGARDING THE SUBMISSION OF DETAILS OF LOANS RECEIVED FROM MEMBERS AS DEPOSITS AND DETAILS OF LOANS GIVEN TO MEMBERS AT PAGE NO.138 TO 201. WE ALSO NOTE THAT THE ASSESSING OFFICER EXAMINED ABOVE SAID DETAILS IN THE ASSESSMENT PROCEEDINGS AND ALLOWED DEDUCTION U/S 80P(2)(A)(I) IN RESPECT OF 10 MEMBERS TREATING THEM AS NOMINAL MEMBERS AS REPRODUCED BY THE PCIT IN HIS IMPUGNED ORDER AT PAGE NO.3. THEREFORE, THE FINDING OF THE PCIT INSOFAR AS THE ASSESSING OFFICER HAS NOT APPLIED MIND IN ALLOWING DEDUCTION IN RESPECT OF THESE 10 MEMBERS AS NON-MEMBERS IS INCORRECT. WE FIND THAT ALL THE INFORMATION REGARDING THE DETAILS OF LOANS RECEIVED FROM MEMBERS AS DEPOSITS AND DETAILS OF LOANS GIVEN TO MEMBERS WERE FILED BEFORE THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS AND IN PAGE NO.200, WE FIND THOSE NAMES HAVE BEEN MATCHING WITH THE NAMES MENTIONED 4 ITA NO.515/PUN/2020 BY THE PCIT IN HIS IMPUGNED ORDER ARE ONE AND THE SAME. THE LD. DR DID NOT PRODUCE ANY EVIDENCE CONTRARY TO THE EVIDENCE FILED BY THE ASSESSEE AND ALSO SUPPORTING THE FINDING OF THE PCIT SHOWING THE MEMBERS AS HELD BY THE PCIT AS NON-MEMBERS. THEREFORE, TAKING INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES AND EVIDENCES FURNISHED BY THE ASSESSEE BEFORE US, WE HOLD THAT THE ASSESSING OFFICER CONSIDERED THE DETAILS OF LOANS RECEIVED FROM MEMBERS AS DEPOSITS AND DETAILS OF LOANS GIVEN TO MEMBERS IN ASSESSMENT PROCEEDINGS, THEREFORE, THE FINDING OF PCIT IS NOT CORRECT. THEREFORE, THE ASSESSEE IS ENTITLED TO CLAIM OF DEDUCTION U/S 80P(2)(A)(I) OF THE ACT IN RESPECT OF THOSE NOMINAL MEMBERS. THUS, THE ORDER OF THE PCIT PASSED U/S 263 OF THE ACT IS NOT JUSTIFIED AND IT IS SET-ASIDE. HENCE, THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 13 TH DAY OF MAY, 2021. SD/- SD/- ( R. S. SYAL ) ( S. S. VISWANETHRA RAVI ) VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 13 TH MAY, 2021 SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE PR. CIT-6, PUNE. 4. THE JT. CIT, RANGE-14, PUNE. 5 . , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.