The ACIT, Circle-5, Surat V. Surat Vankar Sahakari Sangh Ltd., Surat

ITA 578/AHD/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2071 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 04-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA SR D R
• Keywords: Reopening of assessment
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE SHRI, PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.578-579/AHD/2013 ASSESSMENT YEARS :2008-09 & 2009-10 ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-5, ROOM NO. 309, 3 RD FLOOR, AAYAKAR BHAVAN, MAJURA GATE, SURAT V/S . THE SURAT VANKAR SAHAKARI SANGH LTD., OPP. RESHAMWALA MARKET, RING ROAD, SURAT [ PAN NO.AAAAT 3159 L ] / APPELLANT .. / RESPONDENT) /BY ASSESSEE WRITTEN SUBMISSION /BY REVENUE SHRI Y.P.VERMA, SR-DR /DATE OF HEARING 01-05-2013 ! /DATE OF PRONOUNCEMENT 10-05-2013 ' ' ' ' / // / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THESE TWO APPEALS BY THE REVENUE PERTAINING TO ASS ESSMENT YEARS (AY) 2008-09 AND 2009-10 ARE DIRECTED AGAINST THE D IFFERENT ORDERS OF COMMISSIONER OF INCOME-TAX (APPEALS)-I, SURAT (CIT (A) FOR SHORT) OF EVEN DATE I.E. ON 21-12-2012. ALL THESE ARE HEARD TOGETH ER AND ARE BEING DISPOSED OF BY WAY OF COMMON ORDER FOR THE SAKE OF CONVENIEN CE. THE GROUNDS RAISED BY REVENUE IN BOTH APPEALS ARE I DENTICAL AND HENCE, WE REPRODUCE OF GROUNDS OF APPEAL FROM THE APPEAL FILE D BY REVENUE FOR AY 2008-09. THE GROUNDS RAISED BY REVENUE ARE AS UNDER :- 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY DISALLOWING THE ITA NO.578-79/AHD/2013 A.YS. 08-09 & 09-10 ACIT CIR-5, SRT V. T.S.V.S.S. LTD. PAGE 2 DEDUCTION CLAIMED U/S. 80P(2)(A)(I) OF RS.3,05,701/ -, U/D. 80P(2)(D) OF RS.57,82,657/- AND U/S. 80P(2)(C)(I) OF RS.1,00,000 /- OF THE ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN APPRECIATING THE FACT FOUND BY THE AO AND IGNORED EVIDENCES COLLECTED BY THE AO FOR MAKING ADDITION O F RS.61,88,358/- B7Y DISALLOWING THE DEDUCTION CLAIMED U/S. 80P(2)(A )(I), 80(2)(D) & 80P(2)(C)(I) OF THE ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, DEDUCTION U/S. 80P(2)(A) & 80P(2)(D) 7 80P(2)(C) BE ING TAKEN ON GROSS VALUES WHEN THE WORD USED IN SECTION IS INCOME WHICH WOULD MEAN NET OF EXPENSES. THIS GROUND BE TAKEN WITHOUT PREJUDIC E TO THE GROUNDS AND BECAUSE OF THE FACT THAT WHOLE OF THE A MOUNT WAS DISALLOWED IN VIEW OF SEC. 80(4). 2. NONE APPEARED ON BEHALF OF ASSESSEE, HOWEVER, AN APPLICATION FOR SEEKING ADJOURNMENT IS ON RECORD. IT IS ALSO SUBMIT TED IN THE SAID APPLICATION THAT ISSUES HAVE BEEN SQUARELY COVERED BY THE ORDER OF HONBLE CO-ORDINATE BENCH RENDERED IN THE CASE OF ACIT V. THE JAFRI MOMIN VIKAS CREDIT CO.OP. SOCIETY LTD., IN ITA NO. 2665-2667/AHD/2012 DATED 01-03-2013. 3. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS A CO-O PERATIVE SOCIETY IS PROVIDING CREDIT FACILITIES IN SURAT. THE CASE OF A SSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FIN ALIZED DETERMINING THE INCOME AT RS.45,18,400/-. SUBSEQUENTLY, THE CASE WAS RE-OP ENED BY ISSUING REQUISITE NOTICE U/S.148 OF THE ACT AND THE ASSESSMENT U/S. 1 43(3) R.W.S. 147 OF THE ACT WAS PASSED ON 31-12-2011 BY MAKING ADDITION OF RS.6 1,88,358/- ON ACCOUNT OF DISALLOWANCE U/S. 80P(2) OF THE ACT. THE ASSESSE E FILED APPEAL BEFORE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE PARTLY ALLOWED THE APPEAL. THEREBY THE LEGAL GROUND RAISED AGAINST THE REOPENING OF ASSESSMENT U/S. 147 R.W.S. 148 OF THE ACT WAS DISMI SSED. HOWEVER, THE CLAIM OF THE ASSESSEE AS REGARDS TO THE ELIGIBILITY FOR D EDUCTION U/S.80P(2)(A)(I) OF THE ACT. WAS ALLOWED. ITA NO.578-79/AHD/2013 A.YS. 08-09 & 09-10 ACIT CIR-5, SRT V. T.S.V.S.S. LTD. PAGE 3 4. NOW REVENUE IS IN APPEAL AGAINST THE DELETION OF ADDITION MADE BY ASSESSING OFFICER BEFORE US. 5. LD. SR-DR STRONGLY SUPPORTED THE ORDER OF ASSESS ING OFFICER AND SUBMITTED THAT ASSESSEE IS NOT ENTITLED FOR DEDUCTI ON. 6. WE HAVE HEARD LD. DR OF THE REVENUE AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ASSESSING OFFICER HAD DISA LLOWED THE CLAIM OF ASSESSEE MADE U/S. 80P OF THE ACT ON THE BASIS THAT ASSESSEE IS A CO- OPERATIVE CREDIT SOCIETY AND NOT A PRIMARY CO-OPERA TIVE CREDIT SOCIETY, CARRYING ON BANKING BUSINESS, THE COOPERATIVE SOCIETY EARNIN G IS TREATED AS INCOME, IF THE SAME IS DERIVED BY THE CO-OPERATIVE CREDIT SOCI ETY FROM ITS MEMBERS, WITHIN THE DEFINITION OF SECTION 2(24)(VIIA) OF THE ACT WITH EFFECT FROM AY 2007- 08 AND ALL THE CONDITIONS ARE SATISFIED TO TAX, THE INCOME OF THE ASSESSEE-CO- OPERATIVE CREDIT SOCIETY AS INCOME FROM BANKING BUS INESS, HOWEVER, LD. CIT(A) ALLOWED THE DEDUCTION. THE OBJECTION OF ASSE SSING OFFICER WAS THAT THE PROVISIONS OF SECTION 80P(4) ARE APPLICABLE AND ASS ESSEE IS NOT ENTITLED FOR SUCH DEDUCTION. WE FIND THAT HONBLE CO-ORDINATE BE NCH OF THIS TRIBUNAL IN THE CASE OF ACIT V. THE JAFRI MOMIN VIKAS CREDIT CO-OP. SOCIETY LTD. (SUPRA) HAS HELD THAT THE LD. CIT(A) HAS VERIFIED THE NATURE OF ACTIVITY AND HELD THAT ASSESSEE IS A CO-OPERATIVE CREDIT SOCIETY NOT IN BA NKING BUSINESS. THE PROVISIONS OF SECTION 80P(4) WILL HAVE NO APPLICATI ON IN THE ASSESSEES CASE, THEREFORE, IT IS ENTITLED FOR THE DEDUCTION U/S. 80 P(2) OF THE ACT. WE FIND IN THE PRESENT CASE, ALSO LD. CIT(A) HAS GIVEN A FINDING T HAT THE ASSESSEE DOES NOT MEET THE CONDITION AS LAID IN THE BANKING REGULATIO N ACT, 1949 FOR A CO- OPERATIVE BANK. MOREOVER, THE REVENUE HAS NOT PLACE D ANY MATERIAL CONTROVERTING THE FINDING OF LD. CIT(A). THEREFORE, WE DO NOT FINDING ANY INFIRMITY INTO THE ORDER PASSED BY LD. CIT(A) AND S AME IS HEREBY UPHELD. THESE GROUNDS OF REVENUES APPEAL ARE DISMISSED. ITA NO.578-79/AHD/2013 A.YS. 08-09 & 09-10 ACIT CIR-5, SRT V. T.S.V.S.S. LTD. PAGE 4 7. TAKING A CONSISTENT VIEW IN REVENUES APPEAL IN ITA NO. 578/AHD/2013 IN PARA-6 OF THIS ORDER, THE APPEAL OF REVENUE IN I TA NO.579/AHD/2013 IS DISMISSED AS INDICATED ABOVE. SINCE NO CHANGE INTO FACTS AS CIRCUMSTANCES HAS BEEN POINTED BY LD. AR OF THE ASSESSEE. 8. IN THE RESULT, APPEALS OF REVENUE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (PRAMAD.KUMAR) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP #$%- 10/05/2013 ,-. / ' ' ' ' 001 001 001 001 21 21 21 21 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. $.$04 5 / CONCERNED CIT 4. 5- / CIT (A) 5. 1 78 0004, 04!, ,-. / DR, ITAT, AHMEDABAD 6. 8;< => / GUARD FILE. BY ORDER/ ' , /TRUE COPY/ ?/, $ 04!, ,-. / STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 07/05 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 07/05 4) DATE OF CORRECTION 09/05 5) DATE OF FURTHER CORRECTION 10/05 6) DATE OF INITIAL SIGN BY MEMBERS 10/05 7) ORDER UPLOADED ON 10/05 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 10/05