Deputy Commissioner of Income tax, Pune V. M/s. Pune District Co-op Milk Producers Federation Pvt.Ltd, Pune

ITA 620/PUN/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1808 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 14-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIVANAND H KALAKERI
• Keywords: Revised return
• Section: 80P

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 620 /PUN/201 7 / ASSESSMENT YEAR : 20 12 - 13 THE DY. COMMISSIONER OF INCOME TAX, CIRCLE 5, PUNE ....... / APPELLANT / V/S. M/S. PUNE DISTRICT CO - OP. MILK PRODUCERS FEDERATION PVT. LTD., KATRAJ DAIRY, PUNE SATARA ROAD, KATRAJ, PUNE 411046 PAN : AAAAP0836A / RESPONDENT ASSESSEE BY : SHRI M.R. BHAGWAT REVENUE BY : SHRI SHIVANAND H. KALAKERI / DATE OF HEARING : 06 - 06 - 2019 / DATE OF PRONOUNCEMENT : 10 - 0 6 - 2019 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 4, PUNE DATED 25 - 10 - 2016 FOR THE ASSESSMENT YEAR 2012 - 13. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORDS ARE: THE ASSESSEE IS A CO - OPERATIVE SOCIETY ENGAGED IN SALE AND PURCHASE OF MILK. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR 2 ITA NO . 620/PUN/2017, A.Y. 2012 - 13 ON 29 - 09 - 2012 DECLARING TOTAL INCOME OF RS.1,2 7,15,130/ - . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS, ACCORDINGLY, STATUTORY NOTICE U/S. 143(2) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) WAS ISSUED TO THE ASSESSEE ON 07 - 08 - 2013. IN SCRUTINY ASSESSMENT , THE ASSESSING OFFICER ACCEPTED THE INCOME RETURNED BY ASSESSEE. THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) RAISING CLAIM OF DEDUCTION U/S. 80P OF THE ACT IN RESPECT OF DIVIDEND INCOME FROM CO - OPERATIVE SOCIETIES RS.26,58,100/ - A ND INTEREST INCOME FROM CO - OPERATIVE BANK RS.57,64,247/ - . THE COMMISSIONER OF INCOME TAX (APPEALS) AFTER PLACING RELIANCE ON THE DECISION OF HONBLE SUPREME COURT OF INDIA IN THE CASE OF GOETZE (INDIA) LTD. VS. COMMISSIONER OF INCOME TAX REPORTED AS 284 I TR 323 ACCEPTED THE ASSESSEES CLAIM OF DEDUCTION U/S. 80P OF THE ACT. AGAINST THE SAID ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 3. SHRI SHIVANAND H. KALAKERI REPRESENTING THE DEPARTMENT VEHEMENTLY DE FENDED THE ORDER OF ASSESSING OFFICER. THE LD. DR SUBMITTED THAT THE ASSESSEE IN RETURN OF INCOME HAD NOT CLAIMED DEDUCTION U/S. 80P AND THE ASSESSING OFFICER HAS ACCEPTED THE INCOME RETURNED BY THE ASSESSEE. SINCE, NO DEDUCTION U/S. 80 P WAS CLAIMED BY A SSESSEE EITHER IN RETURN OF INCOME OR BY FILING REVISED RETURN OF INCOME , THERE WAS NO OCCASION FOR THE ASSESSING OFFICER TO CONSIDER THE SAME. 4. ON THE OTHER HAND SHRI M.R. BHAGWAT APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT IN COMPUTATION OF INCOME FILED ALONG WITH RETURN OF INCOME THE ASSESSEE HAD MADE CLAIM OF DEDUCTION UNDER CHAPTER VIA THOUGH THE ASSESSEE HAS NOT MENTIONED IN CLEAR TERMS THAT THE DEDUCTION IS CLAIMED U/S. 80P , HOWEVER, THE DEDUCTION WAS CLAIMED UNDER THE HEAD OF RELEVANT CHAPTER. THE LD. AR POINTED THAT IN THE ACKNOWLEDGMENT TO RETURN OF INCOME THE NET TAX PAYABLE IN C OLUMN 4 IS THE SAME AS IS REFLECTED IN THE 3 ITA NO . 620/PUN/2017, A.Y. 2012 - 13 COMPUTATION OF INCOME. IN ONLINE RETURN OF INCOME FROM DEDUCTION CLAIMED UNDER CHAPTER VIA IS NOT REFLECTED DUE TO SOME GLITCH. IN C OLUMN 2 OF THE RETURN AGAINST DEDUCTION UNDER CHAPTER VI A THE AMOUNT MENTIONED IS ZERO. HOWEVER, THE NET TAX PAYABLE MATCHES WITH THE FIGURE MENTIONED IN THE COMPUTATION OF INCOME. THEREFORE, THE ASSESSEE HAD MADE T HE CLAIM OF DEDUCTION U/S. 80P IN THE RETURN OF INCOME. THIS FACT WAS BROUGHT TO THE NOTICE OF ASSESSING OFFICER DURING SCRUTINY ASSESSMENT. HOWEVER, THE ASSESSING OFFICER REFUSED TO ACCEPT THE SAME AND HAS NOT EVEN RECORDED THE CONTENTIONS OF ASSESSEE. THE COMMISSIONER OF INCOME TAX (APPEALS) APPRECIATED THE FACT THAT THE ASSESSEE IS ELIGIBLE FOR CLAIMING DEDUCTION U/S. 80P. HOWEVER, THE SAME WAS ACCEPTED BY THE COMMISSIONER OF INCOME TAX (APPEALS) AS FRESH CLAIM AND GRANTED RELIEF TO THE ASSESSEE. 5. W E HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW . THE SOLITARY DISPUTE IN APPEAL IS ALLOWABILITY OF DEDUCTION U/S. 80P WITHOUT CLAIMING THE SAME IN RETURN OF INCOME. WE OBSERVE THE A SSESSEE IN COMPUTATION OF INCOME HAS CLAIMED DEDUCTION UNDER CHAPTER VIA AND THEREAFTER COMPUTED TOTAL TAX PAYABLE AS RS.13,23,379/ - , WHEREAS, IN THE RETURN OF INCOME AFTER GROSS TOTAL INCOME OF RS. 1,27,15,130/ - THE DEDUCTION CLAIMED UNDER CHAPTER VIA IS REFLECTED AS NIL. HOWEVER, THE NET TAX PAYABLE AMOUNT IN THE RETURN OF INCOME IS THE SAME AS HAS BEEN MENTIONED IN COMPUTATION OF INCOME. THIS SHOWS THAT WHILE COMPUTING TOTAL INCOME AND TAX PAYABLE THEREON , THE ASSESSEE HAS CLAIMED DEDUCTION U/S. 80P. HOWEVER, AMOUNT OF DEDUCTION WAS NOT REFLECTED IN RETURN OF INCOME. 6. BE THAT AS IT MAY , THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ALLOWED ASSESSEES CLAIM AFTER CONSIDERING IT AS FRESH CLAIM. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF COMMISSIO NER OF INCOME TAX VS. PRUTHVI BROKERS & SHAREHOLDERS (P) LTD. REPORTED AS 349 ITR 336 HAS HELD THAT THE 4 ITA NO . 620/PUN/2017, A.Y. 2012 - 13 FRESH CLAIM RAISED BY THE ASSESSEE CAN BE ENTERTAINED BY THE APPELLATE AUTHORITIES. THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF GOETZE (INDIA) LT D. VS. COMMISSIONER OF INCOME TAX (SUPRA) HAS HELD THAT THE ASSESSING OFFICER CANNOT ENTERTAIN FRESH CLAIM OF DEDUCTION EXCEPT BY WAY OF RETURN OF INCOME OR REVISED RETURN OF INCOME BUT THE POWERS OF APPELLATE TRIBUNAL U/S. 254 ARE NOT IMPINGED IN ACCEPTIN G NEW CLAIM OF ASSESSEE. SINCE, THE REVENUE HAS FAILED TO SHOW THAT THE ASSESSEE IS NOT ELIGIBLE FOR CLAIMING DEDUCTION U/S. 80P WE FIND NO REASON TO INTERFERE WITH THE WELL REASONED IMPUGNED ORDER. ACCORDINGLY, THE SAME IS UPHELD AND THE APPEAL OF REVEN UE IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED ON MONDAY, THE 10 TH DAY OF JUNE, 2019. SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 10 TH JUNE, 2019 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4, PUNE 4. THE PR. COMMISSIONER OF INCOME TAX - 3, PUNE 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE