Jeypore Cooperative Urban Bank Ltd., Koraput V. ITO, Ward-1, Jeypore

ITA 66/CTK/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2800 (ITAT-CUTTACK)
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 19-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 43B; 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PA V AN KUMAR GADALE, JM . / ITA NO. 66 /CTK/201 8 ( [ [ / ASSESSMENT YEAR : 20 13 - 20 14 ) JEY PORE COOPERATIVE UR BAN BANK LTD., M.G.ROAD, JEY PORE, KORAPUT - 764001 VS. INCOME TAX OFFICE, WARD - 1, JEYPORE ./ ./ PAN/GIR NO. : A A AJJ 0215 A ( / APPELLANT ) .. ( / RESPONDENT ) [ /AS SESSEE BY : NONE /REVENUE BY : SHRI SUBHENDU DUTTA , DR / DATE OF HEARING : 29 / 0 8 /201 8 / DATE OF PRONOUNCEMENT 30 / 0 8 /201 8 / O R D E R PER SHRI PA V AN KUMAR GADALE, JM : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDE R OF CIT(A) - 1 , BHUBANESWAR , DATED 25.09.2017 PASSED IN I.T.APPEAL NO. 0118 / 1 6 - 1 7 FOR THE ASSESSMENT YEAR 2013 - 2014 . 2. AS PER THE OFFICE NOTE, THERE IS A DELAY OF 55 DAYS IN FILING THE PRESENT APPEAL. LD.AR OF THE ASSESSEE HAS FILED AN APPLICATION FOR CONDO NATION OF DELAY ALONG WITH AFFIDAVIT STATING THE REASONS FOR DELAY. LD.DR DID NOT OBJECT TO CONDONE THE DELAY. CONSIDERING THE APPLICATION OF THE ASSESSEE, WE CONDONE THE DELAY OF 55 DAYS IN FILING THE PRESENT APPEAL AND THE APPEAL IS HEARD ON MERITS. 3 . NONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE CASE WAS CALLED FOR HEARING, HOWEVER, AN ADJOURNMENT PETITION HAS BEEN FILED BY THE LD. AR OF THE ASSESSEE SEEKING ADJOURNMENT ON THE GROUND THAT HE COULD ITA NO. 66 /CTK/201 8 2 NOT PREPARE HIMSELF TO ARGUE THE MATTER DUE TO HIS PRE - OCCUPATION IN PROFESSIONAL ASSIGNMENT, WHICH IN OUR OPINION, IS NOT A PLAUSIBLE ONE, HENCE, THE BENCH PROCEEDED TO DISPOSE OFF THE APPEAL OF THE ASSESSEE AFTER CONSIDERING THE MATERIAL ON RECORD AND THE SUBMISSIONS OF LD. DR. 4 . THE ASSESSEE HAS RAISE D THE FOLLOWING GROUNDS OF APPEAL : - 1. FOR THAT UNDER THE FACT AND CIRCUMSTANCE OF THE CASE DISALLOWANCES OF THE CLAIM OF THE APPELLANT AGAINST THE PROVISION FOR OVERDUE INTEREST AMOUNTING RS 1,12,153.00 BY THE LEARNED ASSESSING OFFICER AS WELL AS CONFI RMING THE SAME BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) IS VIOLATION OF PRINCIPLE OF STATUTE UNDER INCOME TAX ACT AS IT IS AN ALLOWABLE EXPENDITURE AS PER INCOME TAX ACT. 2. FOR THAT UNDER THE FACT AND CIRCUMSTANCES OF THE CASE THE ADDITION O F RS. 9,26,581.00 BY INVOKING THE PROVISION U/S. 43 B OF THE IT ACT BY THE LEARNED ASSESSING OFFICER IS NOT PROPER WITHOUT MAKING ANY PROPER VERIFICATION INTO THE MATTER AS TO WHETHER THE ABOVE EXPENSES IS CHARGED TO PROFIT AND LOSS ACCOUNT OF THE APPELLAN T AS INCOME TAX PAYABLE AMOUNTING TO RS 2,60,859.00 DOES NOT COVER U/S 43B OF INCOME TAX ACT. 3. THAT THE PROVISION U/S 43B IS ATTRACTED ONLY WHEN IT IS CLAIMED BY THE APPELLANT IN PROFIT AND LOSS ACCOUNT AND FAILED TO MAKE ACTUAL PAYMENT. 4. THAT TH E LEARNED ASSESSING OFFICER HAS ERRED IN DISALLOWING THE PROVIDENT FUND OF THE STAFF AMOUNTING RS 29,340.00 U/S 43B OF INCOME TAX ACT WHICH CONSTITUTE OPENING BALANCE OF RS 16,308.00 IN RESPECT OF PREVIOUS YEAR I.E ACCOUNTING YEAR:2012 - 13 HENCE EXCESS ADDI TION OF RS 16,308.00 U/S 43B IS NOT JUSTIFIED. 5. THAT THE LEARNED ASSESSING OFFICER HAS ERRED IN DISALLOWING THE GPF ACCOUNT AMOUNTING RS 8,239.00 U/S 43B OF INCOME TAX ACT WHICH CONSTITUTE OPENING BALANCE OF RS 8,239.00 IN RESPECT OF PREVIOUS YEAR I.E ACCOUNTING YEAR:2012 - 13. HENCE ADDITION O F RS 8,239.00 U/S 43B IS NOT JUSTIFIED. 6. THAT THE TOTAL INCOME TAX PAYABLE AMOUNTING TO RS 2,60,859.00 CONSTITUTE OPENING BALANCE OF RS 1,90,019.00 IN RESPECT OF PREVIOUS YEAR AND RS 93,600.00 FOR THE CURRE NT YEAR WHICH HAS BEEN CHARGED TO PROFIT AND LOSS ACCOUNT WHICH DOES NOT ATTRACT ADDITION U/S 43B OF INCOME TAX ACT. .HENCE ADDITION OF RS 2,60,859.00 IS NOT JUSTIFIED. 7. THAT THE LEARNED ASSESSING OFFICER HAS ERRED IN DISALLOWING THE GRATUITY OF RS.5, 19,567.57 U/S 43B OF INCOME TAX ACT WHICH CONSTITUTE OPENING BALANCE OF RS 1,39,567.57 IN RESPECT OF PREVIOUS YEAR I.E ACCOUNTING YEAR:2012 - 13 AND ITA NO. 66 /CTK/201 8 3 RS 3,80,000.00 FOR THE CURRENT YEAR . HENCE EXCESS ADDITION OF RS U/S 1,39,567.57 U/S 43B IS UNJUSTIFIED. 8. THAT THE LEARNED ASSESSING OFFICER HAS ERRED IN DISALLOWING THE OUTSTANDING CHARGES PAYABLE OF RS 1,36,580.00 U/S 43B OF INCOME TAX ACT WHICH CONSTITUTE OPENING BALANCE OF RS 1,36,580.00 IN RESPECT OF PREVIOUS YEAR I.E. ACCOUNTING YEAR:2012 - 13 .HENCE EXC ESS ADDITION OF RS 1,36,580.00 U/S 43B IS UNJUSTIFIED 9. THAT THE ALLOWANCE U/S. 36(VIII) IN RESPECT OF SPECIAL RESERVE OF IT ACT CLAIMED IN ASSESSMENT PROCEEDING HAS NEITHER BEEN ALLOWED NOR DISCUSSED IN THE ASSESSMENT PROCEEDING AND AS SUCH IT VIOLAT ED THE PRINCIPLE OF NATURAL JUSTICE. AS SUCH THE APPELLANT IS ENTITLED FOR DEDUCTION U/S 36(1) (VII) UP TO 20% OF THE NET PROFIT BUT THE SAME HAS NOT BEEN ALLOWED. 10. THAT THE STATUS OF CO - OPERATIVE SOCIETY OF THE BANK FOR THE PURPOSE OF SEC - 44 AB IS AN ARTIFICIAL JURIDICAL PERSON HENCE ENTITLED TO BE TAXED AS AN INDIVIDUAL BUT NOT AS AN AOP FOR THE PURPOSE OF COMPUTATION OF TAX. 11 . THAT FOR THESE AND OTHER GROUNDS TO BE ARGUED AT THE STAGE OF HEARING OF APPEAL, THE APPELLANT PRAYS FOR NATURAL JUSTICE. 5 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS COOPERATIVE BANK AND FILED THE RETURN OF INCOME ON 24.09.2014 FOR THE A.Y. 20 13 - 20 14 DECLARING TOTAL INCOME OF RS. 2, 42 , 667 / - . THE RETURN OF INCOME WAS PROCESSED U/S.143(1) OF THE ACT. S UBSEQUENTLY THE CAS E WAS SELECTED UNDER SCRUTINY UNDER CASS AND NOTICES U/S.143(2) & 142(1) OF THE ACT WERE ISSUED. IN COMPLIANCE OF THE SAME, LD. AR APPEARED BEFORE THE AO AND CASE WAS DISCUSSED. THEREAFTER T HE AO COMPLETED THE ASSESSMENT AND PASSED ORDER U/S.143(3), DATED 17.03.2016 MAKING VARIOUS ADDITIONS . 6 . AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). IN THE APPELLATE PROCEEDINGS LD. AR MADE SUBMISSION AND THE CIT(A) AFTER CONSIDERING THE FINDINGS OF THE AO AND SUBMISSION OF THE ASS ESSEE , CONFIRMED ALL THE DISALLOWANCES MADE BY THE AO. ITA NO. 66 /CTK/201 8 4 7 . AGGRIEVED BY THE ORDER OF THE CIT(A) THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 8 . NONE APPEARED ON BEHALF OF THE ASSESSEE. 9 . ON THE OTHER HAND, LD.DR RELIED ON THE ORDER OF LOWER AUTHOR ITIES. 10 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ON PERUSAL OF THE CIT(A) ORDER, WE FIND THAT THE ASSESSEE HAS RAISED THE GROUNDS IN RESPECT OF DISALLOWANCE OF PROVISIONS OF OD INTEREST AND NPA. LD. CIT(A) DEALT ON THIS ISSUE AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND FINDINGS OF THE AO AND FOUND THAT THE LD. AR OF THE ASSESSEE HAS NOT ADDUCED ANY REASON FOR EXCESS PROVISION U/S.36(1)(VIIA) OF THE ACT AND, THEREFORE, CONFIRMED THE ADDITION MADE BY THE AO AND DISMISSED THE APPEAL OF THE ASSESSEE, WHEREAS THE ASSESSEE HAS RAISED THE GROUNDS BEFORE US WHICH ARE NOT EMANATING FROM THE ORDER OF THE CIT(A), THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE HAVING NOT CHALLENGED THE GROUNDS BEFORE THE CIT(A) ON TH E A DDITIONS MADE BY THE AO CANNOT RAISE THE GROUND FOR RELIEF. IN RESPECT OF CONDUCT OF THE ASSESSEE BEFORE THE CIT(A), WE FOUND THE ASSESSEE IS NOT INT ERESTED TO PROSECUTE THE APPEAL. THEREFORE, WE ARE OF THE OPINION THAT THE ASSESSEES APPEAL CANNOT BE E NTERTAINED AND ACCORDINGLY, WE DISMISS THE APPEAL OF THE ASSESSEE. 11 . IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 30 / 0 8 / 201 8 . SD/ - ( N.S.SAINI ) SD/ - ( PAVAN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 30 / 0 8 /201 8 . . / PKM , SENIOR PRIVATE SECRETARY ITA NO. 66 /CTK/201 8 5 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - JEY PORE C OOPERATIVE URBAN BANK LTD., M.G.ROAD, JEY PORE, KORAPUT - 764001 2. / THE RESPONDENT - INCOME TAX OFFICE, WARD - 1, JEYPORE 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTT ACK 6. [ / GUARD FILE. //TRUE COPY//