Co-op Cane Development Union Ltd., Bahraich V. Dy. Commissioner of Income Tax, GONDA

ITA 77/LKW/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9111 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-12-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 14-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: C P SINGH
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.77/LKW/2013 ASSESSMENT YEAR:2008 - 09 DY.C.I.T., CIRCLE - GONDA. VS CO - OP. CANE DEVELOPMENT UNION LTD. JARWAL ROAD. PAN:AAAAK8137D (RESPONDENT) (APPELLANT) SHRI SHUBHAM RASTOGI, C. A. APPELLANT BY SHRI C. P. SINGH, D. R. RESPONDENT BY 16/12/2014 DATE OF HEARING 23 /01/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - II, LUCKNOW DATED 10/12/2012 FOR THE ASSESSMENT YEAR 2008 - 2009. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT THE ASSESSMENT ORDER DATED 20/12/2010 U /S 143 (3) IS NOT JUSTIFIED A ND CORRECT . 2. THAT THE CASE OF APPELLANT IS A ADMITTED CASE OF THE PREVIOUS YEAR AND NO TAX HAD EVER BEING IMPOSED UPON THE APPEL LA NT RESPECT TO THE SAID SOURCE OF INCO M E. 3. THAT THE INCOME OF THE APPELLANT COME FRO M THE MARKETING OF THE AGRICULTURAL PRODUCE BY THE SOCIETY AND WHICH IS EXHAUSTIVELY COVER U/S 80 P (2) (I) (A) (III) INCOME TAX ACT. 4. THAT THE APPELLANT DID NOT ADMIT THE TAX IMPOSED BY THE AUTHORITY AND SERIOUSLY DI SPUTED THE SAME. 2 5. THAT AS SUCH THE INCOME OF THE SOCIETY/COUNCIL IS EXEMPT U/S 80P AND THERE IS NO TAX LIABILITY UPON THE APPELLANT AND ACCORDINGLY THER E IS NO QUESTION OF LEVY OF INTEREST UNDER SECTION 234A, 234B. 6. THAT THE APPELLANT CRAVES LEAVES TO AMEND THE GROUNDS OF TH E APPEAL AT THE TI ME OF HEARING OF THE CASE/APPEAL. 7. THAT THE ISSUE IS COVERED BY HON'BLE HIGH COURT ALLAHABAD DECISION IN THE CASE OF C.L.T, VS CO - OPERATIVE C AN D EVELOPMENT U NION (1973) UPTC 113 AND ITO WARD II LAKHIMPURKHIRI VS CO - OPERATIVE CAN DEVELOPMENT UNION LTD, BHEERA (I.T.A. NOS. 124 TO 129 LUCKNOW/2007). 8. THAT THE ISSUE IS A ALSO COVERED BY THE JUDGMENT OF L.T.A.T. LUCKNOW 'A' BENCH IN THE CASE OF I.T.O. WARD II LAKHIMPURKHIRI VS CO - OPERATIVE CAN DEV ELOPMENT UNION LAKHIMPURKHIRI I.T.A. NOS. 85/1 (2002) & I.T.A.T. JODHPUR BENCH IN THE CASE OF RAWATSAR K.V. SAHKARI SAMITI LTD, V/S I.T.O, (102 T.T.J. 682) HELD THE ASSESSEE IS ELIGIBLE FOR THE DEDUCTION U/S 80 P TO THE EXTENT OF INTEREST EARNED FROM BANK. 9. THAT THE ASSESSMENT ORDER DATED 20/12/2010 IS NOT JUSTIFIED ON PASSING WI T HOUT CONSIDERING THE FACT AND CIRCUMSTANCES. 10. THAT THE ASSESSMENT ORDER DATED 20/12/2010 U/S 143(3) DESERVES TO BE CANCELLED. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE CLAIM OF THE ASSESSEE WAS REJECTED BY AUTHORITIES BELOW FOR THE REASON THAT AS PER THEM, NO CLAIM WAS MADE BY THE ASSESSEE FOR DEDUCTION U/S 80P IN THE RETURN OF INCOME FILED BY THE ASSESSEE. HE FU RTHER SUBMITTED THAT BOTH THE AUTHORITIES BELOW HAVE FOLLOWED THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT [2006] 284 ITR 323 (SC). HE SUBMITTED THAT THIS STAND OF THE AUTHORITIES BELOW IS FACTUALLY NOT CORRECT BE CAUSE AS PER PAGE NO. 23 OF THE PAPER BOOK, THE ASSESSEE HAS TICKED THE COLUMN REGARDING DEDUCTION U/S 80P AND IT HAS BEEN MENTIONED EXEMPT 100%. HE SUBMITTED THAT THIS GOES TO SHOW THAT ALTHOUGH THE CLAIM WAS NOT MADE IN 3 PROPER MANNER BUT IT CANNOT BE SAID THAT NO CLAIM WAS MADE. HE ALSO SUBMITTED THAT EVEN IF NO CLAIMED WAS MADE IN THE RETURN OF INCOME, SUCH LEGAL CLAIM CAN BE MADE BEFORE CIT(A) AND THIS JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF GOETZE (INDIA) LTD. (SUPRA) DOES NOT IMPINGE UPON TH E POWERS OF CIT(A) TO CONSIDER AND DECIDE SUCH CLAIM OF THE ASSESSEE. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND FORCE IN THE SUBMISSIONS OF LEARNED A.R. OF THE ASSESSEE BECAUSE EVEN IF IT IS ACCEPTED THAT CLAIM OF DEDUCTION U/S 80P WAS NOT MADE BY THE ASSESSEE IN THE RETURN OF INCOME, SUCH A LEGAL CLAIM CAN BE MADE BEFORE CIT(A) ALSO AND WHEN SUCH CLAIM IS MADE, CIT(A) SHOULD DECIDE THE ISSUE ON MERIT AND THIS JUDGMENT OF HON'BLE APEX COURT DOES NOT IMPINGE UPON THE POWERS OF CIT(A) TO ENTERTAIN AND DECIDE SUCH CLAIM OF THE ASSESSEE. HENCE, W E SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO HIS FILE FOR FRESH DECISION IN THE LIGHT OF ABOVE DISCUSSION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 23 /01/2015 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR