Sri Durga Ganesh Co-op Society Ltd , Udupi V. Income Tax Officer Ward-2 , Udupi

ITA 817/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5877 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 16-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABDUL HAKEEM M
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 817 / BANG/201 8 ASSESSMENT YEAR : 20 1 3 - 14 M/S. DURGA GANESH CO- OPERATIVE SOCIETY LTD., UPPUNDA, KUNDAPURA 576 232. UDUPI DISTRICT. PAN: AADFD4721E VS. THE INCOME TAX OFFICER, WARD 2, UDUPI. APPELLANT RESPONDENT APPELLANT BY : SHRI SANDEEP .C, CA RESPONDENT BY : SHRI ABDUL HAKEEM .M, JCIT (DR) DATE OF HEARING : 23 . 0 4 .2018 DATE OF PRONOUNCEMENT : 04 . 0 5 .201 8 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE O RDER OF LD. CIT(A)-10, BANGALORE DATED 26.12.2017 FOR ASSESSMENT YEAR 2013 -14. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS), IN SO FAR IT IS PREJUDICIAL TO THE INTER ESTS OF THE APPELLANT, IS BAD AND ERRONEOUS IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW, AND ON FACTS IN DENYING DEDUCTION OF RS. 10,91,452/ -CLAIMED U/S 80P(2)(A)(I) OF THE ACT ON THE GROUND THAT THE APPE LLANT HAS NOT CONFINED ITS OPERATIONS ONLY WITH THE MEMBERS AND S UCH FINDING IS ERRONEOUS IN LAW AND AGAINST THE FACTS AND CIRCUMST ANCES OF THE CASE. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN LAW AND ON FACTS IN UPHOLDING THE DISALLOWANCE U/S. 80P(2)(A)(I) OF THE ACT ON A NEW GROUND ALTOGETHER WHICH WAS NOT THE BA SIS FOR DISALLOWING THE DEDUCTION U/S. 80P(2)(A)(I) BY THE ASSESSING OFFICER. ITA NO.817/BANG/2018 PAGE 2 OF 3 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AND ON FACTS IN CONCLUDING THAT THE APPELLANT IS A CO-OPERATIVE BANK AND NOT A CO-OPERATIVE SOCIETY INVOLVED IN PROVIDIN G CREDIT FACILITY TO ITS MEMBERS. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN LAW AND ON FACTS IN DISALLOWING THE PAYMENTS MADE T O PIGMY AGENTS EVEN THOUGH SUCH PAYMENTS ARE IN THE NATURE OF SALA RIES AND THE SAME HAS BEEN CLARIFIED VIDE CIRCULAR NO. 275/25/2007-IT (B) DATED 01.12.2011 ISSUED BY CBDT. EACH OF THE ABOVE GROUNDS IS WITHOUT PREJUDICE TO O NE ANOTHER AND THE APPELLANT CRAVES LEAVE OF THE HON'BLE INCOME TAX AP PELLATE TRIBUNAL, BANGALORE TO ADD, DELETE, AMEND OR OTHERWISE MODIFY ONE OR MORE OF THE ABOVE GROUNDS EITHER BEFORE OR AT THE TIME OF H EARING OF THIS APPEAL. 3. IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THE LD. CIT(A) HAS DECIDED THE ISSUE AGAINST THE ASSESSEE BY FOLLOWING THE JUDGEME NT OF HONBLE APEX COURT RENDERED IN THE CASE OF THE CITIZEN CO-OPERATIVE SO CIETY LTD. VS. ACIT AS REPORTED IN 397 ITR 1 BUT THIS JUDGEMENT IS NOT APP LICABLE IN THE PRESENT CASE BECAUSE THE FACTS ARE DIFFERENT. HE ALSO SUBMITTED THAT THERE IS NO DISCUSSION IN THE ORDER OF CIT(A) IN RESPECT OF COMPARABILITY OF THE FACTS OF THE PRESENT CASE WITH THE FACTS OF THAT CASE. HE SUBMITTED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION BY WAY OF A SPEAKING AND REASONED ORDER AFTER COMPARING THE FACTS OF THE PRESENT CASE WITH THE FACTS OF THAT CASE. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. THIS I S SETTLED POSITION OF LAW THAT ANY JUDGEMENT CAN BE FOLLOWED ONLY IF THE FACTS OF THAT CASE ARE AT LEAST SIMILAR IF NOT IDENTICAL TO THE FACTS OF THE CASE ON HAND. IN THE PRESENT CASE, THE CIT(A) HAS FOLLOWED THE JUDGEMENT OF HONBLE APEX COURT RENDER ED IN THE CASE OF THE CITIZEN CO-OPERATIVE SOCIETY LTD. VS. ACIT (SUPRA) BUT THERE IS NO DISCUSSION REGARDING THE COMPARABILITY OF THE FACTS OF THE PRE SENT CASE WITH THE FACTS OF THAT CASE. HENCE I SET ASIDE THE ORDER OF CIT (A) AND R ESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION BY WAY OF A SPEAKING AND RE ASONED ORDER IN WHICH HE SHOULD COMPARE THE FACTS OF THE PRESENT CASE WITH T HE FACTS OF THAT CASE AND ITA NO.817/BANG/2018 PAGE 3 OF 3 THEN DECIDE THE ISSUE AS PER LAW. NEEDLESS TO SAY, ADEQUATE OPPORTUNITY OF BEING HEARD SHOULD BE PROVIDED TO BOTH SIDES. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 04 TH MAY, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.