DCIT, Cir-3, Siliguri, Darjeeling V. Darjeeling District Central Co-operative Bank Ltd., Darjeeling

ITA 87/KOL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4541 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 05-09-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 16-01-2014
• Court: TRIBUNAL
• Department Lawyers: S S ALAM
• Assessee Lawyers: NISHIKANTA SAHA ACCOUNTANT
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NOS.87 TO 90/KOL/2014 ASSESSMENT YEARS:2007-08 TO 2010-11 D.C.I.T., CIRCLE-3, AAYAKARA BHAVAN, WING B PARIBAHAN NAGAR, MATIGARA, SILIGURI, DIST. DARJEELING-734010. / V/S . DARJEELING DISTRICT CENTRAL CO-OPERATIVE BANK LTD., RISH ROAD, KALIMPONG, DARJEELING- 734301. PAN:AAALD0261C /APPELLANT .. /RESPONDENT /BY DEPARTMENT SHRI S.S.ALAM, JCIT, SR.DR /BY RESPONDENT SHRI NISHIKANTA SAHA, ACCOUNTANT /DATE OF HEARING 05-09-2016 /DATE OF PRONOUNCEMENT 16-09-2016 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THESE APPEALS BY THE REVENUE ARE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-SILIGURI DATED 05.12.2013. ASSESSMENT S WERE FRAMED BY ACIT, CIRCLE- 3, SILIGURI U/S 147/143(3) OF THE INCOME TAX ACT, 1 961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 19.03.2013 FOR ASSESSMEN T YEARS 2007-08 TO 2010-11. THE GROUNDS RAISED BY THE REVENUE AS PER ITS APPEAL ARE AS UNDER:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A), JALPAIGURI, WAS JUSTIFIED DISALLOWANCES MADE BY THE ASSESSING OFFICER WITHOUT ITA NOS.87 TO 90/KOL/2014 A.Y. 2007-08 TO 2010-11 DCIT, CIRCLE-3, SILIGURI VS DARJEELING DIST. CENTRA L COOP.BANK LTD. PAGE 2 APPRECIATING THE FACT THAT THE ORDERS U/S 147/143(3 ) HAD BEEN PASSED AFTER DUE VERIFICATION OF FACTS, DELIBERATION AND DUE CONSIDE RATION OF FACTS. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), JALPAIGURI, WAS JUSTIFIED IN LAW, IN GRANTING DEDUC TION U/S 36(1)(VIIA)(A) TO THE ASSESSEE DISREGARDING THE FACT THAT SUCH DEDUCTION HAD NOT BEEN CLAIMED IN THE INCOME-TAX RETURNS FILED BY THE ASSESSEE AND THAT T HE I.T. ACT, PROVIDES FOR DEDUCTIONS TO BE ALLOWED 0 THE BASIS OF CLAIMS MADE IN THE INCOME-TAX RETURN. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), JALPAIGURI, WAS JUSTIFIED IN LAW, IN GRANTING DEDUC TION U/S 36(1)(VIIA)(A) TO THE ASSESSEE ACCEPTING IT'S STATUS AS A SCHEDULED BANK, DISREGARDING THE FACT THAT THROUGHOUT THE ASSESSMENT PROCEEDINGS THE ASSESSEE HAD INSISTED ON ITS STATUS AS A PRIMARY AGRICULTURAL SOCIETY AND HAD ADMITTED IT' S STATUS AS A BANK ONLY DURING THE APPELLATE PROCEEDINGS. SHRI S.S.ALAM, JCIT, SR.DR, LD. DEPARTMENTAL REPRES ENTATIVE APPEARED ON BEHALF OF REVENUE AND SHRI NISHIKANTA SAHA, ACCOUNTANT APPEA RED ON BEHALF OF ASSESSEE. ALL THESE APPEALS FILED BY REVENUE INVOLVE SAME GRO UNDS OF APPEAL IN ALL THE ASSESSMENT YEARS. THEREFORE WE DEEM IT FIT TO TREAT ONE OF THE CASES AS LEAD CASE I.E. I.T.A.NO. 87/KOL/2014 (A.Y.2007-08). ACCORDINGLY WE PROCEED TO ADJUDICATE THIS CASE. ITA NO.87/KOL/2014 (A.Y.2007-08): 2. AT THE OUTSET, THE LD. DEPARTMENTAL REPRES ENTATIVE BROUGHT TO OUR NOTICE THAT THE ASSESSEE BEFORE LD. CIT(A) HAS FILED REVISED GROUND S OF APPEAL DATED 4 TH DECEMBER, 2013 WHICH WAS ADJUDICATED BY LD. CIT(A) WITHOUT T AKING ANY REMAND REPORT FROM THE AO. THE LD. DR ALSO SUBMITTED THAT THE ASSESSEE IN THE INSTANT CASE HAS MADE DETAIL SUBMISSION ALONG WITH THE REVISED GROUNDS OF APPEAL TO THE LD. CIT(A) ON 4 TH DECEMBER, 2013 AND THE LD. CIT(A) HAS PASSED AN ORD ER DATED 5 TH DECEMBER, 2013. THEREFORE IT APPEARS FROM THE ABOVE FACTS THAT THE LD. CIT(A) HAS NOT CONSIDERED THE WRITTEN SUBMISSION OF THE ASSESSEE AND THE ASSESSME NT RECORDS PROPERLY. IN VIEW OF THE ABOVE THE LD. DR PRAYED BEFORE THE BENCH TO RESTORE THE FILE TO THE AO FOR FRESH ADJUDICATION. 3. ON THE OTHER HAND, THE LD. AUTHORISED REPRES ENTATIVE FOR THE ASSESSEE FILED AN ADJOURNMENT APPLICATION THROUGH THE ACCOUNTANT OF T HE ASSESSEE WHICH WAS REJECTED BY US ON THE GROUND THAT THE ISSUED IN THE APPEALS NEE D TO BE RECONSIDERED BY THE AO. ITA NOS.87 TO 90/KOL/2014 A.Y. 2007-08 TO 2010-11 DCIT, CIRCLE-3, SILIGURI VS DARJEELING DIST. CENTRA L COOP.BANK LTD. PAGE 3 4. WE HAVE HEARD THE LD. DR AND PERUSED THE M ATERIALS AVAILABLE ON RECORD. FROM THE PERUSAL OF THE FACTS WE FIND THAT THE LD. CIT(A ) HAS PASSED AN ORDER AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE ALONG W ITH THE REVISED GROUNDS OF APPEAL DATED 4 TH DECEMBER, 2013. BUT NO REMAND REPORT WAS CALLED FO R FROM THE AO. IT IS ALSO EVIDENT FROM THE ORDER OF LD. CIT(A) WHICH WAS PASS ED ON 5 TH DECEMBER, 2013 AND THE SUBMISSION ALONG WITH THE REVISED GROUNDS OF APPEAL WAS MADE BY THE ASSESSEE ON DATED 4 TH DECEMBER, 2013. FROM THE ABOVE DISCUSSION WE HOLD THAT THE LD. CIT(A)HAS PASSED THE IMPUGNED ORDER WITHOUT TAKING THE REMAND REPORT. THIS ACTION OF THE LD. CIT(A) IS IN VIOLATION OF THE PROVISION OF RULE 46A OF THE INCOME TAX RULES WHICH READ AS UNDER :- PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE DEPUT Y COMMISSIONER (APPEALS0 AND COMMISSION (APPEALS) 46A (1) (2). (3) THE DEPUTY COMMISSIONER (APPEALS) [ OR AS THE C ASE MAY BE, THE COMMISSIONER (APPEALS) SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS THE ASSESSING OFFICER HAS BEEN ALLOWED A REASONABLE OPPORTUNITY (A) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROSS -EXAMINE THE WITNESS PRODUCED BY THE APPELLANT, OR (B) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITN ESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. 5. IN VIEW OF THE ABOVE PROVISION OF RULE 46A OF THE IT RULES, 1962 WE HOLD THAT THE LD. CIT(A) HAS PASSED ORDER AGAINST THE PROVISI ON OF LAW. THEREFORE IN THE INTEREST OF JUSTICE AND FAIR PLAY WE ARE INCLINED TO RESTORE THE ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION AS PER LAW. HENCE THIS GROUND OF APPEA L OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. NOW COMING TO THE OTHER APPEALS OF THE REVENUE IN I TA NOS.88 TO 90/KOL/2014 FOR A.YRS.2008-09 TO 2010-11. 6. AT THE OUTSET WE FIND THAT THE FACTS OF THE CASE IN THESE APPEALS ARE SAME AS NARRATED ABOVE IN ITA NO.87/KOL/2014 AND THAT APPEA L HAS BEEN ALLOWED BY US FOR STATISTICAL PURPOSES. NOW CONSIDERING THE ABOVE WE RESTORE THESE APPEALS TO THE AO IN ITA NOS.87 TO 90/KOL/2014 A.Y. 2007-08 TO 2010-11 DCIT, CIRCLE-3, SILIGURI VS DARJEELING DIST. CENTRA L COOP.BANK LTD. PAGE 4 TERMS OF THE ABOVE HENCE THESE APPEALS OF THE REVEN UE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, REVENUES APPEALS STAND ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 16 /09/2016 SD/- SD/- (S.S.VISWANETHRA RAVI) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER *RG.PS - 16 /09/2016 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-DARJEELING DISTRICT CENTRAL CO-OPERATIVE BANK LTD., RISHI ROAD, KALIMPONG, DARJEELING-734301. 2. /RESPONDENT-DCIT, CIRCLE-3, AAYAKAR BHAWAN, WING B PARIBAHAN NAGAR, MATIGARA, SILIGURI, DIST. DARJEELING-734010. 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , / ',