ITO, HANUMANGARH V. M/s. Hanumangarh Kray Vikraya Sahakari Samiti, HANUMANGARH

MA 10/JODH/2009

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1662 (ITAT-JODHPUR)
• Duration Of Justice: 4 year(s) 8 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 08-01-2014
• Assessment Year: 1999-2000
• Appeal Filed On: 28-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER MA NO.10/JU/2009 (ARISING OUT OF ITA NOS. 147 & 148/JDPR/2006) ASSESSMENT YEARS : 1998-1999 & 1999-2000 INCOME TAX OFFICER, VS. M/S. HANUMANGARH KRAY WARD-1, HANUMANGARH. VIKRAYA SAHAKARI SAMITI LT D., HANUMANGARH. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI SURESH OJ HA. DEPARTMENT BY : SHRI N.A. JOSHI - D.R. DATE OF HEARING : 08-01-2014 DATE OF PRONOUNCEMENT : 17-02-2014 O R D E R PER HARI OM MARATHA, J.M. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E REVENUE IN RELATION TO THE TRIBUNALS ORDER DATED 23/03/2007 PASSED IN ITA NOS. 147 & 148/JU/2006 PERTAINING TO ASSESSMENT YEARS 1998-99 & 1999-2000. THROUGH THIS MISC. APPLICATION, THE APPLICANT/REVENUE HAS SOUGHT REVIE W OF THE TRIBUNALS ORDER UNDER THE PROVISIONS OF SECTION 254(2) OF THE I.T. ACT, 1 961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT). UNDER THIS PROVISION ONLY OBV IOUS PATENT AND APPARENT 2 MISTAKE(S), IN THE TRIBUNALS ORDER, IF ANY, CAN BE RECTIFIED. THE TRIBUNAL IS NOT VESTED WITH THE POWER TO RECONSIDER OR REVIEW ITS O RDER. FOR READY REFERENCE, WE INCORPORATE THE ENTIRE PETITION OF THE REVENUE WHIC H READS AS UNDER:- IN THE ABOVE CASE THE HONBLES ITAT JODHPUR BENCH JODHPUR HAS DELIVERED HIS DECISION VIDE ITS ORDER IN APPEAL NO. 148/JDR/2006 ON 23-03-2007 FOR THE A.Y. 1998-99 & 1999 -2000 RESPECTIVELY. IN THIS CONNECTION I HAVE TO SUBMIT THAT DURING THE COURSE OF APPELLATE PROCEEDING IN THE CASE OF HANUMANGARH KRAYA VIKRAY SAHAKARI SIMITI LTD. HANUMANGARH FOR THE A.Y 2000-200R THE LD. CIT (APPE AL) IN HIS ORDER OBSERVED THAT THE APPELLANT IN ABOVE CASE HAS MISREPRESENTED THE FACTS BEFORE HONBLE'S ITAT JODHPUR REGARDING MEMBERSHIP OF THE SOCIETY. AS PER ARGUMENTS PLACED BEFORE THE ITAT, ALL THE FARMERS AND BUSINESS MEN FALLING UNDE R THE JURISDICTION OF THE SOCIETY HAVE BEEN TREATED AS IF SO-FACTO MEMBERS OF THE SOC IETY WHICH IS CONTRARY TO THE PROVISION OF CONSTITUTION AND BYLAWS OF THE SOCIETY . ON GOING THROUGH THE CONSTITUTION AND BYLAWS OF THE SOCIETY IT IS FOUND THAT FOR BECOMING MEMBER OF THE SOCIETY EVERY APPLICANT HAS TO FILE APPLICATION WITH PURCHASE OF SHARE MONEY AND ENTRANCE FEE AND MEMBER SHIP WILL BE ALLOTTED WITH IN 30 DAYS OF THE APPLICATION. THE INDIVIDUAL AGRIC ULTURISTS, PRIMARY SOCIETIES, THE BUSINESS MEN HAVING COMMERCIALS RELATION WITH THE S OCIETY ETC. CAN BECOME MEMBERS OF THE SOCIETY BY FILLING APPLICATION WITH SOCIETY, WHO INTURN WITH ALLOT MEMBERSHIP TO THE APPELLANT. A MEMBER OF THE SOCIET Y IN SECTION 80P ORDINARILY REFER TO A PERSON WHO HIMSELF IS A MEMBER OF SOCIET Y. WHERE ANOTHER SOCIETY IS MEMBERS OF THE ASSESSEE SOCIETY, ALL MEMBERS OF THE FORMER DO NOT IPSO-FACTO BECOME MEMBERS OF THE ASSESSEE SOCIETY. (CIT V/S U. P.CO-OPERATIVE CANE UNION FEDERATION LTD. 122 ITR 913(ALL). AFFIRMING THIS DE CISION THE SUPREME COURT HAS, IN U.P. CO-OPERATIVE CANE UNIONS FEDERATION LTD. V/S C IT (1997) LL SCC 287,291, HELD THAT IN SECTION 80P(A)(I), WHEN PARLIAMENT HAS USED THE EXPRESSION MEMBERS IT HAS USED IT IN THE NORMAL SENSE OF A MEMBER OF A CO-OPE RATIVE SOCIETY. THE INTENTION WAS TO EXTEND THE EXEMPTION TO CO-OPERATIVE SOCIETI ES DIRECTLY EXTENDING CREDIT FACILITIES TO ITS MEMBERS. IN THE CASE OF THE APPEL LANT, THE AUTHORIZED REPRESENTATIVE HAS ARGUED THAT ALL FARMERS, BUSINES SMEN, SMALL PRIMARY GRAMIN COOPERATIVE SOCIETY, RAJASTHAN KRAYA VIKRAYA SAHAKA RI SAMITI LTD. INCLUDING ALL SOCIETY MEMBERS AND THE STATE GOVERNMENT AUTOMATICA LLY BECOMES MEMBERS OF THE APPELLANT SOCIETY WHICH IS FACTUALLY AND LEGALL Y & BYLAWS OF THE APPELLANT SOCIETY AND AS PER LEGAL POSITION AS DECIDED BY THE SUPREME COURT (SUPRA). 3 IN VIEW OF THE FACTUAL AND LEGAL POSITION, IT IS CL EAR THAT THE APPELLANT HAS MISREPRESENTED THE FACTS BEFORE THE HONORABLE ITAT REGARDING MEMBERSHIP OF THE SOCIETY THAT ALL AGRICULTURIST UNDER HIS JURISDICTI ONS AND ALL MEMBERS OF THE PRIMARY CO-OPERATIVE SOCIETIES FOR MEMBERS OF THE SOCIETY. THE APPELLANT HAVE ALSO MISREPRESENTED BEFORE THE HONORABLE ITAT REGARDING ACTIVES AS PER SUB SECTION (2)(A)(III) AND (2)(A)(IV) OF SECTION 80P. INVIEW OF THE ABOVE FACTS, IT IS HUMBLY REQUESTED T HAT THE MISCELLANEOUS PETITION BE ADMITTED AND ORDER EARLIER PASSED IN AP PEAL NO. 147/JDR/2006 & 148/JDR/2006 ON 23/03/2007 FOR THE A.Y. 1998-99 & 1 999-2000 BE RE-EXAMINED. 2 FROM THE VERY PERUSAL OF AVERMENTS OF THIS PETITI ON, MACROSCOPICALLY, IT IS REVEALED THAT THE INCOME TAX OFFICER HAS PRAYED FOR THE RE-EXAMINATION OF THE TRIBUNALS ORDER AND THAT TOO, BASED ON SOME OBSERV ATIONS MADE BY THE LD. CIT(A) REGARDING TRIBUNAL ORDER PERTAINING TO A.Y. 2000-01. NOTHING HAS BEEN MENTIONED REGARDING THE TRIBUNAL-ORDER UNDER REFERE NCE. NO ERROR, WORTH THE SAME HAS BEEN POINTED IN THE T.O. THE REASONS MEN TIONED TO SEEK RECTIFICATION AS ABOVE, DO NOT FALL WITHIN THE PURVIEW OF SECTION 254(2) OF THE ACT. THEREFORE, THIS PETITION IS NOT MAINTAINABLE BEING DEVOID OF A NY MERIT. ACCORDINGLY, THE SAME STANDS DISMISSED. 3. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E REVENUE IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17-02 -2014.) SD/- SD/- (N.K. SAINI) (HARI OM MARATHA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17 TH FEBRUARY, 2014 4 VR/- COPY TO:- 1.THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE LD. CIT(A) 5. THE DR 6. THE GUARD FILE ASSISTANT REGISTRAR ITAT, JODHPUR