Perinthalmanna service Co-op bank Ltd, Malappuram V. ITO, Tirur

MA 106/COCH/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1069 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-10-2013
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 12-09-2013
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Keywords: Reopening of assessment
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM M.P. NO. 106/COCH/2013 (ARSG. OUT OF I.T.A. NO. 199/COCH/2012 ASSESSMENT YEAR : 2009-10 PERINTHALMANNA SERVICE CO-OP BANK LTD., PERINTHALMNNA, MALAPPURAM. [PAN:AAATP 5698R] VS. THE INCOME TAX OFFICER, WARD-2, TIRUR. (ASSESSEE -APPELLANT) (REVENUE-R ESPONDENT) ASSESSEE BY SHRI SHAJI POULOSE, CA REVENUE BY SHRI K.K. JOHN, SR. DR DATE OF HEARING 12/09/2013 DATE OF PRONOUNCEMENT 25/10/2013 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS MOVED THIS MISCELLANEOUS APPLICAT ION SEEKING RECTIFICATION / RECALL OF THE ORDER DATED 02-08-2013 PASSED IN ITS HANDS FOR ASSESSMENT YEAR 2009-10 ON THE GROUND THAT THE TRIBUNAL HAS NOT CONSIDERED THE ADDITIONAL GROUND NO.2 & 3 RAISED BY THE ASSESSEE, WHILE DISPOSING THE APPEAL. 2. THE LD COUNSEL SUBMITTED THAT THE ASSESSEE HAD F ILED THE IMPUGNED APPEAL CHALLENGING THE REVISION ORDER PASSED BY LD CIT U/S 263 OF THE ACT AND THE SAME HAS BEEN DISMISSED BY THE TRIBUNAL. THE LD COUNSEL FUR THER SUBMITTED THAT THE ASSESSEE, APART FROM THE GROUNDS URGED IN THE APPEAL MEMORAND UM, ALSO URGED FOLLOWING TWO ADDITIONAL GROUNDS:- (A) THAT LACK OF ELABORATE DISCUSSION IN THE ASSES SMENT ORDER BY ITSELF IS NOT A GROUND FOR INVOKING JURISDICTION U/S 263, AS HAS BE EN HELD IN SPECTRA SHARES AND SCRIPS PVT LTD (2013)(354 ITR 35)(A.P). M.P. NO.106/COCH/2013 2 (B) THAT THE GIST OF THE ORDER OF THE ASSESSING OF FICER THAT THE ASSESSEE IS A SOCIETY AND NOT A BANK AND HENCE ELIGIBLE FOR RELIE F U/S 80P SHOULD BE ALLOWED TO STAND AS THE C.I.T IN THE REVISIONAL ORDER HAS NOT HELD AGAINST THE SAME. THE SUBMISSION IS IN ACCORDANCE WITH THE DECISION OF TH E ANDHRA PRADESH HIGH COURT IN SPECTRA SHARES AND SCRIPS PVT LTD (2013)(354 ITR 35). THE LD COUNSEL SUBMITTED THAT THE TRIBUNAL HAS FAIL ED TO CONSIDER THE ABOVE SAID GROUNDS WHILE DISPOSING OF THE APPEAL. THE LD COUN SEL SUBMITTED THAT THE TRIBUNAL HAS UPHELD THE REVISION ORDER PASSED BY THE LD CIT ON T HE GROUND THAT THE ASSESSING OFFICER HAS PASSED A CRYPTIC ORDER WITHOUT MAKING ELABORATE DISCUSSIONS. THE LD COUNSEL SUBMITTED THAT HONBLE ANDHRA PRADESH HIGH COURT IN ITS LATEST DECISION RENDERED IN THE CASE OF SPECTRA SHARES AND SCRIPS PVT LTD (SUPRA) H AS HELD THAT THE JURISDICTION FOR REVISION U/S 263 OF THE ACT SHALL NOT LIE MERELY BE CAUSE THE AO DID NOT MAKE ELABORATE DISCUSSION IN THE ASSESSMENT ORDER. ACCORDINGLY HE SUBMITTED THAT THE ORDER OF THE TRIBUNAL SUFFERS FROM MISTAKE IN NOT CONSIDERING TH E LATEST DECISION OF HONBLE A.P. HIGH COURT REFERRED ABOVE. HE FURTHER SUBMITTED THAT THE LD CIT DID NOT DISTURB THE FINDING OF THE ASSESSING OFFICER THAT THE ASSESSEE IS A SO CIETY AND NOT A BANK AND HENCE ELIGIBLE FOR DEDUCTION U/S 80P OF THE ACT. HOWEVER , THE ORDER PASSED BY LD CIT SHOWS THAT THE ASSESSMENT ORDER HAS BEEN REOPENED ON WHOL ESALE AND IN ALL RESPECTS. THE LD COUNSEL SUBMITTED THAT THE TRIBUNAL HAS FAILED TO A DJUDICATE THIS GROUND WHICH HAS RESULTED IN REOPENING OF ASSESSMENT IN ALL RESPECTS . ACCORDINGLY HE PRAYED FOR RECTIFICATION / RECALL OF THE IMPUGNED ORDER PASSED BY THE TRIBUNAL. 3. ON THE CONTRARY, THE LD D.R SUBMITTED THAT THE LEARNED COUNSEL FOR ASSESSEE HAS FAIRLY AGREED AT THE TIME OF HEARING THAT THE ASSES SMENT ORDER DOES NOT CONTAIN ANY DISCUSSION ON THE POINTS CONSIDERED BY LD CIT AND T HE SAID FACT HAS ALSO BEEN NOTED BY THE TRIBUNAL IN PARAGRAPH 4 OF THE ORDER. THE TRIB UNAL, IN FACT, HAS FOLLOWED THE DECISION RENDERED BY HONBLE SUPREME COURT IN THE C ASE OF TOYOTO MOTOR CORPORATION (306 ITR 52), WHEREIN THE HONBLE APEX COURT HAS UP HELD THE VIEW EXPRESSED BY HONBLE DELHI HIGH COURT IN THE VERY SAME CASE THAT THE DECISION TAKEN BY THE ASSESSING OFFICER MUST BE SUPPORTED BY REASONS. THE LD D.R S UBMITTED THAT THE LD CIT HAS GIVEN A CLEAR FINDING THAT THE ASSESSMENT HAS BEEN COMPLE TED WITHOUT CONDUCTING PROPER ENQUIRIES AND FURTHER THE ASSESSMENT ORDER HAS BEEN PASSED WITHOUT MAKING M.P. NO.106/COCH/2013 3 DISCUSSIONS. THE LD D.R FURTHER SUBMITTED THAT THE TRIBUNAL HAS NOT EXPRESSED ANY OPINION ON THE MERITS OF THE ISSUES. ACCORDINGLY, THE LD D.R SUBMITTED THE ORDER PASSED BY THE TRIBUNAL DOES NOT SUFFER FROM ANY MISTAKE CA LLING FOR RECTIFICATION U/S 254(2) OF THE ACT. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULL Y PERUSED THE PETITION FILED BY THE ASSESSEE. WE NOTICE THAT THE ASSESSEE HAS PLAC ED RELIANCE ON THE DECISION RENDERED BY THE HONBLE ANDHRA PRADESH HIGH COURT IN THE CAS E OF SPECTRA SHARES AND SCRIPS PVT LTD (SUPRA) TO CONTEND THAT THERE IS NO REQUIREMENT OF MAKING ELABORATE DISCUSSION IN THE ASSESSMENT ORDER. HOWEVER, AS POINTED OUT BY L D D.R, THE TRIBUNAL HAS PLACED RELIANCE ON THE DECISION RENDERED BY HONBLE SUPREM E COURT IN THE CASE OF TOYOTA MOTOR CORPORATION (SUPRA), WHERE IN THE HONBLE APE X COURT HAS UPHELD THE VIEW EXPRESSED BY HONBLE DELHI HIGH COURT IN THE VERY S AME CASE THAT THE DECISION TAKEN BY THE ASSESSING OFFICER MUST BE SUPPORTED BY REASONS. IN THE INSTANT CASE, THE FINDING GIVEN BY LD CIT, IN PARAGRAPH 15 OF HIS ORDER, CLEA RLY SHOW THAT THE ASSESSMENT HAS BEEN COMPLETED WITHOUT CONDUCTING PROPER ENQUIRIES. THE SAID FINDINGS WERE NOT PROVED TO BE WRONG BY THE ASSESSEE BEFORE US. FURT HER THE AO DID NOT DISCUSS ANYTHING ABOUT THE ISSUES POINTED OUT BY LD CIT IN THE ASSES SMENT ORDER. UNDER THESE CIRCUMSTANCES ONLY, THE TRIBUNAL HAS UPHELD THE REV ISION ORDER PASSED BY LD CIT, WHICH, IN OUR VIEW, COVERS ALL THE GROUNDS URGED BY THE AS SESSEE BEFORE US. IN THE ADDITIONAL GROUND NO.3, WHICH IS REFERRED AS (B) IN PARAGRAPH 2 SUPRA, THE ASSESSEE HAS EXPRESSED ITS VIEW ON THE SCOPE OF THE REVISION ORDER PASSED BY THE LD CIT. SINCE THE TRIBUNAL HAS UPHELD THE REVISION ORDER ON THE BASIS OF LACK OF ENQUIRY AND FAILURE ON THE PART OF THE AO TO PASS A REASONED ORDER, THERE WAS NO NECESSIT Y FOR THE TRIBUNAL TO ADJUDICATE EACH OF THE GROUNDS URGED BY THE ASSESSEE SEPARATEL Y. FURTHER, AS SUBMITTED BY LD D.R, THE TRIBUNAL HAS NOT GIVEN ITS DECISION ON MER ITS OF THE ISSUES POINTED OUT BY THE LD CIT AND HENCE IT IS OPEN TO THE ASSESSEE TO RAIS E ALL THE CONTENTIONS BEFORE THE ASSESSING OFFICER. M.P. NO.106/COCH/2013 4 5. IN VIEW OF THE FOREGOING DISCUSSIONS, IN OUR VIEW, THE IMPUGNED ORDER OF TRIBUNAL DOES NOT SUFFER FROM ANY MISTAKE CALLING FOR RECTIF ICATION U/S 254(2) OF THE ACT. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE PETITI ON FILED BY THE ASSESSEE. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. PRONOUNCED ACCORDINGLY ON 25 -10- 2013. SD/- SS/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 25TH OCTOBER, 2013 GJ COPY TO: 1. PERINTHALMANNA SERVICE CO-OP BANK LTD., PERINTHA LMNNA, MALAPPURAM. 2. THE INCOME TAX OFFICER, WARD-2, TIRUR. 3.THE COMMISSIONER OF INCOME-TAX, KOZHIKODE. 4. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 5. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN M.P. NO.106/COCH/2013 5