The DCIT, Panchmahal Circle, Godhra V. Sahyog Co. Op. Credit Society Ltd., Kheda

MA 110/AHD/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7001 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 11-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SHANKAR
• Assessee Lawyers: MEHUL K PATELAR
• Keywords: Tax effect

Judgement Text

- , - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER MISC. APPLICATION NO.110/AHD/2017 IN ./ ITA NO.2030/AHD/2013 / ASSTT. YEAR: 2010-11 DCIT, PANCHMAHAL CIRCLE GODHRA. VS. M/S.SAHYOG COOPERATIVE CREDIT SOCIETY LTD. LUHA BAZAR, BALASINOR DIST. KHEDA. ( APPLICANT ) (RESPONDENT) REVENUE BY : SHRI T. SHANKAR, SR. ASSESSEE BY : SHRI MEHUL K. PATEL, AR ! '#$ % &' / DATE OF HEARING : 03/08/2018 ()* % &' / DATE OF PRONOUNCEMENT: 07 /08/2018 +, / O R D E R PRESENT MISC. APPLICATION IS DIRECTED AT THE INSTAN CE OF THE REVENUE POINTING OUT APPARENT ERROR IN THE ORDER OF THE TRIBUNAL DATED 10.6.2016. 2. IT EMERGES OUT FROM THE RECORD THAT THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 80P(2) OF THE INCOME TAX AC T, 1961 OF THE INTEREST INCOME, WHICH HAS BEEN EARNED BY IT ON THE DEPOSITS MADE WITH SCHEDULED BANK. THE TRIBUNAL HAS FOLLOWE D EARLIER ORDERS OF THE ITAT IN THIS CONNECTION. THE HONBLE GUJARAT HIGH COURT VIDE ITS DECISION DATED 25.4.2016 IN THE CASE OF STATE BANK OF INDIA RENDERED IN TAX APPEAL NOS.486 AND 487 OF 2015 HAS HELD THAT INTEREST EARNED BY A COOPERATIVE CREDIT SOCIET Y FROM MA NO.110/AHD/2017 2 DEPLOYMENT OF ITS FUNDS WITH SCHEDULED/NATIONALISED BANKS WOULD NOT QUALIFY FOR GRANT OF DEDUCTION UNDER SECTION 80 P(2). THOUGH THIS DECISION WAS PRIOR TO THE ORDER PASSED BY THE ITAT, BUT WAS NOT BROUGHT TO THE NOTICE OF THE ITAT. REVENUE PLE ADED THAT NON- CONSIDERATION OF JURISDICTIONAL HIGH COURT DECISION , WHICH IS DIRECT ON POINT, AMOUNTS TO AN APPARENT ERROR. 3. THE LD.COUNSEL FOR THE ASSESSEE, ON THE OTHER HA ND, SUBMITTED THAT THE TRIBUNAL HAS CONSIDERED THE POSI TION OF LAW AS AVAILABLE AT THAT POINT OF TIME AND NOT COMMITTED A NY APPARENT ERROR. ALTERNATIVELY, HE CONTENDED THAT TAX EFFECT WILL BE LESS THAN RS.20 LAKHS, HENCE, EVEN IF ORDER OF THE TRIBUNAL I S RECALLED AND THE ISSUE IS RESTORED BACK, THEN AGAIN THIS APPEAL HAS TO BE DISMISSED. 4. I HAVE CONSIDERED RIVAL CONTENTIONS AND GONE THR OUGH THE RECORDS. THERE ARE SERIES OF DECISIONS AT THE END OF THE HONBLE SUPREME COURT AS WELL AS HONBLE HIGH COURT EXPOUND ING SCOPE OF EXERCISING POWERS UNDER SECTION 254(2) OF THE ACT. I DO NOT DEEM IT NECESSARY TO RECITE AND RECAPITULATE ALL OF THEM , BUT SUFFICE TO SAY THAT CORE OF ALL THESE AUTHORITATIVE PRONOUNCEM ENTS IS THAT POWER FOR RECTIFICATION UNDER SECTION 254(2) OF THE ACT CAN BE EXERCISED ONLY WHEN MISTAKE, WHICH IS SOUGHT TO BE RECTIFIED, IS AN OBVIOUS AND PATENT MISTAKE, WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE, WHICH IS REQUIRED TO BE ESTABLIS HED BY ARGUMENTS AND LONG DRAWN PROCESS OF REASONING ON PO INTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. FOR F ORTIFYING THIS VIEW, I MAKE REFERENCE TO DECISION OF THE HONBLE J URISDICTIONAL HIGH COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LD., 262 ITR 146 WHICH HAS BEEN UPHELD BY THE HONBLE MA NO.110/AHD/2017 3 SUPREME COURT REPORTED IN 305 ITR 227. THE HONBLE COURT HAS LAID DOWN FOLLOWING PROPOSITION WHILE CONCLUDING TH E JUDGMENT: '(A) THE TRIBUNAL HAS POWER TO RECTIFY A MISTAKE AP PARENT FROM THE RECORD ON ITS OWN MOTION OR ON AN APPLICAT ION BY A PARTY UNDER S. 254(2) OF THE ACT; (B) AN ORDER ON APPEAL WOULD CONSIST OF AN ORDER MA DE UNDER S. 254(1) OF THE ACT OR IT COULD BE AN ORDER MADE U NDER SUB- S. (1) AS AMENDED BY AN ORDER UNDER SUB-S. (2) OF S . 254 OF THE ACT; (C) THE POWER OF RECTIFICATION IS TO BE EXERCISED T O REMOVE AN ERROR OR CORRECT A MISTAKE AND NOT FOR DISTURBING F INALITY, THE FUNDAMENTAL PRINCIPLE BEING THAT POWER OF RECTIFICA TION IS FOR JUSTICE AND FAIR PLAY; (D) THAT POWER OF RECTIFICATION CAN BE EXERCISED EV EN IF A MISTAKE IS COMMITTED BY THE TRIBUNAL OR EVEN IF A M ISTAKE HAS OCCURRED AT THE INSTANCE OF PARTY TO THE APPEAL ; (E) A MISTAKE APPARENT FROM RECORD SHOULD BE SELF-E VIDENT, SHOULD NOT BE A DEBATABLE ISSUE, BUT THIS TEST MIGH T BREAK DOWN BECAUSE JUDICIAL OPINIONS DIFFER AND WHAT IS A MISTAKE APPARENT FROM THE RECORD CANNOT BE DEFINED PRECISEL Y AND MUST BE LEFT TO BE DETERMINED JUDICIALLY ON THE FAC TS OF EACH CASE; (F) NON-CONSIDERATION OF A JUDGMENT OF THE JURISDIC TIONAL HIGH COURT WOULD ALWAYS CONSTITUTE A MISTAKE APPARENT FR OM THE RECORD, REGARDLESS OF THE JUDGMENT BEING RENDERED P RIOR TO OR SUBSEQUENT TO THE ORDER PROPOSED TO BE RECTIFIED; (G) AFTER THE MISTAKE IS CORRECTED, CONSEQUENTIAL O RDER MUST FOLLOW AND THE TRIBUNAL HAS POWER TO PASS ALL NECES SARY CONSEQUENTIAL ORDERS.' TEST PROPOUNDED AT SERIAL NO.(F) IS APPLICABLE ON T HE FACTS OF THE PRESENT CASE. NON-CONSIDERATION OF A JUDGMENT OF HO NBLE JURISDICTIONAL HIGH COURT WOULD ALWAYS CONSTITUTE A N APPARENT ERROR ON THE RECORD. IN THE PRESENT CASE TRIBUNAL FAILED TO CONSIDER A MA NO.110/AHD/2017 4 DIRECT DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF STATE BANK OF INDIA (SUPRA), HENCE ITS ORDER SUFF ERING FROM APPARENT ERROR DESERVES TO BE RECALLED. 5. HOWEVER, I HAVE GONE THROUGH THE RECORD CAREFULL Y. THE LATEST CIRCULAR OF CBDT BEARING NO.3/2018 DATED 11. 7.2018 STIPULATES FILING APPEAL BY THE REVENUE BEFORE THE TRIBUNAL WHERE TAX EFFECT IS ABOVE RS.20.00 LAKHS. TAKING COGNIZA NCE OF THIS CIRCULAR, I OBSERVE THAT NO FRUITFUL PURPOSE WILL B E SERVED BY RESTORING APPEALS TO ITS ORIGINAL NUMBER, BECAUSE U LTIMATELY IT WILL BE AGAIN DISMISSED BEING NOT MAINTAINABLE ON ACCOUN T OF TAX EFFECT INVOLVED IN IT. 6. IN VIEW OF THE ABOVE, I DO NOT FIND ANY MERIT IN THIS MA. IT IS DISMISSED. 7. IN THE RESULT, MA OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 7 TH AUGUST, 2018. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 07/08/2018