ITO, Kannur V. M/s Morazha Kalliassery Service Co-op Rural Bank Ltd, Kannur

MA 137/COCH/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4285 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-10-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-10-2020
• Assessment Year: 2007-2008
• Appeal Filed On: 30-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SAJJIVE
• Keywords: Rectification of order
• Section: 80P; 254(2)

Judgement Text

1 M.P. NOS. 137 TO 140/COCH/2020 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI CHANDRA POOJARI, AM & SHRI GEORGE MATHAN, JM MA NOS.137 TO 140/COCH/2020 :ASST.YEARS 2007-08 TO 2010-11 ARISING OUT OF ITA NOS.725 TO 728/COCH/2013) THE INCOME TAX OFFICER, WARD-1 & TPS, KANNUR. VS. M/S. MORAZHA KALLISSERY SERVICE CO-OPERATIVE RURAL BANK LTD., ANCHAMPEEDIKA, KANNUR-670 331 [PAN : AAAAT 9657M] (REVENUE-APPLICANT) (ASSESSEE-RESPONDENT) REVENUE BY : SHRI B. SAJJIVE, SR. DR ASSESSEE BY : SHRI PARVATHY AMMAL, CA DATE OF HEARING : 23.10.2020 DATE OF PRONOUNCEMENT : 23.10.2020 O R D E R PER BENCH: BY THESE MISCELLANEOUS PETITIONS, THE REVENUE HAS SOUGHT TO RECALL ORDER OF THE TRIBUNAL DATED 25.07.2017. 2. THE ONLY ISSUE RAISED IN THESE MISCELLANEOUS PETITIONS IS WITH REGARD TO DEDUCTION U/S. 80P OF THE I.T. ACT. 2 M.P. NOS. 137 TO 140/COCH/2020 3. THE FACTS OF THE CASE ARE THAT THE TRIBUNAL HAD ORIGINALLY DISMISSED THE REVENUES APPEALS BY FOLLOWING THE DECISION OF THE KERALA HIGH COURT IN THE CASE OF THE CHIRAKKAL SERVICE CO-OPERATIVE BANK LTD. AND OTHERS VS. ITO (2016) (384 ITR 490). SUBSEQUENTLY, THE FULL BENCH OF THE JURISDICTIONAL HIGH COURT VIDE ORDER DATED 19.03.2019 IN ITA NO.97 OF 2016 IN THE CASE OF THE MAVILAYI SERVICE CO-OPERATIVE BANK LTD. VS. CIT (2019) (414 ITR 67) (FB) HELD THAT ITS EARLIER DECISION IN THE CASE OF THE CHIRAKKAL SERVICE CO-OPERATIVE BANK LTD. AND OTHERS (SUPRA) IS NOT GOOD LAW AND THE ASSESSING OFFICER HAS TO CONDUCT AN INQUIRY INTO THE FACTUAL SITUATION AS TO THE ACTIVITIES OF THE ASSESSEE-SOCIETY AND ARRIVE AT A CONCLUSION WHETHER THE BENEFITS CAN BE EXTENDED OR NOT IN THE LIGHT OF THE PROVISIONS OF SUB-SECTION (4) OF SECTION 80P OF THE ACT. 4. IN VIEW OF THE ABOVE, THE LD. DR SUBMITTED THAT THE SUBSEQUENT BINDING OF THE JURISDICTIONAL HIGH COURT CONSTITUTES A MISTAKE APPARENT FROM RECORD AND THE MISCELLANEOUS PETITIONS ARE LIABLE TO BE ALLOWED. 5. ON THE OTHER HAND, THE LD. AR SUBMITTED THAT THE ORDER OF THE TRIBUNAL IS DATED 25.07.2017. THE HONBLE HIGH COURTS ORDER IN THE CASE OF THE MAVILAYI SERVICE CO-OPERATIVE BANK LTD. (SUPRA) IS DATED 19.03.2019 AND THE MISCELLANEOUS APPLICATIONS IN THESE CASES WERE FILED BY THE REVENUE ONLY ON 30.09.2019. THE LD. AR 3 M.P. NOS. 137 TO 140/COCH/2020 SUBMITTED THAT AS PER THE PROVISIONS OF SECTION 254(2) OF THE I.T. ACT, THE MISCELLANEOUS APPLICATIONS ARE TO BE FILED WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDERS WERE PASSED. IT WAS SUBMITTED THAT THE MISCELLANEOUS PETITIONS WERE FILED FAR BEYOND THE SAID TIME LIMIT. THE LD. AR SUBMITTED THAT THE MISCELLANEOUS PETITIONS BEING BEYOND THE PRESCRIBED TIME LIMIT AND THE TRIBUNAL NOT HAVING THE POWER U/S. 254(2) OF THE I.T. ACT TO CONDONE DELAY, THE MISCELLANEOUS APPLICATIONS IN THESE CASES FILED BY THE REVENUE ARE LIABLE TO BE DISMISSED. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE TRIBUNAL IS A CREATURE OF THE STATUTE. IT HAS NOT HAVING POWER TO READ IN OR READ OUT OF A PROVISION OF LAW. THE LEGISLATURE IN ITS WISDOM HAS LAID DOWN THE LAW AND THE SPECIFIC PROVISION RELATING TO THE POWERS OF RECTIFICATION OF MISTAKES IN THE ORDER OF THE TRIBUNAL IS IN SECTION 254(2) OF THE INCOME TAX ACT, 1961. 6.1 IT IS PERTINENT TO MENTION THE PROVISIONS OF SECTION 254(2) WHICH READS AS FOLLOWS: 254(2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN [SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED], WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY OTHER ORDER PASSED BY IT UNDER SUB- SECTION(1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER. THUS, AS PER SECTION 254(2) OF THE I.T. ACT, THE TRIBUNAL MAY AT ANY TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED, IT COULD AMEND THE SAME IF THE MISTAKE APPARENT 4 M.P. NOS. 137 TO 140/COCH/2020 ON RECORD IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR BY THE ASSESSING OFFICER. 7. IN THESE CASES, THE MISCELLANEOUS PETITIONS ARE FILED BELATEDLY AS FOLLOWS: SL.NO. ITA NO. MA NO. DATE OF ORDER DATE OF SERVICE OF ORDER DATE OF FILING OF MA TO BE FILED ON OR BEFORE REMARK 1. 725/COCH/2013 137/COCH/2020 25.07.2017 23.08.2017 30.09.2019 28.02.2018 TIME BARRED 2. 726/COCH/2013 138/COCH/2020 25.07.2017 23.08.2017 30.09.2019 28.02.2018 TIME BARRED 3. 727/COCH/2013 139/COCH/2020 25.07. 2017 23.08.2017 30.09.2019 28.02.2018 TIME BARRED 4. 728/COCH/2013 140/COCH/2020 25.07.2017 23.08.2017 30.09.2019 28.02.2018 TIME BARRED 8. THE TIME LIMIT OF SIX MONTHS IS BINDING ON THE HANDS OF THE TRIBUNAL. RELIANCE IS PLACED ON THE DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF PRINCIPAL CIT VS. ITAT (WRIT PETITION NO.2858 OF 2019 DATED 24.01.2020). BEING SO, AS SIX MONTH PERIOD FROM THE END OF THE MONTH IN WHICH THE ORDERS WERE PASSED HAS EXPIRED, THE ORDERS PASSED BY THE TRIBUNAL IN THE ABOVE CASES CANNOT BE DISTURBED BY THE TRIBUNAL. ACCORDINGLY, THE MISCELLANEOUS PETITIONS FILED BY THE REVENUE IN THESE CASES STAND DISMISSED. 5 M.P. NOS. 137 TO 140/COCH/2020 9. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON THIS 23 RD OF OCTOBER, 2020. SD/- (GEORGE MATHAN) SD/- (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER COCHIN ; DATED : 23RD OCTOBER, 2020. GJ COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, COCHIN 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) KOZHIKODE. 4. THE PR.CIT KOZHIKODE. 5. DR, ITAT, COCHIN 6. GUARD FILE.