The ITO, Tirur V. M/s. Nannambra Service Co-op Bank Ltd, Malappuram

MA 145/COCH/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4286 (ITAT-COCHIN)
• Duration Of Justice: 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: 2010-2011
• Appeal Filed On: 30-09-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SAJJIV
• Assessee Lawyers: M RAMKUMAR MENONCA
• Keywords: Rectification of order
• Section: 80P; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI CHANDRA POOJARI, AM & SHRI GEORGE MATHAN, JM MA NOS.144 & 145/COCH/2020:ASST.YEARS 2009-10 & 2010-11 (ARISING OUT OF ITA NOS.436 & 437/COCH/2016) THE INCOME TAX OFFICER WARD 3, TIRUR VS. M/S. THE NANNAMBRA SERVICE CO-OPERATIVE BANK LTD. KODINHI P.O., MALAPPURAM-676 309 [PAN : AABAN 8024D] ( APPLICANT ) (RESPONDENT) APPLICANT BY : SRI.B.SAJJIV, SR.DR RESPONDENT BY: SRI. M. RAMKUMAR MENON,CA DATE OF HEARING : 23.10.2020 DATE OF PRONOUNCEMENT : 23.10.2020 O R D E R PER BENCH: THESE ARE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE IN THE ORDER OF THE TRIBUNAL IN ITA NOS. 436 & 437/COCH/2016 DATED 08/02/2018. 2. SRI.B.SAJJIV, SENIOR DEPARTMENTAL REPRESENTATIVE APPEARED ON BEHALF OF THE REVENUE AND SHRI M. RAMKUMAR MENON, LEARNED COUNSEL APPEARED ON BEHALF OF THE ASSESSEE. 3. IT WAS THE SUBMISSION BY THE LEARNED DR THAT THE ISSUE IN APPEAL WAS IN RESPECT OF DEDUCTION U/S 80P OF THE I.T.ACT. IT WAS THE SUBMISSION THAT THE TRIBUNAL HAVE ORIGINALLY DISMISSED THE REVENUES APPEALS BY FOLLOWING THE DECISION OF THE HONBLE KERALA HIGH COURT IN THE CASE OF THE CHIRAKKAL SERVICE CO- OPERATIVE BANK LTD. AND OTHERS V. ITO [(2016) 384 ITR 490 (KER.)] . MA NOS.144&145/COCH/2020 2 IT WAS THE SUBMISSION THAT SUBSEQUENTLY THE FULL BENCH OF THE HONBLE JURISDICTIONAL HIGH COURT HAS PASSED AN ORDER DATED 19.03.2019 IN ITA NO.97 OF 2016 IN THE CASE OF THE MAVILAYI SERVICE CO-OPERATIVE BANK LTD. V. CIT [(2019) 414 ITR 67 (KER.) (FB) (HC)] , WHEREIN THE HONBLE JURISDICTIONAL HIGH COURT HAS 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. IT WAS THE SUBMISSION THAT THE SUBSEQUENT BINDING OF THE HONBLE JURISDICTIONAL HIGH COURT, WHICH HAS REVERSED THE EARLIER DECISION, DOES CONSTITUTE A MISTAKE APPARENT FROM RECORD AND THE MISCELLANEOUS APPLICATION WAS LIABLE TO BE ALLOWED. 4. IN REPLY, THE LEARNED AR SUBMITTED THAT THE ORDER OF THE TRIBUNAL IS DATED 08.02.2018. 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 HAVE BEEN FILED BY THE REVENUE ONLY ON 30.09.2019. IT WAS THE SUBMISSION THAT AS PER THE PROVISIONS OF SECTION 254(2) OF THE ACT, THE MISCELLANEOUS APPLICATION IS TO BE FILED WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED. IT WAS THE SUBMISSION THAT THE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED FAR BEYOND THE SAID TIME LIMIT. IT WAS THE SUBMISSION THAT THE MISCELLANEOUS APPLICATIONS BEING BEYOND THE PRESCRIBED TIME LIMIT AND THE TRIBUNAL NOT HAVING THE POWER U/S 254(2) OF THE ACT TO CONDONE DELAY, THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE LIABLE TO BE DISMISSED. MA NOS.144&145/COCH/2020 3 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE TRIBUNAL IS A CREATURE OF THE STATUTE. IT HAS NOT HAVING THE 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 THE RECTIFICATION OF MISTAKES IN THE ORDER OF THE TRIBUNAL IS IN SECTION 254(2) OF THE INCOME-TAX ACT, 1961. 6. HERE WE MUST SPECIFICALLY MENTION THAT THE READING OF THE PROVISIONS OF SECTION 254(2), WHICH READS AS FOLLOW:- 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 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. 6.1 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. 436/COCH/2016 144/COCH/2020 08.02.2018 15.03.2018 30.09.2019 30.09.2018 TIME BARRED 2. 437/COCH/2016 145/COCH/2020 08.02.2018 15.03.2018 30.09.2019 30.09.2018 TIME BARRED 7. IT SHOWS THAT THE TIME LIMIT OF SIX MONTH IS BINDING ON THE HANDS OF THE TRIBUNAL. THIS IS IN LINE WITH THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF PRINCIPAL CIT V. ITAT [WRIT PETITION NO.2858 OF 2019 DATED 24.01.2020]. MA NOS.144&145/COCH/2020 4 8. THIS BEING SO, AS SIX MONTH PERIOD FROM THE END OF THE MONTH IN WHICH THE ORDER HAS BEEN PASSED HAS EXPIRED, THE ORDER PASSED BY THE TRIBUNAL IN ITA NOS.436 & 437/COCH/2016 CANNOT BE AMENDED BY THE TRIBUNAL. CONSEQUENTLY, THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE STAND DISMISSED. 9. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON THIS 23 RD DAY OF OCTOBER, 2020 . SD/- SD/- ( CHANDRA POOJARI ) ( GEORGE MATHAN ) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN ; DATED : 23 RD 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. MA NOS.144&145/COCH/2020 5