The ITO, Calicut V. The Vadakara Co-op Rural Bank Ltd, Calicut

MA 167/COCH/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4288 (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
• Assessment Year: 2011-2012
• Appeal Filed On: 30-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SAJJIVE
• Assessee Lawyers: V S NARAYANAN
• Keywords: Rectification of order
• Section: 80P; 254(2)

Judgement Text

1 M.P. NOS. 165-167/COCH/2020 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI CHANDRA POOJARI, AM & SHRI GEORGE MATHAN, JM MA NOS.165 TO 167/COCH/2020 : ASST.YEARS:2008-09,2009-10 & 2011-12 (ARISING OUT OF ITA NOS. 53 TO 55/COCH/2016) THE INCOME TAX OFFICER, WARD 2(2), CALICUT VS. M/S. THE VADAKARA RURAL CO- OPERATIVE BANK LTD., VO ROAD, VADAKARA PO, KOZHIKODE. [PAN : AAAAT 6785E] (REVENUE-APPLICANT) (ASSESSEE-RESPONDENT) REVENUE BY : SHRI B. SAJJIVE, SR. DR ASSESSEE BY : SHRI V.S. NARAYANAN, CA DA TE 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 THE ORDER OF THE TRIBUNAL IN THE ABOVE CASES DATED 15.09.2016. 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. 165-167/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 WERE LIABLE TO BE ALLOWED. 5. ON THE OTHER HAND, THE LD. AR SUBMITTED THAT THE ORDER OF THE TRIBUNAL IN THE ABOVE CASES IS DATED 15.09.2016. 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 3 M.P. NOS. 165-167/COCH/2020 LD. AR SUBMITTED THAT AS PER THE PROVISIONS OF SECTION 254(2) OF THE I.T. 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 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 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. 4 M.P. NOS. 165-167/COCH/2020 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 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. 53/COCH/2016 165/COCH/2020 15.09.2016 07.10.2016 30.09.2019 30.04.2017 TIME BARRED 2. 54/COCH/2016 166/COCH/2020 15.09.2016 07.10.2016 30.09.2019 30.04.2017 TIME BARRED 3. 55/COCH/2016 167/COCH/2020 15.09.2016 07.10.2016 30.09.2019 30.04.2017 TIME BARRED 8. IT SHOWS THAT 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). 9. 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 5 M.P. NOS. 165-167/COCH/2020 TRIBUNAL IN THE ABOVE CASES CANNOT BE DISTURBED BY THE TRIBUNAL. ACCORDINGLY, THE MISCELLANEOUS PETITIONS FILED BY THE REVENUE IN THESE CASES STAND DISMISSED. 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. 6 M.P. NOS. 165-167/COCH/2020