THE GREATER BOMBAY CO-OP BANK LTD., MUMBAI V. DY CIT 1 (3)(2), MUMBAI

MA 183/MUM/2022

AI Insights

The case involves The Greater Bombay Co-OP Bank Ltd. seeking a recall of an ITAT order concerning the assessment year 2013-14. The original dispute centered on the Contingent Provision for Standard Assets, which was initially added back to the taxable income by the Assessing Officer. The ITAT had previously restored the matter to the Assessing Officer to verify the assessee's claim of double addition. In the second round of proceedings, the Assessing Officer failed to consider the assessee's revised computation of income, which rectified the mistake of double addition. Additionally, the issue of interest income, which was neither a subject matter of the original assessment nor addressed in the appellate proceedings, was raised by the assessee but not adjudicated. The Tribunal, acknowledging the oversight and the need for a comprehensive examination of the issues, decided to recall the order for a fresh assessment.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123676 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-02-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 02-02-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 04-07-2022
• Other Referred Cases: Daryapur Shetkari Sahakari Ginning and Pressing Factory - [(2021) 123 taxmann.com 301 (Bom HC)], Pacific Projects Limited v. ACIT [(WP. No. 2080 /2020. Order dated 23.12.2020 (Del HC)], Cognizance for Extension of Limitation in Miscellaneous Application No. 21 of 2022 dated 10.01.2022
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Period of limitation; Time period of passing order; Revised return; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “G”, MUMBAI BEFORE SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER AND MS KAVITHA RAJAGOPAL, HON'BLE JUDICIAL MEMBER MA.No. 183/MUM/2022 [ARISING OUT OF ITA NO. 6981/MUM/2019 (A.Y: 2013-14)] The Greater Bombay Co-OP Bank Ltd., 89, GBCB House, Bhuleshwar Mumbai-400002 PAN: AABAT4479N v. DCIT-1(3)(2) 5 th Floor, Aayakar Bhavan M.K. Road, Mumbai - 400020 (Appellant) (Respondent) Assessee Represented by : Shri Vipul Joshi Department Represented by : Smt. Vranda U. Matkarni Date of Hearing : 03.02.2023 Date of Pronouncement : 09.02.2023 O R D E R PER S. RIFAUR RAHMAN (AM) 1. Through this Miscellaneous Applications assessee is seeking for recall of the order passed by the Tribunal in ITA.No. 6981/MUM/2019 dated 26.11.2021 for the A.Y. 2013-14. 2. This Miscellaneous Application was filed on 05.07.2022 and it was brought to our notice that relevant order was pronounced on 2 MA.No. 183/MUM/2022 The Greater Bombay Co-OP Bank Ltd., 26.11.2021. As the Miscellaneous Application was filed beyond the period of six months, However, it is brought to our notice by the assessee as under: - “1. In the present case, the chronology of the events from the date of pronouncement of the order till the date of filing of the present Miscellaneous Application (M.A.") is as under: (i) Date of pronouncement of the order 26.11.2021 (ii) Date of despatch of the order 06.01.2022 (iii) Date of receipt of the order 07.01.2022 (iv) Date of filing of Miscellaneous application 05.07.2022 2. The Applicant submits that the time limit to compute the limitation period for filing M.A. commences from the date of receipt of the order by the Applicant. This view is supported by the following decisions of the Hon'ble High Courts: a. Daryapur Shetkari Sahakari Ginning and Pressing Factory - [(2021) 123 taxmann.com 301 (Bom HC)] b. Pacific Projects Limited v. ACIT [(WP. No. 2080 /2020. Order dated 23.12.2020 (Del HC)] 3. Without prejudice to the above, assuming but not admitting that the period of computing the time limit available to file a M.A. commences from the date of pronouncement of the order and not the date of receipt of the order, the last date to file the M.A. was 31.05.2022. However, the Applicant submits that the decision of the Apex Court in the case of Cognizance for Extension of Limitation in Miscellaneous Application No. 21 of 2022 dated 10.01.2022 is applicable to the Applicant's case. As per this decision, the period from 15.03.2020 to 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. 4. Accordingly, in the present case, the period from 01.12.2021 to 28.02.2022, which is 3 months, has to be excluded for the purpose of computing the period of limitation. Accordingly, the last date of filing the M.A. as per the Supreme Court decision will be six months from 01.03.2022, that is, 31.08.2022. 3 MA.No. 183/MUM/2022 The Greater Bombay Co-OP Bank Ltd., 5. In view of the above facts and in law, the Applicant most respectfully submits that the M.A. filed by the Applicant on 05.07.2022 is much before the last date of filing the M.A. being 31.08.2022 and, therefore, is filed within the time limit available. 3. Considered the rival submissions and material placed on record and we observe that the relevant ITAT order was pronounced during the period of Covid-19 Pandemic and as per the Hon'ble Supreme Court decision the period of limitations were relaxed till 28.02.2022, therefore, the present Miscellaneous Application filed by the assessee is within the period of six months after adjusting the relaxation period granted by the Hon'ble Supreme Court, therefore this Miscellaneous Application was taken up for adjudication. 4. At the time of hearing, Ld. AR submitted that the appeal filed by the assessee is second round of proceedings before the Tribunal and he submitted as under: - (i) It appears that there was apparent confusion vis-a-vis the two different issues, both involving the same amount. The only issue that was subject matter of the original assessment order, CIT(A) order and Hon'ble Tribunal's order, was Contingent Provision for Standard Assets, which was debited to the profit & loss account but remained to be added back to the taxable income, as a mere provision is not allowable deduction under Income-tax Act, 1961. In course of the original assessment only, the Applicant had filed revised computation of income rectifying this mistake and added back this provision to its income. The A.O. had failed to appreciate this second revised computation of income and had again added back this very amount. It was under this limited and specific issue/fact that the Hon'ble Tribunal found substance in the claim of the Applicant that this amounted to double addition and 4 MA.No. 183/MUM/2022 The Greater Bombay Co-OP Bank Ltd., the matter was restored to the A.0., only for the limited purpose to verify the Applicant's claim. The other issue regarding the claim of the Applicant that the interest income of Rs. 1.91 crores was not the real income of the Applicant, and was accordingly reduced in the computation of Income, was neither a subject matter of the assessment or the appellate proceeding nor the aspect was either argued or adjudicated by any of the authorities in the first round. As such, the only issue that was set aside and, accordingly, was the subject matter of the second assessment was allowability of the provision for Standard Assets for deduction and non-considering the Applicant's revised computation of income in which the Applicant had added back this amount. (ii) Strictly without prejudice, it is submitted that for this second aspect of accrual of income, neither any show cause notice was ever given to the Applicant nor any opportunity of being heard was given to the Applicant to defend its claim by the lower authorities. (iii) With utmost respect, the Applicant submits that at the time of hearing before the Hon'ble Tribunal, this aspect was neither confronted to the Authorized Representative of the Applicant nor was argued by the other side. The Applicant most respectfully submits that when this appeal came up for hearing on 09.09.2021, its Authorized Representative, CA Mr. Ashok Sharma started his arguments by pointing out that the issue involved in the appeal was about double addition of Rs. 19132172 on account of Contingent Provision for Standard Assets. He then pointed out that in the first round before Hon'ble Tribunal had examined this aspect and principally agreed with the Applicant's contention and held that there was double addition and had sent back the matter to the assessing officer by observing as under: "In the circumstance, we restore this issue to the file of the Assessing Officer to examine the original as well as the revised returns and compute the income of the Assessee in accordance with law, keeping in view our above observations." (iv) At this stage of argument itself, Hon'ble Judicial Member asked the AR to wait and asked the learned Department Representative about his comments on the issue and the Department Representative requested for sending back the matter, to which Hon'ble Judicial Member replied that this was second round of Appeal. The matter was accordingly concluded as heard. (v) No other arguments took place by the learned department representative and as such, our authorized representative did not get any opportunity to further argue in the matter.” 5 MA.No. 183/MUM/2022 The Greater Bombay Co-OP Bank Ltd., 5. With the above submissions Ld. AR prayed that the proper facts on record was not presented during the appellate proceedings and he prayed that the issue involved in this case having both merit as well as jurisdictional issue and no doubt Tribunal has adjudicated on merits. However, the jurisdictional issue and also the alternate plea of the assessee was not properly addressed by the Assessing Officer in the second round of proceedings. Therefore, he prayed that the order passed by the Hon'ble Tribunal may be recalled for fresh adjudication. 6. On the other hand, Ld. DR vehemently argued that the ITAT has properly addressed and gave a clear finding in the impugned order. However, she agreed that jurisdictional issue was not adjudicated in the impugned order. 7. Considered the rival submissions and material placed on record, after considering the submissions in detail we observe that in the second round of proceedings Assessing Officer has not properly verified the issues directed by the Coordinate Bench in the first round of appeal and the plea of the assessee with regard to interest credited by the assessee which has an impact in the result declared by the assessee for the present assessment year, this aspect was not looked into by the 6 MA.No. 183/MUM/2022 The Greater Bombay Co-OP Bank Ltd., Assessing Officer. For the sake of overall justice, we deem it fit and proper to recall this appeal to address the grievance of the assessee. Accordingly, the registry is directed to post this appeal in due course after giving notice to both the parties. Accordingly, Miscellaneous Application filed by the assessee is allowed. 8. In the result, Miscellaneous Application filed by the assessee is allowed. Order pronounced in the open court on 09 th February, 2023. Sd/- Sd/- (KAVITHA RAJAGOPAL) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 09/02/2023 Giridhar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum