ACIT, Bulandshahr V. M/s Zila Sahkari Bank Ltd., Bulandshahr

MA 297/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1967 (ITAT-DELHI)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-05-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 13-05-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S KASHYAP
• Keywords: Set aside
• Section: 80P; 254(2)

Judgement Text

1 M. A NO. 297/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: FRIDAY NEW DELHI BEFORE SH. R. K. PANDA, ACCOUNTANT MEM BER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER MA NO. 2 97/DEL/2019 IN ( I.T.A. NO.3913/DEL/ 2016 (A.Y 2012-13) ACIT CIRCLE, INCOME TAX OFFICE, OPP. TEACHERS COLONY BULANDSHAHAR (APPLICANT) VS ZILA SHAKARI BANK LTD. MOTI BAGH BULANDSHAHAR (RESPONDENT) PAN: AAAAZ0005B APPLICANT BY SH. P. S. KASHYAP, FCA RESPONDENT BY SH. PRADEEP SINGH GAUTAM, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE IN COME-TAX ACT, 1961 READ WITH RULES 24 & 34A OF INCOME TAX APPELLATE TR IBUNAL RULES, 1963 HAS BEEN FILED BY THE REVENUE IN RESPECT OF ORDER DATED 18/09/2018 IN ITA NO. 3913/DEL/2016 PASSED BY THE TRIBUNAL. 2. THE LD. DR SUBMITTED THAT THE TRIBUNAL DISMISSED THE APPEAL OF THE REVENUE IN VIEW OF LOW MONETARY LIMIT WITHOUT CONSI DERING THE ISSUE INVOLVED IN THIS CASE WHICH FALLS UNDER EXCEPTIONS AS SPELT OUT IN PARA NO. 10(B) OF THE CBDTS CIRCULAR NO. 03/2018 DATED 11.07.2018. THE T RIBUNAL HAS NOT CONSIDERED THE OM DATED 25.08.2006 ADDRESSED TO RBI BY THE CBDT CLARIFYING DATE OF HEARING 06.03.2020 DATE OF PRONOUNCEMENT 11.05.2020 2 M. A NO. 297/DEL/2019 THAT REGIONAL RURAL BANKS WOULD NOT BE ELIGIBLE FOR DEDUCTION U/S 80P OF THE INCOME TAX ACT, 1961 FROM A.Y. 2007-08 ONWARDS. THE LD. DR FURTHER SUBMITTED THAT THE TRIBUNAL DID NOT CONSIDERED CBDT S CIRCULAR NO. 6/2010 DATED 20.09.2010 WHICH CLARIFIED AND CIRCULAR NO. 3 19 DATED 11.01.1982 DEEMING RRBS TO BE COOPERATIVE SOCIETIES STANDS WI THDRAWN FOR APPLICATION WITH EFFECT FROM 2007-08. THE LD. DR SUBMITTED THAT THE TRIBUNAL HAS NOT CONSIDERED ITS OWN ORDER IN THE CASE OF THE ASSESSE E IN ITA NO. 6730/DEL/2013 FOR A.Y. 2007-08 IN WHICH THE ISSUE IN DISPUTE HAS BEEN SET ASIDE TO THE FILE OF THE CIT (A) TO VERIFY WHETHER THE ASSESSEE IS ELIGI BLE FOR DEDUCTION UNDER SECTION 80P OF THE INCOME TAX ACT OR NOT IN VIEW OF THE CIR CULAR NO. 6/2010 DATED 20.09.2010. 3. THE LD. AR SUBMITTED THAT THE MISC. APPLICATION IS BARRED BY LIMITATION. AS PER SEC. 254(2) OF THE INCOME TAX ACT, 1961, THE TRIBUNAL AT ANY TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE O RDER WAS PASSED WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RE CORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) AND SHALL MAKE S UCH AMENDMENT TO THE SAME IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER. THE ORDER WAS PASSED ON 18.09.2018 THEREFO RE, THE MISC. APPLICATION OUGHT TO HAVE BEEN FILED ON OR BEFORE 31.03.2019, B UT THE REVENUE FILED THE MISC. APPLICATION ON 10.04.2019. THUS, THE PRESENT MISC. APPLICATION BE DISMISSED AS TIME BARRED. FURTHER, THE LD. AR SUBMI TTED THAT THE APPEAL FILED BY THE REVENUE IS DISPOSED OFF ON MERITS AND DEPART MENT HAS NOT FILED ANY APPEAL BEFORE THE HONBLE HIGH COURT. THUS, THE ORD ER HAS ATTAINED FINALITY. THE LD. AR FURTHER SUBMITTED THAT THE CIRCULAR NO. 6/20 10 DATED 20.09.2010 WHICH HAS BEEN TAKEN IN GROUNDS OF APPEAL IS NOT APPLICAB LE IN THE PRESENT CASE AS THE ASSESSEE IS A CO-OPERATIVE SOCIETY AND IS NOT A REGIONAL RURAL BANK. THIS CIRCULAR HAS WITHDRAWN THE BENEFIT OF SEC. 80P IN C ASE OF RRBS ONLY. THE LD. AR DREW THE ATTENTION OF THE BENCH TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN WRIT PETITION NO. 2471 OF 2019 AND IN WRIT PETITION NO. 2477 OF 2019 VIDE ORDER DATED 31.01.2020 WHEREIN IT IS HELD AS U NDER: 3 M. A NO. 297/DEL/2019 9. SECTION 254(2) OF THE ACT PROVIDES THAT TRIBUNA L MAY, AT ANY TIME WITHIN SIX MONTH IN WHICH THE ORDER WAS PASSED, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT WHILE DISPOSING OF THE APPEAL AND SHALL MAKE SUCH AMENDMENT IF THE MIS TAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR BY THE ASSESSING OFFICER. SUBSTANCE OF SECTION 254(2) OF THE ACT IS RECTIFIED OF MISTAKE APPARENT FROM THE RECORD. AN ERROR OR MISTAKE APPARENT FROM THE RECORD IS ONE WHICH IS MA NIFEST ON THE FACE OF THE RECORD. NO LONG-DRAWN HEARING IS REQUIRED FOR RECTI FICATION OF SUCH MISTAKE. 10. IN THE INSTANT CASE, WHAT WE NOTICE IS THAT NOT ONLY WAS THERE NO MISTAKE APPARENT FROM THE RECORD BUT IN THE GARB OF THE MISC. APPLICATION, PETITIONER HAD SOUGHT FOR REVIEW OF THE FINAL ORDER PASSED BY THE TRIBUNAL AND FOR RE-HEARING OF THE APPEAL WHICH IS NOT PERMISSIB LE IN LAW. IN OUR VIEW, WRIT PETITION DOES NOT APPEAR TO BE BONAFIDE. THE LD. AR SUBMITTED THAT THE DEPARTMENT IS SEEKING JUDICIAL REVIEW OF THE ORDER PASSED BY THE TRIBUNAL WHICH IS NOT PERMISSIB LE. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT THE ORDER WAS PASSED ON 18.09.2018 THEREFORE, THE MISC. APPLICATION OUGHT TO HAVE BEEN FILED ON OR BEFORE 31.03.2019, BUT THE REVENUE FILED THE MISC. APPLICA TION ON 10.04.2019. THUS, THE PRESENT MISC. APPLICATION IS TIME BARRED. THE R EVENUE HAS NOT MADE THE CASE THAT THE MISC. APPLICATION IS FILED WITHIN THE STIPULATED TIME LIMIT GIVEN UNDER THE ACT. BESIDES THIS, THE APPEAL FILED BY TH E REVENUE IS DISPOSED OFF ON MERITS AND DEPARTMENT HAS NOT FILED ANY APPEAL BEFO RE THE HONBLE HIGH COURT. THUS, THE ORDER HAS ATTAINED FINALITY. THE CIRCULAR NO. 6/2010 DATED 20.09.2010 WHICH HAS BEEN TAKEN IN GROUNDS OF APPEA L IS NOT APPLICABLE IN THE PRESENT CASE AS THE ASSESSEE IS A CO-OPERATIVE SOCI ETY AND IS NOT A REGIONAL RURAL BANK. THIS CIRCULAR HAS WITHDRAWN THE BENEFIT OF SEC. 80P IN CASE OF RRBS ONLY. THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN WRIT PETITION NO. 2471 OF 2019 AND IN WRIT PETITION NO. 2477 OF 2019 VIDE ORDER DATED 4 M. A NO. 297/DEL/2019 31.01.2020 ALSO SUPPORTS THE CASE OF THE ASSESSEE, SINCE THE PRESENT MISC. APPLICATION IS BARRED BY LIMITATION. THE DEPARTMENT IS SEEKING JUDICIAL REVIEW OF THE ORDER PASSED BY THE TRIBUNAL WHICH IS NOT PERMI SSIBLE UNDER THE INCOME TAX ACT. WE HAVE CONSIDERED ALL THE ASPECTS IN THE ORDER DATED 18.09.2018. THE LD. DR COULD NOT POINT OUT ANY APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL, THEREFORE, THERE IS NO NEED TO RECTIFY THE ORDER. T HUS, MISC. APPLICATION FILED BY THE REVENUE IS DISMISSED. 5. IN RESULT, MISC. APPLICATION FILED BY THE REVENU E IS DISMISSED. ORDER PRONOUNCED ON THIS 11 TH DAY OF MAY, 2020 SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL M EMBER DATED: 11/05/2020 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 M. A NO. 297/DEL/2019 DATE OF DICTATION 06.03.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 06.03.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 1 3 . 5 . 2 0 2 0 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER