The DCIT(CPC), Bangaluru, Bengaluru V. Ambaradi Seva Sahkari Mandali Ltd., Ambaradi , Dist. Amreli

MA 31/RJT/2023

• Counselvise Citation: [2023] 101 COUNSELVISE.COM (IT) 9814 (ITAT-RAJKOT)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-11-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-09-2023
• Assessment Year: 2019-2020
• Appeal Filed On: 07-08-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH KUMAR PANDEY
• Keywords: Co-operative Credit Society
• Section: 139; 143(1); 80P; 139(1); 139(4); 254(2); 43

Judgement Text

M.A. No.31/RJT/2023 Assessment Year: 2019-20 Page 1 of 6 IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT (Conducted through E-Court at Ahmedabad) BEFORE Ms. SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER M.A. No.31/RJT/2023 (In ITA No.186/RJT/2022 Assessment Year: 2019-20 The DCIT (CPC), Bengaluru. Vs. Ambaradi Seva Sahkari Mandali Ltd., Ambaradi, Ta. Savarkundla, Amreli – 364 522. [PAN – AABAA 9907 C] (Appellant) (Respondent) Assessee by Shri D.M. Rindani & Ms. Devina Patel, ARs Revenue by Shri Ashish Kumar Pandey, Sr. DR Da te o f He a r in g 29.09.2023 Da te o f P ro n o u n ce m e n t 29.11.2023 O R D E R PER SUCHITRA KAMBLE, JUDICIAL MEMBER : This Miscellaneous Application is filed by the Revenue in respect of order dated 10.02.2023 passed by the Tribunal. 2. The Ld. DR submitted that the Tribunal has allowed the claim of the assessee for deduction under Section 80P claimed in belated return of income filed by the assessee. While processing the return of income, the CPC has denied such deduction since return of income was not filed within the due date prescribed under Section 139(1) of the Income Tax Act, 1961. Act. The Ld. DR submitted that the Tribunal referred the decision of Hon’ble Kerala High Court in the case of Chirakkal Service Co-operative Bank Limited vs. CIT, 68 taxmann.com 298, decision of Hon’ble Madras High Court in the case of Veerappampalayam Primary Agricultural Co- operative Credit Society Limited vs. DCIT, 138 Taxmann.com 571. The Ld. DR M.A. No.31/RJT/2023 Assessment Year: 2019-20 Page 2 of 6 submitted that the Tribunal ought to have considered the provisions of Section 80AC in its order wherein it is explicitly provided that it is mandatory for an assessee to file its return of income on or before the due date in order to avail any deduction under Section VIA including deduction under Section 80P of the Act. Such provisions are brought into Statute by Finance Act, 2018 which is applicable to A.Y. 2018-19 onwards. The Tribunal ought to have considered the binding decision of Hon’ble Madras High Court in the case of Veerappampalayam Primary Agricultural Co- operative Credit Society Limited (supra) read with the decision of Hon’ble Apex Court in the case of Prakash Nath Khanna vs. CIT, 135 Taxman 327. The Ld. DR further submitted that it can be seen from the finding of the decision of Hon’ble Madras High Court in case of Veerappampalayam Primary Agricultural Co-operative Credit Society Limited (supra) that the Hon’ble High Court has considered the provisions of Section 80AC as well as provisions of Section 143(1) of the Act. Hon’ble High Court has also considered explanation of Section 143(1) of the Act which reads about scope of incorrect claim. Considering the direct decision of Hon’ble Madras High Court there is no reason to interpret other than what is Hon’ble High Court has interpreted. Ld. DR further submitted that so far as the decision of Hon’ble Kerala High Court in case of Chirakkal Service Co-operative Bank Limited (supra), the said decision was rendered in 2016 whereas amendment to Section 80AC, restricting deduction under Section 80P to NIL in case assessee does not file original return of income within due date specified under Section 139(1), is applicable w.e.f. 01.04.2018. Hence, such amended provisions of the Act were not before the Hon’ble High Court, hence, ratio of such decision cannot be made applicable. The Ld. DR further submitted that the Hon’ble Apex Court in case of Prakash Nath Khanna (supra) held that the time within which return is to be furnished is indicated only in sub-section 1 of Section 139 and not in sub-section 4 of Section 139 and, therefore, a return field under Section 139(4) would not dilute the fact that the return was filed after the due date. The Ld. DR further submitted that as per sub-clause (ii) of Section 143(1)(a) and Explanation (a) to Section 143(1), the term incorrect claim apparent from any information in the return is defined as under Section (i) an item, which is inconsistent with another entry of the same or some other item in such return. In the present case, the assessee has claimed deduction under Section 80P under Chapter VIA which is an item in the return filed and assessee has also filled up the columns “due date for filing return” and “date of filing return”. As could be seen from date of filing return as prescribed under M.A. No.31/RJT/2023 Assessment Year: 2019-20 Page 3 of 6 Section 139(1) of the Act and in such circumstances, the assessee is not eligible to claim deduction under Section 80P of the Act in accordance with provisions of Section 80AC of the Act. Thus, the assessee has claimed deduction under Section 80P of the Act, which is one item and same is inconsistent with actual date of filing of return which is entry of some other item in the return and thus actually matches with Explanation – (a)(i) to Section 143(1)(a) of the Act. Thus, CPC has been correctly applying said provisions of Section 143(1)(a)(ii) of the Act while disallowing deduction under Section 80P of the Act, where return is filed after the specified due date. The Ld. DR relied upon the decision of Hon’ble Apex Court in case of Wipro Limited vs. Pr. CIT (2022) 142 Taxmann.com 562, decision of Hon’ble Calcutta High Court in case of Suolificio Linea Italia (India) (P) Ltd. vs. JCIT (2018) 93 taxmann.com 462 as well as the decision of Tribunal in case of Janki vs. CIT(A) (ITA No.944/Mum/2022). The Tribunal in case of Janki (supra) held that bare perusal of the un-amended provision would show that there was no restriction for claiming deduction under Section 80P of the Act even if the return was filed beyond due date as specified under Section 139(1) of the Act. The restriction was applicable only to the specified Sections mentioned in Section 80AC of the Act. The scope of Section was enlarged by the Finance Act 2018 to include all deductions admissible under Chapter – VIA under the heading “C- Deduction in respect of certain incomes”. The substituted Section w.e.f. 01.04.2018 would be applicable to assessment year 2018-19 and in respect of deductions claimed under Section 80P of the Act as well. Since in the impugned assessment year substituted provisions of Section 80AC would be applicable, the CIT(A) has rightly rejected the appeal of the assessee as per the decision of the Tribunal in the case of Janki (supra). Thus, the ld. DR submitted that the Tribunal has not considered the direct decision of Hon’ble Madras High Court on this issue and prayed that deduction under Section 80P of the Act denied by the Assessing Officer should be upheld. 3. The Ld. AR submitted that the Tribunal in its impugned order at paragraph no.6 while referring the decision of Hon’ble Madras High Court and Hon’ble Kerala High Court has very much referred to Section 80AC of the Act and its import. The Ld. AR further submitted that the decision of Hon’ble Madras High Court regarding interpretation of definition of incorrect claim will not amount to a mistake apparent from record under Section 254(2) of the Act. This will amount to review which is not permissible. The Ld. DR further submitted that the decision of Kerala High Court in M.A. No.31/RJT/2023 Assessment Year: 2019-20 Page 4 of 6 the case of Chirakkal Service Co-operative Bank Limited (supra) is argumentative ground as the issue in appeal before the Bench was whether adjustment can be made under Section 143(1)(a) of the Act as a machinery provision, issue was not to interpret only Section 80AC. The Ld. AR further submitted that at the time of hearing, the AR argued that Section 143(1)(a)(v) of the Act was amended from 01.04.2021 and the Assessment Year challenged before the Bench was that of A.Y. 2019-20. Thus, there cannot be said to be a mistake in Tribunal’s order. The Ld. AR further submitted that the decision of Hon’ble Apex Court was very much distinguished by the Ld. AR during the hearing as it was in the context of prosecution and not Section 143(1)(a) of the Act. Ld. AR further submitted that it has no bearing on the limited grounds of appeal filed by the assessee. The other decisions referred to in the Miscellaneous Application are in different context and not that of Section 143(1)(a) of the Act and thus the written submission as well as the arguments placed at the time of hearing of the appeal were fully considered by the Tribunal. The Ld. AR further submitted that if there are conflicting decisions and one of it is preferred, Section 254(2) cannot be invoked for which the Ld. AR relied upon the decision of Kishanchand J. Bhavnani (HUF) (1989) 29 ITD 383 (Bom) and B.R. Packaging Industries (1992) 43 ITD 419 (Pune). The Ld. AR further submitted that if two reasonable constructions of a taxing provision are possible, one that favours the assessee must be adopted as per the decision of Hon’ble Apex Court in the case of Vegetable Products Limited (1973) 88 ITR 192. The Ld. AR further submitted that the decision of Kerala High Court in the case of Nileshwar Rangekallu Chethu Vyavasaya Thozhilali Sahakarana Sangham dated 14.03.2023 in ITA No.120 of 2019 cited by the Ld. DR is also not on Section 143(1)(a) of the Act and it is later in time after the impugned order was passed, hence it does not make the order erroneous. In Volkart Brothers (1971) 82 ITR 50 (SC) it is laid down that interpreting the scope of a provision does not make a rectifiable error. The Ld. AR further submitted that in the present case the return of income was filed within the time limit prescribed under Section 139(1) of the Act and not that of beyond. Thus, the Revenue is seeking review in respect of order dated 10.02.2023 and there is no mistake apparent on record. 4. We have heard both the parties and perused all the relevant material available on record. It is pertinent to note that the Revenue while filing this Miscellaneous Application is stating that the Hon’ble Madras High Court’s decision in case of M.A. No.31/RJT/2023 Assessment Year: 2019-20 Page 5 of 6 Veerappampalayam Primary Agricultural Co-operative Credit society Limited (supra) should have been taken into account which has already been done while passing the order dated 10.02.2023 which can be seen from the paragraph no. no.7. As regards to the Hon’ble Supreme Court’s decision in case of Prakash Nath Khanna (supra), the same was also considered and after taking all the decisions in to consideration cited by the ld. DR at the time of hearing we have come to the conclusion to prefer the decision of Hon’ble Kerala High Court and its ratio. The Ld. DR pointed out that the provisions of Section 80AC of the Act should have been taken into account and the same was also taken into account in consonance of the decision of Hon’ble Kerala High Corut in case of Chirakkal Service Co-operative Bank Limited (supra). The contention of the ld. DR that the decision of Hon’ble Kerala High Court in the case of Nileshwar Rangekallu Chethu Vyavasaya Thozhilali Sahakarana Sangham (supra) should be taken into account at this juncture appears to be not in consonance with the issues contested before us at the time of hearing as the same is not on the issue of Section 143(1)(a) of the Act. Overall the Revenue is in fact calling upon to review the order for which under Section 254 of the Act we do not have the powers as this is not a mistake apparent on record but requires review. The Miscellaneous Application does not state any factual mistake in the order passed by the Tribunal dated 10.02.2023. Therefore, the Miscellaneous Application filed by the Revenue is seeking review which is not permissible under Section 254 of the Income Tax Act, 1961. Therefore, the Miscellaneous Application filed by the Revenue is dismissed. 5. In the result, Miscellaneous Application filed by the Revenue is dismissed. Order pronounced in the open Court on this 29 th November, 2023. Sd/- Sd/- (WASEEM AHMED) (SUCHITRA KAMBLE) Accountant Member Judicial Member Ahmedabad, the 29 th day of November, 2023 PBN/* M.A. No.31/RJT/2023 Assessment Year: 2019-20 Page 6 of 6 Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Rajkot Bench, Rajkot