Pr. Commissioner of Income-tax - 1, Nashik V. The Janalaxmi Co.op bank Ltd., Nashik

MA 32/PUN/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5945 (ITAT-PUNE)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 02-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI , AM AND SHRI VIKAS AWASTHY , JM M A NO. 32 /PUN/201 7 ( ARISING OUT OF ITA NO. 1955 /PUN/201 4 ) / ASSESSMENT YEAR : 2010 - 11 THE PR. COMMISSIONER OF INCOME TAX - 1, NASHIK. ....... / APPLICANT / V/S. THE JANALAXMI CO - OP. BANK LTD. SAMRUDDHI, GADKARI CHOWK, NASHIK. PAN : AAAAT3312K / RESPONDENT REVENUE BY : DR. VIVEK AGGARWAL ASSESSEE BY : SMT. DEEPA KHARE / DATE OF HEARING : 13.10 .2017 / DATE OF PRONOUNCEMENT : 03 .1 1 .2017 / ORDER PER VIKAS AWASTHY, JM THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE U/S 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) SEEKING RECTIFICATION IN THE ORDER OF TRIBUNAL DATED 20.05.2016 IN ITA NO. 1955/PUN/2014 FOR ASSESSMENT YEAR 2010 - 11 . 2 MA NO. 32/PUN/2017 A.Y. 2010 - 11 2. THE RELEVANT EXTRACT OF THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE READS AS UNDER : 02. AGGRIEVED AGAINST THE ORDER U/S.263 OF THE I.T ACT OF THE PR. CIT - 1, NASHIK ASSESSEE WAS IN APPEAL BEFORE HONBLE ITAT, PUNE. THE HONBLE ITAT, PUNE HAD DECIDED THE MATTER IN FAVOUR OF ASSESSEE RELIED ON THE DECISION IN THE CASE OF ACIT VS. SHRI CHHATRAPATI TAJASHRI SHAHU URBAN CO - OP BANK LTD. IN ITA NO. 795/PN/2011 AND DEOGIRI NAGRI SAHAKRI BANK LTD IN ITA NO. 817 & 1114/PN/2011. BUT THE HONBLE ITAT, PUNE HAS NOT CONSIDERED THE FOLLOWING FACTS WHILE PROCESS ING THE CASE. (I) THE MADRAS HIGH COURT IN THE CASE OF SHAKTI FINANCE LTD. 31 (I) THE MADRAS HIGH COURT IN THE CASE OF SHAKTI FINANCE LTD. 31 TAXMAN.CO M 305(2013) HAS HELD THAT NBFCS ARE NOT ELIGIBLE UNDER SECTION 43 D FOLLOWING DECISION OF HON'BLE SUPREME COURT IN THE CASE OF SOUTHERN TECHNOLO G IES 2 SCC 548 (2010) (II) TH E DE PARTMENT HAS PREFERRED APPEALS IN BOMBAY HIGH COU R T IN ACIT VS. RAT A NC H AND SHAH SAHAKARI BANK LTD. AG AINST ORDER OF ITAT IN ITA NO. 387/P N/20 14 FOR A.Y. 2010 - 11 DATED 28/11/2014 WHICH IS PENDING. SIMILAR APPEAL S H AVE BEEN FILED IN HIGH COURT IN MANY OTHER CASES INCLUDING THAT FILED R ECENTLY IN THE CASE OF BHAGINI NIVEDITA SAHAKARI BANK LTD. AGAINST ITAT ORDE R VIZ. ITA NO. 136/PN/2014 DATED 29/05/2015 IN THIS CHARGE. (III) FURTHER, EVEN IF SECTION 43 D IS HELD TO BE APPLICABLE TO (III) FURTHER, EVEN IF SECTION 43 D IS HELD TO BE APPLICABLE TO COOPERATIVE BANK, IT IS TO BE NOTED THAT THESE ASSESSEE ARE CLAIMING DEDUCTION OF IN T EREST ON NPAS BASED ON RBI GUIDELINES WHICH PRESCRIBES THAT A DEBT IS TREATED AS NPA IF THERE IS A DEFAULT OF THREE MONTHS. WHEREAS AS PER SEC TION 43 D OF THE I . T. ACT, DEBT IS TREATED AS NPA IF THERE IS DEFAULT OF MORE THAN SIX MONTHS. 03. FURTHER, THE HON'BLE ITAT IN ALLOWING THE ASSESSEE'S APPEAL HAS NOT TAKEN INTO ACCOUNT THE FACT THAT THE ASSESSEE HAD FAILED TO DISCHARGE HIS ONUS OF GIVING THE DETAILS OF CATEGORIZATION ON INTEREST ON NPAS IN TERMS OF SEC. 43D(A) OF THE I . T. ACT R . W.R.6E A OF THE I . T. RULES . 3. DR. VIVEK AGGARWAL REPRESENTING THE DEPARTMENT REITERATERING THE CONTENTS OF MISCELLANEOUS APPLICATION SUBMITTED THAT THE TRIBUNAL WHILE ALLOWING THE APPEAL OF THE ASSESSEE HAS FAILED TO TAKE INTO CONSIDERATION THE FACT THAT INTEREST ON ACCOUNT OF NPAS AND QUANTUM OF INTEREST REQUIRES VERIFICATION. THE TRIBUNAL ALLOWED THE APPEAL OF THE ASSESSEE IN TO - TO WITHOUT VERIFICATION. IN FACT, THE ISSUE SHOULD HAVE BE EN REMITTED BACK TO ASSESSING OFFICER FOR RE - EXAMINATION. 3 MA NO. 32/PUN/2017 A.Y. 2010 - 11 4. ON T HE OTHER HAND, SMT. DEEPA KHARE APPEARING ON BEHALF OF THE ASSESSEE VEHEMENTLY SUBMITTED THAT ORDER OF THE TRIBUNAL IS WELL REASONED AND JUSTIFIED. THE LD. AR SUBMITTED THAT THE DEPARTMENT IS SEEKING REVIEW OF THE ORDER IN THE GRAB OF RECTIFICATION. THE RE VENUE HAS NOT POINTED ANY MISTAKE APPARENT IN THE ORDER OF TRIBUNAL. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES. THE PRIMARY CONCERN OF THE REVENUE IS THAT THE APPEAL OF THE ASSESSEE IS ALLOWED WITHOUT VERIFICATION OF NPA ACC OUNT S AND QUANTUM OF INTEREST. IT IS RELEVANT TO MENTION HERE THAT IN APPEAL THE ASSESSEE HAD CHALLENGED THE ORDER OF COMMISSIONER OF INCOME TAX PASSED U/S. 263 OF THE ACT. THE ASSESSMENT WAS MADE BY THE ASSESSING OFFICER UNDER THE PROVISION S OF SECTION 14 3(3) OF THE ACT. THE ASSESSING OFFICER UNDER THE PROVISION S OF SECTION 14 3(3) OF THE ACT. THE ASSESSING OFFICER HAS APPLIED HIS MIND IN SCRUTINY ASSESSMENT PROCEEDINGS. IT IS PRESUMED THAT HE HAD MADE NECESSARY VERIFICATION BEFORE ACCEPTING THE CLAIM OF ASSESSEE . AS FAR AS MERITS ARE CONCERNED, THE ISSUE RAISED IN APPEAL IS SQ UARELY COVERED BY THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. DEOGIRI NAGARI SAHAKARI BANK LTD ( 379 ITR 24) . THE LD. DR HAS FAILED TO SHOW ANY MISTAKE , MUCH LESS ANY AP PARENT MISTAKE IN THE ORDER OF TRIBUNAL. WE FIND NO MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE DEPARTMENT AND THE SAME IS DISMISSED BEING DEVOID OF ANY MERIT , ACCORDINGLY . 4 MA NO. 32/PUN/2017 A.Y. 2010 - 11 6 . IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON FRIDAY , THE 03RD DAY OF NOVEMBER , 2017. SD/ - SD/ - ( / ANIL CHATURVEDI ) ( /VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 03 RD NOVEMBER , 2017. SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT - 1, NASHIK. 4 . , , , / DR, ITAT, B BENCH, PUNE. 5 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE.