M/s Udaya Souharda Credit Co-operative Society Limited , Bangalore V. Income Tax Officer, Ward-5(2)(4), Bangalore

MA 332/BANG/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9263 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-01-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 12-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: S V RAVISHANKAR
• Keywords: Opportunity of being heard; Question of law; Set aside
• Section: 80P

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI B.R BASKARAN , ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER M P NO. 33 2/BANG/201 8 (IN ITA NO. 2831 /BANG/201 7 ) ASSESSMENT YEAR : 20 1 3 - 14 M/S UDAYA SOUHARDA CREDIT CO - OP. SOCIETY LTD., NO.372, 1 ST FLOOR, 9 TH MAIN, HANUMANTHNAGAR, BENGALURU - 560 0 19 . PAN NO.AAAAU0472H VS. THE INCOME - TAX OFFICER , WARD - 5(2)(4), BENGALURU . APPELL ANT RESPONDENT A PPELLANT BY : SHRI S.V.RAVISHANKAR, ADVOCATE RE SPONDENT BY : DR.P.V.PRADEEP KUMAR, ADDL.CIT DATE OF HEARING : 1 3 . 1 2 .2019 DATE OF PRONOUNCEMENT : O R D E R PER SHRI B.R.BASKRAN, AM : T HE A SSESSEE HAS MOVED THIS MISCELLANEOUS PETITION STATING THAT THERE IS MISTAKE APPARENT FROM RECORD IN THE ORDER DAT ED 17 - 0 - 8 - 2018 PASSED IN ITA N O .2831(B)/2017 RELATING TO ASSESSMENT YEAR 2013 - 14. 2. THE LD. AR OF THE ASS ESSEE SUBMITTED THAT THE ASSESSEE HAD FILED THE IMPUGNED APPEAL BEFORE THE ITAT CHALLENGING THE REJECTION OF CLAIM MADE BY IT U/S 80P O F THE IT ACT, 1961. HE SUBMITTED THAT THE TRIBUNAL HAD ALLOWED THE LD DR TO RAISE A M. P NO. 33 2 / BANG/20 1 8 PAGE 2 OF 7 NEW PLEA ORALLY RELATING TO THE ELIGIBILITY OF ASSESSEE TO CLAIM DEDUCTION U/S 80P OF THE IT ACT, 1961 . THE LD DR HAD ARGUED ORALLY THAT THE ASSESSEE IS REGISTERED UNDER TH E KARNATAKA SOUHARDA SAHAKARI ACT, 1997 AND HENCE THE ASSESSEE CANNOT BE CONSIDERED AS A CO - OPERATIVE SOCIETY EL I GIBLE FOR DEDUCTION U/S 80P OF THE ACT. 3. THE LD. A R SUBMITTED THAT THE ASSESSEE HAD OBJECTED TO THE ABOVE SAID PLEA RAISED BY LD. DR, AS T HE SAME WAS NOT THE CASE OF TAX AUTHORIT IES TO REJECT THE CLAIM FOR DEDUCTION U/S 80P OF THE ACT. THE LD. A R SUBMITTED THAT THE TRIBUN A L HAS , HOWEVER, PROCEEDED TO ADDRESS THE PLEA OF THE REVENUE AND HENCE THE SAME SHALL CONSTITUTE MISTAKE OF LAW AS W ELL AS FACTS ON THE FACE OF THE RECORD . ACCORDINGLY, LD.AR SUBMITTED THAT THE IMPUGNED ORDER PASSED BY THE TRIBUNAL SUFFERS FROM SERIOUS INFIRMITY AND NE E DS TO BE RECALLED. 4. THE LD.A R ALSO PLACED HIS RELIANCE ON THE SUBMISSIONS MADE IN TH E PETITION WHICH READS AS UNDER: - 7. THE PETITIONER HUMBLY WISHES TO SUBMIT THAT THERE IS AN ERROR IN LAW ON THE FACE OF THE ORDER AND THE PETITIONER WISHES TO ADDRESS THE SAME AS DETAILED BELOW; A. WHETHER THE TRIBUNAL WAS JUSTIFIED IN ADJUDICATING AN ORAL GROUND RAISED BY THE RESPONDENT, WHEN THE RULES DID NOT PERMIT THE SAME, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. M. P NO. 33 2 / BANG/20 1 8 PAGE 3 OF 7 B. WHETHER THE TRIBUNAL WAS JUSTIFIED IN NOT HOLDING THAT THE ORDER OF ASSESSMENT WAS TO BE SET ASIDE AS BAD IN LAW, AS THE STATUS OF THE APPELLANT A DOPTED BY THE AO, WAS NOT IN CONFORMITY TO THE PROVISIONS OF THE ACT, AND THERE WERE NO RATES PRESCRIBED FOR ASSESSING THE APPELLANT AS A CO - OPERATIVE C. WHETHER THE TRIBUNAL WAS JUSTIFIED IN GIVING A FINDING OF FACT, WHILE STATING IN THE SAME BREATH THAT THE AO WAS REQUIRED TO MAKE AN ENQUIRY, WHICH IS AGAINST THE SPIRIT OF THE REMAND, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. WHETHER THE TRIBUNAL WAS JUSTIFIED IN ADJUDICATING AN ORAL GROUND RAISED BY THE RESPONDENT, WHEN THE RULES DID NOT PERMIT THE SAME, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. I. THE PETITIONER HAS OBJECTED TO THE ORAL GROUND RAISED BY THE RESPONDENTS, WHICH IS NOTICED IN PARA 6 OF THE ORDER PASSED AND IS REPRODUCED FOR CONVENIENCE; 6. THE LEARNED COUNSEL FOR THE ASSESSEE ON THE OTHER HAND HAS CONTENDED THAT THIS OBJECTION WAS NEVER RAISED BY THE LOWER AUTHORITIES AND THEY HAVE DENIED DEDUCTIONS ON DIFFERENT ASPECTS. THEREFORE, THE LEARNED DR CANNOT RAISE SUCH GROUNDS IN SECOND APPEAL BY CHALLENGING THE ENTIRE CLAIM OF ENTI TLEMENT OF DEDUCTION ON DIFFERENT ASPECTS.(EMPHASIS SUPPLIED) II. THE TRIBUNAL HAS HOWEVER ADJUDICATED THE SOLE GROUND RAISED BY THE RESPONDENT, THOUGH IMPERMISSIBLE AND PASSED THE IMPUGNED ORDER, WHICH IS AGAINST THE RULES PRESCRIBED, WHICH ARE HEREWITH REPRO DUCED FOR CONVENIENCE; M. P NO. 33 2 / BANG/20 1 8 PAGE 4 OF 7 III. THE PETITIONER IS HEREWITH REPRODUCING RULE 11, 22 AND 27 FOR THE SAKE OF CONVENIENCE; GROUNDS WHICH MAY BE TAKEN IN APPEAL. 11. THE APPELLANT SHALL NOT, EXCEPT BY LEAVE OF THE TRIBUNAL, URGE OR BE HEARD IN SUPPORT OF ANY GROUND NOT SET FORTH IN THE MEMORANDUM OF APPEAL, BUT THE TRIBUNAL, IN DECIDING THE APPEAL, SHALL NOT HE CONFINED TO THE GROUNDS SET . FORTH IN THE MEMORANDUM OF AP PEAL OR TAKEN BY LEAVE OF THE TRIBUNAL UNDER THIS RULE : PROVIDED THAT THE TRIBUNAL SHALL NOT REST ITS DECISION ON ANY OTHER GROUND UNLESS THE PARTY WHO MAY BE AFFECTED THEREBY HAS HAD A SUFFICIENT OPPORTUNITY OF BEING HEARD ON THAT GROUND. CROSS - OBJECTIO NS. 22. A MEMORANDUM OF CROSS - OBJECTIONS JILED UNDER SUB - SECTION (4) OF SECTION 253 SHALL HE REGISTERED AND NUMBERED AS UN APPEAL AND ALL THE RULES, SO . FAR AS MAY BE, SHALL APPLY TO SUCH APPEAL. RESPONDENT MAY SUPPORT ORDER ON GROUNDS DECIDED AGAINST HIM. 27. THE RESPONDENT, THOUGH HE MAY NOT HAVE APPEALED, MAY SUPPORT THE ORDER APPEALED AGAINST ON ANY OF THE GROUNDS DECIDED AGAINST HIM M. P NO. 33 2 / BANG/20 1 8 PAGE 5 OF 7 IV. THE PETITIONER HUMBLY SUBMITS THAT THE APPELLANT ALONE CAN RAISE GROUNDS EITHER BY WAY OF MEMORANDUM OF APPEAL, ADDITIONAL GROUNDS SUBSEQUENTLY OR BY WAY OF ORAL GROUNDS DURING ARGUMENTS, AS IS EVIDENT FROM THE RULE NO.11 REPRODUCED ABOVE. V. THE GROUNDS RAISED BY THE PETITIONER HAVE NOT BEEN ADJUDICATED BY THE TRIBUNAL AND NOT IN DISPUTE. VI. IT IS SUBMITTED THAT THE GROUNDS RAISED BY THE RESPONDENT CAN BE BY WAY OF A CROSS OBJECTION UNDER RULE 22, WHICH IN THE INSTANT CASE HAS NOT BEEN FILED BY THE REVENUE. VII IT IS FURTHER SUBMITTED THAT THE RESPONDENT, THOUGH NOT FILING A CROSS OBJECTION, IS ENTITLED TO SUPPORT THE ORDER TO THE EXTENT HELD AGAINST IT, WHICH IN THE INSTANT CASE, HAS BEEN HELD 'IN FAVOUR OF THE RESPONDENT. HENCE THE REVENUE COULD NOT HAVE RAISED ANY GROUND OF APPEAL AND HAD TO RESTRICT ITS ARGUME NTS TO REBUTTING THE GROUNDS OF THE PETITIONER. VIII. IN VIEW OF THE ABOVE, IT IS HUMBLY SUBMITTED THAT THIS HON BLE TRIBUNAL FELL INTO ERROR IN ADMITTING AND ADJUDICATING A GROUND, WHICH WAS NOT RAISED BY THE AO AND WAS NOT IN CONTENTION BEFORE THE LOWER AUTHORITIES, WHICH IS IMPERMISSIBLE IN LAW. M. P NO. 33 2 / BANG/20 1 8 PAGE 6 OF 7 5. THE LD D.R APPEARING FOR THE REVENUE, ON THE CONTRARY, SUBMITTED THAT THE TRIBUNAL HAS TAKEN A VIEW IN THE ABOVE SAID MATTER AND HENCE THE SAME SHALL NOT FALL IN THE CATEGORY OF MISTAKE APPARENT FROM RECORD. HE FURTHER SUBMITTED THAT THE ASSESSEE HAS FILED APPEA L BEFORE THE HONBLE KARNATAKA HIGH COURT CHALLENGING THE ORDER PASSED BY THE TRIBUNAL AND THE SAME HAS ALREADY BEEN ADMITTED. ACCORDINGLY HE SUBMITTED THAT THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE CANNOT BE ENTERTAINED AT THIS STAGE. FOR THIS PROPOSITION, THE LD D.R PLACED HIS RELIANCE ON THE FOLLOWING DECISIONS: - (A) CIT VS. MUNI SEVA ASHRAM (TAX APPEAL NO.661 OF 2013 DATED 24.07.2013) (B) SHRI RATANLAL C BAFNA VS. JCIT (M.A.NO.97/PUN/2019 DATED 15.3.2019). 6. WE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD. ON GOING THROUGH THE PETITION FILED BY THE ASSESSEE, WE NOTICE THAT THE ASSESSEE IS CHALLENGING THE WISDOM OF THE CO - ORDINATE BENCH IN ADMITTING A PLEA RAISED ORALLY BY LD D.R. IT CAN BE NOTICED THAT IT WAS CONSCIOUS DE CISION TAKEN BY THE TRIBUNAL IN ADMITTING THE PLEA AND HENCE THE SAME ACQUIRES THE CHARACTER O F VIEW TAKEN BY THE TRIBUNAL. HENCE, IN OUR VIEW, THE SAME CANNOT BE CONSIDERED AS MISTAKE APPARENT FROM RECORD AS CONTENDED BY THE ASSESSEE. THE LD D.R ALSO S UBMITTED THAT THE APPEAL FILED BY THE ASSESSEE BEFORE HONBLE HIGH COURT OF M. P NO. 33 2 / BANG/20 1 8 PAGE 7 OF 7 KARNATAKA HAS SINCE BEEN ADMITTED AND THE SAID SUBMISSION WAS NOT CONTROVERTED BY LD A.R. WE NOTICE THAT THE HONBLE GUJARAT HIGH COURT IN THE CASE OF MUNI SEVA ASHRAM (SUPRA) HAS EXPRESSED THE VIEW THAT THE ORDER PASSED AGAINST THE MISCELLANEOUS APPLICATION SHALL NOT BE SUSTAINED, IF THE APPEAL ON SUBSTANTIAL QUESTION OF LAW HAS BEEN ADMITTED BY THE HIGH COURT. 7. IN VIEW OF THE ABOVE, WE DO NOT FINE ANY MERIT IN THE MISCELL ANEOUS APPLICATION FILED BY THE ASSESSEE. 8. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED IN THE (P AVAN KUMAR GADALE ) J UDICIAL M EMBER (B.R B ASKARAN) A CCOUNTANT MEMBER BANGALORE, DATED, AM* COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR