ITO S.K.ward-2, Himatnagar V. The Vijaynagar Nagrik sahakari Sarafi co.op. mandali Ltd., Sabarkantha

MA 333/AHD/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 4831 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-06-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 28-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 80P; 72

Judgement Text

MA NO. 333/AHD/2018 ITO VS. VIJAYNAGAR NAGRIK SHARAFI COOP MANDALI LTD ASSESSMENT YEAR : 2014-15 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD A BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR, VP AND MS. MADHUMITA ROY, JM] MA NO. 333/AHD/2018 ARISING OUT OF ITA NO. 2185/AHD/2017 ASSESSMENT YEAR: 2014-15 INCOME TAX OFFICER ....................... APPLICANT S.K. WARD-2, HIMATNAGAR VS VIJAYNAGAR NAGRIK SHARAFI CO-OP MANDALI LTD .... ..........RESPONDENT RAJMAHEL ROAD, AT. VIJAYNAGAR, TAL : VIJAYNAGAR, DIST : SABARKANTHA [PAN : AABFT 4774 H] APPEARANCES BY MUDIT NAGPAL, FOR THE APPLICANT K.C. THAKER, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 15.03.2019 DATE OF PRONOUNCEMENT : 11.06.2019 O R D E R PER PRAMOD KUMAR, VP: 1. BY WAY OF THIS APPLICATION, THE APPLICANT ASSESS ING OFFICER INVITES OUR ATTENTION TO THE FOLLOWING MISTAKE IN OUR ORDER DATED 26.06.2 018:- ....IN THIS CASE, THE ASSESSEE FILED RETURN OF IN COME ON 21/11/2016 DECLARING TOTAL INCOME OF RS. NIL FOR THE A.Y. 2014-15. SUBSE QUENTLY CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT ORDER UNDER SECTION 143 (3) OF THE INCOME TAX ACT, 1961 WAS PASSED ON 21/11/2016 AFTER MAKING AN ADDIT ION OF RS.4,12,210/- ON ACCOUNT OF DISALLOWED INTEREST RECEIVED FROM BANKS. 2. AGGRIEVED FROM THE ORDER OF ASSESSING OFFICER , THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A)-2, AHMEDABAD. THE LD. CIT(A) VIDE ORDER NO. CIT(A)-2/536/ITO, SK WD.2, HMT/2016-17 DATED 31/07/ 2017 HAS DISMISSED THE APPEAL OF THE ASSESSEE. BEING AGGRIEVED WITH TH E ORDER OF THE CIT(A)-2, AHMEDABAD, THE ASSESSEE FURTHER PREFERRED AN APPEAL BEFORE THE HON'BLE I.T.A.T., AHMEDABAD. THE HON'BLE I.T.A.T, AHMEDABAD 'A' BENCH, AHMEDABAD VIDE ITA NO. 2185/AHD/2017 DATED 22/06/20 18 REMITTED BACK THE CASE TO THE FILE OF LEARNED CIT(A) FOR FRESH ADJUDI CATION DE NOVO, AFTER GIVING YET ANOTHER REASONABLE OPPORTUNITY OF HEARING TO TH E ASSESSEE. MA NO. 333/AHD/2018 ITO VS. VIJAYNAGAR NAGRIK SHARAFI COOP MANDALI LTD ASSESSMENT YEAR : 2014-15 PAGE 2 OF 4 3. AGGRIEVED FROM THE ORDER OF THE ASSESSING OFFICE R PASSED UNDER SECTION 143(3) OF THE IT. ACT, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A)-2, AHMEDABAD. THE LD. CIT(A)-2, AHMEDABAD HAS DISMISSE D THE APPEAL OF THE ASSESSEE AND STATING THAT THE FINDINGS GIVEN BY THE ASSESSING OFFICER ARE CORRECT CONSIDERING THE FACT THAT THE FDR INTEREST CLAIMED AS DEDUCTION U/S SOP OF THE ACT IS NOT ALLOWABLE. THE LD. CIT(A) PAS SED THE ORDER EX-PARTE ON THE GROUND THAT THE ASSESSEE FAILED TO COMPLY WITH THE NOTICES ISSUED FOR HEARING TO THE ASSESSEE. THE LD. CIT(A) HAS RELIED UPON THE JUDGMENT OF JURISDICTIONAL HIGH COURT'S IN THE CASE OF STATE BA NK OF INDIA VS. CIT (2016) 72 TAXMANN.64 ( GUJARAT), WHEREIN IT IS HELD THAT BAN K INTEREST' IN CASE OF A SOCIETY ENGAGED IN PROVIDING CREDIT FACILITIES TO I TS MEMBERS INCOME FROM INVESTMENTS MADE IN BANKS IS NOT DEDUCTIBLE UNDER S ECTION 80P OF THE I.T. ACT. THE LD. CIT(A) HAS CONFIRMED THE ADDITION OF R S. 4,12,210/- MADE ON ACCOUNT OF DISALLOWED INTEREST RECEIVED FROM BANK. 4. AGAINST THE ORDER OF THE LD.CIT(A), ASSESSEE PRE FERRED AN APPEAL BEFORE THE HON'BLE ITAT AGAINST THE ORDER OF THE LD. CIT(A ). THE HON'BLE ITAT REMITTED THE MATTER TO THE FILE OF LEARNED CIT(A) F OR FRESH ADJUDICATION AND THE ASSESSEE APPELLANT BE GIVEN A REASONABLE OPPORTUNIT Y OF HEARING. 5. ON GOING THROUGH THE ORDER LD. CIT(A) , IT APPEA RS THAT THE ASSESSEE DID NOT APPEAR FOR HEARING ON TWO OCCASIONS AND FAILED TO FILE ANY SUBMISSION ON TWO OCCASIONS. UNDER SUCH CIRCUMSTANCE, ORDER OF HO N'BLE ITAT, SETTING IT ASIDE AND RESTORING BACK TO THE CIT(A) IS UNACCEPTA BLE. 5.1 HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF SH RI ASHOKJI CHANDUJI THAKOR, TAX APPEAL NO. 710-714 & 717/2018 DATED 27/06/2018, HAS OBSERVED THAT THE DIRECTION ISSUED BY ITAT RESTORING THE MATTER FOR F RESH HEARING WITHOUT ASSIGNING PROPER REASON WAS BAD, AS THE ASSESSEE DI D NOT AVAIL VARIOUS OPPORTUNITIES ALLOWED TO HIM. THE APPEAL DECIDED BY HON'BLE ITAT IS REQUIRED TO BE RESTORED. THE HON'BLE ITAT TO CONSIDER THE RE LEVANT FACTS AND HENCE THIS MISCELLANEOUS APPLICATION IS BEING FILED. 2. WHAT THE APPLICATION OVERLOOKS, HOWEVER, IS THE FACT THAT THE MATTER WAS REMITTED TO THE FILE OF THE CIT(A) ON THE BASIS OF A CONCESSION BY THE DEPARTMENTAL REPRESENTATIVE ON PECULIAR FACTS, AS EVIDENT FROM T HE FOLLOWING OBSERVATIONS IN OUR ORDER:- 2. WHEN THIS APPEAL WAS TAKEN UP FOR HEARING, IT WAS NOTICED THAT THE IMPUGNED ORDER DATED 31.07.2017 PASSED BY THE LEARN ED CIT(A) IS AN EX- PARTE ORDER AND THAT THE APPELLANT COULD NOT ATTEND THE PROCEEDINGS BEFORE THE CIT(A). THE IMPUGNED ORDER IS THUS PASSED WITHOUT THE BENEFIT OF ASSISTANCE BY THE ASSESSEE APPELLANT AND THE ASSESSEE APPELLAN T IS NOW IN APPEAL BEFORE US. 3. IN RESPONSE TO A QUESTION FROM THE BENCH, LEARNE D DEPARTMENTAL REPRESENTATIVE FAIRLY AGREED THAT HE HAS NO OBJECTI ON TO THE MATTER BEING REMITTED TO THE FILE OF LEARNED CIT(A) FOR ADJUDICA TION DE NOVO, AFTER GIVING YET ANOTHER REASONABLE OPPORTUNITY OF HEARING TO THE A SSESSEE. WE THINK THIS IS A FAIR APPROACH AND SINCE THE LEARNED CIT(A) DID NOT HAVE THE BENEFIT OF MA NO. 333/AHD/2018 ITO VS. VIJAYNAGAR NAGRIK SHARAFI COOP MANDALI LTD ASSESSMENT YEAR : 2014-15 PAGE 3 OF 4 ASSISTANCE FROM THE ASSESSEE APPELLANT, THE MATTER SHOULD BE REMITTED TO THE FILE OF LEARNED CIT(A) FOR ADJUDICATION DE NOVO, AF TER GIVING YET ANOTHER OPPORTUNITY OF HEARING. IN ANY CASE, THERE IS NO R EASON FOR AN APPELLATE FORUM BEING BYPASSED AND THE MATTER BEING TAKEN UP DIRECTLY BEFORE US FOR ADJUDICATION ON MERITS. 4. IN VIEW OF THIS DISCUSSION AND BEARING IN MIND E NTIRETY OF THE CASE, WE DEEM IT FIT AND PROPER TO REMIT THE MATTER TO THE F ILE OF LEARNED CIT(A) FOR FRESH ADJUDICATION AND THE ASSESSEE APPELLANT BE GIVEN A REASONABLE OPPORTUNITY OF HEARING. WE ORDER SO. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE AP PLICABLE LEGAL POSITION. 4. AS THE MATTER WAS REMANDED TO THE FILE OF THE CI T(A) BASED ON A CONCESSION MADE BY THE LEARNED DEPARTMENTAL REPRESENTATIVE DUR ING THE OPEN COURT PROCEEDINGS, WE SEE NO MERITS IN THE PRESENT APPLIC ATION. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 11 TH DAY OF JUNE, 2019 SD/- SD/- MS. MADHUMITA ROY PRAMOD KUMAR (JUDICIAL MEMBER) (VICE PRESI DENT) AHMEDABAD, DATED THE 11 TH DAY OF JUNE, 2019 **BT COPIES TO: (1) THE APPLICANT (2) THE RESPON DENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION ORDER PREPARED AS PER 2 PAGES MAN USCRIPTS OF HONBLE VP.(ATTACHED)... 2. ATTACHED....11.06.2019.... 3. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: .. 11.06.2019..... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: .11.06.2019.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: .. 11.06.2019..... 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : . . 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER : . 9. DATE OF DESPATCH OF THE ORDER: ...... MA NO. 333/AHD/2018 ITO VS. VIJAYNAGAR NAGRIK SHARAFI COOP MANDALI LTD ASSESSMENT YEAR : 2014-15 PAGE 4 OF 4