M/s. Jafari Momin Vikas Co-op. Credit Society Ltd., Patan V. The Income Tax Officer, Ward-2, Patan

MA 50/AHD/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6815 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 16-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: H V DOSHI
• Keywords: Rectification of order; Reasonable cause
• Section: 56

Judgement Text

, , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD L LL LOZJH OZJH OZJH OZJH OLHE OLHE OLHE OLHE VGEN VGEN VGEN VGEN] YS[KK LNL; , ] YS[KK LNL; , ] YS[KK LNL; , ] YS[KK LNL; ,OA OAOA OA EK/ EK/EK/ EK/KQFERK KQFERK KQFERK KQFERK JKW; JKW;JKW; JKW;] U; ] U;] U; ] U;KF KFKF KF;D LNL; ;D LNL; ;D LNL; ;D LNL; DS LE{KA DS LE{KA DS LE{KA DS LE{KA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SMT MADHUMITA ROY, JUDICIAL MEMBER MISC. APPLICATION NOS.50, 51 & 52/AHD/2018 (ARISING OUT OF ITA NOS.2320, 2321 & 2322/AHD/2014) ( / ASSESSMENT YEARS : 2007-08, 2010-11 & 2011-12) M/S. JAFARI MOMIN VIKAS CO- OP CREDIT SOCIETY LTD., AT-KAKOSHI, TA-SIDDHPUR, DIST-PATAN 384665 / VS. ITO, WARD 2, PATAN ./ ./ PAN/GIR NO. : AAAAJ 1053 F ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI H. V. DOSHI, C.A. / RESPONDENT BY : SHRI MUDIT NAGPAL, SR. D.R. / DATE OF HEARING 15/06/2018 !'# / DATE OF PRONOUNCEMENT 30/07/2018 $% / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: BY WAY OF THESE MISCELLANEOUS APPLICATIONS, THE ASS ESSEE IS SEEKING TO RECALL THE ORDER PASSED BY THE HONBLE ITAT IN ITA NOS. 2320, 2321 & 2322/AHD/2014. 2. THE GRIEVANCE OF THE ASSESSEE IN ALL MISCELLANEO US APPLICATION IS TWO FOLDS, I.E., THE HONBLE ITAT PASSED THE EX PAR TE ORDER AND WITHOUT ADJUDICATING ALL THE GROUNDS OF APPEAL. MA NOS.50, 51& 52/AHD/2018 (ARISING OUT OF ITAT NO S.2320, 2321&2322/AHD/2014) M/ S JAFARI MOMIN VIKAS CO-OP CREDIT SOCIETY LTD.. VS. ITO ASST.YEAR 2007-08, 2010-11 & 2011-12 - 2 - 3. THE ISSUES IN ALL THE MA ARE COMMON. THEREFORE W E CLUBBED ALL OF THEM TOGETHER FOR THE SAKE OF BREVITY AND CONVENIEN CE. HOWEVER, WE TAKE MA NO.50/AHD/2018 AS A LEAD CASE. THE ASSESSEE BEFO RE US HAS SUBMITTED AS UNDER: 1. THE ABOVE APPEAL WAS DISPOSED OF BY THE TRIBUN AL BY ITS ORDER DATED 31/07/2017 BY EX-PARTE PROCEEDINGS. THE APPEL LANT ABOVE NAMED BEGS TO PRESENT THIS APPLICATION FOR RECONSIDERING THE APPEAL BECAUSE ON 28 TH JULY, 2017 I.E. ON THE DATE OF HEARING, THERE WAS HEAVY RAIN BETWEEN MEHSANA TO AHMEDABAD AND AR, SHRI CA H V DOSHI FROM MEHSANA, COULD NOT ATTEND FOR SEEKING ADJOURNMENT OF 1 ST HEARING. SO, APPELLANT WAS PREVENTED FOR APPEARING BEFORE ITAT BECAUSE OF SUFFICIENT AND REASONABLE CAUSE. THOUGH IT WAS FIRST HEARING AND A LSO HEAVY RAIN IN SURROUNDING AREA, MATTER WAS HEARD ON REPRESENTATIO N OF DR THAT THE ISSUE IS COVERED AND ACCORDINGLY MATTER IS DECIDED AGAINST THE APPELLANT WITHOUT GIVING FURTHER OPPORTUNITY FOR HEARING FOR SUBMISSIONS ON GROUNDS OF APPEAL. SO, APPELLANT PRAYS FOR RECONSID ERING THE APPEAL. APPELLANT RESPECTFULLY SUBMIT THAT THE TRIBUNAL MAY BE PLEASED TO SUITABLY AMEND ITS ORDER BY GIVING OPPORTUNITY AND CONSIDERING FOR PLEA OF APPELLANT. 2. THE ABOVE APPEAL WAS DISPOSED OF BY THE TRIBUNA L BY ITS ORDER WITHOUT CONSIDERING THE GROUNDS OF APPEAL FILED WIT H FORM 36. THE APPELLANT ABOVE NAMED BEGS TO PRESENT THIS APPLICAT ION FOR RECTIFICATION OF MISTAKE WHICH IS APPARENT FROM RECORD IN THE SAI D ORDER BY NOT CONSIDERING ALL THE GROUND OF APPEAL. 3. THE GROUNDS OF APPEAL FILED BY THE APPELLANT WE RE AS UNDER. 3.1 LEARNED CIT (A) HAD ERRED IN LAW AND FACTS IN CONFIRMING ADDITION MADE BY AO BY WAY OF DISALLOWING CLAIM OF DEDUCTION U/S 80P(2)(A)(I) OF IT ACT TO THE EXTENT OF RS.5,33,729 /- IN RESPECT OF INTEREST INCOME BY TREATING INTEREST INCOME RECEIVED ON FD O F NATIONALIZED BANKS AS INCOME FROM OTHER SOURCES U/S 56 IF IT ACT BY WRONGLY APPLYING RATIO LAID DOWN BY SUPREME COURT IN THE CA SE OF TOTAGARS CO. OP. SALE SOCIETY LTD VS. ITO THOUGH AHMEDABAD ITAT HAS DECIDED IN FAVOUR OF APPELLANT'S OWN CASE ON SIMILAR FACTS IN ITA NO. 1491/AHD/2012 DT. 04/09/2012 BY DISTINGUISHING THE FACTS OF THE APPELLANT'S CASE FROM TOTAGARS CASE. MA NOS.50, 51& 52/AHD/2018 (ARISING OUT OF ITAT NO S.2320, 2321&2322/AHD/2014) M/ S JAFARI MOMIN VIKAS CO-OP CREDIT SOCIETY LTD.. VS. ITO ASST.YEAR 2007-08, 2010-11 & 2011-12 - 3 - 3.2 LEARNED CIT(A) HAD FURTHER ERRED IN ENHANCING ADDITION OF RS.8,18,043/- I.E. FROM RS.5,33,729/- AS MADE BY AO TO RS.13,51,772/- BY WAY OF TREATING GROSS INTEREST INCOME OF RS.13,5 1,772/- AS INCOME FROM OTHER SOURCES INSTEAD OF RS.5,33,729/- AS WORK ED OUT BY AO BY CALCULATING INCOME ON PRORATE BASIS AFTER CONSIDERI NG INTEREST EXPENSES ON PROPORTIONATE BASIS. 4. THE TRIBUNAL HAS DISPOSED OF THE APPEAL ONLY CO NSIDERING THAT THERE IS ONLY ONE GROUND WHICH IS MENTIONED IN PARA 3 OF THE ORDER WHICH READ AS UNDER: '3. THE COMMON GRIEVANCE RELATES TO THE DISALLOWANC E OF THE CLAIM OF DEDUCTION U/S. 80P(2)(A)(I) OF I T ACT IN RESPECT OF INTEREST INCOME BY TREATING INTEREST I INCOME RECE IVED ON FIXED DEPOSIT OF NATIONALIZED BANK AS INCOME FROM OTHER S OURCES.' 4. HOWEVER APPELLANT HAS TAKEN SECOND GROUND OF APP EAL FOR CONSIDERING DEDUCTION U/S. 57 OF I T ACT WHICH HAS NOT BEEN CONSIDERED IN ORDER. THE GROUND OF APPEAL IS AS UNDER. 'LEARNED CIT(A) HAD FURTHER ERRED IN ENHANCING ADDI TION OF RS.8,18,043/- I.E. FROM RS.5,33,729/- AS MADE BY AO TO RS.13,51,772/- BY WAY OF TREATING GROSS INTEREST INCOME OF RS.13,51,772/- AS INCOME FROM OTHER SOURCES INSTEAD OF RS.5,33,729/- AS WORKED OUT BY AO BY CALCULATING INCOME ON PRORATE BASIS AFTER CONSIDERING INTEREST EXPENSES ON PROPORTIONATE BASIS.' 5. IT IS RESPECTFULLY SUBMITTED THAT THE TRIBUNAL MAY BE PLEASED TO SUITABLY AMEND ITS ORDER TO RECTIFY THE AFORESAID M ISTAKE, WHICH IS APPARENT FROM THE RECORD. THE RESPONDENT THEREFORE PRAYS THAT THERE IS A MISTAKE APPARENT FROM THE RECORD AND THE SAME MAY BE RECTIFIED BY GIVING OPPORTUNITY AND CONSIDERING FOR PLEA OF APPE LLANT. ON THE OTHER HAND THE LD. DR DID NOT OBJECT IF THE MATTER IS RECALLED AND FIXED FOR HEARING FOR FRESH ADJUDICATION BY LAW. 4. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIA L AVAILABLE ON RECORD. WE NOTE THAT THE INSTANT APPEAL WAS DECIDE D EX PARTE AND ALL THE MA NOS.50, 51& 52/AHD/2018 (ARISING OUT OF ITAT NO S.2320, 2321&2322/AHD/2014) M/ S JAFARI MOMIN VIKAS CO-OP CREDIT SOCIETY LTD.. VS. ITO ASST.YEAR 2007-08, 2010-11 & 2011-12 - 4 - GROUNDS RAISED BY THE ASSESSEE WERE ALSO NOT ADJUDI CATED BY THE HONBLE ITAT VIDE ORDER DATED 31 ST JULY. 2017. MOREOVER, AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, WE ARE SATISFIED THAT T HERE WAS SUFFICIENT CAUSE FOR NONAPPEARANCE OF THE ASSESSEE ON THE DATE OF HEARING, I.E., 28 TH JULY 2017. IN CASE OF THE EX PARTE ORDER, THE PROVI SIONS RULE 24 OF APPELLATE TRIBUNAL RULE 1963 REQUIRES TO RECALL THE ORDER IF THERE WAS SUFFICIENT CAUSE OF NONAPPEARANCE OF THE APPLICANT AT THE TIME HEARING. THE RELEVANT EXTRACT OF RULE 24 OF APPELLATE TRIBUN AL RULE 1963 READS AS UNDER : 26 [ HEARING OF APPEAL EX PARTE FOR DEFAULT BY THE APPEL LANT. 24. WHERE, ON THE DAY FIXED FOR HEARING OR ON ANY OTHER DATE TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT DOES NOT AP PEAR IN PERSON OR THROUGH AN AUTHORISED REPRESENTATIVE WHEN THE APPEA L IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE RESPONDENT : PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVI DED ABOVE AND THE APPELLANT APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON-APPEARANCE, WHEN THE A PPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING A SIDE THE EX PARTE ORDER AND RESTORING THE APPEAL.] IN VIEW OF THE ABOVE, ,WE RECALL THE ORDER AND FIX THE NEXT DATE OF HEARING, I.E., 14 TH AUGUST 2018 . NO SEPARATE NOTICE WILL BE ISSUED TO ANY OF THE PARTY. THUS, THE GROUND OF APPEAL RAISED BY THE ASS ESSEE IN ITS MA IS ALLOWED. 5. NOW COMING TO OTHER MAS FILED BY THE ASSESSEE. AS WE HAVE ALREADY RECALLED THE EX PARTE ORDER PASSED BY THE H ONBLE ITAT VIDE ITA NO.2320/AHD/2014 THEREFORE, RESPECTFULLY FOLLOWING THE SAME, WE RECALL THE OTHER ORDERS OF THE HONBLE ITAT VIDE ITA NOS. 2321 & MA NOS.50, 51& 52/AHD/2018 (ARISING OUT OF ITAT NO S.2320, 2321&2322/AHD/2014) M/ S JAFARI MOMIN VIKAS CO-OP CREDIT SOCIETY LTD.. VS. ITO ASST.YEAR 2007-08, 2010-11 & 2011-12 - 5 - 2322/AHD/2014. BOTH THESE APPEALS ARE ALSO FIXED FO R HEARING ON 14 TH AUGUST 2018. NO SEPARATE NOTICE WILL BE ISSUED TO A NY OF THE PARTY. HENCE, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN ITS BOTH MAS ARE ALLOWED. 6. IN THE RESULT, ALL THE MISC. APPLICATIONS FILED BY THE ASSESSEE ARE ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 30/07/2018 SD/- SD/- E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LN L; L; L; L; (MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 30/07/2018 PRITI YADAV, SR.PS !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / CONCERNED CIT 4. ) () / THE CIT(A) 5. ,-. //'( , '(# , 12$&$ / DR, ITAT, AHMEDABAD 6. .34 5 / GUARD FILE. % & / BY ORDER, , / //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD