ITO WD 17(2)(3), MUMBAI V. MAHARASHTRA SHRAMIK SAHAKARI PATHPEDHI MARYADIT, MUMBAI

MA 716/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4388 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 05-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: B N RAO
• Keywords: Set aside
• Section: 201; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI N.K. PRADHAN , ACCOUNTANT MEMBER M.A. NO.716 & 717/MUM./2018 ( ARISING OUT OF ITA NO. 1044 & 1045 / MUM . /2017 ) ( ASSESSMENT YEAR : 20 1 2 13 & 2013 14 ) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 17(2)(3) , MUMBAI . APP LICANT V/S MAHARASHTRA SHRAMIK SAHAKARI PATHPEDHI MARYADIT , 102, ANAND BHAVAN KESHAVJI NAIK ROAD, CHINCH BUNDEER MUMBAI 400 009 PAN AAAAM9867Q . RESPONDENT REVENUE BY : SHRI M.K. SINGH ASSESS EE BY : SHRI B.N. RAO DATE OF HEARING 15.02.2019 DATE OF ORDER 10.05.2019 O R D E R PER SAKTIJIT DEY. J.M. BY WAY OF AFORESAID MISC. APPLICATION S , PURPORTEDLY FILED UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ), THE REVENUE SEEKS RECALL OF THE ORDER DATED 27 TH JUNE 2018, PASSED IN ITA NO S .1044 & 1045/MUM./2017. 2 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. T HE CONTENTION OF THE L EARNED DEPARTMENTAL REPRESENTATIVE 2 MAHARASHTRA SHRAMIK SAHAKARI PATHPEDHI MARYADIT BEFORE US IS, THE TRIBUNAL, THOUGH, HAS FOLLOWED THE ORDER PASSED BY THE CO - ORDINATE BENCH IN ASSESSEES OWN CASE IN ITA NO.1237 AND 6257/MUM./2013, DATED 29 TH NOVEMBER 2017, HOWEVER, IT DID NOT SET ASIDE THE ORDER OF THE FIRST APPELLATE A U THORITY AS WAS DONE BY THE TRIBUNAL IN EARLIER ORDER. A PERUSAL OF THE IMPUGNED APPEAL ORDER AND , MORE PARTICULARLY , OBSERVATION OF THE TRIBUNAL IN P ARA - 6 OF THE APPEAL ORDER REVEAL S THAT THE TRIBUNAL HAS FOLLOWED ITS EARLIER ORDER PASSE D IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2009 - 10 AND 201 0 - 11 IN LETTER AND SPIRIT AND HAS DIRECTED THE ASSESSING OFFICER TO EXAMINE WHETHER ASSESSEES ACTIVITIES ARE IN COMPLIANCE WITH THE MAHARASHTRA STATE CO - OPERATIVE ACT, 1960, AND THE CORRESPON DING REGULATION S AND , IF IT IS FOUND SO , IN THE ABSENCE OF ANY LICENSE FROM THE RESERVE BANK OF INDIA, THE ASSESSEE CANNOT BE TREATED AS AN ENTITY TO WHICH THE RESTRICTIONS IMPOSED IN SECTION 80P(4) OF THE ACT WOULD APPLY. FURTHER, THE TRIBUNAL HAS ALSO OB SERVED THAT IN CASE IT IS FOUND TO THE CONTRARY , THE ASSESSING OFFICER MAY TAKE APPROPRIATE ACTION AS PER LAW. THUS, FROM THE AFORESAID OBSERVATIONS OF THE TRIBUNAL, IT IS ABUNDANTLY CLEAR THAT THE DIRECTIONS ISSUED BY THE TRIBUNAL ARE IDENTICAL TO THE DIR ECTIONS ISSUED IN THE EARLIER ORDER PASSED BY IT. FURTHER, THE OBSERVATIONS OF THE TRIBUNAL IN PARA - 8 OF THE APPEAL ORDER THAT ASSESSEES APPEALS WERE ALLOWED FOR STATISTICAL PURPOSES IMPLIES THAT THE ISSUE WAS RESTORED TO THE ASSESSING OFFICER FOR FRESH A DJUDICATION WITH CERTAIN DIRECTIONS. 3 MAHARASHTRA SHRAMIK SAHAKARI PATHPEDHI MARYADIT THAT BEING THE CASE, THE CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE THAT THE ORDER OF LEARNED COMMISSIONER (APPEALS) WAS NOT SET ASIDE IS UNACCEPTABLE. THEREFORE, WE DECLINE TO ENTERTAIN THE PRESENT APPLICATI ONS. 3 . IN THE RESULT, BOTH THE MISC. APPLICATIONS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 10.05.2019 SD/ - N.K. PRADHAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 10.05.2019 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI