The Pimpalgaon Merchants Co.op. Bank Ltd., Nashik V. Assistant Commissioner of Income-tax,

MA 87/PUN/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2573 (ITAT-PUNE)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 13-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAZHAR AKRAM
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER MA NO. 87/PN/2014 (ARISING OUT OF ITA NO. 160 /PN/20 1 4 ASSESSMENT YEAR : 20 10 - 11 T HE PIMPALGAON MERCHANTS CO - OP. BANK LTD., DHANSHREE BANK STREET, AT POST PIMPALGAON BASWANT, NASHIK VS. ASST. COMMISSIONER OF INCOME TAX, CIRCE - 1, NASHIK (APPELLANT) (RESPONDENT) PAN NO. AAAAT5305Q APPELLANT BY: SHREE PRAMOD SHINGTE RESPONDENT BY: SHRI MAZHAR AKRAM DATE OF HEARING : 14 - 11 - 2014 DATE OF PRONOUNCEMENT : 14 - 11 - 2014 ORDER P ER R.S. PADVEKAR , JM : - THIS MISCELLANEOUS PETITION IS FILED BY THE ASSESSEE U/S. 254(2) OF THE INCOME - TAX ACT WITH PRAYER THAT THE ORDER PASSED BY THE TRIBUNAL IN THE ASSESSEES CASE IN ITA NO. 160/PN/2014 ORDER DATED 25 - 04 - 2014 FOR THE A.Y. 2010 - 11 MAY BE RECALLED ON THE ISSUE OF THE DISALLOWANCE MADE BY THE ASSESSING OFFICER U/S. 14A OF THE INCOME - TAX ACT. 2. THE FACTS WHICH ARE REVEALED FROM THE RECO RDS AS UNDER. THE ASSESSEE IS A CO - OPERATIVE BANK WHICH IS ENGAGED IN THE BUSINESS OF BANKING . T HE ASSESSEE FILED THE RETURN OF INCOME FOR THE A.Y. 2010 - 11 DECLARING TOTAL INCOME OF RS.1,16,30,500/ - . THE ASSESSMENT HAS BEEN COMPLETED BY THE ASSESSING OF FICER U/S. 143(3) OF THE INCOME - TAX ACT. WHILE COMPLETING THE ASSESSMENT IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS MADE INVESTMENT IN THE MUTUAL FUND S TO THE EXTENT OF RS.4,00,00,000/ - , THE INCOME ON WHICH IS EXEMPT FROM TAX. THE ASSE SSEE SUO MOTO OFFERED THE DISALLOWANCE OF RS.2,00,000/ - U/S. 14A OF 2 MA NO. 87 /PN/2014, THE PIMPALGAON MERCHANTS CO - OP. BANK LTD., NASHIK THE ACT BUT THE ASSESSING OFFICER DID NOT ACCEPT THE SUO MOTO DISALLOWANCE MADE BY THE ASSESSEE. THE ASSESSING OFFICER MADE THE DISALLOWANCE TO THE EXTENT OF RS.19,00,512/ - U/S. 14A R.W. RULE 8 D OF THE INCOME - TAX RULES. 3. THE ASSESSEE CHALLENGED THE DISALLOWANCE BEFORE THE LD. CIT(A), WHO CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. THE ASSESSEE FURTHER CHALLENGED THE ISSUE BEFORE THE TRIBUNAL AND THE TRIBUNAL ALSO CONFIRMED THE DISALLOWANCE. IN SUM AND SUBSTANCE THE ADDITION MADE BY THE ASSESSING OFFICER TO THE EXTENT OF RS.19,00,512/ - WAS CONFIRMED BY INVOKING THE PROVISIONS OF SEC.14A R.W. RULE 8D OF THE I.T. RULES. AT THE TIME OF THE HEARING THE LD. COUNSEL SUBMITTED THAT T HE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE ITAT, A BENCH, PUNE IN THE CASE OF DHARMVEER SAMBHAJI URBAN CO - OP. BANK LTD., PUNE VS. ADDL. CIT, RANGE - 8, PUNE, ITA NO. 1287/PN/2012 ORDER DATED 20 - 09 - 2013. THE TRIBUNAL EXAMINED THE FA CTS OF THE ASSESSEES CASE AS WELL AS THE FACTS IN THE CASE OF DHARMVEER SAMBHAJI URBAN CO - OP. BANK LTD., PUNE (SUPRA) AND HELD AS UNDER: 7. IN THE PRESENT CASE THERE IS A CATEGORICAL FINDING BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS USED INTEREST BEA RING FUNDS IN THE INVESTMENT IN THE MUTUAL FUND TO THE EXTENT OF RS.4,00,00,000/ - HENCE, IN OUR OPINION, THE CASE LAW RELIED ON BY THE ASSESSEE IS NOT APPLICABLE ON THE FACTS OF THIS CASE. MOREOVER APART FROM RELYING ON THE SAID DECISION NO OTHER ARGUMENT WAS ADVANCED ON MERIT. WE FURTHER FIND THAT THE ASSESSING OFFICER DEALT WITH THIS ISSUE IN DETAIL GIVING CATEGORICAL FINDING THAT THE INVESTMENT IN THE MUTUAL FUND TO THE EXTENT OF RS.4,00,00,000/ - IS OUT OF THE INTEREST BEARING FUNDS. WE, THEREFORE, FI ND NO REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A). ACCORDINGLY, THE SAME IS CONFIRM ON THIS ISSUE. 4. NOW, THE ASSESSEE HAS COME WITH THE PLEA THAT AT THE TIME OF HEARING LD. DR ALSO AGREED THAT ASSESSEES CASE IS COVERED BY DECISION IN CASE OF DHARMVEER SAMBHAJI URBAN CO - OP. BANK LTD., PUNE (SUPRA) AND 3 MA NO. 87 /PN/2014, THE PIMPALGAON MERCHANTS CO - OP. BANK LTD., NASHIK HENCE, THE ASSESSEE WAS PREVENTED FROM MAKING ARGUMENT ON THE SAID ISSUE. H E ALSO SUBMITS THAT THE DECISION IN THE CASE OF DHARMVEER SAMBHAJI URBAN CO - OP. BANK LTD., PUNE (SUPRA) IS SQUARELY APPL ICABLE TO THE ASSESSEES CASE. IT IS SEEN THAT AT THE TIME OF HEARING THE LD. DR ALSO IMPLIEDLY CONCEDED TO THE SUBMISSION OF THE LD. AR. IN OUR OPINION IN THE INTEREST OF JUSTICE THE ORDER NEEDS TO BE RECALLED ON THE ISSUE OF DISALLOWANCE U/S. 14A OF TH E ACT FOR GIVING AN OPPORTUNITY TO THE ASSESSEE TO MAKE HIS SUBMISSIONS. 5. WE, ACCORDINGLY, RECALL THE ORDER TO THE EXTENT OF GROUND NO. 1 IN ITA NO. 160/PN/2014 DATED 15 - 04 - 2014 (A.Y. 2010 - 11) AND RESTORE THE APPEAL FILE FOR HEARING ON THE GROUND NO. 1. THIS APPEAL IS FIXED FOR HEARING IN THE REGULAR COURSE ON 02 - 03 - 2015. 6. IN THE RESULT, THE ASSESSEES MISCELLANEOUS PETITION IS ALLOWED ON THE ABOVE TERMS. PRONOUNCED IN THE OPEN COURT ON 14 - 11 - 201 4 SD/ - SD/ - ( R.K. PANDA ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE , DATED : 14 TH NOVEMBER, 2014 RK/PS COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - I , NASHIK 4 THE CIT - I, NASHIK 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE