The Deesa Mercantile Co.Operative Society Ltd., Deesa V. The ACIT.,B.K.Circle, Palanpur

MA 9/AHD/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4765 (ITAT-AHMEDABAD)
• Duration Of Justice: 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 14-03-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S.S. SHUKLA
• Assessee Lawyers: MEHUL K. PATEL
• Section: 254(2)

Judgement Text

आयकर अपीलीय अिधकरण, अहमदाबाद ᭠यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’ B’’ BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER And MS SUCHITRA KAMBLE, JUDICIAL MEMBER M.A No.09/Ahd/2022 in आयकर अपील सं./ITA No. 2100/AHD/2014 िनधाᭅरण वषᭅ/Asstt. Year: 2011-12 The Deesa Mercantile Co-operative Society Ltd., Rajiv Gandhi Complex, Basement, Opp. Fuvara At.Deesa-385535 Dist. Banaskanth. PAN: AAABT2083Q Vs. A.C.I.T., B.K. Circle, Palanpur. (Applicant) (Respondent) Assessee by : Shri Mehul K. Patel, A.R Revenue by : Shri S.S. Shukla, Sr.D.R सुनवाई कᳱ तारीख/Date of Hearing : 08/04/2022 घोषणा कᳱ तारीख /Date of Pronouncement: 13/04/2022 आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: The assessee by way of this Miscellaneous Application is seeking to recall the grounds of appeal raised by it in ITA No. 2100/Ahd/2014 on the reasoning that there is a mistake apparent from the record. M.A No.09/Ahd/2022 ITA no.2100/AHD/2014 A.Y. 2011-12 2 2. The assessee in the Miscellaneous Application submitted that the ITAT in its order dated 14/12/2021 has denied the benefit of deduction provided u/s 80P(2)(d) of the Act amounting to Rs. 72,39,179/- only. The deduction was denied after making reference to the judgment of Hon’ble High Court of Karnataka in the case of PCIT vs Totgars Co-operative Sale Society reported in 83 taxmann.com 140. 3. The Ld. AR before us submitted that at the time of hearing there was filed a compilation of 63 pages containing copies of various judgments including the judgment of Hon’ble Jurisdictional High Court in the case of Sabarkantha District Co-op Milk Producers Union in Tax Appeal No.473 of 2014 wherein the deduction with respect to the interest income from the Co-operative Bank was allowed under the provision of section 80P(2)(d) of the Act. However, the Tribunal without referring the same has rejected the deduction claimed by the assessee. According to the Ld. AR, non-consideration of the Jurisdictional High Court judgment renders the order erroneous in so far a mistake apparent from the record within the meaning of section 254(2) of the Act. Accordingly, the Ld. AR prayed to recall the grounds bearing Nos. from 2 to 5 filed in the memo of appeal for fresh adjudication as per law. 4. On the other hand, the Ld. DR could not controvert the arguments advanced by the Ld. AR for the assessee. However, the ld. DR Vehemently supported the order of the ITAT. 5. We have heard the rival contentions of both the parties and perused the materials available on record. Admittedly, the above judgment cited by the ld. AR of the assessee of the Hon’ble Gujarat High Court has not been considered by this Tribunal in its order dated 30/10/2017 in ITA No. 394/Rjt/ 2015. Non-consideration of the judgment of Hon’ble Jurisdictional High Court, constitutes a mistake apparent from record as held by Hon’ble jurisdictional High Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ld., 262 ITR 146 which has been upheld by the M.A No.09/Ahd/2022 ITA no.2100/AHD/2014 A.Y. 2011-12 3 Hon’ble Supreme Court reported in 305 ITR 227. The relevant extract is reproduced as under: (f) Non-consideration of a judgment of the jurisdictional High Court would always constitute a mistake apparent from the record, regardless of the judgment being rendered prior to or subsequent to the order proposed to be rectified; 5.1 In view of the above, we hold that there is a mistake in the order of this Tribunal which needs to be rectified under section 254(2) of the Act. Accordingly we recall the order of this tribunal as discussed above for limited purpose of fresh adjudication of grounds bearing Nos. from 2 to 5 filed in the memo of appeal as per the provisions of law. Accordingly, the registry is directed to fix the case for fresh hearing under intimation to both the parties. Hence the MA filed by the assessee is allowed. 6. In the result, the Miscellaneous Application filed by the assessee is allowed. Order pronounced in the Court on 13/04/2022 at Ahmedabad. Sd/- Sd/- (SUCHITRA KAMBLE,) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 13/04/2022 Manish