PERINGOTTUKURUSSI SERVICE CO-OPERATIVE BANK LTD,PALAKKAD V. THE ITO WARD-5, PALAKKAD

MA 16/COCH/2023

AI Insights

The case involves Peringottukurussi Service Co-op. Bank Ltd., which filed a Miscellaneous Application (MA) seeking recall of a Tribunal order that disallowed their claim for deduction under section 80P of the Income Tax Act for the Assessment Year 2017-18. The original disallowance was based on the absence of a filed return of income, as required under section 80A(5) of the Act. The assessee argued that a subsequent filing, influenced by a High Court decision, should allow the deduction. However, the Tribunal referenced a later High Court decision that overruled the earlier one and confirmed that the deduction claim must be made in a return filed within the due date specified under section 139(1), which was not met in this case.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 471718 (ITAT-COCHIN)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-01-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Other Referred Cases: Chirakkal Service Co-operative Bank Ltd. v. CIT [2016] 384 ITR 490 (Ker), Nileshwar Range Kallu Chethu Vyavasaya Thozhilali Sahakarana Sangham v. CIT 459 ITR 730
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LEENA LAL
• Section: 142(1); 139(1); 13; 139; 80P

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH BEFORE SHRI INTURI RAMA RAO, AM AND SHRI KESHAV DUBEY, JM MA No. 16/Coch/2023 (Arising out of ITA No. 30/Coch/2022) Assessment Year: 2017-18 Peringottukurussi Service Co-op. Bank Ltd. .......... Applicant Paruthipully P.O., Palakkad 678573 [PAN: AADAT9601J] Vs. The Income Tax Officer .......... Respondent Ward - 5, Palakkad Applicant by: Ms. Swathy, Advocate Respondent by: Smt. Leena Lal, Sr. D.R. Date of Hearing: 03.01.2025 Date of Pronouncement: 28.01.2025 O R D E R Per: Inturi Rama Rao, AM This Miscellaneous Application (MA) is filed by the assessee co-operative society seeking recall of the order passed by this Tribunal dated 30.11.2022 in ITA No. 30/Coch/2022 for Assessment Year (AY) 2017-18. 2. It is submitted that the Tribunal confirmed the disallowance of claim for deduction u/s. 80P of Income Tax Act, 1961 (hereinafter \"the Act\") on the ground that no return of income was filed placing 2 MA No. 16/Coch/2023 Peringottukurussi Service Co-op. Bank Ltd. reliance on the plain provisions of section 80A(5) of the Act. It is further submitted that since the assessee has filed return of income after completion of the assessment proceedings but during the pendency of the appellate proceedings before the Tribunal, based on the decision of the Hon'ble Kerala Hon'ble High Court in the case of Chirakkal Service Co-operative Bank Ltd. v. CIT[2016] 384 ITR 490 (Ker) the claim for deduction u/s. 80P should be allowed. Therefore, it is submitted the not following the judgement of Hon'ble Jurisdictional High Court of Chirakkal Service Co-operative Bank Ltd. (supra) constitute a mistake apparent on record. Therefore, it is prayed that the order passed by the Tribunal be rectified. 3. We have carefully perused the order passed by this Tribunal in ITA No. 30/Coch/2022 dated 30.11.2022 and also the averments made in the present MA. On perusal of the impugned order it would be clear that the Tribunal confirmed the disallowance of deduction u/s. 80P of the Act solely on the ground that no return of income was filed, placing reliance on the provisions of section 80A(5) of the Act. In the present case, admittedly the petitioner not submitted the return of income under the provisions of section 139 of the Act. The question of filing return of income in response to the notice u/s. 142 or 143 does not arise in the absence of initiation of proceeding under respective sections by the Assessing Officer (AO). Therefore, the ratio of the decision of the Hon'ble Jurisdictional High Court in the case of Chirakkal Service Co-operative Bank Ltd. (supra) has no 3 MA No. 16/Coch/2023 Peringottukurussi Service Co-op. Bank Ltd. application to the facts of the present case. Moreover, the above decision of the Hon'ble Jurisdictional High Court was overruled subsequently by the Hon'ble Jurisdictional High Court in the case of Nileshwar Range Kallu Chethu Vyavasaya Thozhilali Sahakarana Sangham v. CIT 459 ITR 730 wherein it is held as under: - “ a reading of section 80A(5) and section 80AC of the Income-tax Act, 1961, as they stood prior to April 1, 2018, would reveal that the statutory scheme under the Act was to admit only such claims for deduction under section 80P of the Act as were made by the assessee in a return of income filed by him. That return could be under section 139(1), (4), 142(1) or 148, and to be valid, had to be filed within the due date contemplated under those provisions. Under section 80A(5), the claim for deduction under section 80P could be made by an assessee in a return filed within the time prescribed for filing such returns under any of the above provisions. The amendment to section 80AC with effect from April 1, 2018, however, mandated that for an assessee to get a deduction under section 80P of the Income-tax Act, it had to furnish a return of his income for such assessment year on or before the due date specified in section 139(1) of the Income-tax Act. In other words, after April 1, 2018, even if the assessee made its claim for deduction under section 80P in a return filed within time under section 139(4), 142(1) or 148, it would not be allowed the deduction, unless the return in question was filed within the due date prescribed under section 139(1). Thus, it is clear that the statutory scheme permits the allowance of a deduction under section 80P of the Act only if it is made in a return recognised as such under the Act, and after April 1, 2018, only if that return is one filed within the time prescribed under section 139(1) of the Act. On the facts as the returns in these cases, for the assessment years 2009-10 and 2010- 11, were admittedly filed after the dates prescribed under section 139(1) and (4) or in the notices issued under section 142(1) and section 148, the returns were non est and could not have been acted upon by the Assessing Officer even though they were filed before the completion of the assessment.(AY.2009-10, 2010-11).” The Hon'ble High Court has also held that the view taken by it vide para 13 of its earlier decision in the case of Chirakkal Service Co- 4 MA No. 16/Coch/2023 Peringottukurussi Service Co-op. Bank Ltd. operative Bank Ltd. v. CIT [2016] 384 ITR 490 (Ker) is not a correct view. The relevant observation made by the Hon'ble Jurisdictional High Court is extracted as below: - “It is in the backdrop of the aforesaid discussion that we must consider the findings of a Division Bench of this court in Chirakkal Service Co-operative Bank Ltd. (supra). The findings therein, that appear to suggest that a claim for deduction under section 80P can be entertained even f it is made in a return filed beyond the time permitted under the Income-tax Act, ignores the perspective tht sees the requirement of the claim for deduction being made in a valid return as a precondition for obtaining the benefit of the statutory deduction. The said findings also fly in the face of the express statutory provisions that requires the claim to be made in a return filed by the assessee, by which term is meant a valid return under the Act, and, therefore, have necessarily to be seen as per incuriam. We also find that the subsequent amendments to section 80AC by the Finance Act, 2018 fortifies the view that we have taken for, it makes the claim for deduction under section 80P conditional on filing a return within the due date prescribed under section 139(1) of the Income-tax Act. In other words, the precondition for claiming the deduction under section 80P of the Income-tax Act has now been made more stringent by reducing the time available to an assessee for making the claim.” 4. In the light of the above decision the judgement in the case of Chirakkal Service Co-operative Bank Ltd. (supra) no longer hold the field. In view of the above legal position it cannot be said that the order passed by this Tribunal suffers from any mistake apparent from record. There is no merit in the averments made in the present 5 MA No. 16/Coch/2023 Peringottukurussi Service Co-op. Bank Ltd. MA. Accordingly, the present miscellaneous application filed by the assessee stands dismissed. Order pronounced in the open court on 28th January, 2025. Sd/- Sd/- (KESHAV DUBEY) JUDICIAL MEMBER (INTURI RAMA RAO) ACCOUNTANT MEMBER Cochin, Dated: 28th January, 2025 n.p. Copy to: 1. The Applicant 2. The Respondent 3. The Pr. CIT concerned 4. The Sr. DR, ITAT, Cochin 5. Guard File Assistant Registrar ITAT, Cochin "