M/s.Peralasserry Service Co-op Bank Ltd, Kannur v. ITO, Kannur

ITA 267/COCH/2012 | 2009-2010
Pronouncement Date: 29-09-2016 | Result: Allowed

Appeal Details

RSA Number 26721914 RSA 2012
Assessee PAN AAAAT7441H
Bench Cochin
Appeal Number ITA 267/COCH/2012
Duration Of Justice 3 year(s) 11 month(s)
Appellant M/s.Peralasserry Service Co-op Bank Ltd, Kannur
Respondent ITO, Kannur
Appeal Type Income Tax Appeal
Pronouncement Date 29-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 29-09-2016
Date Of Final Hearing 29-09-2016
Next Hearing Date 29-09-2016
Assessment Year 2009-2010
Appeal Filed On 29-10-2012
Judgment Text
ITA NO 267/COCH/2012 (ASST YEAR 2009 - 10 ) 1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH KOCHI BEFORE S/ SHRI B P JAIN AM & GEORGE GEORGE K JM ITA NO 267/COCH/2012 (A SST YEAR 2009 - 10 ) M/S. PERASSERY SERVICE CO - OPERATIVE BANK LTD. PERALASSERY P.O.MUDALUR KANNUR DISTRICT - 670 622 V S THE INCOME TAX OFFICER WARD - 1 KANNUR. ( APPELLANT) (RESPONDENT) PAN NO. AAAAT7441H ASSESSEE BY SMT. DIVYA RAVINDRAN REVENUE BY SHRI A DHANARAJ SR DR DATE OF HEARING 2 9 TH SEPT 2016 DATE OF PRONOUNCEMENT 29TH SEPT 2016 ORDER PER GEOR GE GEORGE K JM: THIS APPEAL IS RESTORED TO THE TRIBUNAL BY THE HONBLE KERALA HIGH COURT VIDE JUDGMENT DATED 7/04/2016 IN ITA NO. 56 OF 201 6 . 2 BRIEF FACTS OF THE CASE ARE AS FOLLOWS: THE ASSESSEE IS A COOPERATIVE SOCIETY REGISTERED UNDER THE KERALA COO PERATIVE SOCIETIES ACT 1969. T HE ASSESSEE HAD FAILED TO FILE RETURN OF INCOME FOR THE AY 2010 - 11 THE AO ISSUED A NOTICE U/S 142(1) REQUIRING THE ASSESSEE TO FILE RETURN OF INCOME. THE ASSESSEE NEITHER COMPLIED WITH THIS NOTICE NOR FILED RETURN OF INCOME IN TERMS OF SECTION 139 OR 142(1) OF THE A CT AND ITA NO 267/COCH/2012 (ASST YEAR 2009 - 10 ) 2 HENCE BEST JUDGMENT ASSESSMENT U/S 144 OF THE ACT WAS COMPLETED BY DENYING THE BENEFIT OF DEDUCTION U/S 80P OF THE I T ACT. THE AO HELD THAT BY VIRTUE OF SECTION 80A(5) OF THE ACT THE ASSESSEE WAS NOT E NTITLED TO THE BENEFIT OF DEDUCTION CLAIMED U/S 80P OF THE ACT SINCE THE RETURN OF INCOME WAS NOT FURNISHED WITHIN THE TIME LIMIT PRESCRIBED U/S 139 OF THE ACT. 3 AGGRIEVED BY THE ASSESSMENT THE ASSESSEE PREFERRED AN APPEAL TO THE FIRST APPELLATE AUTH ORITY. THE CIT(A) CONFIRMED THE ASSESSMENT ORDER. 4 AGGRIEVED BY THE ABOVE ORDER OF THE CIT(A) THE ASSESSEE PREFERRED APPEAL TO THE TRIBUNAL. THE TRIBUNAL VIDE ORDER DATED 31/01/2011 DISPOSED OFF THE APPEAL OF THE ASSESSEE. THE TRIBUNAL HELD THAT SINCE THE RETURN WAS NOT FILED WITHIN THE TIME PRESCRIBED U/S 139(1)OR U/S 139(4) THE ASSESSEE WAS NOT ENTITLED TO THE BENEFIT OF DEDUCTION U/S 80P OF THE ACT IN VIEW OF SECTION 80A(5) OF THE ACT. 5 AGGRIEVED BY THE ORDER OF THE TRIBUNAL THE ASSESSEE PREFERRED FURTHER APPEAL U/S 260A OF THE ACT. THE HONBLE KERALA HIGH COURT VIDE JUDGMENT DATED 07/04/2016 IN ITA NO. 56 OF 201 6 RESTORED THE MATTER TO THE TRIBUNAL. IT IS IN THIS CONTEXT THE CASE WAS HEARD ON 29 TH SEPT 2016. 6. WE HAVE HEARD THE R IVAL PARTIES AND PERUSED THE MATERIAL ON RECORD. AS REGARDS THE BELATED FILING OF RETURN THE HONBLE HIGH COURT HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE HONBLE HIGH COURT HAD HELD THAT THE TRIBUNAL WAS NOT JUSTIFIED IN DENYING THE BENEFIT O F EXEMPTION U/S 80P OF THE ACT ITA NO 267/COCH/2012 (ASST YEAR 2009 - 10 ) 3 ON THE MERE GROUND OF BELATED FILING OF RETURN OF INCOME. THE HONBLE HIGH COURT WAS CONSIDERING THE FOLLOWING SUBSTANTIAL QUESTION OF LAW: B WHETHER THE TRIBUNAL IS JUSTIFIED IN DENYING TH E EXEMPTION U/S 80P OF THE I T A CT 1961 ON THE MERE GROUND OF BELAYED FILING OF RETURN BY THE ASSESSEE? C. WHETHER A RETURN FILED BY THE ASSESSEE BEYOND THE PERIOD STIPULATED U/S 139(1)/(4) OR SECTION 142(1)/148 CAN BE HELD AS NON - EST IN LAW AND INVALID FOR THE PURPOSE OF DECIDING EXEMPTI ON U/S 80P OF THE I T ACT 1961? 6. 1 IN CONSIDERING THE ABOVE SUBSTANTIAL QUESTION OF LAW THE HONBLE HIGH COURT RENDERED THE FOLLOWING FINDINGS: 18. QUESTIONS B & C RELATE TO DENIAL OF EXEMPTION ON GROUND REFERABLE TO BELATED FILING OF RETURN THAT IS TO SAY RETURNS FILED BEYOND THE PERIOD STIPULATED UNDER SECTION 139)1) OR SECTION 139(4) AS THE CASE MAY BE AS WELL AS SECTION 142 (1) OR SECTION 148 AS THE CASE MAY BE. THERE ARE NO CASES AMONG THESE APPEALS WHERE RETURNS WERE NOT FILED. THERE ARE C ASES WHERE CLAIMS HAVE BEEN MADE ALONG WITH THE RETURNS AND THE RETURNS WERE FILED WITHIN TIME. STILL FURTHER THERE ARE CASES WHERE RETURNS WERE FILED BELATEDLY THAT IS TO SAY BEYOND THE PERIOD STIPULATED UNDER SUB SECTION 1 OR 4 OF SECTION 139; AND THE RE ARE ALSO RETURNS FILED AFTER THE PERIOD WITH REFERENCE TO SECTIONS 142(1) AND 148 OF THE I T ACT. 19. SECTION 80A(5) PROVIDES THAT WHERE THE ASSESSEE FAILS TO MAKE A CLAIM IN HIS RETURN OF INCOME FOR ANY DEDUCTION INTER ALIA UNDER ANY PROVISION OF CHAPTER VIA UNDER THE HEADING 'C - DEDUCTIONS IN RESPECT OF CERTAIN INCOMES' NO DEDUCTION SHALL BE ALLOWED ' TO HIM THEREUNDER. THEREFORE IN CASES WHERE NO RETURNS HAVE BEEN FILED FOR A PARTICULAR ASSESSMENT YEAR NO DEDUCTIONS SHALL BE ALLOWED. THIS EMBAR GO IN SECTION 80A(5) WOULD APPLY THOUGH SECTION 80P 1 S NOT INCLUDED I N SECTION 80AC. THIS IS SO BECAUSE THE INHIBITION AGAINST ALLOWING DEDUCTION IS WORDED IN QUITE SIMILAR TERMS IN SECTIONS 80A(5) AND 80AC OF WHICH SECTION 80A(5) IS A PROVISION INSE RTED THROUGH THE FINANCE ACT 33/2009 WITH EFFECT FROM 1.4.2013 AFTER THE INSERTION OF SECTION 80AC AS PER THE FINANCE ACT OF 2006 WITH EFFECT FROM 1.4.2006. THIS CLEARLY EVIDENCES THE ITA NO 267/COCH/2012 (ASST YEAR 2009 - 10 ) 4 LEGISLATIVE INTENDIMENT THAT THE INHIBITION CONTAINED IN SUB SECTION 5 O F SECTION 80A WOULD OPERATE BY ITSELF. IN CASES WHERE RETURNS HAVE BEEN FILED THE QUESTION OF EXEMPTIONS OR DEDUCTIONS REFERABLE TO SECTION 80P WOULD DEFINITELY HAVE TO BE CONSIDERED AND GRANTED IF ELIGIBLE. 20 HENCE QUESTION WOULD ARISE AS TO WHETHER BELATED RETURNS FILED BEYOND THE PERIOD STIPULATED UNDER SECTION 139(1) OR SECTION 139(4) AS WELL AS FOLLOWING SECTIONS 142(1) AND 148 PROCEEDINGS COULD BE CONSIDERED FOR EXEMPTION. IF THOSE RETURNS ARE ELIGIBLE TO BE ACCEPTED IN TERMS OF LAW GOING BY THE PROVISIONS OF THE STATUE AND THE GOVERNING BIND PRECEDENTS IT GOES WITHOUT SAYING THAT THE CLAIM FOR EXEMPTION WILL ALSO STAND EFFECTUATED AS A CLAIM DULY MADE AS PART OF THE RETURNS SO FILED FOR DUE CONSIDERATION. 21 WHEN A NOTICE UNDER SECTION 142(1 ) IS ISSUED THE PERSON MAY FURNISH THE RETURN AND WHILE DOING SO COULD ALSO MAKE CLAIM FOR DEDUCTION REFERABLE TO SECTION 80P. NOT MUCH DIFFERENT IS THE SITUATION WHEN PRE - ASSESSMENT ENQUIRY IS CARRIED FORWARD BY ISSUANCE OF NOTICE UNDER SECTION 142 (1) OR WHEN NOTICE 1 S ISSUED ON THE PREMISE OF ESCAPED ASSESSMENT REFERABLE TO SECTION 148 OF THE IT ACT. THIS POSITION NOTWITHSTANDING WHEN AN ASSESSMENT IS SUBJECTED TO FIRST APPEAL OR FURTHER APPEALS UNDER THE IT ACT OR ALL QUESTIONS GERMANE FOR CONCLUDIN G THE ASSESSMENT WOULD BE RELEVANT AND CLAIMS WHICH MAY RESULT 1N M ODIFICATION OF THE RETURNS ALREADY FI 1 ED COULD ALSO BE ENTERTAINED PARTICULARLY WHEN IT RELATES TO CLAIMS FOR EXEMPTIONS. THIS IS SO BECAUSE THE FINA 1 IY OF ASSESSMENT WOULD NOT BE ACHIEVED IN ALL SUCH CAS E S UNTIL THE TERMINATION OF ALL S U CH APPE LL ATE REMEDIES. UNDER SUCH CIRCUMSTANCES THE TRIBUNAL WAS NOT JUSTIFIED IN DENYING EXEMPTION UNDER SECTION 80P OF THE I T ACT ON THE MERE GROUND OF BELATED FILING OF RETURN BY THE ASSESSEE CONCERNE D. A RETURN FI 1 ED BY THE ASSESSEE BEYOND THE PERIOD STIPULATED UNDER SECTION 139(1) OR 139(4) OR UNDER SECTION 142(1) OR SECTION 148 CAN ALSO BE ACCEPTED AND ACTED UPON PROVIDED FURTHER PROCEEDINGS IN RELATION TO SUCH ASSESSMENTS ARE PENDING IN THE STATU TORY HIERARCHY OF ADJUDICATION IN TERMS OF THE PROVISIONS OF THE IT ACT. IN ALL SUCH SITUATIONS IT CANNOT BE TREATED THAT A RETURN FILED AT ANY STAGE OF SUCH PROCEEDINGS COULD BE TREATE D A S NON - EST IN LAW AND INVALID FOR THE PURP O S E OF DECIDING EXEMPTIO N UNDER SECTION 80P O THE I T ACT. WE THUS ANSWER SUBSTANTIAL QUESTIONS OF LAW BAND C F ORMULATED AND ENUMERATED ABOVE. ITA NO 267/COCH/2012 (ASST YEAR 2009 - 10 ) 5 6 .2 IN LIGHT OF THE ABOVE JUDGMENT OF THE HONBLE HIGH COURT THE BELATED FILING OF RETURN OF INCOME BY THE ASSESSEE DOES NOT DISENTITL E IT FROM THE BENEFIT OF DEDUCTION U/S 80P(2) OF THE ACT. FURTHER THE ASSESSEE IN THE INSTANT CASE IS A PRIMARY AGRICULTURAL CREDIT SOCIETY REGISTERED UNDER THE KERALA COOPERATIVE SOCIETIES ACT 1969. THE CERTIFICATE HAS BEEN ISSUED BY THE REGISTRAR OF COOPERATIVE SOCIETIES TO THE ABOVE SAID EFFECT AND THE SAME IS ON RECORD. THE HONBLE HIGH COURT IN ASSESSEES OWN CASE AND OTHER BATCH OF CASES HAD HELD THAT PRIMARY AGRICULTURAL CREDIT SOCIETY REGISTERED UNDER THE KERALA COOPERATIVE SOCIETIES ACT 1969 IS ENTITLED TO THE BENEFIT OF DEDUCTION U/S 80P(2). SINCE THERE IS A CERTIFICATE ISSUED BY THE REGISTRAR OF COOPERATIVE SOCIETIES STATING THAT THE ASSESSEE IS A PRIMARY AGRICULTURAL CREDIT SOCIETY WE HOLD THAT THE ASSESSEE IS ENTITLED TO THE BENEF IT OF DEDUCTION U/S 80P(2) OF THE ACT. IT IS ORDERED ACCORDINGLY. 7 IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF SEPT 2016 . SD/ - SD/ - ( B P JAIN ) ( GEORGE GEORGE K ) A CCOUNTANT MEMBER JUDICIAL MEMBER COCHIN: DATED 29TH SEPT 2016 VM SR.P.S ITA NO 267/COCH/2012 (ASST YEAR 2009 - 10 ) 6 COPY TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR 6 . GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT COCHIN ITA NO 267/COCH/2012 (ASST YEAR 2009 - 10 ) 7