Income Tax Appellate Tribunal - Ahmedabad
Nddb Employees Credit & Consumer ... vs Assessee on 19 September, 2013
आयकर अपीलीय अिधकरण, अिधकरण, अहमदाबाद Ûयायपीठ, Ûयायपीठ, "एकल एकल सदःय", सदःय , अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL " SMC" BENCH, AHMEDABAD सम¢ ौी बी.पी.जैन, लेखा सदःय ।
BEFORE SHRI B.P.JAIN, ACCOUNTANT MEMBER
आयकर अपील सं./I.T.A.No.2186/Ahd/2011
( िनधा[रण वष[ / Assessment Year : 2007-08)
NDDB Employees Credit बनाम/ The Income Tax Officer
& Consumer Co- Vs. Ward-4
op.Society Ltd. Anand
Jagnath Road
Anand - 388 001
ःथायी ले खा सं . /जीआइआर सं . / PAN/GIR No. : AAAAN 2883 R (अपीलाथȸ /Appellant) .. (ू×यथȸ / Respondent) अपीलाथȸ ओर से / Appellant by : Ms.Arti Shah, A.R. ू×यथȸ कȧ ओर से/Respondent by : Shri B.L. Yadav, Sr.D.R. सुनवाई कȧ तारȣख / Date of Hearing : 19/09/2013 घोषणा कȧ तारȣख /Date of Pronouncement : 19/09/2013 आदे श / O R D E R This appeal of the Assessee arises from the order of the ld.CIT(Appeals)-IV, Baroda dated 01/07/2011 for the Asstt.Year 2007-
08. The Assessee has raised the following grounds of appeal:-
1. The Learned Commissioner of Income Tax (Appeals)-IV, Baroda has erred in law and on facts of the case by confirming the disallowance of claim of Rs.1,83,742/- for deduction u/s.80P(2)(a)(i) of the Income Tax Act, 1961 made by the Assessing Officer.
2. Your Appellant reserves the right to add, alter, amend and/or withdraw any of the above grounds of appeal.ITA No.2186/Ahd/2011
NDDB Employee Credit & Consumer Co-op.Society Ltd. vs. ITO Asst.Year - 2007-08 -2-
2. The brief facts of the case as arising from the order of AO are that the assessee is a Co-operative Credit Society and filed its return of income declaring total income at Rs.1,13,020/-. The return was processed u/s.143(1) taking the income at Rs.NIL which resulted into refund of Rs.60,950/- and refund of Rs.60,950/- was granted to the assessee on 02/04/2008 instead of correct refund of Rs.27,160/- claimed in computation of income filed with original return. The case was picked up for scrutiny assessment as per Board's guidelines and notices were sent to the assessee along with questionnaire. During the course of scrutiny assessment proceedings, it was submitted by the ld.AR of the assessee that the assessee is a Co-operative Credit Society doing business of providing credit facility to its members and is also engaged in the activities of consumer co-operative society by doing purchase and sale of consumable items. On verification of the computation of income filed with the original return and also the computation of income filed along with the submissions in response to notice u/s.143(2) & 142(1), it was noticed by the A.O. that in the original return, the appellant had shown total income at Rs.1,13,020/-, whereas in the computation as filed later on during the course of assessment proceedings by the assessee, the total income was shown at Rs.NIL. The assessee had claimed deduction of Rs.29,281/- under Sec.80P(2)(c) & Rs.1,83,742/- u/s.80P(2)(a)(i) of the IT Act in such revised computation of income and thus had claimed further refund of Rs.59,890/-. The AR of the assessee could not throw any light as he was not sure about having filed the revised return for the year under consideration. The AO was of the view that deductions claimed by the assessee under above sections through revised ITA No.2186/Ahd/2011 NDDB Employee Credit & Consumer Co-op.Society Ltd. vs. ITO Asst.Year - 2007-08 -3- computation of income is not allowable unless and until such claim is made through filing of revised return of income as per provisions of section 139(5) of the Act. The AO in the assessment order has referred to the provisions of section 139(5) which clearly state that "if any persopn, having furnished a return under sub-section (1) of Section or in pursuance of a notice issued under sub-section(1) of sec.142, discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier." In the assessee's case, no step regarding filing of revised return within the prescribed time limit as per section 139(5) was taken. Instead the assessee placed his reliance on the decisions of Hon'ble Gujarat High Court in the case of CIT Vs. Ahmedabad Kaiser-I- Hind Mills Co. Ltd. [1981] 128 ITR 486 and Hon'ble Supreme Court in the case of Ellerman Liners Ltd. Vs CIT [1971] 82 ITR 913. The AO has passed the order and wherein he has clarified that the reliance placed by the assessee in this regard is not at all applicable in its case and, therefore, the same cannot be taken into consideration for assessee's claim of deduction u/s.80P(2)(a). the deduction claimed u/s.80P(2)(a) in the revised computation was rejected by the AO as the time for filing the revised return had already expired. As regards the deduction of Rs.1 lakh u/s.80P(2)(c)(i), the AO restricted the same to the profit earned of Rs.29,281/-. The ld.CIT(A) confirmed the action of the AO.
3. The ld.counsel for the assessee Ms.Arti Shah, C.A. argued that the decision of Hon'ble Supreme Court in the case of Goetze (India) Ltd. vs. ITA No.2186/Ahd/2011 NDDB Employee Credit & Consumer Co-op.Society Ltd. vs. ITO Asst.Year - 2007-08 -4- CIT [2006] 284 ITR 323 (SC) :: [2006] 157 Taxman 01 which the ld.CIT(A) has relied upon that the assessee cannot amend a return filed by him for making a claim for deduction other than by filing a revised return. The ld.counsel for the assessee relied on the order of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. vs. CIT (supra), that the restriction is on the assessing authority to that does not impinge the power of the Appellate Tribunal u/s.254 of the IT Act. Therefore, the Tribunal has the power to admit the claim of the assessee and, accordingly, the matter may be sent to the file of AO for examination of the issue.
3.1. On the other hand, ld.DR of the Revenue relied upon the orders of the authorities below.
4. I have heard both the parties and perused the facts of the case. The issue before me is that the assessee has not made a claim in the original return filed by it. The claim was made through a revised computation of income which was not allowed by the AO and the ld.CIT(A) confirmed the action of the AO.
5. Now, the issue before me is that a claim which is legally allowable has not been claimed by the assessee in the original return of income but has been claimed in the revised computation of income without filing any revised return, whether such claim is allowable or not. For the sake of ready reference, the relevant portion of the order of Hon'ble Apex ITA No.2186/Ahd/2011 NDDB Employee Credit & Consumer Co-op.Society Ltd. vs. ITO Asst.Year - 2007-08 -5- Court in the case of Goetze (India) Ltd. vs. CIT(supra) is reproduced hereinbelow:-
"2. The question raised in this appeal relates to whether the appellant-assessee could make a claim for deduction other than by filing a revised return. The assessment year in question was 1995-
96. The return was filed on 30th Nov., 1995, by the appellant for the assessment year in question. On 12th Jan., 1998, the appellant sought to claim a deduction by way of a letter before the AO. The deduction was disallowed by the AO on the ground that there was no provision under the IT Act to make amendment in the return of income by modifying an application at the assessment stage without revising the return.
3. This appellant's appeal before the CIT(A) was allowed. However, the order of the further appeal of the Department before the Tribunal was allowed. The appellant has approached this Court and has submitted that the Tribunal was wrong in upholding the AO's order. He has relied upon the decision of this Court in National Thermal Power Co. Ltd. vs. CIT (1999) 157 CTR (SC) 249 : (1998) 229 ITR 383 (SC), to contend that it was open to the assessee to raise the points of law even before the Tribunal.
4. The decision in question is that the power of the Tribunal under s. 254 of the IT Act, 1961, is to entertain for the first time a point of law provided the fact on the basis of which the issue of law can be raised before the Tribunal. The decision does not in any way relate to the power of the AO to entertain a claim for deduction otherwise than by filing a revised return. In the circumstances of the case, we dismiss the civil appeal. However, we make it clear that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Tribunal under s. 254 of the IT Act, 1961. There shall be no order as to costs."
Therefore, the restriction is on the assessing authority and not on the Appellate Tribunal u/s.254 of the Act and, accordingly, as per ITA No.2186/Ahd/2011 NDDB Employee Credit & Consumer Co-op.Society Ltd. vs. ITO Asst.Year - 2007-08 -6- decision of Hon'ble Apex Court rendered in the case of Goetze (India) Ltd. vs. CIT(supra), the claim of the assessee is allowable, but the genuineness of the same has not been examined by the assessing authority, therefore looking to the facts and circumstances of the case, I set aside the matter to the file of AO who will examine the genuineness of the claim of the assessee on merits and decide the issue accordingly. Thus, the solitary ground raised by the assessee is allowed but for statistical purposes.
6. In the result, Assessee's appeal is allowed for statistical purposes only.
Order pronounced in Open Court on the date mentioned hereinabove Sd/-
( बी.पी.जैन )
लेखा सदःय
( B.P. JAIN )
ACCOUNTANT MEMBER
Ahmedabad; Dated 19 / 09 /2013
टȣ.सी.नायर, व.िन.स./T.C. NAIR, Sr. PS
आदे श कȧ ूितिलǒप अमेǒषत/Copy
षत of the Order forwarded to :
1. अपीलाथȸ / The Appellant
2. ू×यथȸ / The Respondent.
3. संबंिधत आयकर आयुƠ / Concerned CIT
4. आयकर आयुƠ(अपील) / The CIT(A)-IV, Baroda
5. ǒवभागीय ूितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड[ फाईल / Guard file.
आदे शानुसार/ BY ORDER, स×याǒपत ूित //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) उप/ आयकर अपीलीय अिधकरण, अिधकरण, अहमदाबाद / ITAT, Ahmedabad