Income Tax Appellate Tribunal - Ahmedabad
Charotar Nagrik Sahkari Bank Ltd.,, ... vs Assessee on 13 January, 2012
आयकर अपीलीय अिधकरण,
अिधकरण, अहमदाबाद Ûयायपीठ 'बी
बी'
बी अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
" B" BENCH, AHMEDABAD
सव[ौी मुकुल कुमार ौावत, Ûयाियक सदःय एवं ौी ए.मोहन अलंकामोनी,लेखा सदःय के सम¢ ।
BEFORE SHRI MUKUL Kr.SHRAWAT, JUDICIAL MEMBER AND
SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER
MA No.114/Ahd/2010
(In TA No.371/Ahd/2006)
[ िनधा[रण वष[ / Assessment Year : 2002-03]
Charotar Nagrik बनाम/ The Asst.Income Tax
Sahakari Bank Ltd. Vs. Officer
Chiman Sathi Bhavan Anand Circle
Subhash Road Aanand
Anand
ःथायी ले खा सं . /जीआइआर सं . / PAN/GIR No. : AABFC 3231 A
(Applicant) .. (Respondent)
Applicant by :
Shri M.G. Patel, A.R.
Respondent by :
Shri Samir Tekriwal, D.R.
सुनवाई कȧ तारȣख/
/ Date of Hearing : 13/01/2012
घोषणा कȧ तारȣख /Date of Pronouncement : 13/01/2012
आदे श/O R D E R
PER SHRI MUKUL Kr. SHRAWAT, JUDICIAL MEMBER :
This miscellaneous petition has been filed on 12.5.2010 arising from the order of the Tribunal dated 27/7/2006 titled as above.
2. Vide this miscellaneous petition, ld.AR Mr.M.G. Patel has emphasized that his main plank of argument is that ground No.3 as raised before the Tribunal was not correctly appreciated and decided by the MA No.114/Ahd/2010 ( In ITA No. 371/Ahd/2006) Charotar Nagrik Sahakari Bank Ltd. vs. ACIT Asst.Year - 2002-03 -2- Tribunal. Relevant portions argued before us as arising from the said miscellaneous petition are reproduced below:-
1. The Appellant filed appeal before the Hon'ble ITAT, 'B' Bench, Ahmedabad against of Ld. CIT(A)-IV, Baroda in Appeal No.CAB/IV-A-5/05-06 on the following among other grounds:
Ground No.3 Ld. CIT(A) has erred in treating the investment in Government.Securities as capital assets and not alloweing deduction of income earned on sale of it us/80P(2)(a)(i) of the Income Tax Act, 1961.
2. Appeal was heard by the Hon'ble Members of ITAT 'B' Bench, Ahmedabad and a common order was passed in respect of ITA No.370 & 371/Ahd/2006 for A.Ys. 2000-01 and 2002-03 (being the appeal under consideration) as under (Copy of ITAT Order is enclosed as ANNEXURE-A):
6. The Hon.Supreme Court in the case of CIT vs. Ramanathapura District Co.Op. Central Bank Ltd. (supra) has held as under:
"Held, that (i) interest on securities, (ii) subsidies from the Government, and (iii) dividend received by the assessee, a co-operative society carrying on banking business, were business income of the assessee, and the assessee was entitled to deduction under section 80P(2)(a)(i) of the Income Tax Act, 1961, in respect thereof Respectfully following the above mentioned decision of Special Bench, the decision of Hon.Jurisdictional High court in the case of CIT vs. Baroda Peoples Co-op.Bank Ltd. (supra) and the decision of Hon.Supreme Court in the above case, we hold that Ld. CIT(A) was wrong in not granting the relief to the assessee and, therefore, we reverse the order of CIT(A) and allow both the appeals of the assessee."MA No.114/Ahd/2010
( In ITA No. 371/Ahd/2006) Charotar Nagrik Sahakari Bank Ltd. vs. ACIT Asst.Year - 2002-03 -3-
3.It seems that in deciding the above appeal, Hon'ble Members of 'B' Bench of ITAT have not considered in the order the grounds stated in para-1 above, which were specific and were different from the grounds of A.Y. 2000-01 which are as follow:-
"1. Ld. Commissioner of Income Tax (Appeals) has gravely erred in not treating the income earned on investment with Sardar Sarovar Narmada Nigam Ltd. as not permitted and treated as not covered for deduction u/s.80P(2)(a)(i) of the Act.
2. Ld. Commissioner of Income Tax (Appeals) has gravely erred in not treating the income earned on investment with Nationalised Bank as not banking business and treated as not covered for deduction u/s.80P(2)(a)(i) of the Act.
3. Ld. Commissioner of Income Tax (Appeals) has gravely erred in not treating the income earned on money at call and short notice from DFHI and PNB Gifts as not banking business and treated as not covered for deduction u/s.80P(2)(a)(i) of the Act.
4. Ld. Commissioner of Income Tax (Appeals) has gravely erred in not following the principle laid down in case of Surat Dist. Co.Op. Bank Ltd. vs. The ITO Ward-2(6) Surat where entire income of a co-operative bank is available as deduction u/s.80P(2)(a)(i) of the Act.
Entire income be fully allowed as deduction available and total income be reduced to Rs.Nil.
4. In view of the above order passed, it appears that the Hon'ble ITAT 'B' Bench has not dealt with or decided specifically the grounds stated above paragraph No.1 for A.y. 2002-03 in the order.
MA No.114/Ahd/2010( In ITA No. 371/Ahd/2006) Charotar Nagrik Sahakari Bank Ltd. vs. ACIT Asst.Year - 2002-03 -4- 2.1. Ld.AR has also pleaded that while giving the effect of the order of the Tribunal, the concerned Revenue Officer has not granted the requisite relief in respect of capital gain and income from other sources. The Revenue Officer has followed Hon'ble Supreme Court decision, i.e. CIT vs. Ramanathapuram District Co-operative Central Bank Ltd. 255 ITR 423(SC) as directed by the Tribunal but due to the specific direction of granting exemption or reduction from the total income of capital gain and other sources again an assessment was made on income of Rs.2,04,72,502/-, though the Co-operative Bank happened to be totally exempt from tax.
3. From the side of the Revenue ld.DR Mr.Samir Tekriwal appeared and placed reliance on the order of the Tribunal and argued that the appeal of the assessee was allowed in the light of few decisions cited at that time by the ld.AR Mr.Patel. He has drawn our attention on paragraph Nos.3, 5 & 6 of the order of the Tribunal, reproduced below for ready reference:-
"3. At the outset the ld. AR of the assessee pointed out that this issue is now covered by the decision of Hon. Supreme Court in the case of CIT vs. Ramanathapura District Co-op. Central Bank Ltd. 255 ITR 423 (SC) [copy of which has been placed on record] and also by the decision of the Tribunal in the case of Surat District Co-op.Bank Ltd. vs. ITO 85 ITD 1 (SB).
...MA No.114/Ahd/2010
( In ITA No. 371/Ahd/2006) Charotar Nagrik Sahakari Bank Ltd. vs. ACIT Asst.Year - 2002-03 -5-
5. We have carefully considered the rival submissions in the light of material placed before us. We find force in the contention of ld. AR that the issue is squarely covered by the decision of Special Bench in the case of Surat District Co-op.Bank Ltd. vs. ITO 85 ITD 1 (SB). Vide aforementioned decision of SB it has bee held as under:
"57. I view of the aforesaid discussions, we are of the considered opinion that the entire income in question viz., interest income on investments in Government Securities, Fixed Deposits, KVPs and IVPs, investments with UTI etc., out of surplus/idle money available from working capital including voluntary reserves, excess collection of interest tax and locker rent are all income attributable to business of banking and are eligible for grant of deduction under section 80P(2)(a)(i) of the Act."
6. The Hon.Supreme Court in the case of CIT vs. Ramanathapuram District Co-op.Central Bank Ltd. (supra) has held as under:-
"Held, that (i) interest on securities, (ii) subsidies from the Government, and (iii) dividend received by the assessee, a co-operative society carrying on banking business, were business income of the assessee, and the assessee was entitled to deduction under section 80P(2)(a)(i) of the Income-tax Act, 1961, in respect thereof."
Respectfully following the above mentioned decision of Special Bench, the decision of Hon.Jurisdictional High Court in the case of CIT vs. Baroda Peoples Co-op. Bank Ltd. (supra) and the decision of Hon.Supreme Court in the above case, we hold that ld. CIT(A) was wrong in not grating the relief to the assessee and, therefore, we reverse the order of CIT(A) and allow both the appeals of the assessee."
MA No.114/Ahd/2010( In ITA No. 371/Ahd/2006) Charotar Nagrik Sahakari Bank Ltd. vs. ACIT Asst.Year - 2002-03 -6-
4. Having heard the submissions of both the sides, we are of the conscientious view that no mistake at all was committed by the Tribunal as indicated by the applicant. The Tribunal has referred a decision of Surat District Co-operative Bank Ltd. & Ors. vs. ITO & Ors. 85 ITD 1 (SB) and also noted that the said decision was approved by the Hon'ble Jurisdictional High Court in the case of CIT vs. Baroda Peoples Co- operative Bank Ltd. 280 ITR 282 (Guj.). Paragraph No.3 of the impugned order of the Tribunal clearly referred that ld.AR Mr.M.G.Patel had stated that the issue was covered by CIT vs. Ramanathapuram District Co-operative Central Bank Ltd. 255 ITR 423 (SC). Now the contention is that the referred decision of the Hon'ble Supreme Court prescribes relief also in respect of capital gain and that was not duly considered by the AO. In our considered opinion, in a situation when a Revenue Officer either do not follow an order of the Supreme Court or do not correctly apply the ratio laid down therein or if do not follow the law laid down therein, then he is the one who has committed the mistake. As far as the Tribunal is concerned, the appeal of the assessee was allowed following the cited decisions and once an appeal has been allowed, then consequential effect ought to have been given by the AO. Due to this reason, there should not be any grievance against the order of the Tribunal but it should be, if at all, against the order of the AO while giving effect to the order of the Tribunal. That is why on enquiry, ld.AR Mr.Patel has made a statement at the Bar that against the order giving effect to the ITAT's order, a remedial action has already been taken by filing an application u/s.154 of IT Act, as also an appeal has already been filed. Under these circumstances, we hereby hold that there was no MA No.114/Ahd/2010 ( In ITA No. 371/Ahd/2006) Charotar Nagrik Sahakari Bank Ltd. vs. ACIT Asst.Year - 2002-03 -7- mistake on the part of the Tribunal so as to rectify u/s.254(2) of IT Act, hence hereby dismiss this miscellaneous petition.
5. In the result, miscellaneous application filed by the Assessee is dismissed.
यह आदे श खुले Ûयायालय मɅ सुनाया गया है ।
This Order is pronounced in open Court on 13 /01/2012
Sd/- Sd/-
(ए.मोहन अलंकामोनी) (मुकुल कुमार ौावत)
लेखा सदःय Ûयाियक सदःय
( A. MOHAN ALANKAMONY ) ( MUKUL Kr. SHRAWAT )
ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 13/ 01 /2012
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 Applicant
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
1. Date of dictation.......................13.1.2012
2. Date on which the typed draft is placed before the Dictating Member 13.1.2012.................. Other Member.....................
3. Date on which the approved draft comes to the Sr.P.S./P.S.............
4. Date on which the fair order is placed before the Dictating Member for pronouncement......
5. Date on which the fair order comes back to the Sr.P.S./P.S.............13.1.2012
6. Date on which the file goes to the Bench Clerk........................ 13.1.2012
7. Date on which the file goes to the Head Clerk..................................
8. The date on which the file goes to the Assistant Registrar for signature on the order..........................
9. Date of Despatch of the Order..................