THE AMROLI VIBHAG VIVIDH KARYAKARI SAHAKARI MANDLI LTD.,,SURAT vs. THE DY.CIT.,CIRCLE-2(3),, SURAT

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND Dr ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA No. 2198/AHD/2015& ITA No.2386/AHD/2016(AY 2009-10) (Hearing in Virtual Court) The Amroli Vibhag Vividh Assistant Commissioner of Karyakari Sahakari Mandli Income Tax Officer, Circle- Vs Ltd., Utran, Amroli, 6/DCIT, Circle-2(3), Room Tal: Choryasi, Dist. Surat No.612, Aaykar Bhavan, PAN : AAAAT 3043 M Majura Gate, Surat Appellant / assessee Respondent / Revenue

ITA No. 3278/AHD/2015 & ITA No.1764/AHD/2017 (AYs 2012-13 & 2014-15)

The Amroli Vibhag Vividh DCIT, Circle-2(3), Karyakari Sahakari Mandli Room No.612, Vs Ltd., Utran, Amroli, Tal: AaykarBhavan, Choryasi, Dist. Surat Majura Gate, Surat PAN : AAAAT 3043 M Assessee / appellant Revenue /respondent

Assessee by Shri Mehul K. Patel- AR Revenue by Ms. Anupama Singla – Sr-DR Date of hearing 18.10.2021 Date of pronouncement 09.11.2021 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. These four appeals by assessee are directed against the separate orders of ld. Commissioner of Income tax (Appeals)-1 Surat dated 30.04.2015, 22.07.2016, 07.09.2015 & 15.05.2017 for assessment years (AY) 2009-10, 2012-13 & 2014-15 respectively. In all appeals, the assessee has raised certain

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. common grounds of appeal, therefore, all the appeals were clubbed, heard and are decided by a consolidate order to avoid the conflicting decisions. In ITA No.2198/AHD/2015, the assessee has raised the following grounds of appeal:- “(1) That on facts and in law, the learned CIT(A) has grievously erred in confirming the disallowance of Rs.1,01,650/- made u/s 40A(3) of the Act.” 2. Brief facts of the case are that assessee is a co-operative society engaged in marketing of agricultural produce of its members and also running a consumer stores. For assessment order (AY) 2009-10, the assessee filed return of income on 02.09.2009 declaring income of Rs.19,69,068/-.The case was selected for scrutiny assessment and the assessment was completed under section 143(3) of the Act, 1961 (in short ‘the Act’) by making disallowance under section 40A(3) of Rs.1,01,650/- on account of payment made to transporters in cash in excess of Rs. 20,000/- in day. On appeal before the Ld. CIT(A) the disallowance was upheld in order dated 07.11.2012.Further aggrieved the assessee filed before the Tribunal. The Tribunal restored the matter back to the Assessing Officer to decide the issue de novo. 2

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. 3. In the de novo proceedings, the Assessing Officer noted that assessee purchased fire crackers from Shivkashi and made payment for transportation. The assessee was asked to furnish the receipt of transportation and voucher thereof. On perusal of such receipt and voucher, the Assessing Officer noted that payments to transporter was made in cash on different dates in the month of August and October, as recorded in para-3 of assessment order. The Assessing Officer further noted that before Tribunal the assessee stated that the assessee has not made payment exceeding Rs.20,000/- on aggregate, in order to attract the provision of section 40A(3) of the Act. On making such submission, the case was remitted back to the file of Assessing Officer to examine such facts. The Assessing Officer further recorded that as per direction of Tribunal, the issue was examined afresh. 4. The Assessing Officer made the following summary of payments made in cash in a day:- Date Transporter Consignor’s name Amount G.C. No. 14.08.2008 3520 Vinayga Fire Works -- Industries 14.08.2008 3519 Vinayga Fire Works -- 3

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd.

Industries 14.08.2008 3518 Sony Serpent Eggs Factory -- 14.08.2008 3517 Vinayga Fire Works -- 14.08.2008 3515 Micky Paper Caps Works -- Total 42,000 18.08.2008 3521 Vinayga Fire Works -- Industries 18.08.2008 3523 Sony Fire Works (P) Ltd -- 18.08.2008 3524 Sony Fire Works -- 18.08.2008 3525 Amar Sparklers Factory -- 18.08.2008 3522 Amar Sparklers Factory -- Total 37,250 13.10.2008 4233 Vinayga Fire Works 2610 Industries 13.10.2008 4234 Vinayga Fire Works 7250 Industries 13.10.2008 4235 Micky Paper Caps Works 1595 13.10.2008 4236 Sony Ring Caps 2175 13.10.2008 4237 Sony Fireworks 4350 13.10.2008 4238 Vinayga Fire Works 2030 13.10.2008 4239 Amar Sparklers Factory 2100 13.10.2008 4240 Amar Sparklers Factory 290 Total 22,400

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. added to the total income of assessee. The assessee filed its reply dated 20.10.2014. In reply, assessee stated that as per conditions No.6 & 17 printed on the back side of transport bill, the delivery of goods was required to be taken within seven days’ from the date of receipt of the goods at destination, failing which normal demurrage at 10 paisa per article per day was chargeable. Thus, the condition specified that if the transporters are not paid their charges the recipient (assessee) is liable to pay demurrage charges. Further condition No.17 states that further charges if not paid or payable at the time of delivery the company (transporter) has lien on the goods carry for freight and further charges not paid, the consumer is primarily liable for payment of freight and other charges. Thus, condition No.17 specified that if freight is not paid by the assessee, at the time of delivery there would be lean on the goods transported by the transporter, this was also one of the reason for making cash payment. The reply of assessee was not accepted by Assessing Officer by taking view that assessee simply reiterated which was already rejected. During first round of appeal the assessee before Tribunal, stated that they have not made any payment exceeding 5

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. Rs.20,000/- in order to attract the provision of section 40A(3), and on the other hand the assessee in its submission dated 17.09.2014 stated that they were compelled to make payment in cash. And that the case of assessee is not covered under Rule- 6DD(j) of the Income Tax, Rule, 1962. On the basis of aforesaid observation, the Assessing Officer maintained the disallowance in the order dated 27.10.2014 passed under section 143(3) r.w.s. 254 of the Act. 6. On further appeal before the Ld. CIT(A), the action of Assessing Officer was upheld. The Ld. CIT(A) vide confirming the action of Assessing Officer also recorded that before Tribunal, the Ld. AR of the assessee claimed that none of the payment made by assessee was exceeding Rs.20,000/- in a single day. He called relevant bills and voucher to verify the stand of the assessee before Tribunal, in first round of appeal. On verification of details, the Ld. CIT(A) held that the payments were made in a day to one person, exceeding Rs.20,000/-.Therefore, Ld. CIT(A) also held that Ld. AR of the assessee guilty of forgery for made false statement before the Tribunal. Further aggrieved assessee has filed present appeal before the Tribunal. 6

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. 7. We have heard the submissions of Ld. Authorized Representative (AR) for the assessee and ld.Sr. Departmental Representative (DR) for the Revenue and perused the materials available on record. The ld. AR of the assessee submits that assessee is a co- operative society, carrying its activity in the interest of farmers as well as their members. The assessee has made genuine expenses, incurred on transport charges for purchase of fire crackers from Shivkashi. The assessee made total sale of crackers of Rs.1.69 crores and has shown gross profit of Rs.38.35 lakh, i.e. 22.6% and has paid tax of Rs.6,35,196/-.The assessee is showing good turnover as well as profit on sale of cracker. The assessee is not a general business. The assessee- society running its activity under the control of State Government, Board, Select Committee, who are not having vested interest. The books of assessee are audited by State Government and internal auditors as well as by independent auditor. The Ld. AR for the assessee further submits that as per the condition printed on back side of transport bills, there was two significant conditions i.e. condition No. 6 and 17. As per condition No.6,if the delivery of goods is not received by 7

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. consignee within seven days from the date of receipt of goods at the destination, demurrage charges, was payable at the time of delivery of goods, this was one of the reason for making cash payment. Further, as per condition No.17, if the freight charges and other charges are not paid at the time of delivery, the transporter has lien on the goods carried on freight and other charges, which if not paid. This was one other reason to make cash payment. 8. The ld.AR for the assessee further states that genuineness of payment is not doubted. Out of more than Rs.1.00 crore only Rs.1 lakh was paid in cash. The Ld. AR for the assessee submits that the paramount consideration of Rule 6DD(j) to reduce the possibility of black-money as held by Hon'ble Supreme Court in the case of Attar Singh Gurmukh Singh vs. ITO (1991) 191 ITR 667 (SC), however, it does not eliminate the condition of business expediencies. The ld. AR for the assessee submits the Hon'ble jurisdictional High Court in the case of Anupam Tele Services vs. Income Tax Officer (2014) 43 taxmann.com 199 (Guj) has laid down certain guidelines / conditions to allow cash payment under certain circumstances. The ld. AR for the 8

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. assessee submits that Hon'ble jurisdictional High Court has laid down certain conditions herein, the cash payment is allowable. The assessee was compelled under the circumstance to pay the said amount in cash at the time of delivery of fire crackers to avoid the demurrage charges and assessee was having bona fide reasons. The Ld. AR for the assessee prayed for deleting the entire addition. 9. On the other hand, Ld. Sr. DR for the Revenue supported the order of Assessing Officer. The ld. Sr.DR for the revenue submits that assessee has relied upon the decision of Hon'ble jurisdictional High Court in the case of Anupam Tele Services (supra) which relates to assessment year 2006-07.The Rule 6DD(j) of the IT Rules was amended in 2008 and after amendment certain exception is provided for allowing cash payment. The ratio of the decision relied by Ld. AR for the assessee is not applicable on the facts of the present case. And all other remaining submissions has already been considered by the assessing officer and ld CIT(A). The assessee is not entitled for any relief.

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. 10. We have considered the rival submission of both the parties and have gone through the order of lower authorities. We also deliberate on the case law relied by Ld. AR of the assessee. The Assessing Officer disallowed the payment of Rs.1.01 lakh by taking view that assessee has made payment in cash to one party aggregate of Rs.20,000/- in a day. The Assessing Officer also held that the case of assessee is not covered under Rule 6DD(j) of the IT Rules. The Ld. CIT(A) confirmed the action of Assessing Officer with similar view. Before us Ld. AR of the assessee make two fold submission, number (i) the genuineness of expenses are not in doubt and number (ii) there was certain conditions printed condition on the back side of bills of transporter, wherein in case of delay in delivery, the assessee was liable to pay demurrage charges. On both the submission, we have given our thoughtful consideration. On considering the first submission, that genuineness of the expenses is not doubted, we find that here the issue before us is whether the assessee has reasonable cause in making payment in cash of more than Rs. 20,000/- in a day or not. Similarly on the second submission that the assessee was compelled by the conditions 10

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. No.6 and 17 printed on back side of bill of transporter. We find that the assessee has not disclosed the fact as to when the consignment reached at the destination and when the deliveries of goods were received by assessee. No such expediencies are disclosed by the assessee that either transporter insisted for cash payment or the assessee was unable to prepare the cheque against such delivery immediately. Further it is not the case of assessee that the assessee was maintaining the bank account in co-operative Bank and realisation of cheque from their banker take a longer time. In our view the case law relied by Ld. AR of the assessee in Anupam Tele Services (supra) is not applicable on the facts of the present case. In the said case, the principal company insisted that payment by cheque which was drawn a co-operative bank takes longer time in realization and they insisted for payment. Moreover, the said case law relates to assessment year 2006-07. The Rule 6DD has been amended in the year 2008 by making significant changes with effect from assessment year 2009-10, which is subject assessment year in the present case.

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. 11. We find one more reason as recorded by ld CIT(A) that during the first round of appeal before the Tribunal, the Ld. AR of the assessee took his stand that assessee has not made payment exceeding of Rs.20,000/- or aggregate of exceed of Rs.20,000/- in order to attract the provision of section 40A(3) of the Act. The assessee instead of substantiating that submission raised a new plea by taking the excuse of alleged conditions No.6 and 17, allegedly printed on back side of bill of transporter. No such copy of bill is produced for our perusal. In aforesaid circumstances, we do not find any justification to interfere with the order of Ld. CIT(A). In the result, the ground of appeal raised by the assessee is dismissed. 12. In the result, appeal of assessee is dismissed. ITA No.2386/AHD/2016 AY 09-10 (AO order under section 143(3)/147) 13. The assessee has raised the following grounds of appeal:- “(1) That on facts and in law, the learned CIT(A) has grievously erred in confirming the disallowance of deduction u/s 80P(2)(a)(iii) of the Act of Rs.4,02,379/-.” 14. Further vide application dated 03.08.2021the assessee has raised the following additional ground:-

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. “1. That on facts and in law, and in the alternate and without prejudice, deduction u/s 80P(2)(a)(i) and section 80P(2)(a)(iv) of the Act ought to be granted to the appellant.” 15. Brief facts of the case are that assessment was initially completed on 28.10.2011. Subsequently, the case was re-opened under section 147. Notice under section 148 dated 11.03.2015 was served upon the assessee. In response to notice under section 148 of the Act the assessee filed its reply dated 18.09.2015, stating that return of income filed on 02.09.2009 be treated as return of income in response to notice under section 148 of the Act. During the reassessment Assessing Officer recorded that on verification of Audit report, it was noticed that assessee claimed deduction of Rs.4,02,379/- under section 80P(2)(a)(iii) of the Act. As per provision of 80P(2)(a)(iii), the assessee is not eligible for such deduction. The Assessing Officer after serving statutory notice proceedings proceeded for re- assessment and issued show cause notice for disallowing the same. The contents of show cause notice extracted in para-6 of the assessment order. In response to show cause notice, the assessee filed its reply dated 18.09.2015. In the reply the assessee contended that sub-clause of (iii) of sub-section (2) of 13

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. section 80P, provides deduction to co-operative societies engaged in the business of marketing of agricultural produce grown by its members. The assessee claimed deduction on the certain following income:-

Particulars Amount (Rs) Interest – Sabhasad Mal Karaj Rs.3,17,614 Interest on Shak &Fal Karaj Rs. 17,474 Interest tractor Khedankharaj Rs. 58,515 Interest Kamachari Mal Karaj Rs. 6,457 Interest on ThresharKhedanKharaj Rs. 2,319 T O T A L Rs.4,02,379 16. The assessee further stated that they are selling fertilizers; seed etc. to its members and credit the assessee is in earning interest from profit for sale of products. Similarly, assessee providing tractor as well as thresar facilities to its members who do not own their agricultural implements. The assessee has also given short term advances for agriculture products and interest earned on it. Thus, all such income, the assessee claimed deduction under section 80P(2)(a)(iii).The assessee also relied on certain case law. The reply of assessee was not accepted by Assessing Officer. The Assessing Officer held that assessee claimed wrong deduction of Rs.4,02,379/- under section 80P(2)(a)(iii). 14

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. Accordingly, the AO disallowed the claim of Rs.4,02,379/- under section 80P(2)(a)(iii) in re-assessment order passed under section 143(3) r.w.s. 147 dated 16.12.2015. 17. Aggrieved by the disallowance, the assessee filed appeal before Ld. CIT(A). The assessee challenged the disallowance under section 80P(2)(a)(iii) only. Thus, reopening under section 147 attained finality. Before Ld. CIT(A) the assessee made almost similar submission as made before the Assessing Officer. The submission of assessee is extracted in para-5 of order of Ld. CIT(A). The Ld. CIT(A) after considering the submissions of assessee held that the similar deduction on similar items was withdrawn by assessee in assessment year 2010-11. The Ld. CIT(A) held that similar issue are raised in assessment year 2012-13, which has been decided by him, against the assessee vide order dated 07.09.2015 and therefore, following the rule of consistency, the ground of appeal raised by assessee was dismissed. 18. The assessee’s alternatively contention that item of income which is realized on immediate and proximate source of income earned from lending tractors, threshers on hire and interest 15

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. income on loan / advance / credit allowed to members and not from marketing of agriculture products, credit were allowed to the members on their purchases of fertilizers and seed by assessee-society and the same was not connected to sale of their product. The credit was allowed to their members on their purchase of fertilizer and seed and other items and not for sale of their produce. The deduction is qua the specific nature of activity from which the assessee-society earned its income not qua the activities of the society. The Ld. CIT(A) held that there is no dispute between assessee and the Assessing Officer that assessee-society intends to avail deduction under section 80P(2)(a)(iii) of the Act on non-eligible activities. The sub-clause (iii) of clause (a) of sub-section (2) of section 80P(2) prescribed that income / gains attributable to “marketing of agricultural produce grown by its members”. Thus, on plain reading of it, there is no ambiguity about the provision, which needs to be literally interpreted. Thus, ld. CIT(A) also rejected alternate contention of the assessee that assessee is not eligible on alternative plea. Aggrieved by the order of ld CIT(A) in confirming the addition/ disallowance of deduction claimed under section 16

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. 80P(2)(a)(iii), the assessee has filed present appeal before this Tribunal. 19. We have heard the submission of the Ld. AR for the assessee and the Ld. Sr. DR for the Revenue and have gone through the order of authorities below. The Ld. AR of the assessee submits that the assessee has raised additional ground of appeal before Tribunal. No new additional fact is required to be brought on record for adjudication of additional ground of appeal. The fact necessary required for adjudication of additional grounds of appeal are emanating from the order of lower authorities. To support his submissions, the ld. AR of the assessee relied on the decision of Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. vs. Commissioner of income-tax (1998) 229 ITR 383 (SC). 20. On the other hand, the ld. Sr.DR of the Revenue objected for raising the additional ground of appeal. The ld. Sr.DR of the Revenue submits that there is no finding of Assessing Officer or ld. CIT(A) qua the additional ground of appeal raised by assessee at this stage. The assessee wants to set up new case at this stage; such plea as raised by the assessee was not examined by 17

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. the lower authorities. The assessee cannot raise such new plea which was not raised before lower authorities without giving opportunity to the lower authority for considering such plea. The Ld. Sr-DR of the Revenue submits that additional ground of appeal may not be admitted. 21. In the alternative and without prejudice submissions, the ld. Sr. DR for the revenue submits that in case, the Bench deem it necessary to admit the additional ground of appeal, the additional issues/ grounds may be restored to the file of assessing officer or ld. CIT(A) for considering it afresh in accordance with law. 22. In rejoinder submission, Ld. AR of the assessee submits that no additional facts are is required to be brought on record. The assessee merely seeking indulgence of the Tribunal for invoking appropriate provisions of section 80P (2) and the issue may be decided by Tribunal. 23. On merits of the additions and the objection of ld CIT(A) that similar claims were surrendered by assessee in earlier year, the ld.AR of the assessee submits there cannot be any estoppels against the law. As no tax can be levied without authority of law. 18

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. To support his submission, Ld. AR of the assessee relied upon the decision of Hon'ble jurisdictional High Court in the case of P.V. Doshi Vs Commissioner of Income-tax (1978) 113 ITR 22 (Guj). The ld. AR of the assessee submits that Hon'ble jurisdictional High Court in PV Doshi (supra) held that jurisdiction could not be confronted by the authority by mere consent but only on condition precedent for the exercise of jurisdiction being fulfilled. If the jurisdiction cannot be afford by consent, there would be no question of existence or estoppels or the bar of res judicata being attracted because in such case, would enhance jurisdiction unless precedent condition and it would be a void order of enacting. The ld. AR of the assessee on the merit of additional ground of appeal submits that the claim of assessee clearly falls under 80P(2)(a)(i) or (iv) and the assessee is alternatively eligible for deduction under the respective sub- clause of clause (a) sub-section 80P. 24. We have considered the rival submission of both the parties and perused the order of lower authorities. We have also deliberated on the case law relied by the ld. AR of the assessee. We find that the Assessing Officer disallowed the deduction of income on 19

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. different items of income claimed under section 80P(2)(a)(iii) by taking view that assessee is not eligible for such deduction and has made a wrong claim. The Ld. CIT(A) upheld the order of Assessing Officer taking view that during the assessment proceedings for assessment year 2010-11, similar deduction was withdrawn by assessee on similar items and that in appeal for assessment year 2012-13 the issue was decided against the assessee. In our view, there is no estoppel against the law. Mere surrender of any claim in particular year would not debar the assessee for claiming such claim in subsequent years, for which the assessee is legally entitled. 25. Before us, the ld. AR of the assessee has not argued anything on the ground of appeal against originally. Thus, the original ground of appeal is treated as not pressed and dismissed. The ld. AR for assessee made emphasis that assessee is eligible for deduction under section 80P(2)(a) (i) & (iv) of the Act. We find that the assessee has claimed deduction on account of various income which we have recorded in para 15 (supra). Considering the fact that assessee has raised additional grounds of appeal for the first time before Tribunal. No new facts are required to 20

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. adjudicate the additional grounds of appeal. The assessee in facts seeking deduction under different clauses of section 80P(2)(a) only. In our view, the assessee has right to raise new claim in additional ground of appeal before the appellate authority as has been held by series of decisions of superior courts. Therefore, the additional grounds of appeal raised by the assessee are admitted. 26. However, considering the fact that the assessee has raised alternative plea for claiming the deduction under different sub- clause of clause-(a) and sub-section 80P, for the first time before the Tribunal. Therefore, we deem it appropriate to restore the issue back to the file of Ld. CIT(A) who shall examine the alternative plea of assessee and pass the order in accordance with law. The ld. CIT(A) would be at liberty to seek the remand report from the Assessing Officer on the alternative claim of assessee. The assessee is also directed to provide complete details and evidence before Ld. CIT(A) as and when called for and not to take any adjournment without any valid reason as the case relates to assessment year 2009-10. In the result the additional ground of appeal is allowed for statistical purpose. 21

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. 27. In the result, assessee’s appeal is allowed for statistical purposes in above terms. ITA No.3278/Ahd/2015 for AY 12-13. 28. The assessee has raised the following ground of appeal:- “(1) That on facts and in law, the learned CIT(A) has grievously erred in confirming the disallowance u/s 80P(2)(a)(iii) of the Act of Rs.5,34,396/- (2) That on facts and in law, the leaned CIT(A) has grievously erred in confirming the disallowance of Rs.96,700/- made u/s 40A(3) of the Act. (3) That on facts, and evidence on record, the entire disallowances ought to have been deleted as prayed for.” 29. Further vide application dated 03.08.2021 the assessee has raised the following additional ground:- “1. That on facts and in law and in the alter4nate and without prejudice, deduction u/s 80P(2)(a)(i) and section 80P(2)(a)(iv) of the Act ought o be granted to the appellant.” 30. We find that alternative ground appeal raised by assessee is identical to the additional ground of appeal raised in ITA No.2386/Ahd/2016 for assessment year 2009-10, which we have restored to the file of Ld. CIT(A). Therefore the additional grounds of appeal is restored to the file of Ld. CIT(A) with similar direction. In the result the additional ground of appeal is allowed for statistical purpose. The ld. AR of the assessee has not argued anything on the ground No.1 of appeal raised primarily. Thus, 22

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. the original ground No.1 of appeal is treated as not pressed and dismissed. 31. Ground No.2 relates to section 40A(3) of the Act, we find that this ground of appeal identical to the sole ground of appeal in ITA No.2198/AHD/2015 for assessment year 2009-10, which we have dismissed. Considering the following principle of consistency, this ground of appeal is dismissed with similar observation. In the result ground No. 2 of the appeal is dismissed. 32. In the result, assessee’s appeal is partly allowed. ITA No.1764/AHD/2017 for AY 14-15. 33. The assessee has raised the following ground of appeal:- “(1) That on facts and in law, the learned CIT(A) has grievously erred in confirming the disallowance u/s 80P(2)(a)(iii) of the Act of Rs.2,65,176/-.” 34. Further vide application dated 03.08.2021 the assessee has raised the following additional ground:- “1. That on facts and in law and in the alter4nate and without prejudice, deduction u/s 80P(2)(a)(i) and section 80P(2)(a)(iv) of the Act ought o be granted to the appellant.”

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. 35. The ld. AR of the assessee has not argued anything on the ground of appeal raised primarily. Thus, the original ground of appeal is treated as not pressed and dismissed. 36. We find that alternative ground appeal raised by assessee is identical to the additional ground of appeal raised in ITA No.2386/Ahd/2016 for assessment year 2009-10, which we have restored to the file of Ld. CIT(A). Therefore, following the consistency, the additional grounds of appeal is restored to the file of Ld. CIT(A) with similar direction. In the result the additional ground of appeal is allowed for statistical purpose. 37. In the result the appeal of the assessee is partly allowed. 38. In the result, the appeals of the assessee in ITA No.2198/AHD/2015 is dismissed and remaining appeal ITA Nos. 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017are partly allowed. A copy of the instant common order be placed in the respective case file(s). Order pronounced in the open court on 09/11/2021 as well as by placing the result on the Notice Board. Sd/- Sd/- (Dr ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 09/11/2021 24

ITA Nos.2198, 3278/AHD/2015, 2386/AHD/2016& 1764/AHD/2017 The AmroliVibhagVividhKaryakari Sahakari Mandli Ltd. Dkp. OutSourcing P.S Copy to: 1. Appellant- 2. Respondent- 3. CIT(A)- 4. CIT 5. DR 6. Guard File True copy/ By order

Assistant Registrar, ITAT, Surat True copy/