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Income Tax Appellate Tribunal, ‘B’ BENCH, CHENNAI
Before: SHRI MAHAVIR SINGHAND SHRI MANOJ KUMAR AGGARWAL
आदेश /O R D E R PER MAHAVIR SINGH, VICE PRESIDENT: These 6 appeals by the assessee are arising out of different orders of Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi in Appeal Nos. CIT(A), Tiruchirappalli – 2/10082/2008-09, 1/10314/2010-11, 2/10315/2010-11,
2 to 168/Chny/2022 2/10272/2011-12, 2/10252/2013-14 & 1/10689/2019-20, all dated 17.12.2021. The assessments were framed by the ACIT, Circle-1, Thanjavur for the assessment years 2006-07 to 2010-11 & 2017-18 u/s.143(3) r.w.s.147 of the Income Tax Act, 1961 (hereinafter the ‘Act’) vide orders dated 16.12.2018 / 27.12.2010 /28.12.2011 / 08.03.2013 / 29.12.2019.
At the outset it is noticed that these appeals are time barred by 28 days as the orders of CIT(A) were received by assessee on 17.12.2021 and appeal was to be filed before Tribunal on or before 15.02.2022, instead the appeal was filed by assessee only on 15.03.2022 thereby delay of 28 days. The assessee has filed condonation petitions along with affidavit stating that the delay was due to Covid-19 pandemic and the Hon’ble Supreme Court in Miscellaneous Application No.665 of 2021 vide order dated 23.03.2020 has given directions that the delay are to be condoned during this period 15.03.2020 to 14.03.2021 and they have condoned the delay up to 28.02.2022 in Miscellaneous Application No.21 of 2022 vide order dated 10.01.2022. In term of the directions of Hon’ble Supreme Court, we condone the delay in filing of these appeals by assessee and admit the appeals for adjudication.
3. The only common issue in these six appeals of assessee is as regards to the claim of deduction u/s.80P(2)(a)(i) to (iv) and u/s.80P(2)(c) of the Act disallowed by the AO and confirmed by the CIT(A) and also the non-consideration of directions of the Tribunal in earlier round in to 853/Mds/2015 for assessment years 2006-07 to 2010-11, vide order dated 24.03.2016. The facts and circumstances in all these appeals of assessee are identical and issues raised are also exactly identical. Even the assessments framed and the order of CIT(A) is almost identically worded. Hence, we will take the facts from assessment year 2007-08. The relevant ground raised
reads as under:-
1. The order of the learned CIT(A) is bad and erroneous in law and against the principles of natural justice.
2. The learned CIT(A) erred in not considering the operative portion of the order of the ITAT dt. 07/11/2019 in its case for the year under consideration in so far as it related to consideration of all grounds.
The learned CIT(A) erred in not considering the Grounds of Appeal in proper perspective and all the issues require a re-visit.
4. We have gone through the grounds raised before CIT(A) and noted that the CIT(A) has not at all adjudicated these issues in term of directions of the Tribunal in earlier years. When these facts were confronted to ld. Senior DR, Shri Ravindra T. Mishra, JCIT, he could
After hearing ld. Senior DR, we noted that the Tribunal in to 853/Mds/2015, supra has directed the CIT(A) in para 7 & 8 as under:- 7. From the grounds of appeal it appears that the assessee has raised one more ground regarding claim of Section 80P(2)(c)(i) of the Act as applicable to the consumer co-operative society as far its activity relating to public distribution system is concerned. This ground was raised by way of another additional ground before the CIT(Appeals). Unfortunately, the CIT(Appeals) has not decided the same. In fact, the CIT(Appeals) rejected the claim of the assessee on the ground that the same was not raised by way of a revised return. We have carefully gone through the judgment of Apex Court in Goetze (India) Ltd. (supra). The Apex Court in categorical terms held that the power of this Tribunal may not impinge for admitting the additional grounds. When the assessee specifically claims by way of additional ground before the CIT(Appeals) that its income was exempted under Section 80P(2)(c)(i) of the Act as consumer co-operative society, this Tribunal is of the considered opinion that the CIT(Appeals) is expected to dispose of the ground raised by the assessee by way of an additional ground. Since such an exercise was not done, this Tribunal is of the considered opinion that the matter needs to be reconsidered by the CIT(Appeals) and dispose of the additional ground raised by the assessee with regard to claim of Section 80P(2)(c)(i) of the Act. Accordingly, the additional ground raised by the assessee before the CIT(Appeals) under Section 80P(2)(c)(i) of the Act in respect of the income generated out of public distribution system, is remitted back to the file of the CIT(Appeals). The CIT(Appeals) shall examine the issue in the light of the provisions of Section 80P(2)(c)(i) of the Act and thereafter decide the same in accordance with law after giving reasonable opportunity to the assessee.
8. The assessee has also raised an additional ground before this Tribunal in respect of starting point of computation of assessed income. The assessee claims that the Assessing Officer has taken the starting point for computing
5 to 168/Chny/2022 assessed income as gross profit. According to the assessee, it should be net profit. Both the authorities below had no occasion to consider this claim of the assessee. Since the issue with regard to claim of deduction under Section 80P(2)(c)(i) of the Act is remitted back to the file of the CIT(Appeals), this Tribunal is of the considered opinion that the additional ground with regard to starting point for computation of assessed income also needs to be considered by the CIT(Appeals). Accordingly, the CIT(Appeals) is directed to consider the starting point of computation of assessed income as to whether it is gross profit or net profit and thereafter decide the issue in accordance with law after giving reasonable opportunity to the assessee.
As the CIT(A) in second round has not adjudicated the issue for assessment years 2006-07 to 2010-11, we again remand the matter back without speaking anything on merits and only the above directions of the Tribunal in earlier round be followed. The matter, accordingly is set aside to the file of the CIT(A) in all these assessment years 2006-07 to 2010-11 on identical issues. Hence, the order of CIT(A) in all these assessment years are set aside and the matter is remanded back to the file of the CIT(A) for fresh consideration. Needless to say, the CIT(A) will provide reasonable opportunity of being heard to the assessee.
Similar are the facts in assessment year 2017-18 in CIT(A) will redecide the issues as directed by the Tribunal in earlier assessment years and also any other issues raised by assessee before him in earlier round because
6 to 168/Chny/2022 the order of CIT(A) is totally non-speaking and no deliberation is done by CIT(A) on the issues raised before him. Accordingly, the order of CIT(A) is set aside and the matter remanded back to the file of the CIT(A) for fresh consideration.
In the result, the appeals filed by the assessee in to 168/CHNY/2022 are allowed for statistical purposes.
Order pronounced in the open court on 3rd August, 2022 at Chennai.