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Income Tax Appellate Tribunal, “B” BENCH : BANGALORE
Before: SHRI A. K. GARODIA & SMT. BEENA PILLAI
Per A.K. Garodia, Accountant Member
This appeal is are filed by the assessee and the same is directed against the order of learned CIT(A), Hubballi, dated 20.03.2018, for the Assessment Year 2009-10. The assessee has raised 3 grounds of appeal but the only grievance of the assessee is regarding disallowance of the assessee’s claim for deduction of Rs.20,72,110/- under section 80P of the Income Tax Act, 1961.
In the course of hearing, it was submitted by learned AR of the assessee that as per the orders of authorities below, two judgments of Hon’ble Apex Court have been followed i.e., the judgment rendered in the case of Citizens
Page 2 of 4 Co-operative Society Ltd. as reported in 397 ITR 1 and in the case of Totgar’s Co-operative Sale Society Ltd., 322 ITR 283 (SC). He submitted that there is no discussion on this aspect as to whether the facts in the present case and in the case of Citizens Co-operative Society Ltd. (supra) are similar or not. He further submitted that the judgment of Hon’ble Apex Court rendered in the case of Totgar’s Co-operative Sale Society Ltd., (supra) is not applicable in the present case because the facts are different. He submitted that in that case, the decision was on this basis that the money invested was out of assessee’s liability and not out of assessee’s own funds but in the case of Tumkur Merchants Souharda Credit Co-operative Ltd., 230 Taxmann 309 (Karnataka), similar issue was decided in favour of the assessee because in that case, it was found that the amount invested was out of assessee’s own funds and not out of assessee’s liability. He submitted that under these facts, the entire matter should be restored back to the AO for fresh decision after examining the facts of the present case. As against this, learned DR of the Revenue supported the orders of authorities below. He also submitted that in the present case, there is an order of CIT under section 263 which has become final and the present Assessment Order is under section 143(3) r.w.s. 263 of the Income Tax Act, 1961. He supported the order of CIT(A).
We have considered the rival submissions. We find that although learned CIT(A) discussed about the judgment of Hon’ble Apex Court rendered in the case of Citizens Co-operative Society Ltd., (supra) in para 10.2 of his order, but there is no discussion on this aspect as to whether the facts in the present case and in that case are similar or not. Hence, we feel it proper to set aside the order of CIT(A) and restore the matter back to his file for a fresh decision after examining the facts of present case in the light of judgment of Hon’ble Apex Court rendered in the case of Citizens Co-operative Society Ltd., (supra). If it is found that the facts are similar and this judgment is Page 3 of 4 applicable, then obviously no further decision is required but if it is found that this judgment is not applicable in the present case because of difference in facts, then the issue on merit should also be decided afresh, after examining the facts of the present case in the light of the judgment of Hon’ble Apex Court rendered in the case of Totgar’s Co-operative Sale Society Ltd. (supra) and judgment of Hon’ble Karnataka High Court rendered in the case of Tumkur Merchants Souharda Credit Co-operative Ltd. (supra) and if it is found that the facts of the present case are in line with the facts in the case of Totgar’s Co-operative Sale Society Ltd., (supra), then it should be held that the assessee is not eligible for deduction under section 80P of the Income Tax Act, 1961 but if it is found that the facts are similar with the facts in the case of Tumkur Merchants Souharda Credit Co-operative Ltd., (supra), then it should be held that the assessee is eligible for deduction under section 80P of the Income Tax Act, 1961. Needless to say, learned CIT(A) should provide reasonable opportunity of being heard to both sides and he should pass a speaking and reasoned order.
In the result, appeal of the assessee is allowed for statistical purposes.
Pronounced in the open court on the date mentioned on the caption page.