SRI DURGA GANESH CO-OP SOCIETY LTD,UDUPI vs. INCOME TAX OFFICER WARD-2, UDUPI

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ITA 817/BANG/2018Status: DisposedITAT Bangalore04 May 2018AY 2013-143 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal set aside the order of the CIT(A) and restored the matter back to his file. The CIT(A) is directed to pass a fresh speaking and reasoned order after comparing the facts of the present case with the facts of the cited Supreme Court judgment.

What were the facts?

The assessee, a co-operative society, claimed deduction under Section 80P(2)(a)(i). The CIT(A) denied this deduction by relying on a Supreme Court judgment without comparing the facts of the present case.

What were the issues?

Whether the CIT(A) erred in denying deduction under Section 80P(2)(a)(i) by applying a Supreme Court judgment without a proper factual comparison. Whether the CIT(A) correctly classified the assessee as a co-operative bank instead of a co-operative society.

Which sections of the Income-tax Act were involved?

Section 80P(2)(a)(i)

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Income Tax Appellate Tribunal, “SMC-B” BENCH : BANGALORE

Before: SHRI ARUN KUMAR GARODIA

For Appellant: Shri Sandeep .C, CA
For Respondent: Shri Abdul Hakeem .M, JCIT (DR)
Hearing: 23.04.2018Pronounced: 04.05.2018

O R D E R

Per Shri A.K. Garodia, Accountant Member

1.

This is an assessee’s appeal directed against the order of ld. CIT(A)-10, Bangalore dated 26.12.2017 for Assessment Year 2013-14.

2.

The grounds raised

by the assessee are as under. “1. That the order of the learned Commissioner of Income Tax (Appeals), in so far it is prejudicial to the interests of the appellant, is bad and erroneous in law and against the facts and circumstances of the case.

2. The learned Commissioner of Income Tax (Appeals) erred in law, and on facts in denying deduction of Rs. 10,91,452/-claimed u/s 80P(2)(a)(i) of the Act on the ground that the appellant has not confined its operations only with the members and such finding is erroneous in law and against the facts and circumstances of the case.

3. That the learned Commissioner of Income Tax (Appeals) erred in law and on facts in upholding the disallowance u/s. 80P(2)(a)(i) of the Act on a new ground altogether which was not the basis for disallowing the deduction u/s. 80P(2)(a)(i) by the assessing officer.

4. The learned Commissioner of Income Tax (Appeals) erred in law and on facts in concluding that the appellant is a Co-operative Bank and not a Co-operative Society involved in providing credit facility to its members.

5. That the learned Commissioner of Income Tax (Appeals) erred in law and on facts in disallowing the payments made to pigmy agents even though such payments are in the nature of salaries and the same has been clarified vide Circular No. 275/25/2007-IT(B) dated 01.12.2011 Issued by CBDT. Each of the above grounds is without prejudice to one another and the appellant craves leave of the Hon'ble Income Tax Appellate Tribunal, Bangalore to add, delete, amend or otherwise modify one or more of the above grounds either before or at the time of hearing of this appeal.”

3.

It was submitted by ld. AR of assessee that the ld. CIT(A) has decided the issue against the assessee by following the judgement of Hon’ble Apex Court rendered in the case of The Citizen Co-operative Society Ltd. Vs. ACIT as reported in 397 ITR 1 but this judgement is not applicable in the present case because the facts are different. He also submitted that there is no discussion in the order of CIT(A) in respect of comparability of the facts of the present case with the facts of that case. He submitted that the matter may be restored back to the file of CIT(A) for fresh decision by way of a speaking and reasoned order after comparing the facts of the present case with the facts of that case. The ld. DR of revenue supported the order of CIT(A).

4.

I have considered the rival submissions. This is settled position of law that any judgement can be followed only if the facts of that case are at least similar if not identical to the facts of the case on hand. In the present case, the CIT(A) has followed the judgement of Hon’ble Apex Court rendered in the case of The Citizen Co-operative Society Ltd. Vs. ACIT (supra) but there is no discussion regarding the comparability of the facts of the present case with the facts of that case. Hence I set aside the order of CIT (A) and restore the matter back to his file for fresh decision by way of a speaking and reasoned order in which he should compare the facts of the present case with the facts of that case and then decide the issue as per law. Needless to say, adequate opportunity of being heard should be provided to both sides.

5.

In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on the date mentioned on the caption page.

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