DCIT, CIR-3, SILIGURI, DARJEELING vs. DARJEELING DISTRICT CENTRAL CO-OPERATIVE BANK LTD., DARJEELING

These appeals by the revenue are against the order of Commissioner of Income Tax (Appeals)-Siliguri dated 05.12.2013. Assessments were framed by ACIT, Circle- 3, Siliguri u/s 147/143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 19.03.2013 for assessment years 2007-08 to 2010-11. The grounds raised by the revenue as per its appeal are as under:-

Whether on the facts and in the circumstances of the case, the Ld. CIT(A), Jalpaiguri, was justified in law, in granting deduction u/s 36(1)(viia)(a) to the assessee disregarding the fact that such deduction had not been claimed in the income-tax returns filed by the assessee and that the I.T. Act, provides for deductions to be allowed 0 the basis of claims made in the income-tax return.

Whether on the facts and in the circumstances of the case, the Ld. CIT(A), Jalpaiguri, was justified in law, in granting deduction u/s 36(1)(viia)(a) to the assessee accepting it's status as a scheduled bank, disregarding the fact that throughout the assessment proceedings the assessee had insisted on its status as a primary agricultural society and had admitted it's status as a bank only during the appellate proceedings.”

We have heard the ld. DR and perused the materials available on record. From the perusal of the facts we find that the ld. CIT(A) has passed an order after considering the submissions of the assessee along with the revised grounds of appeal dated 4th December, 2013. But no remand report was called for from the AO. It is also evident from the order of ld. CIT(A) which was passed on 5th December, 2013 and the submission along with the revised grounds of appeal was made by the assessee on dated 4th December, 2013. From the above discussion we hold that the ld. CIT(A)has passed the impugned order without taking the remand report. This action of the ld. CIT(A) is in violation of the provision of Rule 46A of the Income Tax Rules which read as under :- “Production of additional evidence before the Deputy Commissioner (Appeals0 and Commission (Appeals) 46A (1)…………………………………………………………… (2)………………………………………………………………. (3) The Deputy Commissioner (Appeals) [ or as the case may be, the Commissioner (Appeals) shall not take into account any evidence produced under sub-rule (1) unless the Assessing Officer has been allowed a reasonable opportunity – (a) to examine the evidence or document or to cross-examine the witness produced by the appellant, or (b) to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant.”

In view of the above provision of Rule 46A of the IT Rules, 1962 we hold that the ld. CIT(A) has passed order against the provision of law. Therefore in the interest of justice and fair play we are inclined to restore the issue to the file of AO for fresh adjudication as per law. Hence this ground of appeal of the revenue is allowed for statistical purposes.

At the outset we find that the facts of the case in these appeals are same as narrated above in and that appeal has been allowed by us for statistical purposes. Now considering the above we restore these appeals to the AO in ITA Nos.87 to 90/Kol/2014 A.Y. 2007-08 to 2010-11 Page 4 DCIT, Circle-3, Siliguri vs Darjeeling Dist. Central Coop.Bank Ltd. terms of the above hence these appeals of the revenue are allowed for statistical purposes.

In the result, revenue’s appeals stand allowed for statistical purpose. Order pronounced in open court on 16 /09/2016