THE SEVA VIKAS CO-OP BANK LTD,PUNE vs. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE - 8, PUNE

This is an appeal filed by the assessee directed against the order of learned Commissioner of Income Tax (Appeals) – 6, Pune dated 15.06.2018 for the assessment year 2007-08.

Briefly, the facts of the case are as under :

Being aggrieved by the above additions, the appeal was preferred before the ld.CIT(A)-V, Pune, who vide order dated 21.11.2011 deleted the addition on account of disallowance of loss on investments. The Assessing Officer while passing the consequential order to the order of ld.CIT(A), calculated the tax liability treating the status of the appellant as an Association of Persons (AOP). On receipt of the said consequential order, the appellant had moved an application u/s 154 of the Act seeking rectification of the status of the appellant and the Assessing Officer had passed a rectification order u/s 154 of the Act on 30.03.2016 treating the status of the appellant as AOP and worked out the refund at Rs.39,38,170/- inclusive of interest of Rs.4,13,976/-. Thereafter, the appellant had filed a Grievance Petition through CPGRAM claiming that the appellant had not received the correct interest on refund issued and subsequently, it is found that the PAN of the assessee society was in the status of “trust” and vide letter dt.26.07.2012 was directed to get the status corrected and accordingly, a rectification was carried out on 09.03.2012 and refund amount was correctly issued.

Being aggrieved, an appeal was filed before ld.CIT(A)- 6, Pune, who vide impugned order dismissed the appeal in limine by holding that the appeal was filed against the grievance petition disposal letter dt.08.06.2016 and not against the order u/s 154 of the Act.

Being aggrieved by the order of ld.CIT(A)-6, Pune, the appellant society is present before us in the appeal.

We heard the rival submissions and perused the material available on record. The short issue in the appeal relates to whether the ld.CIT(A) was justified in rejecting the appeal in limine by holding that the appeal was filed not against the order passed u/s 154 of the Act but against the order pursuant to the grievance petition. Indisputably, the impugned order before ld.CIT(A) results in modification of an earlier order passed by the Assessing Officer. It is not necessary that an order passed by the Assessing Officer should contain a specific reference to the section. In this regard, reference can be made to the decision of Narayana Row (SAL) Vs. Model Mills, Nagpur (1967) 64 ITR 67 (SC). Needless to say that the labelling of an order does not always decide the question of the validity, an order can be upheld or valid if there is a statutory provision to which it can be validly attributed and more importantly, the word “order” in the expression “from the date of order sought to be amended” finding place in the provisions of Sec.154 is not qualified in any other manner and it does not necessarily mean the original order. It can as well be an order which is amended or rectified order as held by the Hon’ble Madras High Court in the cases of Salem Co-op Spinning Mills Ltd., Vs. CIT (1998) 230 ITR 139 and Henri Isidore Vs. CIT (1999) 240 ITR 247. Therefore, the reasoning of the ld.CIT(A) that impugned order before him is not an order u/s 154 of the Act and cannot be accepted. As a consequence, dismissal of appeal in limine by the ld.CIT(A) is erroneous and unjustified. Therefore, we remit the matter back to the file of ld.CIT(A) for denovo consideration of the above in appeal in accordance with the law.

In the result, the appeal of the assessee is partly allowed for statistical purposes.