Calcutta High Court
Burdwan vs M/S. Burdwan Central Co on 16 March, 2023
O-37 & 46
ITA/63/2008
IA No.GA/1/2008 (Old No.GA/332/2008)
And
ITA/837/2008
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction (Income Tax)
ORIGINAL SIDE
COMMISSIONER OF INCOME TAX,
BURDWAN
-Versus-
M/S. BURDWAN CENTRAL CO-
OPERATIVE BANK LIMITED
BEFORE :
THE HON'BLE JUSTICE T.S. SIVAGNANAM
And
THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
Date : 16th March, 2023
Appearance :
Mr. Soumen Bhattacharjee, Adv.
...for the appellant in ITA/63/2008.
Ms. Smita Das De, Adv.
...for the appellant in ITA/837/2008..
Mr. J. P. Khaitan, Sr. Adv.
Mr. Siddharth Das, Adv.
Ms. Swapna Das, Adv.
...for the respondent.
The Court : This appeal (ITA/63/2008) filed by the
revenue under Section 260A of the Income Tax Act, 1961 (the
'Act' for brevity) is directed against the order dated 27th
June, 2007 passed by the Income Tax Appellate Tribunal, "A"
Bench, Kolkata (the Tribunal) in ITA No.1279 & 1280/Kol/2007
years 2003-04 and 2004-05.
ITA/837/2008 also filed by the revenue under Section
260A of the Act, is directed against the order dated 30th
April, 2008 passed by the Income Tax Appellate Tribunal, "B"
Bench, Kolkata in ITA No.394/Kol/2008 year 2005-06.
The revenue has raised the following substantial
question of law for consideration:
(i) Whether on the facts and in the circumstances
of the case the Learned Tribunal erred in
deleting the addition made by Assessing
Officer on account of disallowance under
section 80(P)(2)(a)(i) ?
We have heard Mr. Soumen Bhattacharjee, and Ms. Smita
Das De, learned standing counsels appearing for the
appellant/revenue and Mr. J. P. Khaitan, learner Senior Counsel
assisted by Mr. Siddharth Das and Ms. Swapna Das, learned
Advocates for the respondent/assessee.
The Tribunal while allowing the appeal filed by the
assessee had followed the order passed by the Tribunal dated
24th February, 2005 in the assessee's own case for the
assessment year 1995-96 to 1998-99. The Tribunal in the said
order held as follows:
"We also observe that the Hon'ble Supreme Court in
the case of Mehasana District Central Co-operative Bank
Ltd. Vs. ITO (supra) had held that whether income derived
by the assessee co-operative bank from the investment of
its voluntary reserve other than statutory reserves ex
except u/s 80(P)(2)(a)(i) depended upon whether the
voluntary reserves were utilized in the course of its
ordinary banking business. Therefore, the A.O. was not
justified in disallowing the claim for deduction u/s.
80(P)(2)(a)(i) relying on the said judgment of the Supreme
Court. Secondly, we also find from the order of the CIT(A)
that the learned CIT, Burdwan vide order passed u/s. 264
dated 18.3.2002 has held that voluntary reserves have been
invested by the assessee co-operative bank in NABARD,
IFCI, WBFC and Central Warehousing Corporation Ltd. as
well as in West Bengal Co-operative Ltd. and in the same
were made in pursuance of the provisions of section 24
read with section 56 of the Banking Regulation Act, 1949
and placement of such funds being imperative for the
purpose of carrying on banking business and are eligible
for deduction u/s. 80(P)(2)(a)(i). We observe that the
A.O. has passed the order u/s. 147/143(3) on 31.3.03 in
all the assessment years under appeal. Therefore, we agree
with the observations of the learned CIT(A) that the A.O.
was not justified to take a different view in the same
years in the case of the assessee merely by invoking the
provisions of section 147 of the Income-tax Act as because
the finding given by the CIT, Burdwan u/s. 264 dated
18.3.2002 is binding on the A.O. We are of the opinion
that if the revenue had any grievance against the said
order of the CIT, the same could have been rectified by
the CIT by passing appropriate order. The A.O. being an
authority subordinate to CIT in the hierarchy of the
officers of the Income-tax Department was not justified in
taking a contrary view against the view taken by the CIT
in its order passed u/s. 264 dated 18.3.2004. Therefore,
we do not find any infirmity in the order of the learned
CIT(A) which calls for our interference and the grounds of
appeal of the revenue being devoid of any merit are
rejected.
In the result, the appeals of the revenue are
dismissed".
It has not been shown before us by the revenue that
any appeal had been preferred against the order of the Tribunal
for the assessment year 1995-96 to 1998-99.
Thus, in the light of the said fact, we find no error
in the order passed by the Tribunal in the following decision
for the earlier assessment years. That apart, consistent
approach has to be maintained in such matters unless and until
the revenue is able to establish that there are distinguishing
features to make a departure.
In the light of the above, the appeals are dismissed
and the substantial question of law is answered against the
revenue.
Consequently, the connected application (IA
No.GA/1/2008) also stands dismissed.
(T.S. SIVAGNANAM, J.)
(HIRANMAY BHATTACHARYYA, J.)
As./S.Das
