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TMI Blog2017 (5) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... arding the reasons for reopening. We find that the CIT(A)has upheld the re - opening, as it was based on justifiable reasons. Certain facts about the reopening would be dealt with in the subsequent paragraphs. Considering the totality of the facts of the case, we are of the opinion that there is no need to interfere with the order of the CIT (A). Hence, we dismiss the ground raised about reopening. 3. Second and the most effective ground deals with this allowing deduction u/s. 80P (Rs. 93. 57 lakhs), audit fees(Rs. 2. 14 lakhs) and provision for gratuity (Rs. 2. 09 lakhs). The assessee filed its return of income wherein a claim of Rs. 93, 57, 022 was made u/s. 80P of the Act. Initially the return was processed u/s. 143 (1) and later on a notice u/s. 148 was issued. The AO observed that the assessee would accept deposits from its member and would provide credit facilities to the members, that it had claimed audit fee of Rs. 2. 14 lakhs, that the payments were subjected to tax deducted at source. He directed the assessee to furnish proof of tax deducted. As the assessee could not furnish any evidence in that regard, the AO disallowed the sum of Rs. 2. 14 lakhs. He further found that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case laws. It was also stated that while arguing the case before the F AA with regard to penalty proceedings of section 271D the Act the then AR had made erroneous interpretation, that the assessee was not a cooperative bank in the term of section 80P (4) of the Act. The FAA directed the AO to file a remand report after going through the affidavit of the chairman of the society. After considering the remand report and the rejoinder of the assessee to the remand report, the FAA held that the assessment was reopened on the ground that in the penalty proceedings u/s. 271D the assessee had pleaded that it's status was of a cooperative bank and that accordingly it got relief from the then FAA, that the assessment was rightly reopened as the co-operative bank was not entitled to claim deduction u/s. 80P in view of the section 80P(4)of the Act, that the assessee had not raised any objection for reopening the assessment u/s. 147 at the time of assessment proceedings before the AO. 3. 2. Before us, the Authorised Representative(AR)stated that the assessee was a cooperative society, that just because of deletion of penalty the assessee could not be treated as cooperative bank, that the CA h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently by realization of the revived debts is not taxable income. The doctrine of "approbate and reprobate" is only a species of estoppel; it applies only to the conduct of parties.... Equity is out of place in tax law; a particular income is either exigible to tax under the taxing statute or it is not. If it is not, the Income-tax Officer has no power to impose tax on the said income. " Now, we will refer to the case of M. MD Shagtullah (83 ITR 775). In that matter the petitioner set the law in motion and contended that his status at all material times was that of a registered partnership and he sought for an adjudication on this issue. It was only in 1961 that the High Court, on a reference made to it, held that the contention of the firm, in which the petitioner was a partner, that it was to be treated as a registered firm had to be accepted and directed the incidental and consequential proceedings to be undertaken by the Tribunal and the officers concerned. It is on the basis of this the Tribunal passed an order on 16. 06. 1961, pursuant to which the department took up the matter once over so as to remedy the defect which had gone into the record. After recording the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the retention itself was illegal, now they are contending that the departmental officials ought to have taken steps for recovery of the amounts from the debtors under section 226(3)(x) of the Act. Such a plea is not plainly available to them. " In Hope India Ltd. (203 ITR 118)the Hon'ble Calcutta High Court has held that the assessee cannot approbate and reprobate at the same time. In that matter certain direction were given by the Tribunal on the basis of the contention of the assesse. Later on, it was argued that direction should not be followed. Rejecting the request made by the assessee, the Hon'ble Court held that the assessee having taken the benefit could not now contend against the said decision. In the case of N. Mangathayaramma and others(255 ITR 127), the Hon'ble AP High Court has also dealt with the issue of taking opposite stands by an assessee in the assessment proceedings. In this matter, wealth-tax arrears to the tune of Rs. 5. 5 lakhs owed by A. Certain house properties with appurtenant lands belonged to the joint family and were assessed in the hands of A, Hindu undivided family. In connection with the recovery of the said arrears of the wealth-tax, the TRO, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed Writ Petition No. 6433 of 1993. The writ petition was dismissed by following the same decision in the case of Karimtharuvi, as against which the writ appeal in W. A. No. 372 of 2002 was filed. In that writ appeal, the Division Bench has surveyed almost all the earlier judgments on this issue and after noting the facts, in para. 6. 1. 4 that there was no controversy about the fact that the shade trees were planted by the previous owner and they had become old and useless due to efflux of time and therefore, they were cut and sold for planting shade trees newly for better yield from the coffee plants, held that the income so earned was liable to tax under section 45 of the Act. ...... rather we are of the view that the assessee is not entitled to put forth any other contrary contention, in view of his conceding argument before the Tribunal. Before us, the correctness of the order of the Tribunal is only put in issue and we do not find any ground for interference in that order. " Lastly, we would like to refer to the case of Gupta perfumers P. Ltd. , the Hon'ble Delhi High Court(348 ITR 86)has also dealt with the issue of approbation and reprobation. In that matter the settlem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V of Banking Revolution Act, 1949 as stated....... " Considering the above facts, the FAA, deciding the penalty appeal held that the assessee was covered by explanation to section 269SS of the Act. He further held there was merit in the arguments advanced by the assessee, that the assessee had contended that it fell within the meaning of cooperative bank as per the meaning assigned to it in part V of the Banking Regulation Act, 1949. Accordingly the FAA deleted the penalty levied by the AO. Now, before us the assessee has argued that it was not a cooperative bank and that the CA had misrepresented the case before the then FAA. Nothing was brought on record to prove that any action was taken against the CA for alleged misrepresentation. No affidavit of the CA concerned has been filed to prove that he had made the claim before the then FAA on his own and not as per the instructions of the assessee. The case of the assessee can be easily summarised in a Hindi proverb- "Chitt bhee meri Pat bhee meri. "To save itself from the penal provisions, it claimed that it was a cooperative bank and for claiming deduction u/s. 80P now it claims that it is not a cooperative bank. As per the settl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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