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TMI Blog2013 (5) TMI 1037X X X X Extracts X X X X X X X X Extracts X X X X ..... the reasons for the delay and prayed for the condonation of delay. This appeal is against the order u/s. 263 of the Act of the CIT. According to the affidavit, the CEO was under bona-fide belief that the CIT had given direction to the AO to make fresh assessment and, therefore, there was no requirement for the assessee to challenge the CITs order. Subsequently, according to the affidavit, the CEO came to know through his authorised representative that since the CIT had revised the original order of the AO, the order passed u/s. 263 of the Act required to be challenged. Therefore, it was pleaded that since the delay in preferring this appeal was not deliberate and unintentional but sheer lack of implication, the delay of 245 days in filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n u/s. 263 of the Act that the assessment order passed u/s. 143(3) of the Act dated 3.12.2009 was erroneous and pre-judicial to the interest of revenue within the meaning of section 263 of the Act. It was the stand of the CIT that the AO had not examined the applicability of the provisions of section 80P(4) in the assessees case as to whether the assessee had fulfilled the conditions of a primary co-operative society as defined in the Banking Regulation Act, 1949. 3.2. After having given due weightage to the contention of the assessee in objecting to the said proposal u/s. 263 of the Act, the CIT took a stand that the assessment order passed for the assessment year under consideration was erroneous and prejudicial to the interest of reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion which is a Bank under the provisions of the Banking Regulation Act that can be termed as a Bank; - that the true meaning of the term Bank and banking business ought to have been appreciated and it should be held that by merely extending credit facilities the assessee does not become a Bank for the purpose of section 80P; and that the Banking Regulation Act does not apply to the assessee and more so in view of specific provisions of s. 3 of the Bank (Regulation) Act 1949 read with Part V thereof; - that neither section 5(b) nor section 6 of the Banking Regulation Act does the business of the assessee conform to the definition of banking as the assessee does not collect deposits from the public as distinct from its members, does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in an identical issue in the case of Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha v. ITO in ITA No. 514/Bang/2012 dated 28.2.2013 for the assessment year 2007-08. After comprehensively analysing the provisions of s. 80P(4) of the Act and also in consonance with the findings of the earlier Bench of the Tribunal in the case of ACIT v. Bangalore Commercial Transport Credit Co-operative Society Ltd. in ITA No. 1069/Bang/2010 dated 8.4.2011, the Bench has recorded its findings as under: 3.4.3...We hold that the newly inserted provisions of section 80P(4) of the Act are applicable only to co-operative banks and not in the present case where the assessee is a co-operative society providing credit facility to its members and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the assessing officer is erroneous in so far as it is pre-judicial to the interest of revenue and if the twin conditions, namely: (i) The order of the assessing officer sought to be revised is erroneous and (ii) It is pre-judicial to the interest of revenue together satisfied, the exercise of suo moto revisional power under section 263 would be justified.... 3.5.2. In this view of the matter, there can be no dispute that the revisional powers under section 263 of the Act can be invoked only when the assessment is established to be erroneous and pre-judicial to the interest of revenue. It cannot be invoked merely for making fishing or roving enquiry. The revisional power under section 263 of the Act is of wide amplitude so as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case as discussed from 3.4.1 to 3.5.2 above, we are of the considered view that the learned CIT has failed to make out a cased that the order of assessment sought to be revised under section 263 of the Act is pre-judicial to revenue. In this view of the matter, we cancel the order under section 263 of the Act passed by the CIT. 5.1. As the issue under consideration is similar to that of the issue dealt by the earlier Bench (supra), wherein it has been observed that the CIT was not justified in invoking the provisions of section 263 of the Act for the detailed reasons recorded therein, we are of the considered view that the same proposition is applicable hereto. In essence, the CIT was not justified in invoking the provisions of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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