By Sri. Dilip Kumar, Adv., For Sri. K v. Aravind, Adv

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12[th] DAY OF AUGUST 2021 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR I.T.A. NO.292 OF 2018 BETWEEN: M/S BEL EMPLOYEES HOUSE BUILDING CO-OPERATIVE SOCIETY LTD REP BY ITS SECRETARY SHRI K R SHRIKANTH # C 92, BEL COLONY JALAHALLI POST BANGALORE - 560013 (BY SRI. A. SHANKAR, SR. ADV., FOR SRI. BHAIRAV KUTTAIAH, ADV.) ... APPELLANT AND: THE INCOME TAX OFFICER, PRESENTLY WARD 6 (3) (1) BMTC BUILDING 80 FEET ROAD, KORAMANGALA BANGALORE - 560095 (BY SRI. DILIP KUMAR, ADV., FOR SRI. K. V. ARAVIND, ADV.) - - - ... RESPONDENT THIS I.T.A. IS FILED UNDER SECTION 260-A OF I.T.ACT, 1961, ARISING OUT OF ORDER DATED 29.11.2017 PASSED IN ITA NO.1586 & 1587/BANG/2017 FOR THE ASSESSMENT YEARS 2009-2010 AND 2010-2011 RESPECTIVELY (VIDE ANNEXURE-A), PRAYING TO: I. FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE AND ANSWER THE SAME IN FAVOUR OF THE APPELLANT. II. TO ALLOW THE APPEAL AND SET ASIDE THE FINDINGS THEREIN TO THE EXTENT AGAINST THE APPELLANT IN THE ORDER PASSED BY THE INCOME-TAX APPELLATE TRIBUNAL, "SMC-C" BENCH, BANGALORE IN ITA NO. 1586 & 1587/BANG/2017 DATED 29.11.2017 FOR THE ASSESSMENT YEARS 2009-2010 AND 2010-2011 RESPECTIVELY . III. TO PASS SUCH OTHER ORDERS, AS THIS HON'BLE COURT DEEMS FIT AND PROPER TO MEET THE ENDS OF JUSTICE. THIS I.T.A. COMING ON FOR HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING: JUDGMENT Mr. A. Shankar, learned Senior Counsel for Sri. Bhairav Kuttaiah, learned counsel for the assessee. Mr. Dilip Kumar, learned counsel for Sri. K. V. Aravind, learned counsel for the revenue. 2. This appeal under Section 260-A of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’, for short) has been under the Order dated 29.11.2017 passed by the Income-Tax Appellate Tribunal. The dispute in this appeal pertains to assessment years 2009-2010 and 2010-2011. The appeal was admitted by a Bench of this Court on 19.12.2018 to consider the following substantial questions of law: “1. Whether the Tribunal was justified in law in holding that the appellant is not eligible for deduction under Section 80P(2)(d) of the Act of Rs.48,21,096/- for the interest earned on surplus parked with Co-operative Bank for the assessment year 2009-10 on the facts and circumstances of the case? 2. Whether the Tribunal was justified in law in holding that the appellant is not eligible for deduction under Section 80P(2)(d) of the Act of Rs.43,64,458/- for the interest earned on surplus parked with Co-operative Bank for the assessment year 2010-11 on the facts and circumstances of the case? 3. Whether the Tribunal erred in law in not appreciating that every Co-operative Bank is a Co-operative Society and consequently the provision of 80P(2)(d) of the Act are attracted to the facts and circumstances of the case? 4. Without prejudice whether the Tribunal ought to have held that the amount that can be taxed could be only Rs.29,61,905/- of the A.Y.2009-10, consequently passed a perverse order on the facts and circumstances of the case? 5. Without prejudice whether the Tribunal ought to have held that the amount that can be taxed could be only Rs.29,65,905/- of the A.Y.2010-11, consequently passed a perverse order on the facts and circumstances of the case?” 3. When the matter was taken up today, learned Senior Counsel for the assessee submitted that due to circumstances beyond the control, the assessee could not appear before the Income-Tax Appellate Tribunal. The appeal pertaining to the years 2009-2010 and 2010-2011 were decided by the Appellate Tribunal in the 4. Without prejudice whether the Tribunal ought to have held that the amount that can be taxed could be only Rs.29,61,905/- of the A.Y.2009-10, consequently passed a perverse order on the facts and circumstances of the case? 5. Without prejudice whether the Tribunal ought to have held that the amount that can be taxed could be only Rs.29,65,905/- of the A.Y.2010-11, consequently passed a perverse order on the facts and circumstances of the case?” 3. When the matter was taken up today, learned Senior Counsel for the assessee submitted that due to circumstances beyond the control, the assessee could not appear before the Income-Tax Appellate Tribunal. The appeal pertaining to the years 2009-2010 and 2010-2011 were decided by the Appellate Tribunal in the absence of the assessee. It is further submitted that the order of the Appellate Tribunal be set aside and the matter be remitted back to the Appellate Tribunal for taking decision in accordance with law after affording an opportunity of hearing to both the parties. The aforesaid prayer has not been fairly opposed by the learned counsel for the revenue. 4. In view of the aforesaid submission and in the facts of the case as well as the subsequent position of law as it emerges from the various decisions of the Court and in order to afford an opportunity of hearing, we deem it appropriate to set aside the order dated 29.11.2017 passed by the Appellate Tribunal insofar as it pertains to the assessment years 2009-2010 and 2010-2011. The Tribunal after affording an opportunity of hearing both the parties shall decide the appeal pertaining to the assessment years 2009-2010 and 2010-2011 afresh. Ordered accordingly. 5. It is needless to state that all the contentions as are available to both the parties under law are left open. 6. For the aforesaid reasons, it is not necessary for us to answer the aforesaid substantial questions of law. Accordingly, appeal is disposed of. Sd/- JUDGE Sd/- JUDGE Mds.