Ita/35/2015 Of M/S.keonjhar Central Co-Op.bank Ltd v. Asst.commissioner Of Income Tax

ITA No. 35 of 2015 8.2.2016 Heard Mr. Panda, learned senior counsel for the petitioner and Mr. Acharya, learned senior Standing Counsel for the Income Tax Department. Challenge in the writ application has been made to an order dated 3.3.2015 passed by the Income Tax Appellate Tribunal, Cuttack Bench, Cuttack in I.T.A. No.215/ctk/2014 (Annexure-1) for the assessment year 2009-2010. By the impugned order under Annexure-1, earlier order dated 11.3.2014 passed by learned Commissioner of Income Tax, Sambalpur under section 263 of the Income Tax Act, 1961 came to be affirmed. By the said order under section 263 of the I.T. Act, the Commissioner had directed as follows : xx xx xx Therefore, the case is set asided to the Assessing Officer with a direction to properly apply the provisions of section 80P of I.T. Act, 1961 and also to properly implement the provisions of section 36(1)(viia) of the I.T. Act, 1961 in the case of the assessee for the A.Y. 2009-10 and make assessment afresh in the case of the assessee. xx xx xx Shri Panda submits that while the petitioner challenge the order passed under section 263 of the I.T. Act before the Tribunal, Tribunal under Annexure-1 has given an observation as follows : xx xx considered both the provisions and after considering both the provisions, he formed an opinion that the assessee is entitled for deduction u/s. 80P of the Act and the provisions of section 36(1)(viia) has also been applied accordingly. Section 80P debar any co-operative bank other than a primary agricultural society or a primary co-operative agricultural and rural development bank from the provisions of section 80-P which allows deduction to a co-operative society.xx xx Having heard learned counsel for the respective parties, since the order under section 263 of the Act passed by the Commissioner is yet to be implemented by the AO, we are of the considered view that the present challenge essentially is premature inasmuch as the AO is yet to pass necessary orders pursuant to the order passed by the Commissioner under section 263 of the Act. Shri Panda, how ever, contends that the observation as noted hereinabove of the Tribunal may prejudice interest of the petitioner. We are of the considered view that the order of the Commissioner under section 263 of the I.T. Act is to be complied with and we are convinced that the Assessing Officer will proceed to apply the provision of law without being influenced by any observation made by the Tribunal. Consequently we refrain from entertaining the writ petition and leave it open to the Assessing Officer to apply his quasi judicial authority in carrying out the direction of the Commissioner under section 263 of the I.T. Act. With such direction, the appeal stands disposed of. Urgent certified copy of this order be granted on proper application. .. I. Mahanty, J. dutta .. Dr. D.P. Choudhury, J.