TMI Blog2013 (12) TMI 1455X X X X Extracts X X X X X X X X Extracts X X X X ..... through the assessment order, we do not find any such addition having been made by the Assessing Officer of the amount in respect of disallowance of depreciation on Mutual Fund securities. In the ground of appeal, it was stated by the Revenue in ground No. 2 that in course of assessment proceedings, the assessee never submitted that Mutual Fund were held for the purpose of trade and not for investment. It is also submitted in ground No. 2 that the assessee did not file any evidence in this regard even after several opportunities were given during the assessment proceedings. There is no mention of any remand report in this regard in the order of CIT(A). Under these facts, we are of the considered opinion that the order of CIT(A) on this issue is not sustainable. his matter should go back to the file of the CIT(A) for a fresh decision and pass speaking order. - Decided in favour of revenue for statistical purposes. Revision u/s 263 - AO has not examined the issue of Carry forward of Loss and Unabsorbed Depreciation - Held that:- After carefully going through order of learned CIT passed by him u/s 263 we do not find any infirmity therein and therefore, the same is confirmed. - De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed CIT(A) being erroneous in law and on facts deserves to be vacated and the order of the Assessing Officer be restored. 3. That the appellant craves leave to modify any of the grounds of appeal or take additional ground during the pendency of this appeal. 3. Learned D.R. of the Revenue supported the assessment order. 4. We have considered the submissions of learned D.R. of the Revenue and have gone through the orders of the authorities below. We find that this issue was decided by learned CIT(A) by following the judgment of Hon'ble Apex Court rendered in the case of CIT vs. Nawanshahar Central Co-operative Bank Ltd. [2007] 289 ITR 6 (SC). As per the facts of this case, we find that it was held by Hon'ble Apex Court that where a co-operative bank carrying on business of banking is statutorily required to place a part of its funds in approved securities, the income attributable thereto is deductible under section 80P(2)(a)(i) of the Income-tax Act, 1961. In the present case, a clear finding is given by the Assessing Officer in Para 13 of the assessment order that by various judgments cited by learned A.R. of the assessee, the assessee does not get any support for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his order, we find that there is no infirmity in his order. Hence, we decline to interfere in the same. This appeal of the assessee is dismissed. 8. Now we take up the appeal of the Revenue for assessment year 2008- 2009. In this appeal, the Revenue has raised the following grounds: 1. The learned CIT(A) has ignored the facts that the assessee did not file any evidence in this regard even after several opportunities were given during the proceeding of remand report and the Assessing Officer in his remand report mentioned the same. The evidences produced before CIT(A) were accepted without giving opportunities to Assessing Officer. 2. the learned CIT(A) has ignored the facts that during the course of assessment proceedings the assessee never submitted that the mutual funds held were for the purpose of trade and not for investments. Even the assessee did not file any evidence in this regard even after several opportunities were given during the proceedings of remand report and the Assessing Officer in his remand report mentioned the same. The evidences produced before CIT(A) were accepted without giving opportunities to Assessing Officer. 3. That the order of the CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the interest of justice, this matter should go back to the file of the CIT(A) for a fresh decision. We order accordingly. The learned CIT(A) should pass speaking order after providing reasonable opportunity of being heard to both the sides. This appeal of the Revenue stands allowed for statistical purposes. 11. Now we take up the appeal of the assessee for assessment year 2009- 2010. In this appeal the assessee has raised the following grounds: 1. That the order passed by Ld CIT-II is erroneous, against the facts of the case, illegal and unjustified. 2. That the Ld CIT appeal grossly erred by cancelling the order passed by Ld AO without satisfying the conditions as laid down in section 263 of the IT Act and there was no justification of initiation the proceeding u/s 263 if the I.T.Act, 1961 as the condition laid down for the invocation of such provision was not reflected in the order passed by the Ld.CIT. 3. The Ld CIT-II exceeded his jurisdiction as the CIT does not have the power to revise the case when the facts have been considered and adjudicated by the A.O. in the light of the decisions of higher judicial authorities. 4. That the Ld CIT-II grossly erred on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng allowability of deduction to the assessee u/s 36(1)(viia) of the Act. 16. Learned D.R. of the Revenue supported the orders of the authorities below. 17. We have considered the submissions of learned D.R. and have gone through the orders of authorities below. This issue was decided by learned CIT(A) as per Para 2.1, 2.2 and 2.3 of his order in assessment year 2007-2008 and in the next year i.e. assessment year 2008-2009, he has simply followed his own order. We, therefore, reproduce Paras from the order of CIT(A) for assessment year 2007-08 as under: 2.1 Legal: The deduction u/s 36(1)(viia) @10% of the aggregate average advances made by the Rural branches has to be computed in the manner laid down under Rule 6ABA of the l.T.Rules. Thus, rule states: For the purposes of Clause (viia) of sub-section (1) of section 36, the aggregate average advances made by the rural branches of a scheduled bank shall be computed in the following manner, namely: (a) the amounts of advances made by each rural branches as outstanding at the end of the last day of each month comprised in the previous year shall be aggregated separately; (b) the sum so arrived at in the case of each suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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