2013 (12) TMI 1455

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....ere is no request for adjournment. Under these facts, we proceed to decide these appeals ex-parte qua the assessee. 2. First we take up the appeal of the Revenue for assessment year 2006- 2007. In this appeal, the Revenue has raised the following grounds: "1. That the learned CIT(A) has erred in law and on facts in allowing the relief of Rs. 20,39,000/- deducted u/s 80P(2)(a)(i) as in deciding the appeal in this case the learned CIT(A) not discussed the status of assessee bank as the same was disputed by the Assessing Officer in his order and decided the appeal in the light of order of Apex Court in case of CIT vs. Nawanshahar Central Co-operative Bank Ltd. and allowed all kinds of investments made by assessee bank as deductible u/s 80P deeming the assessee bank as co-operative society. 2. That the order of the learned 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 submiss....

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....without considering the fact that the statutory audit report has been issued by the same auditor." 6. Learned D.R. of the Revenue supported the orders of the authorities below. 7. This issue was decided by learned CIT(A) as per Para 4 of his order, which is reproduced below: "4. The issue involved in this appeal is simple & straight. The auditor has himself given a letter to the A.O. which is part of the records, wherein it has been clearly stated that no such audit report was ever given. I had specifically asked the Ld. A.R. to furnish the original copy of the said audit report for which he expressed his inability. In this view of the matter, it has to be held that there was no such audit report and, therefore, the penalty was rightly levied by A.O." 7.1 In view of the facts noted by learned CIT(A) in above Para 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 fi....

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....ng through the assessment order, we do not find any such addition having been made by the Assessing Officer of this amount of Rs. 39,51,745/- 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. But at the same time, we feel that 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 asses....

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.... facts deserve to be vacated and the order of the Ld AO be restored. 10. The appellant craves leave to modify any of the above grounds of appeal or take additional grounds during the pendency of the case." 12. Learned D.R. of the Revenue supported the order of learned CIT. 13. We have considered the submissions of learned D.R. and have gone through the order of learned CIT passed by him u/s 263 of the Act. After carefully going through the same, we do not find any infirmity therein and therefore, the same is confirmed. This appeal of the assessee is dismissed. 14. Now we take up the remaining appeals of the assessee for assessment year 2007-2008 and 2008-2009 in I.T.A. No.444/Lkw/2012 and 445/Lkw/2012 arising out of assessment proceedings. 15. In both these years, the only issue involved is regarding 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....