The Sarvoday Credit Cum Consumers Co.Op.Society Ltd., Deesa V. The ACIT.,B.K.Circle, Patan

CO 28/AHD/2013

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8421 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 03-05-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 06-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Assessee Lawyers: MRS ARTI N SHAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE SHRI D.K.TYAGI , JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ITA NOS. 2671& 2672/AHD/2012 ASSESSMENT YEARS :2007-08 & 2008-09 & C.O. NOS. 27 & 28/AHD/2013 ASSESSMENT YEAR : 2005-06 ACIT, B.K. CIRCLE, PALANPUR THE SARVODAY CREDIT CUM CONSUMERS CO.OP. SOCIETY LTD. NEAR. NYAY MANDIR, DEESA. PIN- 385535 V/S . V/S . THE SARVODAY CREDIT CUM CONSUMERS CO.OP. SOCIETY LTD. NEAR. NYAY MANDIR, DEESA. PIN- 385535 ACIT, B.K. CIRCLE, PALANPUR PAN NO. AAAAT1649R (APPELLANT) .. (RESPONDENT) BY REVENUE SHRI D. K. SINGH, SR. D.R. /BY ASSESSEE MRS. ARTI N. SHAH, A.R. /DATE OF HEARING 01.04.2013 /DATE OF PRONOUNCEMENT 03.05.2013 O R D E R PER : ANIL CHATURVEDI, ACCOUNTANT MEMBER THESE TWO APPEALS ARE FILED BY THE REVENUE AND TWO C.O. ARE FILED BY THE ASSESSEE ARE AGAINST THE ORDER OF LD. CIT(A)-XX , AHMEDABAD, DATED 21.09.2012 FOR THE ASSESSMENT YEAR 2007-08 & 2008-0 9 RESPECTIVELY. THE REVENUES APPEALS & ASSESSEES C.O. WERE HEARD TOGE THER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAK E OF CONVENIENCE. ITA NOS. 2671 & 2672/AHD/12, & C.O.NOS. 27 & 28/AHD/13, A.Y. 07-08 & 08-09 PAGE 2 2. THE FACTS AS CULLED OUT FROM THE ORDERS OF LOWER AUTHORITIES ARE AS UNDER: 3. THE ASSESSEE IS A CREDIT CO-OPERATIVE SOCIETY, R EGISTERED UNDER GUJARAT CO-OPERATIVE SOCIETIES ACT, 1961, CARRYING ON BUSIN ESS OF PROVIDING CREDIT FACILITIES TO ITS MEMBERS. THE ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 07- 08 ON 31.10.2007 AND FOR A.Y.08-09 ON 29.09.2008 DE CLARING TOTAL INCOME AT RS. NIL FOR BOTH YEARS AND THE SAME WERE PROCESSED U/S.143(1) ON 26.11.2007 AND 04.11.2008 RESPECTIVELY. THE ASSESSMENT WAS LA TER REOPENED BY ISSUE OF NOTICE US.148 ON 27.04.2010 FOR BOTH THE YEARS. FO R THE REASON THAT THE ASSESSEE HAD CLAIMED DEDUCTION U/S.80P OF THE INCOM E TAX ACT, 1961 WHICH ACCORDING TO THE A.O. WAS NOT AS PER THE PROVISIONS OF THE LAW. THE A.O. WAS OF THE VIEW THAT THE ASSESSEE WAS NEITHER A PRIMARY AGRICULTURE CO-OPERATIVE SOCIETY NOR A PRIMARY CO-OPERATIVE AGRICULTURE AND RURAL DEVELOPMENT BANK AND ACCORDINGLY IT WAS NOT ENTITLED TO THE DEDUCTIO N AS PER THE PROVISIONS OF SECTION 80P(2)(A)(I) OF THE IT ACT, BUT WAS COVERED UNDER THE PROVISIONS OF SECTION 80P(4). HE, ACCORDINGLY, COMPUTED THE TOTA L INCOME AT RS.12,53,141/- FOR A.Y. 07-08 & RS. 10,70,498/- FOR A.Y. 08-09. 4. AGGRIEVED BY THE ORDER OF THE A.O., THE ASSESSE E CARRIED THE MATTER BEFORE THE CIT(A). CIT(A) VIDE HIS ORDER DATED 21. 09.2012 GRANTED PARTIAL RELIEF TO THE ASSESSEE. 5. AGGRIEVED BY THE AFORESAID ORDER OF THE CIT(A) F OR BOTH THE YEARS, REVENUE AND ASSESSEE ARE BEFORE US. THE EFFECTIVE GROUND RAISED BY REVENUE, IN BOTH YEARS, IS AS UNDER: ITA NOS. 2671 & 2672/AHD/12, & C.O.NOS. 27 & 28/AHD/13, A.Y. 07-08 & 08-09 PAGE 3 FOR A.Y. 07-08 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XX , AHMADABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS.12,53,141/- MADE U/S.80P(2)(A)(I ) OF THE ACT. FOR A.Y. 08-09 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XX , AHMADABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS.10,70,498/- MADE U/S.80P(2)(A)(I ) OF THE ACT. 6. BEFORE US, THE LD. SR. D.R. RELIED UPON THE ORDE R OF THE A.O., WHEREAS, ON THE OTHER HAND, LD. A.R. SUBMITTED THAT THE ASSE SSEE IS A CO-OPERATIVE CREDIT SOCIETY WHICH IS DISTINCT AND SEPARATE FROM CO-OPERATIVE BANK AND IT CANNOT BE SAID TO BE A PRIMARY CO-OPERATIVE BANK WI THIN THE MEANING OF BANKING REGULATION ACT, 1949. IT WAS FURTHER SUBMI TTED THAT THE ASSESSEE WAS PROVIDING CREDIT FACILITY ONLY TO ITS MEMBERS AND S UCH FACILITIES WERE NOT PROVIDED TO ANY NON MEMBERS OF THE CREDIT SOCIETY. IT WAS FURTHER SUBMITTED THAT EVEN AS PER DEFINITION OF BANKING REGULATION A CT, 1949, THE ASSESSEE CANNOT BE SAID TO A CO-OPERATIVE BANK WITHIN THE ME ANING OF BANKING REGULATION ACT AND THEREFORE THE AMENDMENT IN SECTI ON 80P(4) W.E.F. 01.04.2007 OF NOT ALLOWING DEDUCTION 80P(2)(C) AND 80P(2)(D) ARE NOT APPLICABLE TO THE ASSESSEE AND THE ASSESSEE CONTINU ES TO BE GOVERNED BY THE PROVISIONS OF SECTION 80P(2)(A)(I) OF THE ACT. ITA NOS. 2671 & 2672/AHD/12, & C.O.NOS. 27 & 28/AHD/13, A.Y. 07-08 & 08-09 PAGE 4 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE CIT(A), AFTER CONSIDERING CBDT LETTER DATED 09.05.2007 IN F.NO. 133/06/2007-TPL AND AFTER PLACING RELIANCE ON THE D ECISION OF BANGALORE B BENCH, IN CASE OF ACIT VS. M/S.BANGALORE COMMERCIAL TRANSPORT CREDIT CO- OPERATIVE SOCIETY LTD. IN ITA NO.1069/BANG/2010 FOR A.Y. 2007-08, ORDER DATED 08.04.2011, THE DECISION OF PANAJI TRIBUNAL IN CASE OF DCIT VS. JAYALAKSHMI MAHILA VIVIDODESHAGALA SOUHARDA SAHAKAR I LTD. (137 ITD 163), THE DECISION OF PUNE BENCH IN CASE OF ITO VS. JANKA LYAN NAGRI SAHAKARI PAST SANSTHA LTD. (24 TAXMAN 127) AND IN CASE OF JAFARI MOMIN VIKASH CO-OP. CREDIT SOCIETY LTD. VS. CIT, AHMADABAD TRIBUNAL, OR DER DATED 20.06.2012 IN ITA NO.902/AHD/2012 HELD THAT THE A.OS. FINDING THAT IN VIEW OF THE AMENDMENT ACT IN SECTION 2(24) AND 80P, THE ASSESSE E WAS NOT ELIGIBLE FOR DEDUCTION U/S.80P WAS NOT IN ACCORDANCE WITH LAW. HE HAS FURTHER HELD THAT THE ASSESSEE IS NOT COVERED BY THE SECTION 80P(4) A ND ALSO ENTITLED TO DEDUCTION U/S.80P(2). NOTHING HAS BEEN BROUGHT ON RECORD BY THE REVENUE TO CONTROVERT THE FINDINGS OF THE CIT(A). IN VIEW OF THE AFORESAID FACTS, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF CIT(A) IN BOT H YEARS AND THUS, THIS GROUND OF REVENUE IN BOTH YEARS, ARE DISMISSED. 8. IN THE RESULT, REVENUES APPEAL IN BOTH YEARS AR E DISMISSED. C.O. NOS. 27 & 28/AHD/2013 9. THE GROUND OF C.O. READS AS UNDER: ITA NOS. 2671 & 2672/AHD/12, & C.O.NOS. 27 & 28/AHD/13, A.Y. 07-08 & 08-09 PAGE 5 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS )-XX, AHMADABAD HAS ERRED IN DIRECTED TO ASSESSING OFFICE R TO VERIFY WHETHER ANY INTEREST WAS RECEIVED BY THE RES PONDENT ON SHORT-TERM DEPOSITS AND GOVERNMENT SECURITIES AND A SSESS SUCH INTEREST UNDER THE HEAD INCOME FROM OTHER SOU RCES AND RESTRICT THE DEDUCTION U/S 80P(2)(A)(I) OF THE ACT. 10. C.O. IN BOTH YEARS WERE NOT SERIOUSLY ARGUED AN D PRESSED BY THE ASSESSEE. ACCORDINGLY, C.O. IN BOTH YEARS ARE DISM ISSED AS NOT PRESSED. 11. IN THE COMBINED RESULT, THE REVENUES APPEAL & ASSESSEES C.O. FOR BOTH THE YEARS ARE DISMISSED. THESE ORDERS PRONOUNCED IN OPEN COURT ON 03.05.2013 SD/- SD/- ( D.K.TYAGI ) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. '#$ / APPELLANT 2. &'#$ / RESPONDENT 3. )*)+ ' ', / CONCERNED CIT 4. 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