ITO-WARD-2, Bandara V. M/S ORDANCE FACTORY BHANDARA KARMACHARI PAT SANSTHA LTD, Bandara

ITA 137/NAG/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93407 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 27-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Assessee Lawyers: AMIT SAOJI
• Section: 10

Judgement Text

1 ITA NO. 137/NAG/2014 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO. 137 & 138 /NAG/201 4 ASSESSMENT YEAR S : 20 09 - 10 & 2010 - 11 . THE INCOME - TAX OFFICER, M/S ORDINANCE FACTORY BHANDARA WARD - 2, BHANDARA. V/S. KARMACHARI PAT SANSTHA LTD., JAWAHARNAGAR, BHANDARA. PAN AAAAO0028M. (APPELLANT) RESPONDENT. APPELLANT BY : SHRI NARENDRA KANE. RESPONDENT BY : SHRI AMIT SAOJI. DATE OF H EARING : 2 6 - 06 - 2015 DATE OF PRONOUNCEMENT : 26 - 06 - 2015. O R D E R PER SHRI SHAMIN YAHYA, A.M . TH E S E APPEAL S BY THE REVENUE ARE DIRECTED AGAINST THE ORDER S OF LEARNED CIT(APPEALS) - II, NAGPUR DATED 06 - 01 - 2014 AND PERTAIN TO ASSESSMENT YEAS 2009 - 10 AND 2010 - 11 . THE GROUNDS RAISED BY THE REVENUE READ AS UNDER : 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN ALLOWING THE DEDUCTION U/S 80P OF THE I.T. ACT, 1961 OF ` .15,64,502/ - & ` .17,12,655/ - FOR AYS . 2009 - 10&2010 - 11 RESPECTIVELY. 2 ITA NO. 137/NAG/2014 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN IGNORING THE FACTS THAT THE MAIN MOTTO OF THE ASSESSEE IS LENDING TO ITS MEMBERS, WHICH IS IN THE NATURE OF BANKING TRANSACTION AND COM ES UNDER THE PURVIEW OF SECTION 80P(4) OF THE I.T. ACT, 1961 . 2 . AT THE OUTSET, LEARNED COUNSEL OF THE ASSESSEE BROUGHT TO OUR NOTICE THAT IDENTICAL ISSUES HAVE BEEN DECIDED BY THIS TRIBUNAL IN FAVOUR OF THE ASSESSEE . 3 . UPON CAREFUL CONSIDERATION, W E NOTE THAT THE ASSESSEE SOCIET Y IN TH IS CASE IS ENGAGED IN PROVIDING CREDIT FACILITY TO ITS MEMBERS. THE ASSESSEE HAS CLAIMED DEDUCTION UNDER SECTION 80P(2)(A)(I) OF THE I.T. ACT. THIS WAS DENIED BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF S ECTION 80P(4). WE FIND THAT IN IDENTICAL SITUATION THIS TRIBUNAL IN SEVERAL CASES HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF QUEEN URBAN CO - OPERATIVE CREDIT SOCIETY LTD. V/S. ACIT IN TAX APPEALS NO. 22, 23 & 24 OF 2015 VIDE ORDER DATED 17 TH APRIL, 2015 HAS ALSO CONSIDERED THE ISSUE AND ADJUDICATED AS UNDER : THIS FACT OF ACCEPTING DEPOSITS FROM PEOPLE WHO ARE NOT MEMBERS HAD BEEN SO RECORDED BY THE CIT(A) IN HIS ORDER. BUT IT CANNOT BE CONC LUDED THAT THE APPELLANTS PRINCIPAL BUSINESS WAS OF ACCEPTING DEPOSITS FROM PUBLIC AND THEREFORE IT WAS IN BANKING BUSINESS. IN FACT, THE IMPUGNED ORDER ERRONEOUSLY RELIES UPON BYE - LAW 43 OF THE SOCIETY WHICH ENABLES THE SOCIETY TO RECEIVE DEPOSITS T O CONCLUDE THAT IT CAN RECEIVE DEPOSITS FROM PUBLIC. THUS IN THE PRESENT FACTS THE FINDING THAT THE APPELLANTS PRINCIPAL BUSINESS WAS OF BANKING WAS PERVERSE AS IT WAS NOT SUPPORTED BY THE EVIDENCE ON RECORD. SO FAR AS THE ISSUE OF PRIMARY OBJECT OF T HE ASSESSEE WAS CONCERNED THE IMPUGNED ORDER GIVES THE FINDING ON THAT BASIS TO DEPRIVE THE APPELLANT THE BENEFIT OF SECTION 80P. 3 ITA NO. 137/NAG/2014 IN FACT AS PER THE BYE - LAWS OF THE APPELLANT SOCIETY THERE WAS NO PROHIBITION TO ADMITTING A SOCIETY TO ITS MEM BERSHIP AND ONE OF THREE CUMULATIVE CONDITIONS PRECEDENT TO BE A PRIMARY COOPERATIVE BANK WAS NOT SATISFIED. THIS WAS A MANDATORY CONDITION I.E. THE BYE LAWS MUST SPECIFICALLY PROHIBIT ADMISSION OF ANY OTHER COOPERATIVE SOCIETY TO ITS MEMBERSHIP. THE RE VENUE HAS NOT BEEN ABLE TO SHOW ANY SUCH PROHIBITION IN THE BYE LAWS OF THE ASSESSEE. THUS EVEN THE AFORESAID QUALIFYING CONDITION (3) FOR BEING CONSIDERED AS A PRIMARY COOPERATIVE BANK WAS NOT SATISFIED. THUS, THE THREE CONDITIONS AS PROVIDED UNDER S ECTION 5(CVV) OF THE BANKING REGULATION ACT, 1949, ARE TO BE SATISFIED CUMULATIVELY AND EXCEPT CONDITION (2) THE OTHER TWO QUALIFYING CONDITIONS ARE NOT SATISFIED. ERGO, APPELLANT CANNOT BE CONSIDERED TO BE A CO - OPERATIVE BANK FOR THE PURPOSES OF SEC TION 80P(4) OF THE ACT. THUS, THE APPELLANT IS ENTITLED TO THE BENEFIT OF DEDUCTION AVAILABLE UNDER SECTION 80P(2)(A)(I). THE CONTENTION OF THE REVENUE THAT THE APPELLANT IS NOT ENTITLED TO THE BENEFIT OF SECTION 90P(2)(A)(I) IN VIEW OF THE FACT THAT IT DEALS WITH NON - MEMBERS CANNOT BE UPHELD. THIS FOR THE REASON THAT SECTION 80P(1) OF THE ACT RESTRICTS THE BENEFITS OF DEDUCTION OF INCOME OF CO - OPERATIVE SOCIETY TO THE EXTENT IT IS EARNED BY PROVIDING CREDIT FACILITIES TO ITS MEMBERS. THEREFORE, TO THE EXTENT THE INCOME EARNED IS ATTRIBUTABLE TO DEALINGS WITH THE NON - MEMBERS ARE CONCERNED THE BENEFIT OF SECTION 80P WOULD NOT BE AVAILABLE. IN THE ABOVE VIEW OF THE MATTER, AT THE TIME WHEN EFFECT HAS BEEN GIVEN TO THE ORDER OF THIS COURT, THE AUTHO RITIES UNDER THE ACT WOULD RESTRICT THE BENEFIT OF DEDUCTION UNDER SECTION 80P OF THE ACT ONLY TO THE EXTENT THAT THE SAME WAS EARNED BY THE APPELLANT IN CARRYING ON ITS BUSINESS OF PROVIDING CREDIT FACILITIES TO ITS MEMBERS. 4 . WE FIND THAT IN THE PRESENT CASE NO CASE HAS BEEN MADE OUT BY THE REVENUE THAT THE ASSESSEES BUSINESS INCLUDES PROVIDING CREDIT FACILITIES TO NON - MEMBERS. IN THESE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE PRECEDENT AS ABOVE, WE DO NOT FIND ANY INFIR MITY IN THE ORDERS OF THE LEARNED CIT(APPEALS). ACCORDINGLY WE UPHOLD THE SAME. 4 ITA NO. 137/NAG/2014 5 . IN THE RESULT, TH E APPEA L S FILED BY THE REVENUE STAND DISMISSED. ORDER PRONOUNCED ON THIS 26 TH DAY OF JUNE, 2015. SD/ - SD/ - (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. NAGPUR, DATED: 26 TH JUNE, 2015. COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE