M/s Examba Jeejamata Mahila Credit Souhard Sahakari Niyamit, Belgaum V. ITO, Ward - 1, Nipani

ITA 16/PAN/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3897 (ITAT-PANAJI)
• Duration Of Justice: 3 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 15-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HALBHAVI; SHIVAN
• Keywords: Principle of natural justice
• Section: 80P; 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI, BENCH PANAJI , , BEFORE SHRI LALIET KUMAR, JM AND DR. MITHA LAL MEENA, AM ITA NO. 16 /PAN/201 8 (AY : 20 1 1 - 20 1 2 ) M/S EXAMBA JEEJAMATA MAHILA CREDIT SOUHARD SAHAKARI NIYAMIT, A/P.EXAMBA, TQ.CHIKODI, DIST: BELGAUM PAN NO.AA AAJ 1774 H VS ITO, WARD - 1, NIPANI ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI SHIVAN AND HALBHAVI, CA /REVENUE BY : SHRI SOURABH NAYAK , SR.D R / DATE OF HEARING : 0 7 /1 0 /202 1 / DATE OF PRONOUNCEMENT : 07 /10 /202 1 / O R D E R PER BENCH : THIS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE CIT (A) , GULBARGA , DATED 30.11.2017 FOR THE ASSESSMENT YEAR 20 1 1 - 201 2 , ON THE FOLLOWING GROUNDS : - 1. THE ORDER PASSED BY THE LEARNED A.O AND CONFIRMED BY THE LEARNED CIT (A) IS NOT AS PER LAW AND FACTS OF THE CASE. 2. THAT THE LEARNED A O AND THE LEARNED CIT (A) HAVE ERRED IN DENYING THE EXEMPTION CLAIMED UNDER SECTION 80P(2)(A)(I) OF THE INCOME TAX ACT, 1961 AVAILABLE TO CO - OPERATIVE SOCIETIES ENGAGED IN THE BUSINESS OF BANKING OR PROVIDING CREDIT FACILITIES TO ITS MEMBERS AND ACCEPTING DEPOSITS FROM ITS MEMBERS. 3. THAT THE LEARNED A O AND THE LEARNED CIT (A) HAVE ERRED IN COMING TO THE CONCLUSION THAT THE ASSESSEE IS A CO - OPERATIVE BANK WHEN THE FACT IS THAT THE ASSESSEE IS A CO - OPERATIVE SOCIETY. 4. THAT THE LEARNED CIT(A) HAS ACTUALLY DISCUS SED REGARDING ALL THE GROUNDS OF APPEAL RAISED BY THE APPELLANT IN FAVOR OF ITA NO. 16 /PAN/201 8 2 APPELLANT BUT HAS DECIDED THE CASE ON ENTIRELY DIFFERENT GROUND WHICH WAS NEITHER RAISED BY THE APPELLANT NOR BY THE RESPONDENT. 5. THAT THE LEARNED CIT(A) HAS ERRED IN DECIDING OU R CASE ON THE BASIS OF JUDGMENT OF HON'BLE SUPREME COURT IN CASE OF THE CITIZEN CO - OPERATIVE SOCIETY (TS - 326 - SC - 2017) DATED 16 TH AUGUST, 2017, FACTS OF WHICH ARE TOTALLY DIFFERENT FROM OUR CASE. ANY OTHER GROUNDS WHICH MAY BE TAKEN UP WITH KIND PERMISSION. 2. AT THE OUTSET, THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) HAS PASSED THE ORDER EX PARTE QUA THE ASSESSEE. HE ARGUED THAT ASSESSEE IS A COOPERATIVE SOCIETY REGISTERED UNDER THE STATE COOPERATIVE SOCIETY THE MAIN OBJECT OF THE SOCIETY IS TO ACCEPT TO DEPOSITS AND PROVIDE FINANCIAL ACCOMMODATION TO THE MEMBERS OF THE SOCIETY THEREFORE, IT HAS CLAIMED THAT THE SOCIETY WAS ENTITLED DEDUCTION U/S80P (2)(A) (I) AS IT IS BEING A COOPERATIVE SOCIETY PROVIDING CREDIT FACILITIES TO ITS MEMBERS ONLY. THE LD. COUNSEL CONTENDED THAT THE LD. CIT(A) HAS ERRED BY NOT ALLOWING THE INTEREST PAID ON LOANS ON THE FIXED DEPOSITS WHICH WAS TAKEN FOR PROVIDING LOANS TO ITS MEMBERS. IN SUPPORT OF ITS CONTENTIONS HE PLACED RELIANCE ON THE JUDGMENT OF HONBLE APEX CO URT IN THE CASE OF CITIZEN COOPERATIVE SOCIETY, CITATION TS 324 HON'BLE SUPREME COURT - 2017 DATED 16.08.2017 AND THE MAVILAYI SERVICE COOPERATIVE BANK LTD. & ORS VS. CIT, CIVIL APPEAL NOS. 7343 TO 7350/2019 DATED JANUARY 12, 2021. 3. THE LD. DR STAND BY T HE ORDER OF THE LD. CIT(A) HE SUBMITTED THAT THE APEX COURT IN THE CASE OF M/S TOTGA COOPERATIVE SALES SOCIETY LTD. IS APPLICABLE TO THE FACTS OF THE CASE AS THERE WERE NO PAYABLE TO THE CREDITORS ITA NO. 16 /PAN/201 8 3 WHO SUPPLIED AGRICULTURE PRODUCE TO THE SOCIETY AND THE AMO UNT PAYABLE TO THE CREDITORS WAS BEING INVESTED IN RESPECTED BANKS. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE CIT(A) REJECTED THE CONTENTIONS OF THE ASSESSEE HOLDING THAT ASSESSEE FAILED TO EXPLAI N WHY THE ASSESSEES CASE WAS NOT COVERED BY THE JUDGMENT OF THE APEX COURT IN THE CASE OF CITIZEN COOPERATIVE SOCIETY [TS - 326 - SUPREME COURT - 2017], DATED 16 TH AUGUST, 2017. IT IS SEEN THAT THE SUBMISSION FILED BY THE ASSESSEE BEFORE US WERE NOT EXAMINED B Y THE LD. CIT(A) AND PASSED IN ORDER EX PARTE QUA THE ASSESSEE WHICH IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND CANNOT BE APPROVED. 5 . IN VIEW OF THE INTRODUCTION OF SUB SECTION 4 TO SECTION 80P OF THE ACT THE AO WHILE EXAMINING THE CLAIM MADE B Y THE SOCIETY FOR SUCH DEDUCTION CANNOT BE ALLOWED MERELY LOOKING AT CLASS OF SOCIETY AS PER CERTIFICATE OF REGISTRATION ISSUED UNDER THE CENTRAL OR STATE SOCIETIES ACT SINCE EACH ASSESSMENT IS A SEPARATE ASSESSMENT, THE INTENTION OF LEGISLATURE IS A NO MA NNER DEFEATED BY NOT ALLOWING DEDUCTION U/S 80P WHY REASON OF SUB SECTION 4 THEREOF AS PER THE DECISION OF APEX COURT IN THE CASE OF MAVILAYI SERVICE COOPERATIVE BANK LTD. (SUPRA). 6 . CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSI DERED OPINION THAT THE EX PARTE ORDER PASSED BY THE LD. CIT(A) IS REQUIRED TO BE RELOOKED AND EXAMINED AFRESH BY HIM IN THE LIGHT OF THE DECISION OF HONBLE APEX COURT IN THE CASE OF CITIZEN COOPERATIVE SOCIETY AND MAVILAYI SERVICE COOPERATIVE BANK LTD. (S UPRA). IN OUR VIEW, THIS IS A FIT CASE TO SEN D BACK TO THE LD. CIT(A) TO PASS AFRESH ORDER ADDRESSING THE ITA NO. 16 /PAN/201 8 4 GRIEVANCE OF THE ASSESSEE AFTER CONSIDERING THE DOCUMENTARY EVIDENCES FILED WITH THE SUPPORT OF CITATIONS APPLICABLE AS ABOVE. WE DIRECT THE LD. CIT(A ) TO GRANT ADEQUATE OPPORTUNITY TO THE ASSESSEE SOCIETY AND ADJUDICATE THE MATTER WITHIN THE PERIOD OF RECEIPT OF THIS ORDER. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 07 / 10 / 2021. SD/ - SD/ - ( ) (DR. M ITHA LAL MEENA ) ( ) (LALIET KUMAR) / ACCOUNTANT MEMBER / JUDICIAL MEMBER /PANAJI ; DATED 07 /10 /202 1 PRAKASH KUMAR MISHRA, SR.P.S. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , /ITAT, PANAJI 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, PANJA JI 6. / GUARD FILE. //TRUE COPY//