ITO-WARD-3, Chandrapur V. M/S SASTI COLLIERY KOYLA KHADAN KARMACHARI SAHAKARI PAT SANSTHAT MARYADIT, Chandrapur

ITA 168/NAG/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1671 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 02-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER ITA NO. 168/NAG./2014 ( ASSESSMENT YEAR : 2009-10 ) INCOME TAX OFFICER WAD-3, AAYAKAR BHAVAN RAILWAY STATION ROAD CHANDRAPUR 442 401 APPELLANT V/S M/S. SASTI COLLIERY KOYLA KHADAN KARMACHARI SAHAKARI PAT SANSTHA MARYADIT, WCL HOSPITAL ROAD CHANDRAPUR 442 401 PAN AABAS5224L .... RESPONDENT REVENUE BY : SHRI NARENDRA KANE ASSESSEE BY : NONE DATE OF HEARING 22.07.2015 DATE OF ORDER 18.08.2 015 O R D E R THIS APPEAL FILED BY THE REVENUE IS EMANATING FROM T HE ORDER DATED 8 TH JANUARY 2014, PASSED BY THE LEARNED COMMISSIONER (AP PEALS)- II, NAGPUR, FOR THE ASSESSMENT YEAR 2009-10, ON THE FOLL OWING GROUNDS OF APPEAL:- M/S. SASTI COLLIERY KOYLA KHADAN 2 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LEARNED CIT(A) IS CORRECT IN HOLDING THAT T HE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80P(2)(A)(I)? 2. WHETHER THE LEARNED CIT(A) HAS ERRED IN HOLDING T HAT ASSESSEE IS NOT A CO-OPERATIVE BANK FOR THE PURPOSE OF SECTION 80P(4) OF THE ACT? 3. WHETHER THE LEARNED CIT(A) HAS NOT ERRED IN FAILING TO UPHOLD THE FINDING OF THE A.O. THAT THE ASSESSEE IS THE CO- OPERATIVE SOCIETY WHICH IS ALSO A CO-OPERATIVE BANK AS PER PART-V OF THE BANKING REGULATION ACT? 2. NONE APPEARED ON BEHALF OF RESPONDENT ASSESSEE. AT THE OUTSET, THE LEARNED DEPARTMENTAL REPRESENTATIVE APPEARING B EFORE ME INFORMED THAT THE ISSUE FOR ADJUDICATION NOW STOOD SETTLED IN FAVOUR OF THE ASSESSEE BY VARIOUS DECISIONS OF THIS VERY TRIBUNAL. ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) WAS COMPLETED ON 20 TH DECEMBER 2012, WHEREIN IT WAS HELD BY THE ASSESSING OFFICER THAT THE ASSESSEE IS A CO-OPERATIVE CR EDIT SOCIETY, INVOLVING IN BANKING BUSINESS BY PROVIDING CREDIT FA CILITIES TO ITS MEMBERS. THE ASSESSEE HAD CLAIMED A DEDUCTION UNDER SECTION 80P OF THE ACT OF ` 14,43,486. THE ASSESSING OFFICER HAS MENTIONED THAT SECTION 80P(4), WHICH WAS INSERTED BY FINANCE ACT, 2 006, W.E.F. 1 ST APRIL 2007, ACCORDING TO WHICH, EXEMPTION PROVISIONS OF SECT ION 80P, SHALL NOT APPLY IN RELATION TO ANY CO-OPERATIVE BANK OTHER THAN A PRIMARY AGRICULTURAL CREDIT SOCIETY OR A PRIMARY CO-OPERATI VE AGRICULTURAL AND RURAL BANK. THE ASSESSING OFFICER HAS ALSO REFERRED EX PLANATION THEREIN M/S. SASTI COLLIERY KOYLA KHADAN 3 ACCORDING TO WHICH THE PRIMARY CO-OPERATIVE AGRICUL TURAL AND RURAL DEVELOPMENT BANK MEANS A SOCIETY HAVING ITS AREA OF OPERATION CONFINED TO A TALUKA AND THE PRINCIPLE OBJECT IS TO PROVIDE FOR LONG TERM CREDIT FOR AGRICULTURAL AND RURAL DEVELOPMENT ACTIVITIES. AFT ER INVOKING THE SAID PROVISIONS, THE ASSESSEE WAS DENIED THE EXEMPTION OF SECTION 80P AND THE CLAIM WAS DISALLOWED. 3. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPELLAT E AUTHORITY, THE LEARNED CIT(A) HAS QUOTED FEW DECISIONS OF THE AP PELLATE TRIBUNAL AND ALLOWED THE CLAIM. BEING AGGRIEVED, NOW THE REVENUE IS BEFOR E ME. 4. SINCE THE COORDINATE BENCH OF THE TRIBUNAL HAS ALREAD Y TAKEN A VIEW IN SEVERAL CASES IN THE PAST, THEREFORE, WE HAVE NO REASON TO TAKE ANY OTHER VIEW BUT TO FOLLOW THE VIEW ALREADY TAKEN. WE REPRODUCE BELOW THE VIEW TAKEN BY THE ITAT IN SOME CASES:- 1) ITA NO. 393/NAG/2013 & C.O.NO. 23/NAG/2013 DATED 5 TH JUNE, 2015 IN THE CASE OF ITO V/S. VISHAL NAGRI SAHAKARI SANST HA LTD. RELEVANT PORTION REPRODUCED BELOW:- 2.1 APART FROM DECISION PRONOUNCED BY RESPECTED CO-ORDINATE BENCH NAGPUR IN ASSESSEE'S OWN CASE, WE HAVE ALSO BEEN INFORMED THAT IN THE BUNCH OF CASES ITAT 'E' BENCH, NAGPUR VIDE AN ORDER DATED 1ST FEBRUARY, 2013 OF CASES OF ITAT 'E' BENCH, (AT SERIAL NO. 1, VIDE ITA NO. 68/NAG/2012 (AY 200 8-09) IN THE CASE OF ITO VS. M/S SHREE GOPALAKRISHNA URBAN CREDIT CO- OPERATIVE SOCIETY MARYADIT, NAGPUR) & OTHERS, WHEREIN E-BENCH OF NAGPUR TRIBUNAL, WHILE GRANTING THE BENEFIT OF DEDUCTION IN FA VOUR OF THE ASSESSEE AND AGAINST THE REVENUE, HELD AS UNDER:- 'WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES. WE ARE OF THE OPINION THAT ORDERS OF THE FAAS DO NOT SUFFER FROM ANY LEGAL INFIRMITY. AFTER ANALYZING THE VARIOUS PROVISIONS OF THE M/S. SASTI COLLIERY KOYLA KHADAN 4 ACTS AND THE CIRCULARS (ISSUED BY THE RBI AND CBDT) THEY HAVE HELD THAT ASSESSEES WERE NOT A CO-OPERATIVE BANKS AS ENVISAGED BY THE AOS IN THEIR ASSESSMENT ORDERS. IN OUR CONSIDERED OPINION, ASSESSEE CO-OPERATIVE SOCIETIES CANNOT BE DEPRIVED OF THE BENEFITS OF DEDUCTIONS AVAILABLE AS PER THE PROVISIONS OF SECTION 80P(2)(A) OF THE ACT BY INVOKING THE PROVISIONS OF SECTION 80P(4) OF THE ACT, AS DONE BY THE AOS. WE FULLY AGREE WITH THE F'AAS THAT THE APPELLANTS ARE CREDIT CO- OPERATIVE SOCIETIES AND NOT CO-OPERATIVE BANKS AND THEREFORE THEY ARE ENTITLED TO CLAIM DEDUCTION AVAILABLE UNDER CHAPTER VI-A OF THE ACT. AS POINTED OUT BY THE ARS OF THE ASSESSEES, WE HAVE PASSED SIMILAR ORDER IN THE CASE OF MEDICAL COLLEGE HOSPITAL EMPLOYEES CREDIT CO-OP. SOCIETY LTD., (SUPRA). FOLLOWING OUR OWN SAID ORDER, WE DECIDE THE ALL THE GROUNDS OF APPEALS AGAINST THE AOS'. AND, THEREFORE, UNDER THE TOTALITY OF THE FACTS AND CIRCUMSTA NCES OF THE CASE, AS ALSO RESPECTFULLY FOLLOWING THE PRECEDENTS HERE INABOVE, WE FIND NO FORCE IN THIS GROUND OF THE REVENUE HENCE, DISMISSED. 2) ITA NO. 391/NAG/2013 & ITA NO. 397/NAG/2013 DATED 2 7-05- 2015 IN THE CASE OF ITO V/S. M/S BLACK DIAMOND KARMACHARI C REDIT CO-OP. SOCIETY. RELEVANT PORTION REPRODUCED BELOW:- 2. UPON HEARING LEARNED DEPARTMENTAL REPRESENTATIVE AND THE MANAGER OF THE SOCIETY, WE FIND THAT ITAT NAGPUR BENCH IN ASSESSEES OWN CASE IN ITA NO.156/NAG/2012 FOR ASSESSMENT YEAR 2009-10 VIDE ORDER DATED 06.02.2013 HAS DECIDED THE ISS UE IN FAVOUR OF THE ASSESSEE BY HOLDING AS UNDER:- WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES. WE ARE OF THE OPINION THAT ORDERS OF THE FAAS DO NOT SUFFER FROM ANY LEGAL INFIRMITY. AFTER ANALYZING THE VARIOUS PROVISIONS OF THE ACTS AND THE CIRCULARS (ISSUED BY THE RBI AND CBDT) THEY HAVE HELD THAT ASSESSEES WERE NOT A CO-OPERATIVE BANKS AS ENVISAGED BY THE AOS IN THEIR ASSESSMENT ORDERS. IN OUR CONSIDERED OPINION, ASSESSEE CO- OPERATIVE SOCIETIES CANNOT BE DEPRIVED OF THE BENEFITS OF DEDUCTION AVAILABLE AS PER THE PROVISIONS OF SECTION 80P(2)(A) OF THE ACT BY INVOKING THE PROVISIONS OF SECTION 80P(4) OF THE ACT, AS DONE BY THE AOS. WE FULLY AGREE WITH THE FAAS THAT THE APPELLANTS ARE CREDIT CO- OPERATIVE SOCIETIES AND NOT CO -OPERATIVE BANKS AND THEREFORE THEY ARE ENTITLED TO CLAIM DEDUCTION AVAILABLE UNDER CHAPTER VI-A OF THE ACT. AS POINTED OUT BY THE M/S. SASTI COLLIERY KOYLA KHADAN 5 ARS OF THE ASSESSEE, WE HAVE PASSED SIMILAR ORDER IN THE CASE OF MEDICAL COLLEGE HOSPITAL EMPLOYEES CREDIT CO.-OP. SOCIETY LTD., (SUPRA). FOLLOWING OUR OWN SAID ORDER, WE DECIDE THE ALL THE GROUNDS OF APPEALS AGAINST THE AOS. 3. SINCE THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE ITATS DECISION IN ASSESSEES OWN CASE, WE UPHOLD THE ORDER OF LEARNED CIT(A). 3) ITA NOS. 357/NAG/2012, 359/NAG/2013, 361/NAG/2013 & 371/NAG/2013 DATED 27-05-2015 IN THE CASE OF ITO V/S. Z. P. PRIMARY TEACHERS CREDIT CO-OP. SOCIETY LTD. AND OTHERS. RELEVANT PORTION REPRODUCED BELOW:- 7. NOW, WE FIND THAT IT IS UNDISPUTED, THAT THESE CO- OPERATIVE SOCIETIES ARE ENGAGED IN PROVIDING CREDIT FACILIT IES TO ITS MEMBERS. IT IS NOT AT ALL THE CASE THAT THEY ARE PROVIDING SERVICES OR FACILITIES TO THE PUBLIC AT LARGE. TH E DECISION REFERRED BY THE LD. DR IN THE CASE OF 144 CTR 240 , IS THE JUDGMENT OF HONBLE MADRAS HIGH COURT AND SAME WAS DELIVERED IN THE CONTEXT OF EXGIBILITY TO INTEREST TAX ACT. IN OUR CONSIDERED OPINION, THE FACTS OF THE CASE AND RATIO EMANATING THEREFROM ARE NOT AT ALL APPLICABLE TO THE FACTS OF THE CASE. WE NOTE THAT NAGPUR TRIBUNAL ITSELF HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSES IN BATCH OF GROUP OF CASES BY ORDER DATED 1 ST FEBRUARY, 2013, WHICH INCLUDED ONE OF THE ASSESSEES M/S INDER COLOUR CREDIT CO-OP. SOCIETY. TWO OF THE CASES IN THE SAID CASE ALSO TRAVELLED TO THE HONBLE JURISDICTIONAL HIGH COURT. BY THE ORDER DATED 26 TH SEPTEMBER, 2013 IN ITA NO. 59 & 60 OF 2013. THE HONBLE JURISDICTIONAL HIGH COURT HAS DISMISSED THE REVENUES APPEAL IN THIS REGARD. 8. IN THE AFORESAID BACKGROUND OF DISCUSSION AND PRECEDENT, IN OUR CONSIDERED OPINION, THERE IS NO INFIRMITY IN THE ORDER OF LD. CIT(A). ACCORDINGLY, WE UPHOLD THE SAME. 5. IN THE LIGHT OF ABOVE DISCUSSION, GROUNDS RAISED BY T HE REVENUE ARE HEREBY DISMISSED. M/S. SASTI COLLIERY KOYLA KHADAN 6 6. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH AUGUST 2015 SD/ - MUKUL K. SHRAWAT JUDICIAL MEMBER NAGPUR, DATED: 18 TH AUGUST 2015 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, NAGPUR CITY CONCERNED; (5) THE DR, ITAT, NAGPUR; (6) GUARD FILE. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY A SSISTANT REGISTRAR ITAT, NAGPUR