S.E.,S.E.C.&E.Co.Railways., Kolkata V. A.C.I,T.Cir - 28,Kol., Kolkata

ITA 1693/KOL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7940 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2014
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 20-11-2012
• Court: TRIBUNAL
• Department Lawyers: DILI P KR RAKSHIT
• Keywords: Business income; Rule of consistency; Question of law
• Section: 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [BEFORE HONBLE SRI MAHAVIR SINGH, JM& HONBLE S RI SHAMIM YAHYA, AM ] ITA NO.1693/KOL/2012 ASSESSMENT YEAR : 2008-09 ( APPELLANT ) (RESPONDENT) S.E.,S.E.C & E.CO.RAILWAYS -VS- A.C.I.T., CIRCLE- 28, EMPLOYEES CO-OPERATIVE CREDIT KOLKATA SOCIETY LTD., KOLKATA (PAN:AABAS 9181 Q) FOR THE APPELLANT SHRI SUBASH AGARWAL, ADVOCATE FOR THE RESPONDENT SHRI DILIP KR.RAKSHIT, JCIT, SR.DR DATE OF HEARING : 22.10.2014 DATE OF PRONOUNCEMENT : 30. 10.2014. ORDER PER SHRI SHAMIM YAHYA, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. C.I.T.(A)- XIV, KOLKATA DT. 06.09.2012 AND PERTAINS TO ASSESSMENT Y EAR 2008-09. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE RE AD AS UNDER :- 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) ERRED IN HOLDING THAT THE INTEREST INCOME EARNED BY THE ASSE SSEE-CREDIT SOCIETY AMOUNTING TO RS.87,25,339/- DOES NOT QUALIFY FOR DEDUCTION U/S 8 0P. 2. FOR THAT THE LD. CIT(A) ERRED IN WRONGLY APPLYIN G THE JUDGEMENTS IN THE CASE OF TOTGARS CO-OPERATIVE SALE SOCIETY VS ITO 188 TAXMAN 282 (SC) AND IN THE CASE OF BIHAR RAJYA SAHKARI BHOOMI BOIKASH CO-OP. BANK LTD VS CIT 186 TAXMAN 54 (PAT.) WHICH ARE NOT APPLICABLE TO THE FACTS OF THE ASSESS EES CASE. 3. FOR THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN NOT ALLOWING PROPORTIONATE DEDUCTION IN RESPECT OF INTEREST PAID/PAYABLE TO THE MEMBERS OUT OF THE INTEREST INCOME EARNED THOUGH THE SAID CLAIM HAS BEEN ALLOWED IN THE SUBSEQUENT Y EAR BY THE LD.A.O. HIMSELF. 4. FOR THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN NOT ALLOWING PROPORTIONATE ADMINISTRATIVE AND OTHER EXPENSES AS DEDUCTION OUT OF THE INTEREST INCOME EARNED. 5. FOR THAT THE ENTIRE INCOME EARNED BY THE ASSESSE E INCLUDING THE INTEREST INCOME OF RS.87,25,339/- IS TOTALLY IMMUNE FROM TAX APPLYING THE PRINCIPLE OF MUTUALITY. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ALL OR ANY OF THE GROUNDS OF APPEAL. 3. THE ASSESSEE IS A CO-OPERATIVE SOCIETY REGISTER ED UNDER THE MULTI-STATE CO- OPERATIVE SOCIETIES ACT. THE PRIMARY OBJECTIVE OF T HE CO-OPERATIVE SOCIETY IS TO ACCEPT DEPOSITS OF THE MEMBERS OF THE SOCIETY AND TO PROVI DE LOAN AND CREDIT FACILITIES TO THE ITA.NO.1693/K/2012 S.E., S.E.C. & E.CO.RAILW AYS EMPLOYEES COOP.CREDIT SOCIETY LTD.,KOL A.YR.2008-09 2 MEMBERS. USUALLY THE DEPOSITS ARE ACCEPTED FROM THE MEMBERS IN VARIOUS FORMS LIKE CMTD, SAVINGS DEPOSIT AND FIXED DEPOSIT ETC. THE AS SESSEE HAD CLAIMED DEDUCTION U/S 80P(2)(A)(I) OF THE ACT @ 100% OF ITS PROFITS. DURING THE COURSE OF ASSESSMENT AO OBSERVED THAT LOANS AND DEPOSITS ACCEPTED BY THE SO CIETY FROM ITS MEMBERS ARE UTILISED TOWARDS PROVIDING LOANS AND CREDIT FACILITIES TO IT S MEMBERS. HOWEVER THE EXCESS FUNDS ARE UTILIZED IN MAKING DEPOSITS IN BANKS AND INVEST MENTS. AO WAS OF THE OPINION THAT INTEREST EARNED BY THE ASSESSEE FOR MAKING DEPOSITS IN THE BANKS CANNOT BE EXEMPTED U/S 80P(2)(A)(I) OF THE ACT. ASSESSEE SUBMITTED BEF ORE THE AO THAT THE PRIMARY OBJECTIVE OF THE SOCIETY WAS TO PROVIDE LOAN AND CR EDIT FACILITIES TO ITS MEMBERS FROM THOSE AVAILABLE FUNDS. WHENEVER THERE IS EXCESS FUN D, THE SAID FUND WAS INVESTED FOR A SHORT TERM IN THE BANKS AND FINANCIAL INSTITUTIONS. IT WAS FURTHER SUBMITTED THAT THE FUNDS ARE INVESTED FOR A SHORT TERM, IN BANKS AND O THER FINANCIAL INSTITUTIONS, ONLY IN CASE WHEN THERE IS NO DEMAND FOR ANY LOAN OR CREDIT . SUCH INVESTMENT IS BEING MADE BY THE SOCIETY SO THAT ITS UNUTILIZED FUNDS DO NOT REMAIN IDLE. THAT SUCH INVESTMENTS ARE MADE AS A POLICY OF FINANCIAL MANAGEMENT. IT WA S ALSO CONTENDED BY THE A/R THAT WHEN THERE IS HEAVY DEMAND FOR LOAN AND CREDIT SUCH SHORT TERM INVESTMENT ARE LIQUIDATED PREMATURELY AND LOAN AND CREDIT FACILITI ES ARE PROVIDED TO THE MEMBERS. IN CASE OF NON-AVAILABILITY OF FUND THE SOCIETY BORROW S FROM THE BANKS AND DISBURSES LOAN AND CREDIT TO THE MEMBERS, WHEN IT IS BEING FELT, T HAT PREMATURE ENCASHMENT OF INVESTMENT WOULD NOT BE A FINANCIALLY PRUDENT DECIS ION. THEREBY THE SOCIETY ATTAINS ITS PRIMARY OBJECTIVE OF PROVIDING LOAN AND CREDIT FACI LITY TO ITS MEMBERS. THUS EARNING OF INTEREST FROM SHORT TERM INVESTMENTS IN BANKS AND F INANCIAL INSTITUTIONS IS ITS ANCILLARY OBJECTIVE SO THAT MAXIMUM UTILIZATION OF FUND IS PO SSIBLE AND THE UNUTILIZED FUND DOES NOT REMAIN AS A NON-PERFORMING ASSET. THAT IT IS AL SO IN THE INTEREST OF THE SOCIETY TO MAKE SUCH SHORT TERM INVESTMENTS, AS A RESULT OF WH ICH THE PROFITABILITY IS MAXIMIZED. HOWEVER THE ABOVE CONTENTIONS OF THE ASSESSEE WERE NOT ACCEPTED BY THE AO. HE PROCEEDED TO HOLD THAT ASSESSEE HAS EARNED INTEREST FROM BANKS AND FINANCIAL INSTITUTIONS. THEREFORE THE INTEREST INCOME DID NOT QUALIFY IN TERMS OF SECTION 80P(2)(A)(I) OF THE ACT. 4. THE LD. CIT(A) AFFIRMED THE ACTION OF AO. HE HEL D THAT THE ASSESSEE HAS EARNED INTEREST INCOME BY MAKING INVESTMENTS IN BANKS AND FINANCIAL INSTITUTIONS. THEREFORE ITA.NO.1693/K/2012 S.E., S.E.C. & E.CO.RAILW AYS EMPLOYEES COOP.CREDIT SOCIETY LTD.,KOL A.YR.2008-09 3 INTEREST INCOME IS NOT QUALIFIED FOR DEDUCTION U/S 80P(2)(A)(I) OF THE ACT. THE ASSESSEE ALSO CONTENDED BEFORE LD. CIT(A) THAT THE REAL INCO ME FROM BANK DEPOSIT WAS A LOSS. THIS WAS CONTENDED ON THE GROUND THAT THE DEPOSITS MADE IN THE BANKS WERE OUT OF DEPOSITS FROM MEMBERS ON WHICH THE ASSESSEE HAD TO PAY INTEREST. HOWEVER, THIS CONTENTION OF THE ASSESSEE WAS NOT ENTERTAINED BY L D. CIT(A) ON THE GROUND THAT NO SUCH PLEA WAS TAKEN BY THE ASSESSEE DURING THE ASSE SSMENT PROCEEDINGS AND NO EVIDENCE WAS PRODUCED DURING THE APPELLATE PROCEEDI NGS TO JUSTIFY ITS CONTENTION. THE LD. CIT(A) FURTHER CONCLUDED AS UNDER :- I ALSO FIND THAT THE ISSUE IS COVERED AGAINST THE APPELLANT BY THE FOLLOWING JUDGEMENT : I) IN THE CASE OF TOTGARS CO-OPERATIVE SALE SOCIETY LT D. VS. INCOME TAX OFFICER, KARNATAKA THE DIVISION BENCH OF THE APEX COURT HE LD THAT THE ASSESSEES BUSINESS IS TO PROVIDE CREDIT FACILITIES TO ITS MEMBERS AND IT RETAINS SOME FUNDS FROM THE MEMBERS WHICH IS INVESTED IN SPECIFIED SECURITIES AND INTER EST EARNED FROM SUCH DEPOSITS WOULD COME UNDER THE CATEGORY OF INCOME FROM OTHER SOURCE TAXABLE U/S 56 AND WOULD NOT QUALIFY FOR DEDUCTION AS BUSINESS INCOME U/S 80P(2) (A)(I). II) IN ANOTHER CASE OF BIHAR RAJYA SAHKARI BHOOMI BIKAS H CO-OP.BANK LTD. VS. CIT, THE DIVISION BENCH OF THE PATNA HIGH COURT ALSO HEL D THE SAME VIEW AS PER ABOVE, THAT THE INTEREST EARNED ON PROVIDENT FUND AND RENTAL IN COME COULD NOT BE TREATED AS INCOME ATTRIBUTABLE TO BANKING BUSINESS AND WOULD NOT QUAL IFY FOR DEDUCTION U/S 80P(2)(A)(I). I FIND THAT THE ISSUE IS SQUARELY COVERED AGAINST T HE APPELLANT BY THE ORDER OF THE HONBLE SUPREME COURT IN THE CASE OF M/S. THE TOTGARS COOP ERATIVE SALE SOCIETY LIMITED VERSUS INCOME TAX OFFICER, KARNATAKA [2010] 188 TAX MAN 282 (SC). THE AFORESAID ASSESSEE WAS A CO-OPERATIVE SOCIETY. DURING THE REL EVANT ASSESSMENT YEAR IT HAD SURPLUS FUND WHICH THE ASSESSEE INVESTED IN SHORT TERM DEPO SITS WITH THE BANKS AND GOVERNMENT SECURITY. ON SUCH INVESTMENT INTEREST ACCRUED TO TH E ASSESSEE. SUBSTANTIAL QUESTION OF LAW WHICH AROSE IN THE AFORESAID CASE IS WHETHER S UCH INTEREST INCOME WOULD QUALIFY FOR DEDUCTION AS BUSINESS INCOME U/S 80P(2)(A)(I) OF TH E I.T.ACT, 1961. THE HONBLE SUPREME COURT DECIDED THE QUESTION AGAINST THE ASSE SSEE AND IN FAVOUR OF THE REVENUE. IN THE PRESENT CASE, THE FACTS ARE IDENTICAL. THE A PPELLANT HAS EARNED INTEREST INCOME BY MAKING INVESTMENT WITH BANKS AND FINANCIAL INSTITUT IONS. IN ACCORDANCE WITH THE RATIO LAID DOWN BY THE HONBLE SUPREME IN THE CASE CITED SUPRA, SUCH INTEREST IS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80P(2)(A)(I) OF THE I.T .ACT, 1961. RESPECTFULLY FOLLOWING THE AFORESAID JUDGEMENT OF THE HONBLE SUPREME COURT I HOLD THAT THE ASSESSING OFFICER WAS RIGHT IN LAW ON THE FACTS OF THE CASE IN DENYIN G THE DEDUCTION U/S 80P(2)(A)(I) OF THE I.T.ACT ON THE INTEREST INCOME OF RS.87,25,339/-. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEAL B EFORE US. 5. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS BEEN CONTI NUOUSLY GRANTED EXEMPTION U/S 80P(2)(A)(I) OF THE ACT IN THE PRECEDING ASSESSMENT YEARS. THE ITAT, KOLKATA BENCHES HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE AS WELL AS THE HONBLE JURISDICTIONAL ITA.NO.1693/K/2012 S.E., S.E.C. & E.CO.RAILW AYS EMPLOYEES COOP.CREDIT SOCIETY LTD.,KOL A.YR.2008-09 4 HIGH COURT. IN THIS VIEW OF THE MATTER THE LD. COUN SEL OF THE ASSESSEE CLAIMED THAT ON THE BASIS OF THE PRINCIPLE OF CONSISTENCY THE REVEN UE CANNOT BE PERMITTED TO TAKE A DIFFERENT STAND FOR THE CURRENT YEAR. THE LD. COUNS EL OF THE ASSESSEE FURTHER SUBMITTED THAT IN THE SUBSEQUENT YEAR THE AO HAS HIMSELF ACC EPTED THE ASSESSEES PLEA THAT THE INCOME FROM BANK DEPOSITS HAS TO BE SEEN IN THE LIG HT OF THE COST THE ASSESSEE HAS TO INCUR IN GETTING THOSE FUNDS WHICH ARE IN THE SHAPE OF INTEREST WHICH THE SOCIETY PAYS TO ITS MEMBERS. THE LD. COUNSEL OF THE ASSESSEE FUR THER SUBMITTED THAT THE APEX COURTS DECISION IN THE CASE OF TOTGARS CO-OPERATIV E SALE SOCIETY LTD. VS ITO AND THE DECISION OF HONBLE PATNA HIGH COURT IN THE CASE OF BIHAR RAJYA SAHKARI BHOOMI BIKASH CO-OP,BANK LTD. VS CIT RELIED UPON BY THE LD . CIT(A) ARE NOT APPLICABLE TO THE FACTS OF THE CASE. ACCORDINGLY THE LD. COUNSEL OF T HE ASSESSE CONTENDED THAT THE ISSUE MAY BE DECIDED IN FAVOUR OF THE ASSESSEE AS IN THE PRECEDING AND SUBSEQUENT YEARS. 6. THE LD. DR, ON THE OTHER HAND, RELIED ON THE ORD ERS OF THE AUTHORITIES BELOW. 7. UPON CAREFUL CONSIDERATION, WE FIND THAT THE ISS UE INVOLVED IN THE PRESENT CASE IS WHETHER THE INTEREST INCOME EARNED BY THE ASSESS EE SOCIETY FROM MAKING DEPOSITS IN SHORT TERM DEPOSIT IN BANKS WILL QUALIFY FOR EXEMPT ION U/S 80P(2)(A)(I) OF THE ACT. THE DEPOSITS WHICH ARE MADE BY THE ASSESSEE ARE OUT OF THE DEPOSIT COLLECTED BY THE ASSESSEE FROM ITS MEMBERS. THE ASSESSEE SOCIETY ALS O PROVIDES LOAN AND CREDIT FACILITIES TO ITS MEMBERS. WHEN THE FUNDS ARE LYING IDLE THEY ARE INVESTED IN THE SHORT TERM IN BANK DEPOSITS. IN THIS VIEW OF THE MATTER W E FIND THAT ASSESSEES CONTENTION IS COGENT THAT WHEN THE REAL INCOME FROM THE BANK DEPO SIT HAS TO BE CONSIDERED, IT IS TO BE SEEN IN THE LIGHT OF THE INTEREST WHICH THE ASSE SSEE HAS TO PAY TO ITS MEMBERS ON ITS DEPOSITS AND ALSO THE ADMINISTRATION COST OF MAKING SUCH DEPOSITS. THIS CONTENTION OF THE ASSESSEE HAS DULY BEEN ACCEPTED BY THE REVENUE AS IS EMANATING FROM THE ORDER OF AO IN A.YR.2009-10. IN THE SAID ASSESSMENT ORDER TH E AO HAD COMPUTED THE GROSS INTEREST ON BANK DEPOSIT AT RS.1,24,16,335/-. FROM THIS THE AO HAS ALLOWED THE INTEREST PAID BY THE ASSESSEE TO ITS MEMBERS AMOUNTING TO RS .1,21,31,880/-. ONLY THE RESULTANT INCOME FROM BANK DEPOSITS AMOUNTING TO RS.2,84,445/ - WAS BROUGHT TO TAX. WE DO NOT FIND ANY REASON AS TO WHY THIS PRINCIPLE SHOULD NOT BE ADOPTED IN THE CURRENT YEAR. IN OUR CONSIDERED OPINION THE LD. CIT(A) HAS ERRED IN NOT ENTERTAINING THIS PLEA OF THE ASSESSEE. ITA.NO.1693/K/2012 S.E., S.E.C. & E.CO.RAILW AYS EMPLOYEES COOP.CREDIT SOCIETY LTD.,KOL A.YR.2008-09 5 7.1. WE FURTHER FIND THAT THE ISSUE INVOLVED IS COV ERED IN FAVOUR OF THE ASSESEE BY CATENA OF DECISIONS OF THE TRIBUNAL IN ASSESSEES O WN CASE. THESE DECISIONS ARE ALSO AFFIRMED BY THE HONBLE JURISDICTIONAL HIGH COURT I N ITS ORDER FOR A.YR.2005-06. IN THIS ORDER THE HONBLE JURISDICTIONAL HIGH COURT HA S CONSIDERED ALL THE RELEVANT ORDERS AND HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE . WE MAY GAINFULLY REPRODUCE THE OPERATIVE ORDER OF THE JURISDICTIONAL HIGH COURT WH ICH IS AS UNDER :- WE HAVE GONE THROUGH THE IMPUGNED JUDGMENT AND ORD ER OF THE LEARNED TRIBUNAL. IT APPEARS THAT THE POINT INVOLVED .IS WHETHER INTERES T EARNED OUT OF THE INVESTMENT EARNED BY THE ASSESSEE COOPERATIVE CAN BE TREATED TO BE TH E INCOME ARISING OUT OF BUSINESS ACTIVITY OR FROM OTHER SOURCES IN ORDER TO APPLY TH E PROVISION OF SECTION 80P(2)(A)(I) OF THE I.T.ACT. IT IS AN UNDISPUTED FACTUAL POSITION T HAT SIMILAR ISSUE AROSE BEFORE THE COMMISSIONER OF INCOME TAX (APPEAL) IN RELATION TO THE ASSESSMENT YEAR 1998-99 TO 2002-2003 AS ALSO FOR THE ASSESSMENT YEAR 1995-96 A ND 1996-97. THEN AGAIN IN RELATION TO THE ASSESSMENT YEARS 2003-04 AND 2004-05 A SIMIL AR POINT AROSE. THE LEARNED TRIBUNAL IN RELATION TO THE ASSESSMENT YEARS 1998-9 9 TO 2002-2003 BY ORDER DATED 10.11.2006 IN ITA NOS. 840 TO 844/KOL/2006 AND AGAI N BY ORDER DATED 29.12.2006 IN RELATION TO ASSESSMENT YEARS 2003-04 AND 2004-05 HA S DELETED THE DISALLOWANCE MADE IN THOSE ASSESSMENT YEARS AND IT WAS HELD THAT THE INT EREST EARNED BY THE ASSESSEE COOPERATIVE SOCIETY FROM ITS SHORT TERM AND FIXED D EPOSITS WITH THE BANS AND OTHER INSTITUTIONS WERE DISALLOWED ON THE GROUND THAT THI S INCOME WAS NOT BUSINESS PROFIT OF THE ASSESSEE SOCIETY BUT WAS INCOME FROM OTHER SOUR CES. THE LD.TRIBUNAL HAS ALSO HELD THAT INCOME FROM INVESTMENT IN BANKS AND OTHER FINA NCIAL INSTITUTIONS IS THE BUSINESS INCOME OF THE ASSESSEE SOCIETY AND IT IS ELIGIBLE T O GET DEDUCTION UNDER SECTION 80P(2)(A)(I). THE TRIBUNAL HAS OVERRULED THE DECISI ONS RENDERED AGAINST THE ASSESSEE IN RELATION TO ASSESSMENT YEARS 1995-96 AND 1996-97 ON THE SAME ISSUE IN RELATION TO SUBSEQUENT YEARS. IT WAS FOUND BY THE TRIBUNAL WHILE AFFI RMING THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL) THAT THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTANCES OF THIS CASE AND IT WAS HELD THAT THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION UNDER SECTION 80P(2)(A)(I) ON INTEREST ON INVESTMENT AMOUNTING TO RS.1,18,07,6 45/- IN THIS ASSESSMENT YEAR ALSO. SINCE THE TRIBUNAL FOUND THAT THIS DECISION OF THE TRIBUNAL WAS FOLLOWED BY CIT(A) THERE IS NO REASON TO TAKE A DIFFERENT VIEW. UNDER THESE CIRCUMSTANCES, WE FEEL THA T WHEN THE COMMISSIONER OF INCOME TAX (A) AS WELL AS THE TRIBUNAL HAS FOLLOWED THE EARLIE R UNCHALLENGED DECISION NO QUESTION OF LAW IS INVOLVED IN THIS MATTER. NOTHING HAS BEEN PRODUCED BEFORE US TO SHOW SUBSEQUENT DECISION OF THE TRIBUNAL IN RELATION TO THE ASSESSMENT YEARS 1998-99 TO 2002-03 AND 2003-04 HAVE BEEN CHALLENGED BY ANY OF THE PARTIES BEFORE THIS COURT. IT IS SUBMITTED BY MR.BHOWMICK THAT THE RE HAS BEEN CHALLENGE OF THE DECISION IN RELATION TO ASSESSMENT YEARS 1995-96, 1996-97 AND T HE SAME IS PENDING BEFORE THIS COURT WE THINK THAT CHALLENGE OF THE ASSESSEE HAS N OW BECOME REDUNDANT AS THE EARLIER VIEW TAKEN IN BOTH THE ASSESSMENT YEARS HAVE BEEN R EVERSED BY THE TRIBUNAL BY ITS SUBSEQUENT DECISION. HENCE, THE PENDENCY OF THAT EA RLIER MATTER IS OF NO CONSEQUENCE IN THIS MATTER. HAD THERE BEEN A CHALLENGE OF THE DECI SION OF THE TRIBUNAL IN RELATION TO THE ASSESSMENT YEARS 1998-99 TO 2002-03 AND ALSO 2003-0 4 TO 2004-05 THE MATTER WOULD HAVE BEEN DIFFERENT. THE REVENUE DID NOT TAKE ANY S TEP WHATSOEVER. THEREFORE, WE ITA.NO.1693/K/2012 S.E., S.E.C. & E.CO.RAILW AYS EMPLOYEES COOP.CREDIT SOCIETY LTD.,KOL A.YR.2008-09 6 PRESUME THE REVENUE HAS ACCEPTED THE SUBSEQUENT VIE W OF THE TRIBUNAL AND THE SAME NOW HOLD THE FIELD RIGHT NOW. 7.2. CONSIDERING THE ABOVE WE FIND THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE JURISDI CTIONAL HIGH COURT IN ASSESSEES OWN CASE. IN THIS REGARD WE WOULD LIKE TO PLACE REL IANCE UPON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF CIT VS EXCEL INDU STRIES 358 ITR 295 WHEREIN THE PRINCIPLE OF CONSISTENCY HAS BEEN REITERATED. HENCE WHEN THE ISSUE HAS BEEN DECIDED BY THE JURISDICTIONAL HIGH COURT NO CONVINCING REAS ON HAS BEEN POINTED TO TAKE A DIFFERENT VIEW, ANY DEVIATION IS NOT PERMITTED.. 7.3. NOW WE COME TO THE CASE LAWS RELIED UPON BY TH E LD. CIT(A). AS REGARDS THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF TOTGARS CO-OPERATIVE SALE SOCIETY LTD. (SUPRA) WE FIND THAT THE SAID DECISION IS NOT APPLICABLE IN THE FACTS OF THE CASE. WE FIND THAT THE HONBLE APEX COURT IN THE SAID DEC ISION IN PARA 11 HAS ITSELF MENTIONED THAT WE ARE CONFINING THE JUDGMENT TO TH E FACTS OF THE PRESENT CASE.. THE FACTS OF THE CASE WERE THAT ASSESSEES BUSINESS WAS TO PROVIDE CREDIT FACILITIES TO ITS MEMBERS AND TO MARKET THEIR AGRICULTURAL PRODUCE. I N MANY CASES ASSESSEE RETAINED SALE PROCEEDS OF MEMBERS WHOSE PRODUCE WAS MARKETED BY IT AND SINCE FUNDS CREATED BY SUCH RETENTION WERE NOT REQUIRED IMMEDIATELY FOR BUSINESS PURPOSES, IT INVESTED SAME IN SPECIFIED SECURITIES AND EARNED INTEREST IN COME. IN THESE CIRCUMSTANCES THE HONBLE APEX COURT HAD HELD THAT INTEREST EARNED WO ULD COME IN CATEGORY OF INCOME FROM OTHER SOURCES TAXABLE U/S 56 OF THE ACT AND W OULD NOT QUALIFY FOR DEDUCTION AS BUSINESS INCOME U/S 80P(2)(A)(I). FROM THE ABOVE IT IS AMPLY EVIDENT IN THE PRESENT CASE THE ASSESSEE HAS NOT RETAINED ANY AMOUNT DUE T O ITS MEMBERS AND INSTEAD OF PAYING THE SAME HAD INVESTED THE SAME AND EARNED IN TEREST. THUS THIS CASE LAW IS NOT APPLICABLE ON THE FACTS OF THE PRESENT CASE. 7.4. AS REGARDS THE DECISION OF HONBLE PATNA HIGH COURT IN THE CASE OF BIHAR RAJYA SAHKARI BHOOMI BIKASH CO-OP.BANK LTD. (SUPRA) THE S AME IS ALSO NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. IN THAT CASE THE QUESTIO N WAS THE TREATMENT OF INTEREST EARNED ON PROVIDENT FUND AND RENTAL INCOME AS ATTRIBUTABLE TO BANKING BUSINESS AND THIS QUALIFYING FOR DEDUCTION U/S 80P(2)(A)(I) OF THE AC T. ITA.NO.1693/K/2012 S.E., S.E.C. & E.CO.RAILW AYS EMPLOYEES COOP.CREDIT SOCIETY LTD.,KOL A.YR.2008-09 7 7.5. IN THE BACKGROUND OF THE AFORESAID DISCUSSION AND PRECEDENT WE HOLD THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL AND THE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CAS E. THE DECISION RELIED UPON BY THE LD. CIT(A) ARE NOT APPLICABLE IN THE FACTS OF THE C ASE. THE PRINCIPLE OF CONSISTENCY AS CONVEYED BY THE HONBLE APEX COURT MANDATES THAT TH E REVENUE DOES NOT TAKE A DIFFERENT STAND. ACCORDINGLY WE SET ASIDE THE ORDER S OF THE AUTHORITIES BELOW AND DECIDE THE ISSUE IN FAOVUR OF THE ASSESSEE. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 30.10.2014. SD/- SD/- [ MAHAVIR SINGH ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 30.10.2014. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. S.E., S.E.C. & E.CO. RAILWAYS EMPLOYEES CO-OPERATI VE CREDIT SOCIETY LTD., 93, CIRCULAR GARDEN REACH ROAD, KOLKATA-700043. 2 A.C.I.T., CIRCLE-28, KOLKATA. 3 . CIT(A)-XIV, KOLKATA. 4. CIT KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES