Income Tax Officer, Bangalore V. M/s.Sree Bhyraveshwara Credit Co-operative Society Ltd., Bangalore

ITA 2212/BANG/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8573 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 15-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law; Benefit of exemption
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH - SMC B BEFORE SHRI VIJAY PAL RAO , JUDICIAL MEMBER I.T.A. NO. 2212 /BANG/201 6 (ASSESSMENT YEAR : 200 9 - 10 ) INCOME TAX OFFICER, WARD 3(2)(2), BANGALORE. VS. M/S. SREE BHYRAVESHWARA CREDIT CO - OPERATI VE SOCIETY LTD., NO.1, 8 TH MAIN, 22 ND CROSS, MRCR LAYOUT, VIJAYANAGAR, BANGALORE - 560 040 PAN AAAS 6789B APPELLANT RESPONDENT. APPELLANT BY : SHRI AR.V.SREENIVASAN, JCIT (D.R) RESPONDENT BY : NONE. DATE OF H EARING : 21.02.2017. DATE OF P RONOUNCEMENT : 2 1 .02. 201 7 . O R D E R PER SHRI VIJAY P AL RAO, J. M. : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DT.3 0.09.2016 OF COMMISSIONER OF INCOME TAX (APPEALS) - 3, BANGALORE FOR THE ASSESSMENT YEAR 2009 - 10. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS : 2 ITA NO. 2212 / BANG/ 2016 3. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE WHEN THIS APPEAL WAS CALLED FOR HEARING DESPITE THE N OTICE ISSUED TO THE ASSESSEE. ACCORDINGLY, I PROPOSE TO HEAR AND DISPOSE OF THIS APPEAL EXPARTE. 4. THE ASSESSEE IS A REGISTERED CO - OPERATIVE SOCIETY ENGAGED IN THE BUSINESS OF FINANCIAL ASSISTANCE TO ITS MEMBERS AS PER ITS BYE LAWS AND TO DEAL WITH TH E MEMBERS BASED ON THE CO - OPERATIVE MOVEMENT BY PROVIDING MUTUAL FINANCIAL ASSISTANCE IN THE FORM OF LOANS AND ACCEPTANCE OF DEPOSITS TO JOINTLY DEVELOP THE FINANCIAL POSITION TO ITS MEMBERS. THE ASSESSING OFFICER WHILE COMPLETING 3 ITA NO. 2212 / BANG/ 2016 THE ASSESSMENT DISALLOWE D THE BENEFIT OF SECTION 80P ON THE GROUND THAT THE ASSESSEE IS IN THE BANKING BUSINESS AND THEREFORE THE PROVISIONS OF SECTION 80P(4) WOULD APPLY TO THE ASSESSEE. ON APPEAL, THE CIT (APPEALS) HAS ALLOWED THE APPEAL OF THE ASSESSEE BY FOLLOWING THE DECI SION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. BILURU GURUBASAVA PATTINA SAHAKARI SANGHA NIYAMITHA 369 ITR 86. 5. BEFORE THE TRIBUNAL, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT THE REVENUE HAS NOT ACCEPTED THE DECIS ION OF HON'BLE JURISDICTIONAL HIGH COURT (SUPRA) AND HAS CHALLENGED THE SAME BY FILING SLP BEFORE THE HON'BLE SUPREME COURT. HE HAS RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 6. HAVING CONSIDERED THE SUBMISSIONS OF THE LEARNED DEPARTMENTAL REPRESE NTATIVE AS WELL AS RELEVANT MATERIAL ON RECORD, IT IS NOTED THAT THE CIT (APPEALS) HAS ALLOWED THE CLAIM OF THE ASSESSEE BY FOLLOWING THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. BILURU GURUBASAVA PATTINA SAHAKARI SANGHA NIYAMITHA (SUPRA) WHEREIN HON'BLE HIGH COURT HAS HELD IN PARAS 8 AND 9 AS UNDER : 8. IN THE ASSESSMENT ORDER, THE ASSESSING AUTHORITY HAS CLEARLY STATED THAT THE ASSESSEE IS A CO - OPERATIVE SOCIETY AND HAS NOT OBTAINED ANY BANKING LICENCE. THE BUSINESS OF THE ASSESSEE I S TO 4 ITA NO. 2212 / BANG/ 2016 PROVIDE CREDIT FACILITIES TO ITS MEMBERS. SINCE THE ASSESSEE CANNOT CARRY ON ANY BANKING BUSINESS, THE INTEREST ON INVESTMENT IS TAXABLE AS INCOME FROM OTHER SOURCE. THEREFORE, THE AFORESAID FACTS, WHICH IS NOT IN DISPUTE CLEARLY ESTABLISHES THAT IT I S NOT A CO - OPERATIVE BANK. IN FACT, THE REVISIONAL AUTHORITY ALSO IN HIS ORDER HAS CATEGORICALLY STATED THAT THE ASSESSEE IS A CO - OPERATIVE SOCIETY, WHICH PROVIDES CREDIT FACILITIES. SECTION 80P OF THE ACT DEALS WITH THE DEDUCTION OF INCOME OF A SOCIETY. I N THE CASE OF ANY ASSESSEE BEING A CO - OPERATIVE SOCIETY, THE WHOLE OF THE AMOUNTS OF PROFITS AND GAINS OF BUSINESS ATTRIBUTABLE TO ANY OF OTHER ACTIVITIES REFERRED TO SUB - SECTION (2) OF SECTION 80P SHALL BE DEDUCTED IN COMPUTING THE TOTAL INCOME OF THE ASS ESSEE. IN OTHER WORDS, THE SAID INCOME IS NOT TAXABLE. IT IS A BENEFIT GIVEN TO THE CO - OPERATIVE SOCIETY. SECTION 80P(4) WAS INTRODUCED BY THE FINANCE ACT, 2006, WITH EFFECT FROM APRIL 1, 2007, EXCLUDING THE SAID BENEFIT TO A CO - OPERATIVE BANK. THE SAID PR OVISION READS AS UNDER : '(4) THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IN RELATION TO ANY CO - OPERATIVE BANK OTHER THAN A PRIMARY AGRICULTURAL CREDIT SOCIETY OR A PRIMARY CO - OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK.... ( A ) 'CO - OPERATIVE BAN K' AND 'PRIMARY AGRICULTURAL CREDIT SOCIETY' SHALL HAVE THE MEANINGS RESPECTIVELY ASSIGNED TO THEM IN PART V OF THE BANKING REGULATION ACT, 1949 (10 OF 1949) ; ( B ) 'PRIMARY CO - OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK' MEANS A SOCIETY HAVING ITS AREA OF OPERATION CONFINED TO A TALUK AND THE PRINCIPAL OBJECT OF WHICH IS TO PROVIDE FOR LONG - TERM CREDIT FOR AGRICULTURAL AND RURAL DEVELOPMENT ACTIVITIES.' THEREFORE, THE INTENTION OF THE LEGISLATURE IS CLEAR. IF A CO - OPERATIVE BANK IS EXCLUSIVELY CAR RYING ON BANKING BUSINESS, THEN THE INCOME DERIVED FROM THE SAID BUSINESS CANNOT BE DEDUCTED IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE. THE SAID INCOME IS LIABLE FOR TAX. A CO - OPERATIVE BANK AS DEFINED UNDER THE BANKING REGULATION ACT INCLUDES THE PRIM ARY AGRICULTURAL CREDIT SOCIETY OR A PRIMARY CO - OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK. THE LEGISLATURE DID NOT WANT TO DENY THE SAID BENEFITS TO A PRIMARY AGRICULTURAL CREDIT SOCIETY OR A PRIMARY CO - OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK. THEY DID NOT WANT TO EXTEND THE SAID BENEFIT TO A CO - OPERATIVE BANK WHICH IS EXCLUSIVELY CARRYING ON BANKING BUSINESS, I.E., THE PURPORT OF THIS AMENDMENT. THEREFORE, AS THE ASSESSEE IS NOT A CO - OPERATIVE BANK CARRYING ON EXCLUSIVELY BANKING BUSINESS AND AS IT DOES NOT POSSESS A LICENCE FROM THE RESERVE BANK OF INDIA TO CARRY ON BUSINESS, IT IS NOT A CO - OPERATIVE BANK. IT IS A CO - OPERATIVE SOCIETY WHICH ALSO CARRIES ON THE BUSINESS OF LENDING MONEY TO ITS MEMBERS WHICH IS COVERED UNDER SECTION 80P(2)( A)(I), I.E., CARRYING ON THE BUSINESS OF BANKING FOR PROVIDING CREDIT FACILITIES TO ITS MEMBERS. THE OBJECT OF THE AFORESAID AMENDMENT IS NOT TO EXCLUDE THE BENEFIT EXTENDED UNDER SECTION 80P(1) TO SUCH SOCIETY. THEREFORE, THERE WAS NO ERROR COMMITTED BY T HE ASSESSING AUTHORITY. THE SAID ORDER WAS NOT PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE CONDITION PRECEDENT FOR THE COMMISSIONER TO INVOKE THE POWER UNDER SECTION 263 IS THAT THE TWIN CONDITIONS SHOULD BE SATISFIED. THE ORDER SHOULD BE ERRONEOUS AN D IT SHOULD BE PREJUDICIAL TO THE INTERESTS OF THE REVENUE. 5 ITA NO. 2212 / BANG/ 2016 9. THIS COURT HAD AN OCCASION TO CONSIDER SECTION 263 OF THE ACT IN THE CASE OF CIT V. DIGITAL GLOBAL SOFT LTD. [2013] 354 ITR 489/[2011] 203 TAXMAN 98/15 TAXMANN.COM 78 (KAR.) WHERE PARAGRAPH 18, IT HAS HELD AS UNDER (PAGE 500) : 'AS IS CLEAR FROM THE WORDING IN SECTION 263, THE COMMISSIONER GETS THE JURISDICTION TO REVISE ANY PROCEEDINGS UNDER THIS ACT IF HE C ONSIDERS THAT ANY ORDER PASSED THEREIN BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THEREFORE, IT IS CLEAR THAT HE CANNOT EXERCISE THE POWER OF REVISION SOLELY ON THE GROUND THAT THE ORDER PASSED IS ERRONEOUS. HE GETS JURISDICTION ONLY IF SUCH ERRONEOUS ORDER IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. 'PREJUDICIAL TO THE REVENUE' MEANS, LAWFUL REVENUE DUE TO THE STATE HAS NOT BEEN REALIZED OR CANNOT BE REALISED. IN OTHER WORDS, BY THE ORDER OF TH E ASSESSING AUTHORITY IF THE LAWFUL REVENUE TO THE STATE HAS NOT BEEN REALISED OR CANNOT BE REALISED, AS THE SAID ORDER IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE AND ALSO ERRONEOUS, HE GETS JURISDICTION TO INTERFERE WITH THE SAID ORDER UNDER SECTION 2 63. THEREFORE, FOR ATTRACTING SECTION 263, THE CONDITION PRECEDENT IS (A) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS, AND (B) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THEM IS ABSENT, I.E., IF THE ORDER OF THE I NCOME - TAX OFFICER IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE, RECOURSE CANNOT BE HAD TO SECTION 263(1) OF THE ACT. THE SATISFACTION OF BOTH THE CONDITIONS STIPULATED IN THE SECTION IS THE SINE QUA NON FOR THE COMMISSIONER TO EXERCISE HIS JURISDICTI ON UNDER SECTION 263.' IN THE INSTANT CASE, WHEN THE STATUS OF THE ASSESSEE IS A CO - OPERATIVE SOCIETY AND IS NOT A CO - OPERATIVE BANK, THE ORDER PASSED BY THE ASSESSING AUTHORITY EXTENDING THE BENEFIT OF EXEMPTION FROM PAYMENT OF TAX UNDER SECTION 80P(2)(A) (I) OF THE ACT IS CORRECT. THERE IS NO ERROR. WHEN THERE IS NO ERROR, THE QUESTION OF ORDER BEING PREJUDICIAL WOULD NOT ARISE. THE TRIBUNAL HAS RIGHTLY ENTERTAINED THE APPEAL AND SET ASIDE THE ORDER. THEREFORE, THE SAID ORDER IS IN ACCORDANCE WITH LAW AND CANNOT BE FOUND FAULT WITH. THE SUBSTANTIAL QUESTION OF LAW IS ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. THUS IT IS CLEAR THAT THE ISSUE IS COVERED BY THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT (SUPRA) AND NO INTERFERENCE IS REQUIRED IN THE IMPUGNED ORDER OF CIT (APPEALS). THE ORDER OF CIT (APPEALS) IS UPHELD. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 1ST FEB., 201 7 . SD/ - (VIJAY PAL RAO) JUDICIAL MEMBER BANGALORE, DT. 2 1 .02. 2017. *REDDY GP