M/s. Puthupally Village Service Co-op Bank Ltd, Kottayam V. The DCIT, Kottayam

ITA 279/COCH/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4051 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2016
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 28-09-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 20-06-2016
• Court: TRIBUNAL
• Department Lawyers: A DHANARAJ
• Assessee Lawyers: T T BIJU
• Keywords: Business income; Question of law; Competent authority
• Section: 143(3); 56

Judgement Text

ITA NO.279/COCH/2016 & S.P. NO.40/COCH/2016 1 , IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN . . , ., ! ! ! ! BEFORE S/SHRI B. P. JAIN, AM & GEORGE GEORGE K., JM ' ' ' ' ./ I.TA NO.279/COCH/2016 ( #$ % /ASSESSMENT YEAR : 2012-13) M/S. PUTHUPALLY VILLAGE SERVICE CO- OPERATIVE BANK LTD., NO.1504, PUTHUPPALLY P.O., KOTTAYAM-686 011. VS THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1, KOTTAYAM. ( &' &' &' &' /ASSESSEE APPELLANT) ( ( (( ( ) ) ) ) &' &'&' &' /REVENUE -RESPONDENT) &*+ /S.P. NO. 40/COCH/2016 ' ' ' ' ./ I.TA NO.279/COCH/2016 ( #$ % /ASSESSMENT YEAR : 2012-13) M/S. PUTHUPALLY VILLAGE SERVICEE CO- OPERATIVE BANK LTD., NO.1504, PUTHUPPALLY P.O., KOTTAYAM-686 011. VS THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1, KOTTAYAM. ( &' &' &' &' /ASSESSEE APPELLANT) ( () () () () &' &'&' &' /REVENUE -RESPONDENT) & . . ' ./PAN NO. AAAJP 0437E &' , - /ASSESSEE BY SHRI T.T. BIJU, ADV. ( ) &' , - /REVENUE BY SHRI A. DHANARAJ, SR. DR ./ , +0 / DATE OF HEARING 28/09/2016 1 % , +0 /DATE OF PRONOUNCEMENT 31/10/2016 ITA NO.279/COCH/2016 & S.P. NO.40/COCH/2016 2 2 2 2 2 /ORDER PER GEORGE GEORGE K.,JM: THIS APPEAL AT THE INSTANCE OF THE ASSESSEE, IS DIR ECTED AGAINST THE ORDER OF THE CIT(A), KOTTAYAM DATED 21/01/2016. THE RELEVANT AS SESSMENT YEAR IS 2012-13. 2. THERE ARE SEVERAL GROUNDS RAISED IN THE MEMO RANDUM OF APPEAL, HOWEVER, ONLY TWO ISSUES WERE ARGUED. THE TWO ISSUES ARGUED BY BOTH SIDES ARE AS FOLLOWS: I) WHETHER THE CIT(A) IS JUSTIFIED IN CONFIRMING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER WITH REGARD TO THE CLAIM OF DEDUC TION U/S. 80P(2) OF THE ACT? II) WHETHER THE INTEREST RECEIVED FROM THE GOVERNME NT TREASURY IS TO BE INCLUDED UNDER THE HEAD INCOME FROM OTHER SOURCES OR INCOME FROM BUSINESS? 3. WE SHALL TAKE UP FOR ADJUDICATION ISSUESWISE AS UNDER:- I) WHETHER THE CIT(A) IS JUSTIFIED IN CONFIRMING TH E DISALLOWANCE MADE BY THE ASSESSING OFFICER WITH REGARD TO THE CLAIM OF DEDUC TION U/S. 80P(2) OF THE ACT. BRIEFLY STATED THE FACTS OF THE ISSUE ARE AS FOLLOWS: 4. THE ASSESSEE IS A PRIMARY AGRICULTURAL CREDI T SOCIETY REGISTERED UNDER THE KERALA COOPERATIVE SOCIETIES ACT, 1969. FOR THE AS SESSMENT YEAR 2012-13, THE ITA NO.279/COCH/2016 & S.P. NO.40/COCH/2016 3 RETURN OF INCOME WAS FILED DECLARING NIL INCOME A FTER CLAIMING DEDUCTION U/S. 80P OF THE INCOME TAX ACT. THE ASSESSING OFFICER P ASSED ASSESSMENT U/S. 143(3) OF THE ACT BY DENYING THE BENEFIT OF DEDUCTI ON U/S. 80P(2) OF THE ACT. THE ASSESSING OFFICER WAS OF THE VIEW THAT AS THE A SSESSEE-SOCIETY WAS PRIMARILY ENGAGED IN THE BUSINESS OF BANKING AND IN VIEW OF THE PROVISIONS OF SECTION 80P(4) OF THE ACT, THE ASSESSEE-SOCIETY IS NOT ENTITLED TO THE BENEFIT OF DEDUCTION U/S. 80P OF THE ACT. 4.1 AGGRIEVED BY THE DENIAL OF THE BENEFIT OF DEDUCT ION U/S. 80P(2) OF THE ACT, THE ASSESSEE PREFERRED APPEAL TO THE FIRST APP ELLATE AUTHORITY. THE FIRST APPELLATE AUTHORITY CONFIRMED THE VIEW TAKEN BY THE ASSESSING OFFICER. 4.2 AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE SUBMIT TED THAT THE ISSUE IN QUESTION WHETHER THE ASSESSEE IS ENTITLED TO THE BE NEFIT OF DEDUCTION U/S. 80P(2) OF THE ACT IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF THE HONBLE HIGH COURT OF KERALA IN THE CASE OF CHIRAKKAL SERVICE CO-OP BANK LTD. REPORTED IN 384 ITR 490. 4.3 THE LD. DR PRESENT WAS DULY HEARD. ITA NO.279/COCH/2016 & S.P. NO.40/COCH/2016 4 4.4 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL ON RECORD. ADMITTEDLY, THE ASSESSEE IS A PRIMARY AGRICULTURAL CREDIT SOCIETY REGISTERED UNDER THE KERALA COOPERATIVE SOCIETIES ACT, 1969. THE CERTIFICATE ISSUED BY THE REGISTRAR OF COOPERATIVE SOCIETIES TO THE ABOVE SAID EFFECT IS PLACED ON RECORD. THE HONBLE HIGH COURT OF KERALA IN THE CA SE OF CHIRAKKLA SERVICE CO- OP BANK LTD. (SUPRA) HAD HELD THAT A PRIMARY AGRICU LTURAL CREDIT SOCIETY, REGISTERED UNDER THE KERALA COOPERATIVE SOCIETIES A CT, 1969 IS ENTITLED TO THE BENEFIT OF DEDUCTION U/S. 80P(2). THE HONBLE HIGH COURT WAS CONSIDERING THE FOLLOWING SUBSTANTIAL QUESTION OF LAW: A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE UNDER CONSIDERATION, THE TRIBUNAL IS CORRECT IN LAW IN DE CIDING AGAINST THE ASSESSEE, THE ISSUE REGARDING ENTITLEMENT FOR EXEMP TION UNDER SECTION 80P,IGNORING THE FACT THAT THE ASSESSEE IS A PRIMAR Y AGRICULTURAL CREDIT SOCIETY? 4.5 IN CONSIDERING THE ABOVE QUESTION OF LAW, THE HONBLE HIGH COURT RENDERED THE FOLLOWING FINDINGS: 15. APPELLANTS IN THESE DIFFERENT APPEALS ARE INDI SPUTABLY SOCIETIES REGISTERED UNDER THE KERALA CO-OPERATIVE SOCIETIES ACT, 1969, FOR SORT, KCS ACT AND THE BYE-LAWS OF EACH OF THEM, AS MADE AVAIL ABLE TO THIS COURT AS PART OF THE PAPER BOOKS, CLEARLY SHOW THAT THEY HAV E BEEN CLASSIFIED AS PRIMARY AGRICULTURAL CREDIT SOCIETIES BY THE COMPET ENT AUTHORITY UNDER THE PROVISIONS OF THAT ACT. THE PARLIAMENT, HAVING DEFI NED THE TERM 'CO- OPERATIVE SOCIETY' FOR THE PURPOSES OF THE BR ACT WITH REFERENCE TO, AMONG OTHER THINGS, THE REGISTRATION OF A SOCIETY U N DER ANY STATE LAW RELATING TO CO-OPERATIVE SOCIETIES FOR THE TIME BEING; IT CANNO T BUT BE TAKEN THAT THE PURPOSE OF THE SOCIETIES SO REGISTERED UNDER THE ST ATE LAW AND ITS OBJECTS HAVE TO BE UNDERSTOOD AS THOSE WHICH HAVE BEEN APPR OVED BY THE COMPETENT AUTHORITY UNDER SUCH STATE LAW. THIS, WE VISUALISE AS DUE RECIPROCATIVE LEGISLATIVE EXERCISE BY THE PARLIAMEN T RECOGN I SING THE ITA NO.279/COCH/2016 & S.P. NO.40/COCH/2016 5 PREDOMINANCE OF DECISIONS RENDERED UNDER THE RELEVA NT STATE LAW. IN TH I S VIEW OF THE MATTER, ALL THE APPELLANTS HAV I NG SBEEN CLASSIFIED AS PRIMARY AGRICULTURAL CRED I T SOC I ET I ES B Y THE COMPETENT AUTHOR I TY UNDE R TH E KCS ACT , I T HAS NECESSAR IL Y TO BE HELD THAT THE PRINCIPAL OBJECT OF SUCH SOCI ETIES IS TO UNDERTAKE AGR I CULTURAL CREDIT ACTIVITIES AND TO PROVIDE LOANS AND ADVANCES FOR AGRICULTURAL PURPOSES , THE RATE ' OF INTEREST ON SUCH LOANS AND ADVANCES TO BE AT THE RATE FIXED BY THE REGISTRAR OF CO - OPERATIVE SOCIETIES UNDER THE KCS ACT AND HAV I NG I TS AREA OF OPERATION CONFINED TO A VILLAGE, PANCHAYAT OR A MUNICIPALITY. THIS IS THE CONSEQUENCE OF THE D EFINITION CLAUSE IN SECTION 2(OAA) OF THE KCS ACT. THE AUTHORITIES UNDER THE IT ACT CANNOT PROBE INTO ANY ISSUE OR SUCH MATTER RELATING TO SUCH APPLICANT S. 16. THE POSITION OF 1AW BEING AS ABOVE WITH REFEREN CE TO THE STATUTORY PROVISIONS, THE APPELLANTS HAD SHOWN TO THE AUTHORI TIES AND THE TRIBUNAL THAT THEY ARE PRIMARY AGRICULTURA L CREDIT SOCIETIES IN TERMS OF CLAUSE (CCIV) OF SECTION 5 OF THE BR ACT, HAVING REGARD TO THE PR IMARY OBJECT OR PRINCIPAL BUSINESS OF EACH OF THE APPELLANTS. IT IS ALSO CLEA R FROM THE MATERIALS ON RECORD THAT THE BYE-LAWS OF EACH OF THE APPELLANTS DO . NOT PERMIT ADMISSION OF ANY OTHER CO-OPERATIVE SOCIETY AS MEMB ER, EXCEPT MAY BE, IN ACCORDANCE WITH THE PROVISO TO SUB - CLAUSE 2 OF SECTION 5(CCIV) OF THE BR ACT. THE DIFF ERENT ORDERS OF THE TRIBUNAL WHICH ARE IMPEACHED IN THESE APPEALS DO NO T CONTAIN ANY FINDING OF FACT TO THE EFFECT THAT THE BYE- 1AWS OF ANY OF THE APPELLANT OR ITS CLASS I FICATION BY THE COMPETENT AUTHORITY UNDER THE KCS A CT LS ANYTHING DIFFERENT FROM WHAT WE HAVE STATED HEREIN ABOVE. FO R THIS REASON, IT CANNOT BUT BE HELD THAT THE APPELLANTS ARE ENTITLED TO EXE MPTION FROM THE PROVISIONS OF SECTION 80P OF THE IT ACT BY VIRTUE O F SUB- SECTION 4 OF THAT SECT; ON. IN THIS VIEW OF THE MATTER, THE APPEALS SUCCEED . 17. IN THE LIGHT OF THE AFORESAID, WE ANSWER SUBSTA NTIA1 QUESTION 'A' IN FAVOUR OF THE APPELLANTS AND HOLD THAT THE TRIBUNAL ERRED IN LAW IN DECIDING THE ISSUE REGARDING THE ENTITLEMENT OF EXEMPTION UN DER SECTION 80P AGAINST THE APPELLANTS. WE HOLD THAT THE PRIMARY AGRICULTUR AL CREDIT SOCIETIES, REGISTERED AS SUCH UNDER THE KCS ACT; AND CLASSIFIE D SO, UNDER THAT ACT, INCLUDING THE APPELLANTS ARE ENTITLED TO SUCH EXEMP TION. 4.6 IN VIEW OF THE JUDGMENT OF THE HONBLE JURI SDICTIONAL HIGH COURT IN THE CASE OF CHIRAKKAL SERVICE CO-OP BANK LTD. (SUPRA), WE HOLD THAT THE ASSESSEE- SOCIETY IS ENTITLED TO THE BENEFIT OF DEDUCTION U/S . 80P(2) OF THE ACT. ITA NO.279/COCH/2016 & S.P. NO.40/COCH/2016 6 II) WHETHER THE INTEREST RECEIVED FROM THE GOVERNME NT TREASURY IS TO BE INCLUDED UNDER THE HEAD INCOME FROM OTHER SOURCES OR INCOME FROM BUSINESS 5. THE CIT(A) DECIDED THE ISSUE AGAINST THE ASSE SSEE BY OBSERVING AS UNDER:- 6. VERIFICATION OF ASSESSMENT ORDER SHOWS THAT ASS ESSEE RECEIVED INTEREST INCOME OF RS.43,00,963/-/- OUT OF THE DEPOSITS MADE IN TREASURY AND FEDERAL BANK. THE ISSUE IS SIMILAR TO THE CASE OF TOTGARS CO-OPERATIVE SALE SOCIETY LTD. VS. ITO (2010) (322 ITR 283), IN WHICH THE HON . SUPREME COURT HELD THAT THE ASSESSEE BEING CO-OPERATIVE SOCIETY IS ENGAGED IN PROVIDING CREDIT FACILITIES TO ITS MEMBERS (OR) MARKETING AGRICULTUR AL PRODUCE TO ITS MEMBERS, INTEREST EARNED BY IT BY INVESTING SURPLUS FUNDS IN SHORT TERM DEPOSITS WOULD FALL UNDER THE HEAD INCOME FROM OTHER SOURCES TAX ABLE U/S. 56 OF THE INCOME TAX ACT AND IT CANNOT BE SAID TO BE ATTRIBUT ABLE TO THE ACTIVITIES OF SOCIETY AND THEREFORE, THE INTEREST DID NOT QUALIFY FOR DEDUCTION U/S. 80P(2)(A)(I) OF THE INCOME TAX ACT. THE SAME ISSUE HAS BEEN UPHELD IN FAVOUR OF REVENUE IN THE CASE OF MUTHOLY SERVICE CO -OPERATIVE BANK IN I.T.A. NO. 11/COCH/2014. 7. FURTHER, THE SAME ISSUE WAS UPHELD IN FAVOUR OF REVENUE BY ITAT (COCHIN) IN THE CASE OF ARYAD BLOCK SMALL SCALE COIR FIBRE M ATS MANUFACTURERS CO- OP. SOCIETY LTD. CONSIDERING THE ABOVE REFERRED JU DGMENTS, IT IS SEEN THAT THE FACTS OF THE INSTANT CASE ARE SIMILAR TO THE FA CTS INVOLVED IN THE ABOVE REFERRED THREE CASES. BECAUSE OF THE ABOVE SAID RE ASONS THE ACTION OF THE ASSESSING OFFICER IS HEREBY UPHELD. 5.1 WE HAVE HEARD BOTH SIDES AND PERUSED THE MATE RIAL ON RECORD. AS REGARDS THE INTEREST FROM TREASURY AND BANKS, WE FI ND ON IDENTICAL FACTS, THE COCHIN BENCH OF THE TRIBUNAL IN THE CASE OF THE MUT TOM SERVICE COOPERATIVE BANK LTD IN ITA NO. 372/COCH/2010 HAD DECIDED THE MATTER IN FAVOUR OF THE ASSESSEE. THE COCHIN BENCH OF THE TRIBUNAL IN THE C ASE OF MUTTOM SERVICE COOPERATIVE BANK LTD (SUPRA) HAS DISTINGUISHED THE JUDGMENT OF THE HONBLE ITA NO.279/COCH/2016 & S.P. NO.40/COCH/2016 7 APEX COURT IN THE CASE OF TOTGARS COOPERATIVE SALE SOCIETY LTD (SUPRA). THE RELEVANT FINDING OF THE COORDINATE BENCH OF THE TRI BUNAL IN THE CASE OF THE MUTTOM SERVICE COOPERATIVE BANK LTD (SUPRA) READ A S FOLLOWS: 5. WE HAVE CONSIDERED THE RIVAL SUBMISSION ON EITHER S IDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO CAREFULLY GONE THROUGH THE ORDER OF THE LOWER AUTHORITY. NO DOUBT, THE LATEST JUDGMENT IN TO TGARS CO-OPERATIVE SALE SOCIETY LTD VS ITO (SUPRA), THE APEX COURT FOUND THAT THE DEPOSIT OF SURPLUS FUNDS BY THE CO-OPERATIVE SOCIETY IS NOT ELIGIBLE FOR DEDUC TION U/S 80P(2). IN THE CASE BEFORE THE APEX COURT IN TOTGARS CO-OPERATIVE SALE S OCIETY LTD VS ITO (SUPRA), THE ASSESSEE CO-OPERATIVE SOCIETY WAS TO PROVIDE CRE DIT FACILITY TO ITS MEMBERS AND MARKET THE AGRICULTURAL PRODUCE. THE ASSESSEE IS NO T IN THE BUSINESS OF BANKING. THEREFORE, THIS TRIBUNAL IS OF THE OPINION THAT THE JUDGMENT OF THE APEX COURT IN TOTGARS CO-OPERATIVE SALE SOCIETY LTD (SU PRA) IS NOT APPLICABLE IN RESPECT OF THE CO-OPERATIVE SOCIETY WHOSE BUSINESS IS BANKING. ADMITTEDLY, THE ASSESSEE HAS INVESTED FUNDS IN STATE PROMOTED TREASURY SMALL SAVINGS FIXED DEPOSIT SCHEME. SINCE GOVERNMENT OF INDIA HAS WITHDRAWN IND IA VIKAS PATRA, AS A SMALL SAVINGS INSTRUMENT, FUNDS INVESTED AT THE DISCRE TION OF THE BANK IS ONE OF THE ACTIVITIES OF THE BANKING AS PER THE BANKING REGULATI ON ACT. SINCE THE ASSESSEE CO-OPERATIVE SOCIETY IS IN THE 4 ITA NO.372 /COCH/2010 BUSINESS OF BANKING THE INVESTMENT IN THE STATE PROMOTED TREASURY SM ALL SAVINGS FIXED DEPOSIT CERTIFICATE SCHEME IS A BANKING ACTIVITY, THER EFORE, THE INTEREST ACCRUED ON SUCH INVESTMENT HAS TO BE TREATED AS BUSINESS INCOME IN THE COURSE OF ITS BANKING ACTIVITY. ONCE IT IS A BUSINESS INCOME, THE ASS ESSEE IS ENTITLED FOR DEDUCTION U/S 80P(2)((A)(I). THEREFORE, THIS TRIBUNAL IS OF THE OPINION THAT THE JUDGMENT OF THE LARGER BENCH OF THE APEX COURT IN KARNAT AKA STATE COOPERATIVE APEX BANK (SUPRA) IS APPLICABLE TO THE FA CTS OF THIS CASE. BY RESPECTFULLY FOLLOWING THE JUDGMENT OF THE APEX COURT I N KARNATAKA STATE CO- OPERATIVE BANK (SUPRA), THE ORDER OF THE COMMISSIONER O F INCOME-TAX(A) IS UPHELD. 5.2 IN THE INSTANT CASE, THE ASSESSEE IS A COOP ERATIVE BANK. THE INVESTMENT IN TREASURY/BANKS AND EARNING INTEREST ON THE SAME IS PART OF THE BANKING ACTIVITY OF THE ASSESSEES COOPERATIVE BANK. THEREF ORE, THE SAID INCOME IS ELIGIBLE FOR DEDUCTION U/S 80P(2)(A)(I) OF THE ACT. THEREFORE, THE INCOME TAX AUTHORITIES WERE NOT JUSTIFIED IN TREATING INTEREST INCOME RECEIVED BY THE ITA NO.279/COCH/2016 & S.P. NO.40/COCH/2016 8 ASSESSEE AS INCOME FROM OTHER SOURCE AND DENYING THE BENEFIT OF SECTION 80P(2) OF THE ACT. THUS THIS GROUND OF THE ASSESS EE IS ALLOWED. S.P. NO. 40/COCH/2016 6. SINCE THE APPEAL HAS ALREADY BEEN DISPOSED OF F, THE STAY PETITION IS RENDERED INFRUCTUOUS AND THE SAME IS DISMISSED AS SUCH. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSES SEE IS PARTLY ALLOWED AS INDICATED ABOVE AND THE STAY PETITION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPE N COURT ON 31 ST -10-2016 SD/- SD/- ( . . ) (B. P. JAIN) ( . ) (GEORGE GEORGE K.) /ACCOUNTANT MEMBER /JUDICIAL MEMBER 3 /DATED: 31 ST OCTOBER, 2016 GJ/ 2 , (+4 54%+ /COPY TO: 1. &' /M/S. PUTHUPALLY VILLAGE SERVICE CO-OPERATIVE BANK LTD., NO. 1504, PUTHUPALLY P.O., KOTTAYAM-686 011. 2. () &' /THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1 , KOTTAYAM. 3. .6 + ( )/THE COMMISSIONER OF INCOME-TAX(APPEALS), KOTTAYAM . ITA NO.279/COCH/2016 & S.P. NO.40/COCH/2016 9 4. .6 + /THE COMMISSIONER OF INCOME-TAX, KOTTAYAM. 5. 47* (+ , /THE DR/ITAT, COCHIN BENCH. 6. *9 :/ /GUARD FILE. 2. /BY ORDER ; /ASSISTANT REGISTRAR / . <0 . = . <0 ., /I.T.A.T., COCHIN