ITO 27(2)(1), NAVI MUMBAI V. KALBHAIRAVNATH SAHAKARI PATSANSTHA LTD, MUMBAI

ITA 3123/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8071 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 01-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH DESHPANDE
• Assessee Lawyers: RAJENDRA V KADREKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A , MUMBAI BEFORE S HRI G.S. PANNU (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 3123 /MUM/20 1 7 ASSESSMENT YEAR: 2012 - 13 THE INCOME TAX OFFICER - 27(2)(1), ROOM NO. 413, 4 TH FLOOR, TOWER NO. 6, VASHI RAILWAY - STATION COMPLEX, VASHI, NAVI MUMBAI - 400703 VS. M/S KALBHAIRAVNATH SAHAKARI PATSASTHA LTD., SHOP NO. - 3, K S PAREIRA CHAWL, R B KADAM MARG, BHATWADI, GHATKOPAR (W), MUMBAI 400084 PAN: AAAAK5684K (APPELLANT) (RESPONDENT) R EVENUE BY : SHRI SAURABH DESHPANDE (DR) ASSESSEE BY : SHRI RAJENDRA V. KADREKAR (AR) DATE OF HEARING : 04 /09 /201 7 DATE OF PRONOUNCEMENT : 04 / 12 /201 7 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST ORDER DATED 08/02/2017 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 35 , MUMBAI , FOR THE A S S ESSMENT YEAR 2012 - 13 , WHEREBY THE LD. CIT (A) HAS PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER PASSED U/S 143 (3) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE A CT). 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE A CO - OPERATIVE CREDIT SOCIETY CARRYING ON THE BUSINESS OF ACCEPTING DEPOSITS AND GIVING C REDIT FACILITIES TO ITS MEMBER S , FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION DECLARING NIL INCOME. SINCE, THE CASE WAS SELECTED FOR SCRUTINY , NOTICES U/S 143 (2) AND 142 (1) OF THE ACT WERE ISSUED IN RESPONSE THEREOF THE AUTHORI ZED REPRESENTATIVE OF THE ASSESSEE APPEARED AND SUBMITTED THE DETAILS CALLED FOR BY THE AO. IT WAS SEEN THAT THE ASSESSEE HAD DECLARED INCOME FROM 2 ITA NO. 3123 /MUM/2017 ASSESSMENT YEAR: 2012 - 3 BUSINESS AND PROFESSION AT RS. 32,19,083/ - AND HAD CLAIMED DEDUCTION U/S 80P (2) OF THE ACT. THE AUTHORIZED R EPRESENTATIVE OF THE ASSESSEE CONTENDED THAT THE ASSESSEE IS A COOPERATIVE CREDIT SOCIETY AND NOT A CO - OPERATIVE BANK, THEREFORE, AMENDED SECTION 80P (4) IS NOT APPLICABLE, HENCE , THE ASSESSEE HAS RIGHTLY MADE DEDUCTION U/S 80P (4) OF THE ACT. THE CONTENTI ON OF THE ASSESSEE WAS REJECTED BY THE AO AND DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS. 32,19,083/ - . IN FIRST APPEAL, THE LD. CIT (A) DELETED THE ADDITION FOLLOWING THE DECISION OF THE ITAT, MUMBAI RENDERED IN THE ASSESSEES OWN CASE FOR THE A.Y. 2009 - 10. 3 . AGGRIEVED BY THE ORDER OF LD. CIT (APPEAL S ), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUNDS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) ERRED IN ALLOWING THE DED UCTION U/S 80P OF THE I.T. ACT, 1961 UNDER THE PROVISIONS OF SECTION 80P(4) OF THE ACT WHICH IN FACT IS APPLICABLE TO ONLY CO - OPERATIVE BANK EXCEPT FOR PRIMARY AGRICULTURAL CREDIT SOCIETY OR A PRIMARY CO - OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK AN D THE PROVISIONS OF SECTION 80P(4) OF THE ACT ARE NOT APPLICABLE TO CO - OPERATIVE CREDIT SOCIETY. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT (A) ON THE ABOVE GROUNDS BE REVERSED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4. BEFORE US, THE LD. DEP ARTMENTAL REPRESENTATIVE (DR) RELYING ON THE ASSESSMENT ORDER PASSED BY THE AO SUBMITTED THAT THE FINDINGS OF THE LD. CIT (A) IS ERRONEOUS AS THE PROVISIONS OF SECTION 80P(4) OF THE ACT IS APPLICABLE TO THE ASSESSEE BEING A CO - OPERATIVE CREDIT SOCIETY . 5 . ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED THAT THE ASSESSEES CASE IS COVERED BY THE ORDER OF ITAT DATED 20/10/2015 PASSED IN ASSESSEES OWN CASE ITA NO. 5830/MUM/2014 FOR THE A.Y. 2009 - 10. HENCE, THERE IS NO MERIT IN TH E APPEAL OF THE REVENUE . 3 ITA NO. 3123 /MUM/2017 ASSESSMENT YEAR: 2012 - 3 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO GONE THROUGH THE MATERIAL ON RECORD INCLUDING THE DECISION RENDERED BY THE C O - ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y. 2009 - 10. THE CO - ORDINATE BENCH HAS DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE IN ASSESSEES OWN CASE (SUPRA). THE CONCLUDING PARA OF THE DECISION OF THE CO - ORDINATE BENCH READS AS UNDER: - 6. THOUGH THE LD. DEPARTMENTAL REPRESENTATIVE HAS REITERATED THE REASONING ADOPTED BY TH E ASSESSING OFFICER TO DENY EXEMPTION UNDER SECTION 80P(2)(A)(I) OF THE ACT, SO HOWEVER, IT IS QUITE CLEAR THAT THE RESTRICTION PLACED UNDER SECTION 80P (4) OF THE ACT DOES NOT ENTITLE THE CAPTIONED ASSESSEE FROM THE EXEMPTION STIPULATED UNDER SECTION 80P( 2)(A)(I) OF THE ACT. QUITE CLEARLY, THE RESTRICTION PLACED IN SECTION 80P(4) OF THE ACT, IN THE PRESENT CONTEXT, OPERATES IN RELATION TO A CO - OPERATIVE BANK, WHICH IS TO BE UNDERSTOOD IN TERMS OF THE PROVISIONS OF THE BANKING REGULATIONS ACT, 1949 (10 OF 1949). THE FINDING OF THE CIT (A) IS THAT THE RESPONDENT ASSESSEE IS A CREDIT CO - OPERATIVE SOCIETY, WHICH IS ENGAGED IN THE BUSINESS OF PROVIDING CREDIT FACILITIES TO ITS MEMBERS AND DOES NOT ENJOY ANY BANKING LICENSE FROM RESERVE BANK OF INDIA. AS A CONSEQUENCE, THE STATUS OF THE ASSESSEE CANNOT BE UNDERSTOOD AS A CO - OPERATIVE BANK WITHIN THE MEANING OF BANKING REGULATION ACT, 1949. FACTUALLY SPEAKING, THE AFORESAID FINDING OF THE CIT (A) HAS NOT BEEN ASSAILED BY THE REVENUE BEFORE ME AND THERE IS NO MATERIAL ON RECORD TO NEGATE THE SAME ALSO. MOREOVER, I FIND THAT THE CIT (A) HAS RELIED UPON THE VARIOUS DECISIONS OF THE TRIBUNAL, WHEREIN A CO - OPERATIVE CREDIT - SOCIETY ENGAGED IN THE BUSINESS OF PROVIDING CREDIT FACILITIES TO ITS MEMBERS HAS BEEN HELD T O BE NOT COVERED BY THE EXPRESSION CO - OPERATIVE BANK FOR THE PURPOSES OF SECTION 80P(4) OF THE ACT. THERE IS NO DECISION TO THE CONTRARY BROUGHT OUT BY THE REVENUE BEFORE ME. 7. THE IDENTICAL ISSUE HAS ALREADY BEEN DECIDED BY THE CO - ORDINATE BENCH IN F AVOUR OF THE ASSESSEE IN THE ASSESSEES OWN CASE FOR THE A.Y. 2009 - 10 (SUPRA). THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) IS IN 4 ITA NO. 3123 /MUM/2017 ASSESSMENT YEAR: 2012 - 3 ACCORDANC E WITH THE DECISION RENDERED BY THE CO - ORDINATE BENCH IN ASSESSEES OWN CASE FOR THE A.Y. 2009 - 10 (SUPRA). HENCE, WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE REVENUE. ACCORDINGLY, WE UPHOLD THE FINDINGS OF THE LD. CIT (A) AND DISMISS THE SOLE GROUND OF APPEAL OF THE REVENUE. IN THE RESULT, APPEAL FILED BY THE REVENUE FOR A SSESSMENT YEAR 2012 - 213 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH DECEMBER , 2017 . SD/ - SD/ - ( G.S. PANNU ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 04 / 12 / 2017 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI