ITO 20(3)(4), MUMBAI V. THE HCCS URBAN CO-OPERATIVE CREDIT SOCIETY LTD (FORMERLY THE HOOSEINI CO.OP.CREDIT SOCIETY LIMITED) , MUMBAI

ITA 4823/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1207 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2013-2014
• Appeal Filed On: 10-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: IN CIRCUMSTANCES OF CA SE
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI B. R. BASKARAN , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 4823 / MUM/ 201 7 ( / ASSESSMENT YEAR: 20 13 - 14 ) ITO - 20(3)(4) ROOM NO. 616, 6 TH FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI - 12 . / VS. THE HCCS URBAN CO OP CREDIT SOCIETY LTD. ((FORMERLY THE HOOSEINI CO.OP. CREDIT SOCIETY LTD. 496 - 498, SIR J.J. ROAD, OPP. SIR J.J. HOSPITAL, MUMBAI - 400008 . ./ ./ PAN/GIR NO . : AABAT 4478 P ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 30 . 10 .201 8 / DATE OF PRONOUNCEMENT : 27. 11 . 201 8 / O R D E R PER AMARJIT SINGH, J M: THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 27 . 0 4 .201 7 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 32 , MUMBAI [HEREINAFTE R REFERRED TO AS TH E CIT(A)] RELEVANT TO THE A.Y. 20 13 - 1 4 . 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - ' . 1 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING DEDUCTION REVENUE BY : SHRI MANOJ KUMAR SINGH (DR) ASSESSEE BY: SHRI VIMAL PUNMIYA (AR) ITA NO. 4823 /M/2017 A.Y.20 1 3 - 1 4 2 U/S 80P TO THE ASSESSEE EVEN THOUGH ASSESSEE CARRIES ON THE BANKING BUSINESS AND OTHER BUSINESS IN THE NAME OF THE CO - OPERATIVE CREDIT SOCIETY. . 2 O N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING DEDUCTION U/S 80P(2)(A)(I) WITHOUT CONSIDERING IN SERTED 80P(4) AND SUB0CLAUSE (VII) TO SECTION 2(24) VIDE FINANCE ACT, 2006 W.E.F. 1.4.2007. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN FINDING THE DECISION OF THE SUPREME COURT IN THE CASE OF M/S. TOTG AR CO.OP SALES SOCIETY FROM INVESTMENT OF SURPLUS FUNDS IS ASSESSABLE AS INCOME FROM OTHER SOURCES AND THUS NOT ELIGIBLE FOR DEDUCTION U/ 80P OF THE IT ACT, 1961. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE F ILED ITS RETURN OF INCOME ON 28 . 0 8 .20 1 3 DECLARING TOTAL INCOME TO THE TUNE OF RS. NIL. THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS. STATUTORY NOTICES U/S 143(2) & 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. IN ITS RETURN OF INCOME, THE ASSESSEE HAS SHOWN THE GROSS TOTAL INCOME TO THE TUNE OF RS.89,43,752/ - AND AFTER CLAIMING DEDUCTION U/S 80P OF THE ACT , THE TOTAL INCOME WAS DECLARED AS NIL. THE NOTICE WAS GIVEN TO THE ASSESSEE TO THE EFFECT THAT WHY THE CLAIM U/S 80P OF THE ACT SHOULD NOT BE DISALLOWED IN VIEW OF THE AM ENDED PROVISIONS OF SECTION 80P OF THE ACT . A FTER THE REPLY OF THE NOTICE, THE CLAIM OF THE ASSESSEE WAS DECLINED AND THE INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.89,43,752/ - . FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) W HO ALLOWED THE CLAIM OF THE ASSESSEE, THEREFORE, THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 4 . ALL THE ISSUES ARE IN CONNECTION WITH THE ALLOWANCE OF THE CLAIM OF THE ASSESSEE U/S 80P (2)(A)(I) OF THE ACT. THE LD. REPRESENTATIVE OF THE REVENUE HAS ARGUED THAT THE ASSESSEE WAS DOING THE BANKING BUSINESS IN ITA NO. 4823 /M/2017 A.Y.20 1 3 - 1 4 3 THE NAME OF THE COOPERATIVE CREDIT SOCIETY, THEREFORE, THE CLAIM OF THE ASSESSEE WAS NOT ALLOWABLE IN VIEW OF THE AMENDED PROVISION OF SECTION 80P(4) OF THE ACT AND SUB - CLAUSE (VIIA) TO SECTION 2 (24) OF THE ACT AND IN VIEW OF FINANCE ACT, 2006 W.E.F. 01.04.2007, THEREFORE, IN THE SAID CIRCUMSTANCES, THE FINDING OF THE CIT(A) IS WRONG AGAINST LAW AND FACTS AND IS LIABLE TO BE SET ASIDE AND THE CLAIM OF THE ASSESSEE IS LIABLE TO BE DISALLOWED. IN SU PPORT OF THIS CONTENTION, THE LD. REPRESENTATIVE OF THE REVENUE HAS ALSO PLACED RELIANCE UPON THE LAW SETTLED IN M/S. TOTGAR CO.OP SALES SOCIETY LTD. (322 ITR 285). HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE ASSESSEE HAS PLACED RELIANCE UPON THE ORDER PASSED BY THE CIT(A) IN QUESTION. BEFORE GOING FURTHER, WE DEEMED IT NECESSARY TO ADVERT THE FINDING OF THE CIT(A) ON RECORD: - 5.3 FROM THE FACTS OF THE INSTANT CASE, IT IS QUITE CLEAR THAT THE APPELLANT HAS LIMITED HIMSELF TO HIS OWN MEMBERS. THE APPELLANT HAS NOT PROVIDED BANKING FACILITIES EITHER TO THE GENERAL PUBLIC AT LARGE OR EVEN TO THE MEMBERS OF THE SOCIETY. EVEN THE BYE LAWS OF THE APPELLANT DOES NOT PROVIDE FOR BANKING ACTIVITIES. THEREFORE, FACT OF THIS CASE ARE NOT IDENTICAL WITH ANY OF THE CASE LAWS RELIED UPON BY THE AO. ON THE OTHER HAND, THE FACT OF THE INSTANT CASE ARE ALMOST SIMILAR TO THE DECISION OF THE ITAT NAGPUR & PANAJI BENCHES IN THE CASE OF (I) ACIT VS. BULDANA URBAN COOP CREDIT SOC. LTD. 32 TAXMAN 69, ITAT NAGPUR AND (II) DCIT VS. JAYALAXMI MAHILA VIVIDODESHAGALA SOUHARDA SAHAKARI LTD, KARWAR BY IT AT PANAJI BENCH 23 TAXMAN 313 WHERE THE ACTIVITIES OF THE ASSESSEE WERE LIMITED TO THE MEMBERS OF A SPECIFIC GROUP AND THE AREA OF OPERATIONS WAS ALSO LIMITED TO THE ACCEPT ANCE OF DEPOSITS OF MEMBERS AND PROVIDING CREDIT FACILITIES TO ONLY MEMBERS, WHICH HAVE BEEN HELD AS NOT FALLING UNDER BANKING ACTIVITIES AS DEFINED IN THE BANKING REGULATION ACT. I ALSO FIND THAT THE MAILER IS NOW SQUARELY COVERED BY TO BE DECISION OF THE JURISDICTIONAL BOM BAY HIGH COURT IN ITS DECISION IN THE CASE OF QUEPEM URBAN COOPERATIVE CREDIT SOCIETY (2015) 58 TAXMANN.COM 113 (BOMBAY), QUOTING FROM THE 80P OF THE INCOME TAX ACT. 1961 - DEDUCTIONS - INCOME FROM COOPERATIVE SOCIETIES (PRIMARY CO - ITA NO. 4823 /M/2017 A.Y.20 1 3 - 1 4 4 OPER ATE BANK) - ASSESSMENT YEARS 2003 - 09, 2009 - 10, 2011 - 12 - ASSESSES, SOCIETY WAS REGISTERED UNDER CO - OPERATIVE SOCIETY ACT - IT WAS ENGAGED IN PROVIDING CREDIT FACILITIES TO ITS MEMBERS - IT CLAIMED DEDUCTION UNDER SECTION 80P(2)(A)(I) WHICH WAS DISALLOWED BY ASSESSING OFFICER HOLDING THAT ASSESSES WAS A PRIMARY CO - OPERATE BANK THEREFORE BY PROVISIONS OF SECTION 80P{4), WHICH BENEFIT OF SECTION 80P WAS FOUND THAT ASSESSEE SOCIETY WAS PROVIDING MAINLY TO US MEMBERS AND ITS TRANSACTIONS WITH NON - MEMBERS WERE INS IGNIFICANT - MOREOVER, IT WAS UNDISPUTED THAT BYE LAWS OF SOCIETY DID NOT ALLOW - ANY CO - OPERATIVE SOCIETY LO BECOME IFS MEMBER - WHETHER ON FACTS, ASSESSES WAS NOT A CO - OPERATIVE BANK RATHER IT WAS A CO - OPERATIVE SOCIETY AND, THEREFORE, ITS CLAIM FOR DEDUCT /ON WAS TO BE ALLOWED - HELD, YES (PARAS 12,13) (IN FAVOUR OF ASSESSEE) FACTS THE ASSESSEE WAS A COOPERATIVE SOCIETY REGISTERED UNDER THE GOA CO - OPERATIVE SOCIETIES ACT, ENGAGED IN PROVIDING CREDIT FACILITIES TO IT MEMBERS. THE INCOME SO EARNED SO EARNED FRO M SAID ACTIVITY WAS CLAIMED AS DEDUCTION U/S 80P(2)(A)(I). THE ASSESSING OFFICER DISALLOWED CLAIM ON THE GROUND THAT THE APPELLANT WAS A PRIMARY CO - OPERATIVE BUNK AND, THEREFORE, HIT BY THE PROVISIONS OF SECTION 80P{4) WHICH THE BENEFIT OF SECTION 80P. HOW EVER, THE COMMISSIONER (A) ALLOWED ASSESSES CLAIM HOLDING THAT ASSESSES WAS NOT A COOPERATIVE BANK HUT A CO - OPERATIVE CREDIT SOCIETY. THE TRIBUNAL RESTORED ASSESSING OFFICER'S ORDER. HELD SECTION 80P PROVIDES DEDUCTION IN SUPPORT OF INCOME OF COOPERATIVE S OCIETIE4S. SUB - SECTION (1) ALLOWS DEDUCTION TO COOPERATIVE SOCIETY TO THE EXTENT ITS GROSS INCOME INCLUDES ANY INCOME REFERRED TO IN SUB - SECTION (2) IN COMPUTING ITS TOTAL INCOME. SUB - SECTION (2) REFERS TO VARIOUS INCOMES TO WHICH THE DEDUCTION UNDER SUB - S ECTION (1) IS AVAILABLE. IN THIS CASE, THE COURT IS CONCERNED WITH CLAUSE (A)(I) OF SUB - SECTION (2), WHICH REFERS W A CO - OPERATIVE SOCIETY ENGAGED IN CARRYING ON BANKING BUSINESS OR PROVIDING CREDIT SO ITS MEMBERS. THUS THE DEDUCTION - ACTIVITIES I.E. BUNKI NG BUSINESS OR PROVIDING CREDIT FACILITIES LO ITS MEMBERS COURT IS NOT CONCERNED WISH THE OTHER SUB - DOUSES OF SUB - SECTION (2) OF SUB - SECTION (3) OF SECTION 80P(4} FOR THE PURPOSE OF THIS CASE. SUB - SEASON (4) PROVIDES THAT SECTION 80P WILL NOT APPLY IN REL ATION TO A COOPERATIVE BANK OTHER THAN A PRIMARY AGRICULTURAL CREDIT SOCIETY OR PRIMARY AGRICULTURAL AND RURAL DEVELOPMENT BANK. BEFORE THE ITA NO. 4823 /M/2017 A.Y.20 1 3 - 1 4 5 INSTANT COURT, SHE APPELLANT I.T NOT CHIMING TO BE A PRIMARY AGRICULTURAL CREDIT SOCIETY OR PRIMARY AGRICULTURAL AND RUM! DEVELOPMENT BANK BUS IT CLAIMS TO BE ENGAGED IN PROVIDING CREDIT FACILITIES AND NOT A BANKING SOCIETY. THUS, NOT HIT BY SUB SECTION (4) OF SECTION 80P [PARA 8] THERE IS NO DISPUTE BETWEEN SHE PARTIES THAT THE APPELLANT IS A COOPERATIVE SOCIETY AS THE SAME IF REGISTERED UNDER THE CO - OPERATIVE SOCIETIES ACT. THE APPELLANT IS CLAIMING DEDUCTION OF INCOME EARNED PROVIDING CREDIT FACILITIES TO ITS MEMBERS AS PROVIDED UNDER SECTION 80P{2}(A)(I). IT A, APPELLANT CASE THAT, IT IS NOT CARRYING THE BUSINESS OF T HE BANKING. CONSEQUENTLY, NOT BEING A CO - OPERATIVE BANK THE PROVISION OF SECTION 80P{4) WOULD NOT EXCLUDE THE APPELLANT FROM CLAIMING THE BENEFIT OF DEDUCTION WIDER SECTION 80P(2)(A)(I) HOWEVER IN TERMS OF SECTION 80P THE CO - OPERATIVE SANK IS THE MEANING A SSIGNED TO IT IN CHAPTER V OF THE BANKING REGULATION ACT, 1949 A M - OPERATIVE BUNK IS DEFINED IN SECTION 5(CD} OF BANKING REGULATION ACT TO MEAN A STATE COOPERATIVE BANK, A CENTRAL CO OPERATIVE BANK AND A PRIMARY CO - OPERATIVE BANK ADMITTEDLY, THE APPELLANT H NOT A STATE CO OPERATIVE BANK, V CENTRAL! COOPERATIVE BANK THUS, WHAT HAS TO T HE EXAMINED IS WHETHER THE APPELLANT IT IS PRIMARY COOPERATIVE BANK DEFINED M PANT OF THE BANKING REGULATION ACT. SECTION 5{CCV) OF THE BANKING REGULATION ACT DEFINES A PRIM ARY CO - OPERATIVE BANK TO MEAN A CO - OPERATIVE SOCIETY WHICH CUMULATIVELY SATISFIES ITS THREE CONDITION; (I) ITS PRINCIPAL BUSINESS OR PRIMARY OBJECT SHOULD BE BANKING BUSINESS OF BANKING; {2} ITS PAID UP SHARE CAPITA! AND RESERVES SHOULD NOT BE LESS THAN R UPEES ONE LAKH. (3) ITS BYE LAW DO NOT PERMIT ADMISSION OF TINY OTHER CO - OPERATIVE SOCIETY AS ITS MEMBER. IT IS ACCEPTED POSITION THAT CONDITION NO. (2) IS SATISFIED AS THE SHARE CAPITAL IN ART EXCELS OF RUPEES ONE LAKH. IT HAS BEEN THE APPELLANTS CONTENT ION THAT THE CONDITIONS NO.(1) AND (3) PROVIDED ABOVE ARE NOT SATISFIED [PARA 9] THEREFORE, THE ISSUE THAT ARISES FOR CONSTRUCTION IS WHETHER THE APPELLANT SATISFIES CONDITION NO..(1) AND (3) ABOVE. THE IMPUGNED ORDER AFTER REFERRING TO THE DEFINITION OF B ANKING BUSINESS' AS DEFINED IN SECTION 5B OF BUNKING REGULATION ACT, HELD THAT THE PRINCIPAL BUSINESS OF THE APPELLANT BANKING SECTION 5B THE BANKING REGULAR WAS LET DEFINES BANKING TO MEAN ACCEPTING OF DEPOSIT F OR THE PURPOSE LENDING OR INVESTMENT OF DEPO SIT OR OTHERWISE. THE ITA NO. 4823 /M/2017 A.Y.20 1 3 - 1 4 6 IMPUGNED ORDER JUXTAPOSES THE ABOVE DEFINITION WITH THE FINDING OF FACT THAT THE4 APPELLANT DID DEAL WITH NON - MEMBERS IN A FEW CASES BY SEEING DEPOSITS. THIS READ WITH BYE - LAW 43 LEADS TO THE CONCLUSION THAT IT IS CARRYING ON BANKING BUSINESS. THIS FACT OF ACCEPTING DEPOSITS FROM PEOPLE WHO ARE NOT MEMBERS HAS BEEN SO RECORDED BY THE COMMISSIONER IN HIS ORDER DATED 15.07.2014. BEFORE THE TRIBUNAL ALSO THE APPELLANT DID NOT DISPUTE THE FACT THAT IN A FEW CASES THEY HAVE DEALT WITH NON MEMBERS. HOWEVER SO FAR AS ACCEPTING DEPOSITS FROM NON - MEMBERS IS CONCERNED IT IS SUBMITTED THAT THEY BYE LAW 43 ONLY PERMITS THE SOCIETY TO ACCEPT DEPOSITS FROM ITS MEMBERS. IT IS SUBMITTED THAT BYE LAWS 43 DOES NOT PERMIT RECEIPT OF DEPOSITS FROM PERSONS OTHER THAN MEMBERS, THE WORD ANY PERSON IS A GLOSS ADDED IN THE IMPUGNED ORDER AS IT IS NOT FOUND IN BYE LAW 43. IT IS UNDISPUTED THAT THE TRANSACTIONS WITH NON MEMBERS WERE INSIGNIFICANT MINUSCULE. ON THE ABOVE BASIS IT CANNOT BE CONCLUDED THAT THE APPEL LANTS PRINCIPAL BUSINESS IS OF ACCEPTING DEPOSITS FROM PUBLIC IS OF BANKING IS PERVERSE AS II IS NOT SUPPORTED BY (HE EVIDENCE ON RECORD SO FAR AS THE ISSUE OF PRIMARY' OBJECT OF SHE APPELLANT IS CONCERNED THE IMPUGNED ORDER GIVES NO FINDING ON THAT BASIS LO DEPRIVE THE APPELLANT SHE BENEFITS OF SECTION 80P. CONSEQUENTLY, THERE IS NO OCCASION TO DEAL WITH THE SAME AS THAT IS NOT SHE BASIS ON WHICH THE IMPUGNED ORDER HOLDS THAT IT IS A PRIMARY CO - OPERATIVE BANK, [PARA 10] SO FOR AS CONDITION NO. 3 OF THE DE FINITION/MEANING OF PRIMARY CO - OPERATIVE BONK AT, PROVIDED IN SECTION 5(CCV) OF THE BANKING REGULATION LET IS CONCERNED, THE SAME REQUIRE THE BYE - LAW, OF SOCIETY TO CONTAIN A PROHIBITION FROM ADMITTING ANY OTHER CO - OPERATIVE SOCIETY AS ITS MEMBER, IN FACT THE BYE - LAWS OF THE APPELLANT SOCIETY ORIGINALLY IN BYE - LAW 9(D) DEARLY PROVIDED THAT NO CO OPERATIVE SOCIETY SHALL HE ADMITTED TO THE MEMBERSHIP OF THE SOCIETY. THUS THERE WAS A BAR BUT THE SAME WAS AMENDED WITH EFFECT FROM 12 - 1 - 2001 AS IS PERMIT A SOCIETY TO BE ADMITTED IN THE MEMBERSHIP OF THE SOCIETY. THEREFORE, FOR THE SUBJECT ASSESSMENT YEARS THERE IS TO PROHIBITION TO ADMITTING A SOCIETY TO ITS MEMBERSHIP AND ONE OF THREE CUMULATIVE CONDITIONS PRECEDENT TO BE A PRIMARY CO - OPERATIVE BANK IS NOT SATISFI ED. HOWEVER, THE IMPUGNED ORDER CONSTRUED THE AMENDED CLAUSE, 9(D) OF THE APPELLANT, BYE - THAT IT ONLY PRIMARY A SOCIETY TO BE ADMITTED BY THE MEMBERSHIP OF THE APPELLANT AND NOT A CO - OPERATIVE SOCIETY. ACCORDING TO THE IMPUGNED ORDER, A SOCIETY - AND IS CO - OPERATIVE SOCIETY ARE CLEARLY OF DIFFERENT HAD DISTINCT SIGNIFICANCE AND THE MEMBERSHIP IS ONLY OPEN TO SOCIETY AND NOT M CO - OPERATIVE ITA NO. 4823 /M/2017 A.Y.20 1 3 - 1 4 7 SOCIETY. AS RIGHTLY PUNNED OUT ON THE BEHALF OF THE APPELLANT THE WORD SOCIETY AS REFERRED TO BYE - LAW 9(D) WOULD INCLUDE THE CO - OPERATIVE SOCIETY. THIS IS SO AX THE DEFINITION OF A SOCIETY TINDER THE CO OPERATIVE ACT IS COOPERATIVE SOCIETY REGISTERED UNDER THE CO - OPERATIVE ACT. BESIDES THE QUALIFYING CONDITION 3 FOR BEING CONSIDERED AS A PRIMARY COOPERATIVE BANK IS THAT THE BYE LAW THE BYE MUST NOT PERMIT ADMISSION ANY OTHER COOPERATIVE SOCIETY. THIS IS A MANDATORY CONDITION I.E. THE BYE - LOWS MUST SPECIFICALLY PROHIBIT ADMISSION OF ANY OTHER CO - OPERATIVE SOCIETY TO ITS MEMBERSHIP THE REVENUE HAS NOT BEEN ABLE TO SHOW ANY SUC H PROHIBITION IN THE BYE LAWS OF THE COOPERATIVE BANK IS NOT SATISFIED. THUS, THE THREE CONDITIONS AS PROVIDED U/S 5(CVV) OF THE BANKING REGULATIONS ACT, 1949 ARE TO BE SATISFIED CUMULATIVELY AND EXCEPT CONDITION (2) THE OTHER TWO QUALIFYING CONDITIONS ARE NOT SATISFIED. ERGO, APPELLANT CANNOT BE CONSIDERED TO BE A COOPERATIVE BANK FOR THE PURPOSE OF SECTION 80P(4). THUS, THE APPELLANT IS ENTITLED TO THE BENEFIT OF DEDUCTION AVAILABLE U NDER SECTION 80P(2)(A)(I). THE CONTENTION OF THE REVENUE THAT THE APPEL LANT IS NOT ENTITLED TO THE BENEFIT OF SECTION 80P(2)(A) IN VIEW OF THE FACT THAT IT DEALS WITH NON - MEMBERS CANNOT BE UPHELD. THIS FOR THE REASON THAT SECTION 80P(1) RESTRICTS THE BENEFITS OF DEDUCTION OF INCOME OF CO - OPERATIVE SOCIETY TO THE EXTENT IT IS EARNED BY PROVIDING CREDIT FACILITIES TO ITS MEMBERS. THEREFORE, TO THE EXTENT THE INCOME EARNED ATTRIBUTABLE TO DEALINGS WITH THE NON - MEMBERS ORE CONCERNED THE BENEFIT OF SECTION 80P WOULD NOT BE AVAILABLE. IN THE ABOVE VIEW OF THE MATTER, AT THE T IME WHE N EFFECT HAS BEEN GIVEN TO THE ORDER OF THIS COURT, THE AUTHORITIES UNDER ACT WOULD RESTRICT THE BENEFIT OF DEDUCTION UNDER SECTION 80P ONLY TO THE EXTENT THAT THE SAME IS EARNED BY THE APPELLANT IN CARRYING ON ITS BUSINESS OF PROVIDING CREDIT FACILITIES T O ITS MEMBERS. THEREFORE, APPEAL IS HELD IN FAVOUR OF ASSESSEE AND AGAINST REVENUE. ' 5.4 THEREFORE RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS OF 1TAT NAGPUR & PANAJI AS WELL AS THE HONBLE BOMBAY HIGH COURT, THE APPELLANT CANNOT BE HELD AS A COOPERATI VE BANK, HENCE DEDUCTION CLAIMED U/S 80P(2)(A)(I) CANNOT BE DENIED TO IT 1 FIND THAT THE AO IN THE PRESENT AY HAS NOWHERE LED ANY FACTS TO SHOW THAT BANKING FACILITIES SUCH AS CHEQUE BOOKS, DRAFTS HAVE BEEN PROVIDED. NEITHER IS IT THE CASE OF THE AO THAT F ACILITIES HAVE BEEN PROVIDED TO MEMBERS OF THE GENERAL PUBLIC WITHOUT RESTRICTING ONLY TO ITS OWN MEMBERS. ON FACTS THEREFORE THE AO HAS NOT ITA NO. 4823 /M/2017 A.Y.20 1 3 - 1 4 8 DEMONSTRATED AS TO HOW THE APPELLANT QUALIFIES TO BE A BANK. IN THE CIRCUMSTANCES, I HOLD THAT THE APPELLANT IS A C OOPERATIVE SOCIETY AND NOT A COOPERATIVE BANK AND IS, THEREFORE, ELIGIBLE FOR DEDUCTION U/S 80P(2)(A)(I). APART FROM THE ABOVE, I FIND THAT THE MATTER IS SQUARELY COVERED IN FAVOUR OF THE APPELLANT VIDE ORDER OF THE ITAT IN HIS OWN CASE FOR THE AY 2010 - 11 VIDE ORDER DATED 09.02.2013, WHEREIN THE HONBLE ITAT HAS HELD THAT THE APPELLANT IS NOT HIT BY THE MISCHIEF OF SEC 80P(4). THE CASE WAS ALSO DECIDED BY MY PREDECESSOR FOR A.Y. 2012 - 13 IN FAVOUR OF APPELLANT ON IDENTICAL ISSUE. RESPECTFULLY FOLLOWING THE S AME, THE DEDUCTION U/S 80P AS CLAIMED BY THE APPELLANT HAS TO BE ALLOWED TO HIM. 5 . ON APPRAISAL OF THE ABOVE SAID FINDING , WE NOTICED THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY ON THE BASIS OF THE DECISION OF BOMBAY HIGH COURT IN THE CASE OF Q UEPEM URBAN CO - OPERATIVE CREDIT SOCIETY LTD VS. ACIT REPORTED IN (2005) 377 ITR 272 (BOM) IN WHICH IT IS SPECIFICALLY HELD THAT THE SOCIETY WHICH WAS NOT DOING THE BANKING BUSINESS AND WITHOUT GETTING LICENCE FROM THE RBI, THEREFORE, THEY NOWHERE FALLS WIT HIN THE PROVISION OF SECTION 80P4 OF THE ACT , HENCE , THE SOCIETY WAS ENTITLED FOR THE EXEMPTION U/S 80P(2)(A)(I) OF THE ACT. MOREOVER, WE NOTICED THAT IN CONNECTION WITH THE MATTER OF CONTROVERSY THE CIT(A) HAS ALSO RELIED THE JUDGMENT IN THE ASSESSEES OW N CASE FOR THE A.Y. 2010 - 11 VIDE ORDER DATED 09.02.2016 IN ITA. NO.2965/M/2014. WE ALSO FIND SUPPORT OF THE DECISION OF THE HONBLE ITAT IN ITA. NO.6201 /M/2016 DATED 30.10.2017 IN THE CASE OF TITLED AS ITO 20(3)(4) VS. HCCS URBAN CO - OPERATIVE CREDIT SOCIET Y . TAKING INTO ACCOUNT OF A LL THE FACTS AND CIRCUMSTANCES AND CONSIDERING OF THIS FACT THAT THE CASE OF THE ASSESSEE HAS DULY BEEN COVERED BY THE ABOVE MENTIONED CASES, WE ARE OF THE VIEW THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY JUDICIOUSLY AND CORRECTLY WHICH IS NOT LIABLE TO BE INTERFERE D WITH AT THIS APPELLATE STAGE. ITA NO. 4823 /M/2017 A.Y.20 1 3 - 1 4 9 6 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS HEREBY ORDERED TO BE D ISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 27. 11 . 2018 . SD/ - SD/ - ( B. R. BASKARAN ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 27. 11 . 2018 . VIJAY / 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