ITO 22(2)(4), NAVI MUMBAI V. YASHOMANDIR SAHAKARI PATPEDHI LTD, MUMBAI

ITA 6353/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3895 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 14-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K BEPARI
• Assessee Lawyers: V G GINDE
• Keywords: Reopening of assessment; Rectification of order; Tangible material; Bad and doubtful debts; Difference of opinion; Change of opinion
• Section: 143(3); 147; 148; 12; 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.6353/MUM/2014 ASSESSMENT YEAR-2009-10 ITO - 22(2)(4), 4 TH FLOOR, TOWER NO.6, VASHI RAILWAY STATION COMPLEX,VASHI, NAVI MUMBAI / VS. YASHOMANDIR SAHAKARI PATPEDHI LTD. 307, MAHAVIR APARTMENT, PANT NAGAR, GHATKOPAR (E) MUMBAI-400075 PAN NO. AAAAY0015A ( / REVENUE) ( / RESPONDENT) / REVENUE BY SHRI S.K. BEPARI -DR / RESPONDENT BY SHRI V.G. GINDE / DATE OF HEARING : 09/05/2016 / DATE OF ORDER: 16/05/2016 ITA NO.6353/MUM/2014 YASHOMANDIR SAHAKARI PATPEDHI LTD. 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 27/08/2014 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. THE ONLY GROUND RAISED IN THE PRESENT APPEA L PERTAINS TO ALLOWING DEDUCTION U/S 80P(2) OF THE IN COME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. DURING HEARING OF THE APPEAL, THE LD. DR, SHRI S.K. BEPARI, CONTENDED THAT WHILE COMING TO A PARTI CULAR CONCLUSION, THE COMMISSIONER OF INCOME TAX (APPEAL) FAIL TO APPRECIATE THAT THE PRINCIPLE BUSINESS OF THE AS SESSEE IS BANKING AND ITS SHARE CAPITAL AND RESERVES EXCEEDS RS. 1 LAKH, THEREFORE, IT FALLS WITHIN THE DEFINITION OF THE COOPERATIVE BANK U/S 5(CCI) OF THE BANKING REGULATI ON ACT AND FURTHER ALLOWING THE PROVISION OF BAD DEBT OF RS.23,95,449/-, PROVISION FOR BAD LOAN INTEREST OF RS.78,73,520/-, EMPLOYEE RETIREMENT BENEFIT FUND OF RS.12,74,256/- AND EDUCATION FUND OF RS.5,000/-. 2.1. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE, SHRI V.G. GINDE, CONTENDED THAT THE TRIBU NAL VIDE ITA NO.6353/MUM/2014 YASHOMANDIR SAHAKARI PATPEDHI LTD. 3 ORDER DATED 11/12/2015 (ITA NO.3476/MUM/2014) HAS DELIBERATED UPON IDENTICAL FACTS/ISSUES AND DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PO RTION FROM THE AFORESAID ORDER DATED 11/12/2015 FOR READY REFERENCE:- 4. TO UNDERSTAND THE FACTS QUA THE LEGAL ISSUE RAI SED VIDE GROUND NO.1, WE WILL DISCUSS THE FACTS RELATING TO ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2007-08 IN ITA NO. 3474/MUM/2014 AS LEAD CASE. 5. BRIEF FACTS OF THE C ASE ARE THAT, THE ASSESSEE IS A REGISTERED CO-OPERATIVE SOC IETY CARRYING ON THE BUSINESS ACTIVITIES AS PER ITS BYEL AWS. ONE OF THE MAIN ACTIVITIES OF THE ASSESSEES SOCIETY WA S TO COLLECT DEPOSITS FROM MEMBERS AND GIVE INTEREST ON SUCH DEPOSITS. DEPOSITS WERE OF VARIOUS TYPES VIZ., FIXE D DEPOSITS; RECURRING DEPOSITS; DAILY DEPOSITS, ETC. ALL THE DEPOSITORS WERE THE MEMBERS OF THE SOCIETY WHO ARE ALLOTTED SHARE IN THE SAID SOCIETY. THESE MEMBERS G ET DIVIDENDS ON THE SHARE AMOUNT AND ALSO INTEREST ON THEIR DEPOSIT AMOUNT. THE SOCIETY ALSO GIVES LOAN TO THE MEMBERS ON WHICH IT CHARGES FIXED RATE OF INTEREST WHICH IS NORMALLY FIXED BY THE BOARD OF DIRECTORS. THE SOCIE TY USED TO GET APPROVAL OF SUCH RATES OF INTEREST FROM THE REGISTRAR OF SOCIETIES. THE LOANS OFFERED TO THE MEMBERS WERE IN THE ITA NO.6353/MUM/2014 YASHOMANDIR SAHAKARI PATPEDHI LTD. 4 FORM OF PERSONAL LOANS, HOUSING LOANS, VEHICLE LOAN S, GOLD LOANS ETC. THUS, THE MAIN INCOME OF THE ASSESSEE WA S INTEREST CHARGED ON VARIOUS LOANS GIVEN TO ITS MEMB ERS. IT ALSO USED TO MAKE CERTAIN STATUTORY INVESTMENTS ON WHICH IT HAD EARNED INTEREST. BEING A COOPERATIVE SOCIETY PURELY DOING BUSINESS OF PROVIDING CREDIT FACILITY TO ITS MEMBERS, IT HAS CLAIMED EXEMPTION OF THE PROFIT U/S 80P(2)(I). THE RETURN OF INCOME U/S 139(1) WAS FILED ON 31.01.2007 DECLARING TOTAL INCOME OF RS. 68,500/- AFTER CLAIMI NG DEDUCTION U/S 80P. THE SAID RETURN WAS DULY PROCESS ED U/S 143(1) ON 31.03.2009. THEREAFTER, THE SAID RETURN W AS SELECTED FOR SCRUTINY BY ISSUANCE AND SERVICE OF NO TICE U/S 143(2). THE AO AFTER EXAMINING THE ENTIRE DETAILS N OTED THAT THE INTEREST EARNED ON THE DEPOSITS MADE IN UT I BANK WILL NOT BE ELIGIBLE FOR DEDUCTION U/S 80P(2)(D), H ENCE THE SAME WAS ADDED BACK TO THE TOTAL INCOME WHICH WAS ASSESSED AT AN INCOME OF RS. 90,990/-, VIDE ORDER D ATED 29.09.2009 PASSED U/S 143(3). AFTER COMPLETING THE ASSESSMENT IN THE AFORESAID MANNER, THE ASSESSEES CASE HAS NOW BEEN REOPENED VIDE NOTICE DATED 29.03.2012, ISSUED U/S 148 ON THE FOLLOWING REASONS RECORDED AS SUPPLIED BY THE AO TO THE ASSESSEE VIDE LETTER DATE D 09.08.2012:- XXXXXXXXXXXXXXXXXXXXXXXXXXX 6. BEFORE US, LD. COUNSEL SUBMITTED THAT FROM THE P ERUSAL OF THE REASONS RECORDED, IT CAN BE SEEN THAT NO N EW TANGIBLE MATERIAL HAS COME ON RECORD SO AS TO FORM REASONS TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THE ASSESSEES CLAIM FOR DEDUCT ION U/S 80P WAS NOT ONLY PROPERLY DISCLOSED IN THE RETU RN OF ITA NO.6353/MUM/2014 YASHOMANDIR SAHAKARI PATPEDHI LTD. 5 INCOME BUT WAS ALSO ENQUIRED UPON BY THE AO DURING THE COURSE OF THE ORIGINAL ASSESSMENT PROCEEDINGS. THE ASSESSEE HAD GIVEN A BRIEF NOTE ON THE BUSINESS ACT IVITIES AND ALSO THE DETAILS HOW THE ASSESSEE IS CARRYING O UT THE BUSINESS OF PROVIDING CREDIT FACILITIES TO ITS MEMB ERS AND ALSO THE APPLICABILITY OF SECTION 80P IN THE CASE O F THE ASSESSEE BEFORE THE AO DURING THE ASSESSMENT PROCEE DING. IN FACT, THE AO AFTER EXAMINING THE CLAIM OF THE AS SESSEE U/S 80P HAS DISALLOWED THE INTEREST INCOME OF RS. 2 1,954/-. NOT ONLY THAT, EVEN IN THE AUDIT REPORT, THE STATUT ORY AUDITORS AS WELL AS CHARTERED ACCOUNTANT HAVE CERTI FIED THE ADMISSIBILITY OF DEDUCTION U/S 80P. THUS, THE ISSUE OF CLAIM OF DEDUCTION U/S 80P HAS NOT ONLY BEEN DULY EXAMINE D BUT ALSO THERE IS PROPER APPLICATION OF MIND BY THE AO IN THE COURSE OF ORIGINAL ASSESSMENT PROCEEDING. THE ASSES SEE HAD EVEN RAISED THE OBJECTIONS BEFORE THE AO ON THE REOPENING OF ASSESSMENT U/S 147 VIDE LETTER DATED 17.08.2012, WHEREIN THE ASSESSEE HAS GIVEN A VERY ELABORATE SUBMISSIONS NOT ONLY ON THE VALIDITY OF R EOPENING BUT ALSO HOW THE ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80P EVEN AFTER AMENDMENT BROUGHT IN SECTION 80P(4), WHICH IS NOT APPLICABLE TO THE ASSESSEE AS IT IS PURELY A COOPERATIVE CREDIT SOCIETY AND IT DOES NOT HAVE ANY BANKING LICENSE FOR CARRYING OUT ANY BANKING AC TIVITIES. THUS, HE SUBMITTED THAT SUCH A REOPENING NOW TO DIS ALLOW OR WITHDRAW THE DEDUCTION U/S 80P, AMOUNTS TO CHAN GE OF OPINION WHICH IS NOT PERMISSIBLE IN LAW, IN VIEW O F THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CI T VS. KALVINATOR OF INDIA LTD., REPORTED IN [2010] 320 IT R 561. LD. COUNSEL FURTHER REFERRED TO OTHER DECISIONS OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF ASIAN PAIN TS LTD VS ITA NO.6353/MUM/2014 YASHOMANDIR SAHAKARI PATPEDHI LTD. 6 DCIT, REPORTED IN [2010] 308 ITR 348 AND PRAVEEN B BARUCHA, REPORTED IN [2012] 348 ITR 325. 7. ON THE OTHER HAND, LD. DR SUBMITTED THAT WHAT RE QUIRES TO BE SEEN AT THE TIME OF ISSUING THE NOTICE U/S 14 8 IS, WHETHER THE AO HAS PRIMA FACIE REASONS TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT OR NOT. THE AO IN THE REASONS RECORDED HAS NOTED THA T THE AMENDMENT IN SECTION 80P(4) HAS BEEN BROUGHT BY THE FINANCE ACT, 2006 WHICH WAS APPLICABLE FOR THE IMPU GNED ASSESSMENT YEAR AND THIS HAS NOT BEEN EXAMINED BY T HE AO AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDINGS. SUCH AN AMENDMENT GOES TO THE VERY ROOT OF THE ISSUE INV OLVED AND ADVERSELY AFFECTS THE ASSESSEES CLAIM FOR DEDU CTION WITHIN THE SCOPE OF AMENDED PROVISION. HE FURTHER SUBMITTED THAT, SIMULTANEOUS AMENDMENT WAS ALSO BRO UGHT IN SUB-CLAUSE (VIIA) OF SECTION 2(24), WHEREBY IT P ROVIDES THAT PROFITS AND GAINS OF ANY BUSINESS INCLUDING PR OVIDING CREDIT FACILITIES CARRIED ON BY THE COOPERATIVE SOC IETY TO ITS MEMBERS SHALL BE INCLUDED IN THE DEFINITION OF AN INCOME. THIS INTER ALIA MEANS THAT, ASSESSEE WAS NO LONGER ELIGIBLE FOR CLAIMING DEDUCTION U/S 80P AND, THEREFORE, THE REOPENING U/S 147 HAS RIGHTLY BEEN MADE BY THE AO W ITHIN THE PERIOD OF 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. HE FURTHER SUBMITTED THAT, THIS AS PECT OF AMENDMENT HAS NOT BEEN CONSIDERED BY THE AO BY WAY OF QUERY EITHER DURING THE COURSE OF ASSESSMENT PROCEE DINGS OR IN THE BODY OF THE ASSESSMENT ORDER, THEREFORE, THERE IS NO OPINION EXPRESSED BY THE AO AND HENCE NOTICE U/S 148 ISSUED FOR THE IMPUGNED ASSESSMENT YEARS CANNOT BE QUASHED ON THE GROUND OF CHANGE OF OPINION. ITA NO.6353/MUM/2014 YASHOMANDIR SAHAKARI PATPEDHI LTD. 7 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD AS WELL AS THE FINDING GIVEN IN THE IMPUGNED ORDERS QUA THE VALIDITY OF REOPENING U /S 147. IT IS AN UNDISPUTED FACT THAT, ASSESSEE BEING A COO PERATIVE CREDIT SOCIETY WAS COLLECTING DEPOSITS FROM ITS MEM BERS AND ALSO GIVING LOAN TO ITS MEMBERS. BY VIRTUE OF ITS A CTIVITIES CARRIED OUT AND BEING A COOPERATIVE CREDIT SOCIETY, IT HAS CLAIMED DEDUCTION U/S 80P(2)(A)(I). SUCH A CLAIM OF DEDUCTION WAS DULY CERTIFIED BY THE AUDITORS AND BY THE CHARTERED ACCOUNTANTS IN THE AUDIT REPORT, WHICH WA S THEBASIS FOR MAKING THE CLAIM IN THE RETURN OF INCO ME. SUCH RETURN OF INCOME WAS SUBJECTED TO SCRUTINY ASSESSME NT U/S 143(3), WHEREBY THE AO HAS EXAMINED THE CLAIM OF DEDUCTION AND DISALLOWED A PORTION OF THE DEDUCTION AFTER OBSERVING AND HOLDING AS UNDER :- DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT I S FOUND THAT THE ASSESSEE HAS EARNED INTEREST OF RS.21,954/- FRO M DEPOSITS MADE IN UTI BANK. HOWEVER, AS PER THE PROVISIONS OF SEC. 80P2(D), INTEREST EARNED FROM ITS INVESTMENTS IN CO -OPERATIVE SOCIETY ONLY WILL BE ELIGIBLE FOR DEDUCTION. THEREF ORE, INTEREST EARNED FROM BANK OTHER THAN A CO-OPERATIVE I.E. FRO M UTI WILL NOT QUALIFY FOR DEDUCTION. HENCE INTEREST EARNED OF RS. 21,954/- IS BEING ADDED TO THE TOTAL INCOME. THUS, IN THIS MANNER, THE ASSESSEES CLAIM FOR DEDU CTION OF RS. 1,45,28,498/- WAS REDUCED BY THAT AMOUNT. AFTER COMPLETING THE ASSESSMENT IN THE AFORESAID MANNER, THE REOPENING OF THE CASE U/S 147 HAS BEEN DONE, PRIMAR ILY ON THE GROUND THAT AMENDMENT HAS BEEN BROUGHT BY FINAN CE ACT, 2006, WHEREBY SUB-SECTION (4) HAS BEEN INSERTE D W.E.F. 01.04.2007, WHICH PROVIDES THAT PROVISIONS O F SECTION 80P WILL NOT APPLY IN RELATION TO ANY CO-OP ERATIVE BANK OTHER THAN PRIMARY AGRICULTURAL CREDIT SOCIETY OR PRIMARY COOPERATIVE AGRICULTURAL AND RURAL DEVELOPM ENT ITA NO.6353/MUM/2014 YASHOMANDIR SAHAKARI PATPEDHI LTD. 8 BANK. FURTHER, A NEW SUB-CLAUSE (VIIA) HAS BEEN INS ERTED IN SECTION 2(24) WHEREBY THE PROFITS AND GAINS OF ANY BUSINESS INCLUDING PROVIDING CREDIT FACILITIES CARR IED OUT BY A COOPERATIVE SOCIETY TO ITS MEMBER SHALL BE INCLUD ED IN THE DEFINITION OF INCOME. FROM THE PERUSAL OF THE RE ASONS RECORDED, IT IS NOT CLEAR, WHETHER THE SAID AMENDM ENT BROUGHT IN THE STATUTE IS AT ALL APPLICABLE IN THE CASE OF THE ASSESSEE OR WHETHER THE ASSESSEE FALLS WITHIN THE D EFINITION OF COOPERATIVE BANK AS GIVEN IN PART VI OF THE BAN KING REGULATION ACT, 1949 OR NOT. FIRST OF ALL, AO HAS T O PRIMA FACIE ESTABLISH THAT ASSESSEE IS A COOPERATIVE BANK SO AS TO FALL WITHIN THE EXCEPTION CLAUSE PROVIDED IN SUB-SE CTION 4 OF SECTION 80P. ONCE THAT HAS NOT BEEN ESTABLISHED, TH EN IT CANNOT BE HELD THAT PRIMA FACIE THE REASONS RECORD ED BY THE AO CLOTHES HIM WITH JURISDICTION TO REOPEN THE COMPLETED ASSESSMENT U/S 143(3). THE ASSESSEE HAS B EEN REGISTERED AS A COOPERATIVE CREDIT SOCIETY AND NO T AS A COOPERATIVE BANK. FOR TREATING THE ASSESSEE AS A COOPERATIVE BANK, IT HAS TO BE SEEN PRIMA FACIE FIR STLY, WHETHER THE PRIMARY OBJECT OR PRINCIPAL BUSINESS IS BANKING BUSINESS OR NOT; SECONDLY, WHETHER PAID UP SHARE CA PITAL AND RESERVE ARE LESS THAN RS.1 LAKH OR NOT; AND LAS TLY, WHETHER THE BYELAWS OF WHICH DO NOT PERMIT ADMISSIO N OF ANY OTHER CO-OPERATIVE SOCIETY AS A MEMBER. ALL THE THREE CONDITIONS HAVE TO BE FULFILLED SIMULTANEOUSLY AND NOT ONE OF THE CONDITIONS, AS STATED BY THE AO. NOWHERE FRO M THE PERUSAL OF SUB-SECTION (4) OR BANKING REGULATION AC T, 1949 PROVIDES THAT COOPERATIVE BANK ALSO INCLUDES COOPER ATIVE CREDIT SOCIETY ALSO. THUS, PRIMA FACIE IT CANNOT LE AD TO ANY INFERENCE THAT ASSESSEE IS A COOPERATIVE BANK SO AS TO FALL WITHIN THE EXCEPTION CLAUSE OF SUBSECTION (4) OF SE CTION ITA NO.6353/MUM/2014 YASHOMANDIR SAHAKARI PATPEDHI LTD. 9 80P. THUS, THE ASSERTION OF THE AO IN THE REASONS RECORDED THAT THE ASSESSEE IS CLEARLY COVERED WITH IN THE DEFINITION OF COOPERATIVE BANK AS PROVIDED IN PART V OF THE BANKING REGULATION ACT, 1949 IS NOT SO APPARENT LOO KING TO THE OVERALL ACTIVITIES OF THE ASSESSEE AND HENCE SU CH A REASONS RECORDED FALLS WITHIN THE REALM OF SURMIS E OR PRESUMPTION WHICH IS BASED ON HYPOTHESIS THAT, ASSE SSEE IS ENGAGED IN THE BANKING ACTIVITY, WITHOUT THERE BEIN G ANY TANGIBLE MATERIAL COMING ON RECORD ESPECIALLY WHEN THE ASSESSEE HAS BEEN ASSESSED U/S 143(3). SUCH A TANGI BLE MATERIAL COMING ON RECORD IS SINE-QUA-NON FOR REOPE NING THE CASE U/S 147, ESPECIALLY WHEN ALREADY ONE AO HA S APPLIED HIS MIND ON THE GIVEN ISSUE. OTHERWISE, IT WILL GIVE UNFETTERED POWERS TO THE AO TO REOPEN THE CASE FOR REVIEWING THE EARLIER ORDERS PASSED U/S 143(3). ONC E, THE AO IN THE ORIGINAL ASSESSMENT ORDER HAS EXAMINED TH E CLAIM OF DEDUCTION U/S 80P, WHEN SUCH AN AMENDMENT WAS ALREADY THERE ON THE STATUTE, THEN IT DOES NOT MEAN THAT THE AO HAS NOT APPLIED HIS MIND TO SUCH A STATUTORY PROVISION AND SIMPLY ACCEPTED THE CLAIM OF THE ASSE SSEE. THERE IS NO MATERIAL COMING ON RECORD HAVING LIVE-L INK- NEXUS WITH THE FORMATION OF BELIEF THAT ASSESSEE IS ACTUALLY DOING BANKING BUSINESS OR IS A COOPERATIVE BANK. TH US, IN OUR OPINION, THE REASONS AS RECORDED BY THE AO DO NOT CLOTHE HIM WITH THE JURISDICTION TO REOPEN THE ASSE SSMENT WITHIN THE SCOPE OF SECTION 147 AND HENCE SUCH A REOPENING WHICH IS BASED ON CHANGE OF OPINION IS BAD IN LAW AND CANNOT BE SUSTAINED. ACCORDINGLY, WE QUASHE D THE ASSESSMENT ORDER PASSED U/S 147 R.W.S. 143(3). IN V IEW OF THE SAID FINDING THAT IMPUGNED PROCEEDINGS U/S 148 IS VOID- AB-INITIO, THE ISSUE ON MERITS IN ASSESSEES APPEAL AS WELL ITA NO.6353/MUM/2014 YASHOMANDIR SAHAKARI PATPEDHI LTD. 10 AS IN DEPARTMENTS APPEAL HAVE BECOME PURELY ACADEM IC AND HENCE INFRUCTUOUS. ACCORDINGLY, THE APPEAL OF T HE ASSESSEE IS ALLOWED. 9. SO FAR AS THE ISSUE RAISED BY THE REVENUE IN ITS GROUNDS OF APPEAL THAT LD. CIT(A) HAS ERRED IN ALLOWING THE DEDUCTION U/S 80P(2) TO THE ASSESSEE HAS ALSO BECOM E PURELY ACADEMIC AND IN VIEW OF THE FINDING GIVEN AB OVE, THE APPEAL OF THE REVENUE IS TREATED AS DISMISSED, AS A DMITTED BY BOTH THE PARTIES. 10. AS STATED IN THE BEGINNING, SIMILAR FACTS ARE P ERMEATING IN THE ASSESSMENT YEARS 2008-09 & 2009-10, WHEREIN THE EARLIER ASSESSMENTS WERE COMPLETED U/S 143(3) ON SI MILAR MANNER AND REOPENING U/S 147 HAS BEEN DONE BY RECOR DING EXACTLY THE SIMILAR REASONS AS DISCUSSED IN THE A FORESAID APPEAL. THEREFORE, OUR FINDING GIVEN ABOVE IN THE A PPEAL FOR THE ASSESSMENT YEAR 2007-08 WILL APPLY MUTATIS MUTA NDIS IN THESE YEARS ALSO AND ACCORDINGLY, IN VIEW OF THE FINDING GIVEN THEREIN, APPEAL OF THE ASSESSEE FOR AY 2008-0 9 AND 2009-10 IS TREATED AS ALLOWED, WHEREAS CROSS APPEAL S FILED BY THE REVENUE FOR THESE ASSESSMENT YEARS ARE TREAT ED AS DISMISSED. 11. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED AND THAT OF THE REVENUE STANDS DISMISSED. 2.3. IF THE AFORESAID CONCLUSION ARRIVED AT BY THE TRIBUNAL IS KEPT IN JUXTAPOSITION WITH THE FACTS OF THE PRESENT APPEAL, WE FIND THAT THE CASE OF THE ASSESS EE WAS REOPENED WITH THE ISSUANCE OF NOTICE U/S 148 OF THE ACT ITA NO.6353/MUM/2014 YASHOMANDIR SAHAKARI PATPEDHI LTD. 11 DATED 29/03/2012. IN THE ASSESSMENT ORDER FRAMED U/ S 143(3) R.W.S. 147 DATED 17/03/2013, THE CLAIMED DED UCTION U/S 80P, AMOUNTING TO RS.51,52,170/- WAS DISALLOWED . SUBSEQUENTLY, ON VERIFICATION OF CASE REPORT, IT WA S NOTICED THAT THE PROVISION FOR BAD AND DOUBTFUL DEBTS, PROV ISION FOR BAD LOAN INTEREST, EMPLOYEE RETIREMENT BENEFIT FUND AND EDUCATION FUND WERE NOT ADDED BACK TO NET PROFIT IN COMPUTATION OF INCOME. THE ASSESSEE EXPLAINED THE P OSITION BY CLAIMING THAT THE TAX AUDITOR INADVERTENTLY OMIT TED TO DISALLOW AND ADD BACK THE SAID PROVISION IN COMPUTA TION OF INCOME, THEREFORE, THE ASSESSEE REQUESTED THE ASSES SING OFFICER TO PASS RECTIFICATION ORDER. ACCORDINGLY, R ECTIFICATION ORDER U/S 154 DATED 15/04/2015 WAS PASSED REVISING THE TOTAL INCOME AT RS.1,67,00,395/- AS AGAINST THE INC OME PER ORDER U/S 143(3) R.W.S 147 DATED 17/03/2013 AT RS.51,52,170/-. 2.4. ON APPEAL AGAINST THE RECTIFICATION ORDER, TH E COMMISSIONER OF INCOME TAX (APPEAL) VIDE ORDER DATE D 27/08/2013 HELD THAT IT IS THE ASSESSED PROFIT WHIC H HAS TO BE CONSIDERED FOR THE PURPOSES ON COMPUTING DEDUCTI ON ITA NO.6353/MUM/2014 YASHOMANDIR SAHAKARI PATPEDHI LTD. 12 U/S 80P(2)(I)(A) OF THE ACT AND DIRECTED THE ASSESS ING OFFICER TO ALLOW DEDUCTION TO THE ASSESSEE IN RESPECT OF IN COME ARRIVED AT BY HIM AFTER DISALLOWING THE SAID EXPENSES/PROVISIONS, EXCEPT THE AMOUNT OF RS.1,49,5 00/-, BEING THE INTEREST ON GOVERNMENT SECURITIES WHICH W AS NOT ELIGIBLE FOR DEDUCTION U/S 80P OF THE ACT. THE COMM ISSIONER OF INCOME TAX (APPEAL) FURTHER HELD THAT SINCE THE ASSESSEE HAS GOT RELIEF U/S 80P(2)(I), THE MERIT OF ALLOWABI LITY OF SUCH EXPENSES IS AN ACADEMIC EXERCISE. THE SUBJECT MATTE R OF APPEAL OF THE REVENUE IS THE RECTIFICATION ORDER U/ S 154 DATED 15/04/2013, WHICH SHOWS THE ASSESSEES REVISE TOTAL INCOME AT RS.1,67,00,395/-(INCLUDING THE TOTAL INCO ME AS PER ASSESSMENT ORDER DATED 17/3/2013 OF RS.51,52,17 0/-). THE LD. DR HAS ALSO CHALLENGED THE CONCLUSION OF TH E COMMISSIONER OF INCOME TAX (APPEAL) THAT THE ASSES SEE IS COOPERATIVE SOCIETY AND NOT A COOPERATIVE BANK AND CONSEQUENT ALLOWING THE DEDUCTION U/S 80P(2) OF THE ACT. THE ACT PROVIDES THE DEFINITION OF COOPERATIVE SOC IETY WHICH MEANS A COOPERATIVE SOCIETY REGISTERED UNDER THE COOPERATIVE SOCIETY ACT 1912 (2 OF 1912), OR UNDER ANY OTHER ITA NO.6353/MUM/2014 YASHOMANDIR SAHAKARI PATPEDHI LTD. 13 LAW FOR THE TIME BEING FORCE IN ANY STATE FOR THE R EGISTRATION OF COOPERATIVE SOCIETY. CONSIDERING THE TOTALITY OF FACTS AND THE ORDER OF THE TRIBUNAL IN FACT, THIS APPEAL OF T HE REVENUE HAS BECOME IN-FRUCTUOUS. HOWEVER, WE FIND NO MERIT IN THE APPEAL OF THE REVENUE AND UPHELD THE CONCLUSION OF THE COMMISSIONER OF INCOME TAX (APPEAL) RESULTING INTO DISMISSAL OF APPEAL OF THE REVENUE. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 09/05/2016. SD/- SD/- (RAJENDRA) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER MUMBAI; # DATED : 16/05/2016 F{X~{T? P.S/. $. . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. &' / THE APPELLANT (RESPECTIVE ASSESSEE) 2. / THE RESPONDENT. 3. ( ( ) ( &' ) / THE CIT, MUMBAI. ITA NO.6353/MUM/2014 YASHOMANDIR SAHAKARI PATPEDHI LTD. 14 4. ( ( ) / CIT(A)- , MUMBAI, 5. ,-. $$/0 , ( &' &/01 , / DR, ITAT, MUMBAI 6. .23 4 / GUARD FILE. / BY ORDER, ,' $ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI