ACIT- 27(3), NAVI MUMBAI V. THE BARC EMPLOYEE CO OP CREDIT SOCIETY LTD, MUMBAI

ITA 6476/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1438 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 03-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT MOHAN MITTAL
• Assessee Lawyers: BHADRESH K DOSHI
• Section: 80P; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE HONBLE SHRI SANDEEP GOSAIN , J M & HONBLE SHRI RAJESH KUMAR, A M / I .T.A. NO. 64 7 6 /MUM/2017 ( / ASSESSMENT YEARS: 2013 - 14 ) IN THE MATTER OF : ACIT 27(3)(4) 4 TH FLOO R, TOWER NO.6, VASHI RAILWAY STATION COMPLEX, VASHI NAVI MUMBAI - 400703. / VS. THE BARC EMPLOYEES CO - OP CREDIT SOCIETY LTD. R - 5 SHED, BEHIND RIG, NORTH GATE, TROMBAY, MUMBAI - 400085. / I .T.A. NO S . 6466 & 6467/MUM/2017 ( / ASSESS MENT YEARS: 2012 - 13 & 2014 - 15 ) ITO 27(3)(4) 4 TH FLOOR, TOWER NO.6, ROOM NO.427, VASHI RAILWAY STATION COMPLEX, VASHI NAVI MUMBAI - 400703 . / VS. THE BARC EMPLOYEES CO - OP CREDIT SOCIETY LTD. R - 5 SHED, BEHIND RIG, NORTH GATE, TROMBAY , MUMBAI - 400085. ./ ./ PAN/GIR NO. : AAAJT0003C ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEA RING : 09 / 0 5 / 201 9 / DATE OF PRONOUNCEMENT : 14 / 0 5/ 2019 REVENUE BY: SHRI AMIT MOHAN MITTAL (DR) ASSESSEE BY : SHRI BHADRESH K. DOSHI (AR) ITA. NO S . 6466, 6467 / M/201 7 & 6476/M/2017 A.Y. 2012 - 13, 2013 - 14 & 2014 - 15 2 / O R D E R PER BENCH : THE ABOVE MENTIONED APPEALS HAVE BEEN FILED BY THE REVENUE AGAINST THE DIFFERENT ORDER PASSED BY THE LD . COMMISSIONER OF INCOME TAX (APPEALS) - 25 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2012 - 13 , 20 13 - 14 & 2014 - 15 . ITA. NO. 6466 /M/201 7 :- 2 . THE REVENUE HAS FILED THE PRESENT A PPEAL AGAINST THE ORDER DATED 28 . 0 8 .201 7 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 25 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2012 - 1 3 . 3. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT( A) ERRED IN ALLOWING ASSESSEE'S APPEAL AND ALLOWING RELIEF U/S 80P OF THE ACT IN THE CASE OF THE ASSESS EE CREDIT CO - OPERATIVE SOCIETY. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN HOLDING THAT THE CREDIT CO - O PERATIVE SOCIETY IS DIFFERENT FROM THE CREDIT CO - OPERATIVE BANK. 3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, T H E LEARNED CIT(A) ERRED IN HOLDING THAT THE AMENDED PROVISION OF SECTION 80P(4) OF THE ACT IS NOT APPLICABLE TO THE CREDIT CO - OPERATIVE SOCIETY. 4) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 5) THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE REVERS ED AND THAT OF THE ASSESSING OFFICER BE RESTORED. ITA. NO S . 6466, 6467 / M/201 7 & 6476/M/2017 A.Y. 2012 - 13, 2013 - 14 & 2014 - 15 3 GROUND NO S . 1 TO 4 : - 4 . ALL THE GROUNDS RAISED BY THE REVENUE ARE INTER CONNECTED AND INTER RELATED AND RELATES TO CHALLENGIN G THE ORDER OF LD. CIT(A) IN ALLOWING RE LIEF U/S 80P OF THE ACT TO THE ASSESS EE, THEREFORE WE THOUGHT IT FIT TO DISPOSE OF THE SAME BY THIS COMMON ORDER. 5. AT THE VERY OUTSET, THE LD. AR SUBMITTED THAT THE IDENTICAL GROUNDS RAISED BY REVENUE HAVE ALREADY BEEN DECIDED BY THE C OORDINATE BENCH OF HONBLE ITAT IN ITA. NO.6904/M/2013 FOR THE A.Y.2010 - 11 DATED 03.02.2016. THE OPERATIVE PORTION OF HONBLE ITAT IS CONTAINED IN PARA NO.4 TO 8 WHICH ARE REPRODUCED BELOW : - 4. BY THE IMPUGNED ORDER, THE LD. CIT(A) ALLOWED ASSESSEES CLAIM UNDER SECTION 80P OBSERVING AS UNDER: 7. I HAVE CA REFULLY CONSIDERED THE FINDINGS OF THE AO AS WELL AS SUBMISSION OF THE APPELLANT. I HAVE ALSO GONE THROUGH THE CASE LAWS RELIED UPON BY THE APPELLANT. A PERUSAL OF THE DECISION QUOTED BY THE APPELLANT REVEALS THAT: (I) WHERE THE ASSESSES WERE INDULGING IN THE BUSINESS OF BANKING BY PROVIDING VARIOUS FACILITIES RELATED TO BANKING TO GENERAL PUBLIC AT LARGE, IN SUCH CASES THE ASSESSES WERE HELD TO BE BELONGING TO THE CATEGORY OF CO - OP. BANK (II) WHERE THE ACTIVITIES OF THE ASSESSES WERE LIMITED TO THE ACCEPTA NCE OF DEPOSITS FROM THE MEMBERS AND PROVIDING LOAN FACILITIES TO THE MEMBERS ONLY, WITHOUT PROVIDING OTHER FACILITIES OF BANKING SUCH AS THE FACILITY OF CHEQUE BOOKS, DRAFTS, ETC, SUCH ASSESESS HAVE NOT BEEN HELD TO BE BELONGING UNDER THE CATEGORY OF CO - O P. BANK. 8. FROM THE FACTS OF THE INSTANT CASE IT IS QUITE CLEAR THAT THE APPELLANT HAS LIMITED ITSELF TO THE MEMBERS OF EMPLOYEES OF BARC. FURTHER, THE APPELLANT HAS NOT PROVIDED BANKING FACILITIES EITHER TO GENERAL PUBLIC AT LARGE OR EVEN TO THE MEMBERS OF THE SOCIETY. EVEN THE BYE LAWS OF THE APPELLANT DOES NOT PROVIDE FOR THE BANKING ACTIVITIES. THE FACTS OF THE INSTANT CASE ARE ALMOST SIMILAR TO THE DECISIONS RELIED UPON BY THE APPELLANT PARTICULARLY, THE FACTS IN THE CASE OF A) ITO VS. JANKALYAN NAGR I SAHAKARI PAT SANSTHA 24 TAXMAN.COM 127 PUNE TRIBUNAL, - B) ACIT VS. ITA. NO S . 6466, 6467 / M/201 7 & 6476/M/2017 A.Y. 2012 - 13, 2013 - 14 & 2014 - 15 4 BULDANA URBAN CO - OPERATIVE CREDIT SOCIETY LTD. 32 TAXMAAN.COM 69 NAGPUR TRIBUNAL AND C) DCIT VS. JAYALKSHI MAHILA VIVIDODESHAGALA SOULIARDA SAHAKARI LTD. 23 TAXMAAN.COM 313 PANAJI TRIBUNA L, WHERE THE ACTIVITIES OF THE ASSESSES WERE LIMITED TO THE MEMBERS OF A SPECIFIC GROUP AND THE AREA OF OPERATION WAS ALSO LIMITED TO THE ACCEPTANCE OF DEPOSITS OF THE MEMBERS AND PROVIDING CREDIT FACILITIES ONLY TO THE MEMBERS, WHICH HAVE BEEN HELD AS NOT FALLING UNDER THE BANKING ACTIVITIES AS DEFINED IN THE BANKING REGULATION QUEPEM URBAN CO - OPERATIVE SOCIETY? 120 TRR 153 WHEREIN THE HON'BLE HIGH COURT HELD AS UNDER: DEDUCTION U/S 80P(4) DEDUCTION WITH RESPECT OF COOPERATIVE SOCIETY ALLOWABILITY ASSE SSEE WHO WERE REGISTERED CO - OPERATIVE SOCIETY HAD FILED ITS RETURN OF INCOME DECLARING GROSS TOTAL INCOME ASSESSEE HAD CLAIMED DEDUCTION OF ITS ENTIRE INCOME UNDER SECTION 80P(2)(A)(I) RESULTING IN NIL TAXABLE INCOME AO HAD DISALLOWED ASSESSEES CLAIM FOR D EDUCTION U/S 80P(2)(A)(I) ON THE GROUND THAT THE ASSESSEE WAS A PRIMARY CO - OPERATIVE BANK AND THEREFORE, HIT BY THE PROVISIONS OF SECTION SOP(4) WHICH EXCLUDED THE BENEFIT OF SECTION 80P TO COOPERATIVE BANKS CIT(A) HAD ALLOWED THE ASESSEE'S APPEAL HOLDING THAT THE ASSESSEE WAS NOT A COOPERATIVE BANK BUT A CO - OPERATIVE CREDIT SOCIETY AND NOT HIT BY THE EXCLUSION PROVIDED U/S 80P(4) AND AO WAS DIRECTED TO EXTEND THE BENEFIT OF DEDUCTION U/S 80P(2)(A)(I) TO THE ASSESSEE TRIBUNAL HAD ALLOWED REVENUE'S APPEAL AND HAD HELD THAT THE ASSESEE WAS NOT ENTITLED TO THE BENEFIT OF SECTION 80P(2)(A)(I), AS IT WAS A PRIMARY CO - OPERATIVE BANK, THUS HIT BY THE EXCLUSION PROVIDED IN SECTION 80P(4) HELD, ASSESSEE WAS ADMITTEDLY A CO - OPERATIVE SOCIETY REGISTERED UNDER THE CO OPERATIVE SOCIETIES ACT AND WAS ENGAGED IN PROVIDING CREDIT FACILITIES TO ITS MEMBERS CONSEQUENTLY, THE INCOME EARNED BY THE ASSESSEE FROM ITS ACTIVITY OF PROVIDING CREDIT FACILITIES TO ITS MEMBERS, WAS ENTITLED TO DEDUCTION U/S 80P(2)(A) (I) ASSESSEE WAS NOT A CO - OPERATIVE BANK AND THUS THE EXCLUSION PROVIDED U/S 80P (4) WOULD HAVE NO APPLICATION BANKING WAS NOT ITS PRIMARY OBJECT NOR ITS PRINCIPAL BUSINESS NOR DOES IT PROHIBIT ANY OTHER COOPERATIVE SOCIETY FROM BECOMING ITS MEMBER THUS THE ASSESSEE WAS NO T A COOPERATIVE BANK AS DEFINED IN THE EXPLANATION TO SECTION 80P(4) AND THEREFORE NOT HIT BY THE EXCLUSION PROVIDED4 THEREIN ASSESSEES APPEAL ALLOWED. 7. THE ISSUE IS ALSO COVERED BY THE FOLLOWING DECISIONS OF THE CO - ORDINATE BENCHES OF THE TRIBUNAL: ( I) QUEPEM URBAN CO - OPERATIVE CREDIT SOCIETY LTD. VS. ACIT 120 DTR 153 (BOMBAY) 2015 ORDER DT.17.04.2015. (II) CIT VS. JAFARI MOMIN VIKAS CO - OP. CREDIT SOCIETY LTD. 49 TAXMANN.COM 571 (GUJARAT) (2014) (III) TUMKUR MERCHANTS SOUHARDA CREDIT CO - OPERATIVE LTD. VS. ITO 230 TAXMAN 309 (KARNATAKA) (2015) (IV) ITO VS. KULSWAMI ITA. NO S . 6466, 6467 / M/201 7 & 6476/M/2017 A.Y. 2012 - 13, 2013 - 14 & 2014 - 15 5 CO - OPERATIVE SOCIETY ITA NO.6790/MUM/2012, ITAT, A BENCH, MUMBAI ORDER DT.21.08.2015 (V) ITO VS. THE MAHARASHTRA MANTRALIYA VS. SANLAGANA SHASKIYA KARAMCHARI CO - OP. CREDIT SOCIETY LTD. ITA NO.5051/MUM/2013, ITAT, B BENCH, MUMBAI ORDER DT.29.10.2014 (VI) ITO VS. M/S. MUMBAI TELEWORKERS CO - OP. CREDIT SOCIETY LTD. ITA NO.7106/MUM/2012, ITAT B BENCH, MUMBAI ORDER DT.30.06.2014 (VII) ITO VS. NIPHAD NAGARI SAHAKARI PATSANSTHA LTD. ITA ITA NO.6 904/M/2013 M/S. THE BARC EXMPLOYEE CO - OP. CREDIT SOCIETY LTD. 4 NO.1336/PN/2012, ITAT B BENCH, PUNE ORDER DT.31.07.2013 (VIII) ACIT VS. BHEE THRIFT & CREDIT SOCIETY ITA NO.217IND/2012, INDORE BENCH, INDORE ORDER DT.06.08.2012 8. IN VIEW OF ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN ALLOWING ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80P. 6 . AFTER HAVING GONE THROUGH THE FACTS OF THE PRESENT CASE AS WELL AS CONSIDERING THE ORDERS PASSED BY REVENUE AUTHORITIES AND ORDER OF ITA T AS MENTIONED ABOVE, WE FIND THAT IDENTICAL ISSUES HAVE ALREADY BEEN DECIDED BY THE COORDINATE BENCH OF ITAT IN ITA NO. 6904/MUM/13 FOR AY 2010 - 11 IN ASSESSEES OWN CASE. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF ITAT AND I N ORDER TO MAINTAIN JUDICIAL CONSISTENCY AND JUDICIAL DISCIPLINE , WE APPLY THE SAME FINDINGS WHICH ARE APPLICABLE MUTATIS MUTANDIS IN THE PRESENT CASE. THEREFORE, WE ORDER ACCORDINGLY AND DISMISS THESE GROUNDS RAISED BY THE REVENUE. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED. ITA. NO S . 6466, 6467 / M/201 7 & 6476/M/2017 A.Y. 2012 - 13, 2013 - 14 & 2014 - 15 6 ITA. NO.6476 & 6467 /M/201 7 :- 8 . THE FACTS OF THE PRESENT APPEALS ARE QUITE SIMILAR TO THE FACT OF THE CASE AS NARRATED ABOVE WHILE DECIDING THE ITA. NO.6466 /M/201 7 , THEREFORE, THERE IS NO NEED TO REPEAT TH E SAME. THE MATTER IN CONTROVERSY IS ALSO THE SAME . THE REFORE OUR FINDING S WH ILE DECIDING ITA. NO.6466 /M/201 7 ARE APPLICABLE TO THE FACTS OF THE PRESENT CASE AS MUTATIS MUTANDIS . ACCORDINGLY, WE CONFIRM THE FINDING OF THE CIT(A ) ON THESE ISSUES AND DISMISS THE GROUNDS RAISED BY THE ASSESSEE. 9 . IN THE NET RESULT, ALL THE APPEAL S FILED BY THE REVENUE ARE HEREBY ORDERED TO BE DISMISSED . ORDER PRONOUNCE D IN THE OPEN COURT ON 14 /05/ 2019 SD/ - SD/ - ( RAJESH KUMAR ) ( SANDEEP GOSAIN ) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBA I DATED : 14 /05/ 2019 / 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