DCIT, Circle - 35, Kolkata, Kolkata V. Pioneer Cooperative Car Parking Servicing & Construction Society Ltd., Kolkata

ITA 934/KOL/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59580 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 07-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K CHAKRABORTY
• Assessee Lawyers: M GHOSH; K N KUNDU A R
• Keywords: Assessment record
• Section: 143(3)

Judgement Text

, C , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA ( ) . . , , . . . . !' # !' # !' # !' # , , ) [BEFORE SRI S.V. MEHROTRA, A.M. & SHRI N. VIJAYA K UMARAN, J.M.] $ $ $ $ / I.T.A NO. 934/KOL/2010 ASSESSMENT YEAR : 2006-2007 DEPUTY COMMISSIONER OF INCOME TAX, -VS.- PIONEER COOPERATIVE CAR PARKING SERVICING CIRCLE-35, KOLKATA & CONSTRUCTION SOCIETY LTD ., KOLKATA (PAN : AAAAP 5596 R) ( %& /APPELLANT ) ( '(%& / RESPONDENT ) FOR THE APPELLANT : SHRI P.K. CHAKRABOR TY, D.R. FOR THE RESPONDEN T : S/SHRI M. GHOSH & K.N. KUNDU, A.R # ) * + # ) * + # ) * + # ) * + /DATE OF HEARING : 11.01.2012 ,- * + ,- * + ,- * + ,- * + /DATE OF PRONOUNCEMENT : 11.01.2012 . / ORDER PER SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER/ . . , :- THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XX, KOLKATA DATED 18.03.2010 FOR THE ASSE SSMENT YEAR 2006-07. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, A COOPERATIVE SOCIETY, IN THE RELEVANT ASSESSMENT YEAR WAS ENGAGED IN CAR PARKING SERVICES AND REALIZED CAR PARKING FEES FROM CAR OWNERS AT DIFFERENT PARTS OF KOLKATA AND OTHER PLAC ES. THE ASSESSEE CLAIMED ITS ENTIRE INCOME AS EXEMPT UNDER SECTION 80(P)(A)(VI) WHICH DEALS IN C OLLECTIVE DISPOSAL OF LABOUR OF MEMBERS OF A COOPERATIVE SOCIETY. IT WAS ALSO STATED THAT THE SOCIETY WAS COLLECTING PARKING FEES FROM ITS APPROVED MEMBERS POSSESSING VOTING RIGHTS WHO WERE ALLOTTED PARKING PLACES THE ASSESSING OFFICER NOTED THAT IN REALITY THE SOCIETY HAD ENGAG ED 43 NON-MEMBERS FOR MANAGING THEIR CORE ACTIVITIES OF MANAGING PARKING PLACES DEFEATING THE PURPOSE FOR WHICH THE SOCIETY WAS FORMED. THE ASSESSING OFFICER FOLLOWING THE ORDER FOR ASSES SMENT YEAR 2004-05 TREATED THE ASSESSEE AS AN AOP AND DENIED THE CLAIM OF DEDUCTION UNDER SECT ION 80(P)(A)(VI) OF THE ACT. ITA NO. 934/KOL./2010 2 3. LD. CIT(APPEALS) ALLOWED THE ASSESSEES APPEAL F OLLOWING THE DECISION FOR ASSESSMENT YEAR 2004-05 IN ASSESSEES OWN CASE. HE ALSO REFERR ED TO THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2007-08 PASSED UNDER SECTION 143(3) ON 30.12.2 009, WHEREIN THE ASSESSING OFFICER HAD ASSESSED THE ASSESSEE IN THE STATUS OF A COOPERATIV E SOCIETY AND ALLOWED THE CLAIM OF DEDUCTION UNDER SECTION 80P(2)(A)(VI). 4. DEPARTMENT BEING AGGRIEVED HAS TAKEN FOLLOWING G ROUND OF APPEAL :- LD. CIT(A.) ERRED BOTH IN FACTS AND IN LAW IN ALLO WING THE DEDUCTION UNDER SECTION 80(P)(2)(A)(VI) ON THE BASIS OF HIS O RDER FOR AY 2004-05 WHICH IS PENDING BEFORE ITAT AND DIRECTING TO ASSES S THE ASSESSEE AS A COOPERATIVE SOCIETY WITHOUT PROPER APPRECIATION OF ARGUMENTS AND THE MATERIALS BROUGHT ON RECORD DURING THE COURSE OF AS SESSMENT AS WELL AS NOT PROPER APPRECIATION THE DECISION OF HONBLE ITA T, AMRITSAR BENCH, IN THE CASE OF ASSESSING OFFICER VS.- GANESH CO-OP . (L&C) (1998) 67 ITD 436. 5. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE IN SUPPORT OF HIS CONTENTION FILED BEFORE US COPY OF TRIBUNALS ORDER DATED 21.10.2011 IN ITA NO. 1672/KOL./2009 FOR ASSESSMENT YEAR 2004-05 IN ASSESSEES OWN CASE. THE ASSESSEE H AS ALSO FILED COPY OF ASSESSMENT ORDER FOR ASSESSMENT YEAR 2007-08, WHEREIN THE ASSESSING OFFI CER HAS ALLOWED THE CLAIM OF DEDUCTION UNDER SECTION 80(P)(2)(A)(VI) TREATING THE ASSESSEE AS A COOPERATIVE SOCIETY. HE, THEREFORE, ARGUED THAT THE ORDER OF LD. CIT(APPEALS) BE UPHELD . 6. HAVING HEARD BOTH THE SIDES AND CAREFULLY PERUSE D THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THIS TRIBUNAL VIDE ITS ORDER DATED 21.10. 2011 IN ITA NO. 1672/KOL./2009 FOR ASSESSMENT YEAR 2004-05 IN ASSESSEES OWN CASE DECI DED THE ISSUE IN FAVOUR OF ASSESSEE, WHEREIN IT HAS BEEN HELD AT PARA 6 TO 6.5 AS UNDER :- 6. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PAR TIES AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS OTHE R EVIDENCES PLACED ON RECORD. THE ISSUE IN QUESTION IS AS TO WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ASSESSEE AS A CO-OPERATIVE SOCIETY FULFILLED THE CO NDITIONS TO GET DEDUCTION U/S. 80P(2)(A)(VI) OF THE ACT OR THE ASSESSEE DID NOT SA TISFY THE CONDITION CONTAINED IN CLAUSE (VI) OF SEC. 80P(2)(A) OF THE ACT AND IT IS TO BE T REATED AS AN AOP IN STATUS NOT ENTITLED TO CLAIM DEDUCTION UNDER THE SAID SECTION. SEC. 80P (2)(A)(VI) OF THE ACT READS AS UNDER :- 80P.(1) WHERE, IN THE CASE OF AN ASSESSEE BEING A CO-OPERATIVE SOCIETY, THE GROSS TOTAL INCOME INCLUDES ANY INCOME REFERRED TO IN SUB-SECTI ON (2), THERE SHALL BE DEDUCTED, IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF TH IS SECTION, THE SUMS SPECIFIED IN SUBSECTION (2), IN COMPUTING THE TOTAL INCOME OF TH E ASSESSEE. ITA NO. 934/KOL./2010 3 (2) THE SUMS REFERRED TO IN SUB-SECTION (1) SHALL B E THE FOLLOWING, NAMELY :- (A) IN THE CASE OF A CO-OPERATIVE SOCIETY ENGAGED I N - (I) .. (VI) THE COLLECTIVE DISPOSAL OF THE LABOUR OF ITS M EMBERS, ACCORDING TO THE AFORESAID SUB-CLAUSE (VI) TO SEC. 80P(2)(A), AN ASSESSEE-COOPERATIVE SOCIETY IS ENTITLED TO 100% DEDUCTION UNDER THE SAI D SECTION IF THE MEMBERS OF THE SOCIETY EARN SOME INCOME BY GIVING THEIR COLLECTIVE LABOUR TO THEIR SOCIETY. THE A.O. WAS NOT IMPRESSED UPON THE CONTENTION OF THE ASSESS EE THAT IT EMPLOYED 43 PERSONS ONLY TO MANAGE ITS FIVE OFFICES AND ITS 206 MEMBERS WORK ED FOR THE CORE ACTIVITY OF THE SOCIETY AND THEY DID NOT WORK IN THE OFFICES OF THE SOCIETY . THE A.O. FURTHER ALLEGED THAT MOST OF THE MEMBERS WERE OF THE AGE GROUP OF 50 YEARS OR AB OVE AND THEY WERE PHYSICALLY UNFIT TO PERFORM THE OUTDOOR DUTIES OF THE SOCIETY. ACCOR DING TO HIM FURTHER, FOR CARRYING OUT THE CORE ACTIVITY, THE SOCIETY WAS REQUIRED TO ENGA GE AT LEAST 214 PERSONS AND HE THUS SUSPECTED DEPLOYMENT OF OUTSIDERS TO PERFORM THE SO CIETYS CORE ACTIVITY. IN SUPPORT OF HIS PRESUMPTION, THE A.O. REFERRED TO THE STATEMENT OF THE SECRETARY OF THE ASSESSEE- SOCIETY DATED 27/12/2006 ALLEGEDLY STATING THAT THE SOCIETY TAKES HELP OF THE OTHER MEMBERS OF OTHER CO-OPERATIVES WHO ARE WORKING BESI DES THEM IN ADJACENT AREAS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A. O. OBTAINED SPECIMEN OF AUDIT REPORT IN RESPECT OF THE SYSTEM OF MAINTENANCE OF B OOKS OF ACCOUNT FROM THE DY. DIRECTOR OF CO-OPERATIVE SOCIETIES AND ALLEGED THAT THE ASSESSEE WAS NOT MAINTAINING ITS BOOKS OF ACCOUNT ACCORDING TO THE SPECIFICATION ENU MERATED BY THE SAID AUTHORITY. HE, THEREFORE, REJECTED THE BOOKS OF ACCOUNT OF THE ASS ESSEE AND TREATED THE ASSESSEE AS AN AOP. 6.1. WE OBSERVE THAT THE A.O. HAS ALLEGED THAT THE ASSESSEE EMPLOYED 43 PERSONS TO CARRY OUT THE CORE ACTIVITIES OF THE ASSESSEE AND T HEY WERE NOT WORKING IN THE OFFICES OF THE ASSESSEE, WHICH ACCORDING TO HIM WAS ONLY TWO. THE ASSESSEE BEFORE THE AUTHORITIES HAS FILED A LIST OF 43 PERSONS INDICATING THE NATUR E OF DUTIES ASSIGNED TO THEM OFFICE-WISE AND PAYMENTS MADE TO EACH OF THEM AND THESE EVIDENC ES ARE ALSO FILED IN THE PAPER BOOK BEFORE US. THE SAME IS ALSO APPEARING ON PAGE-7 OF THE APPELLATE ORDER. FURTHER, WE OBSERVE THAT THE ASSESSEE MAINTAINS FIVE OFFICES AN D ONE PAY AND USE TOILET IN THE CITY (AND NOT TWO OFFICES AS ALLEGED BY THE A.O.), THE D ETAILS OF WHICH ARE GIVEN IN A-11 OF THE PAPER BOOK. IT IS NOT DENIED TO THE FACT THAT F OR RUNNING THE ESTABLISHMENTS, THE ASSESSEE IS REQUIRED TO EMPLOY PERSONS. IN THE LIST THE ASSESSEE HAS GIVEN OFFICE-WISE DEPLOYMENT OF EMPLOYEES WITH THEIR ALLOTMENT OF VAR IOUS NATURE OF DUTIES. THE A.O. COULD NOT DENY THIS FACTUAL POSITION BY BRINGING ON RECORD ANY CONTRARY EVIDENCE TO ESTABLISH HIS SUSPICION THAT THESE 43 EMPLOYEES WER E ALSO USED FOR CORE ACTIVITIES OF THE ASSESSEE-SOCIETY. HE RATHER EXPRESSED SURPRISE OVER EMPLOYMENT OF 43 EMPLOYEES IN TWO OFFICES, WHEREAS AS PER DETAILS AVAILABLE WITH HIM AS ALSO BEFORE THE LD. C.I.T.(A) AND FILED BEFORE US AS WELL, THE ASSESSEE MAINTAINS FIV E OFFICES. IN THESE CIRCUMSTANCES, THE A.O.S DOUBT ABOUT EXCESS STRENGTH OF EMPLOYEES AND THEIR DEPLOYMENT IN CORE ACTIVITIES OF THE ASSESSEE-SOCIETY IS FACTUALLY AND LOGICALLY INCORRECT. IN OUR CONSIDERED OPINION, THE LD. C.I.T.(A) HAS RIGHTLY STATED THAT IT WAS FO R THE A.O. TO ESTABLISH THAT EMPLOYMENT OF 43 PERSONS BY THE ASSESSEE WAS EXCESSIVE, WHICH THE A.O. FAILED TO DISCHARGE. THEREFORE, FOR RUNNING/MAINTAINING THE CAR PARKING SPACES AND REALIZATION OF THE FEES THEREFROM, IT CAN BE SAID THAT THE ASSESSEE HAS DEP LOYED ITS MEMBERS TO DO SUCH DUTIES, MORE SO WHEN THE A.O. HIMSELF HAS STATED THAT FOR S UCH JOB APPROXIMATELY 214 MAN POWER IS REQUIRED, WHEREAS ADMITTEDLY THE ASSESSEE S MEMBERS STRENGTH DURING THE YEAR UNDER CONSIDERATION WAS 206. IN OUR CONSIDERED OPIN ION FURTHER, THE A.O. HAS DRAWN A GENERAL CONCLUSION WITHOUT ANY PROOF/POSITIVE EVIDE NCE THAT MOST OF THE MEMBERS OF ITA NO. 934/KOL./2010 4 ABOVE 50 YEARS OF AGE WERE UNFIT FOR PROVIDING OUTD OOR SERVICES TO THE ASSESSEE-SOCIETY. THIS OBSERVATION OF THE A.O. BASED ON SUSPICION AND IN ABSENCE OF ANY CONCRETE EVIDENCE, IN OUR OPINION, CANNOT BE ACCEPTED. WE FU RTHER OBSERVE THAT THE A.O. TOOK THE STATEMENT OF THE SECRETARY OF THE ASSESSEE-SOCIETY DATED 27/12/2006 IN PROOF OF HIS OBSERVATION THAT THE ASSESSEE-SOCIETY IN CASE OF SH ORTAGE TAKES HELP OF OTHER MEMBERS OF OTHER CO-OPERATIVES OF ADJACENT AREAS. ON THE BASIS OF THIS ALLEGED ASSERTION, THE A.O. HELD THAT THE ASSESSEE EMPLOYED OUTSIDERS AND HENCE NOT ENTITLED TO DEDUCTION U/S. 80P(2)(A)(VI) OF THE ACT. THE RELEVANT QUESTION AND REPLY OF THE SECRETARY IS APPEARING ON PAGES 10 & 11, PARA 6.3.5 OF THE APPELLATE ORDER , WHICH READ AS UNDER :- IN QUESTION NO. 11, THE AO ASKED IN CASE OF SHO RTFALL IN MEMBERS IN A DAY, HOW YOU MANAGE YOUR PARKING LOTS WITH REDUCED MANPOWER? THE SECRETARY REPLIED WE DO NOT DEPLOY OUTSIDERS BUT IN CASE OF SHORTAGE, WE TAKE H ELP FROM OUR SOCIETY MEMBERS WHO WORKS BESIDE US. THE LD. C.I.T.(A) ON PLAIN READING OF THE AFORESAID QUESTION AND REPLY THEREOF FOUND THAT THE SECRETARY WAS REFERRING TO HIS OWN MEMBERS AND NOT TO MEMBERS OF OTHER COOPERATIVE SOCIETIES, AS INTERPRETED BY THE A.O. O N THE ABOVE QUESTION PUT BY THE A.O. AND REPLY OF THE SECRETARY, WE ARE OF THE CONSIDERE D OPINION THAT THE LD. C.I.T.(A) HAS CORRECTLY CONSIDERED/INTERPRETED THE CONTENTS OF TH AT STATEMENT OF THE SECRETARY, WHICH, IN FACT, SUPPORTS THE CONTENTION OF THE ASSESSEE. 6.2. THE A.O. OBTAINED COPY OF THE CO-OPERATIVE SO CIETYS AUDIT REPORT IN RESPECT OF THE SYSTEM OF MAINTENANCE OF BOOKS OF ACCOUNT FROM THE OFFICE OF DY. DIRECTOR OF COOPERATIVE SOCIETIES. ON THE BASIS OF THE CONTENTS THEREIN, THE A.O. ALLEGED THAT THE ASSESSEE WAS NOT MAINTAINING ITS BOOKS OF ACCOUNT I N PROPER, FAIR AND IN TRANSPARENT MANNER, WHICH HAS RESULTED IN REJECTION OF BOOKS OF ACCOUNT OF THE ASSESSEE. WE OBSERVE THAT THE REGISTRAR OF CO-OPERATIVE SOCIETY ON INTRO DUCTION OF COMPUTERIZED SYSTEM OF KEEPING THE ACCOUNTS, HAS MADE SOME REMARKS, OBSERV ATIONS AND SUGGESTIONS AND THE A.O. HIMSELF HAS QUOTED THE SAME UNDER THE HEADING GENERAL REMARKS, OBSERVATIONS AND SUGGESTIONS. VIDE ITEM 4 REPRODUCED ABOVE, IT IS STATED THAT IN VIEW OF THE HUGE VOLUME OF TRANSACTIONS THE SOCIETY AUTHORITY IS SUG GESTED TO INTRODUCE INTERNAL CONTROL AND CHECKING SYSTEM. THE LEARNED COUNSEL HAS STATED THAT THE BOOKS OF ACCOUNT OF THE ASSESSEE-SOCIETY ARE DULY AUDITED BY GOVT. AUDITORS AS PER CO-OPERATIVE SOCIETIES RULES & REGULATIONS AND THE A.O. DID NOT DISPUTE THE SAME . WE ALSO FIND SUBSTANTIAL FORCE IN THE CONTENTION OF THE ASSESSEES LEARNED COUNSEL TH AT OBSERVATIONS MADE IN THE REGISTRAR OF CO-OPERATIVE SOCIETYS AUDIT REPORT ARE ONLY IN THE NATURE OF SUGGESTIONS GIVEN WITH A VIEW TO BRING ABOUT IMPROVEMENTS IN THE SYSTEM OF MAINTENANCE OF BOOKS OF ACCOUNT, CASH BOOK UPTODATE ETC. BUT BY THESE SUGGESTIONS/ O BSERVATIONS IT CANNOT BE SAID THAT THE REGISTRAR OF CO-OPERATIVE SOCIETY HAS SPECIFIED OR POINTED OUT ANY MISTAKE OR IRREGULARITY IN THE BOOKS OF ACCOUNT OF THE ASSESSE E, WHICH ARE DULY AUDITED BY THE GOVT. AUDITORS. THEREFORE, THE ACTION OF THE A.O. IN HAVI NG REJECTED THE ASSESSEES BOOKS OF ACCOUNT SOLELY ON THE BASIS OF ABOVE OBSERVATIONS/ SUGGESTIONS AND TREATING THE ASSESSEES STATUS AS THAT OF AOP, IN OUR CONSIDERED OPINION, WAS NOT JUSTIFIED AND WE FIND NO INFIRMITY IN THE ORDER OF THE LD. C.I.T.(A) IN REJECTING SUCH ACTION OF THE A.O. OUR ABOVE CONCLUSION IS ALSO BACKED BY THE FACT THAT FO R ASSESSMENT YEAR 2001-02, THE A.O. HAS TREATED THE STATUS OF THIS VERY ASSESSEE AS CO OPERATIVE SOCIETY AND AS THERE WAS LOSS IN THAT YEAR, NO DEDUCTION U/S. 80P(2)(A)(VI) OF THE ACT WAS CLAIMED OR CONSIDERED. A COPY OF THE SAID ASSESSMENT ORDER DATED 29.8.2003 IN PLACED IN THE PAPER BOOK AT A-5. FURTHER, DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE HAS ALSO FILED A COPY OF ASSESSMENT ORDER DATED 30/12/2009 F OR ASSESSMENT YEAR 2007-08 WHICH WAS PASSED BY THE SAME D.C.I.T., WHO FILED THE APPE AL BEFORE THE TRIBUNAL. WE OBSERVE THAT THE A.O. IN THIS ASSESSMENT YEAR AFTER TAKING THE STATUS OF THE ASSESSEE AS CO- ITA NO. 934/KOL./2010 5 OPERATIVE SOCIETY HAS ALLOWED THE DEDUCTION OF RS.1 8,83,815/- U/S. 80P(2)(A)(VI) OF THE ACT FROM THE NET PROFIT AS PER P/L ACCOUNT, ASSESS ING THE TOTAL INCOME AT NIL. THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT BRING ON RECO RD ANY INCIDENCE OR EVIDENCE ON RECORD TO ESTABLISH THAT THE NATURE OF ACTIVITIES I N THOSE TWO ASSESSMENT YEARS, I.E. A.YS 2001-02 & 2007-08, WERE DIFFERENT THAN THOSE OF THE ASSESSMENT YEAR UNDER CONSIDERATION. IT IS PERTINENT TO MENTION HERE THAT THE A.O. IN THE ASSESSMENT ORDER FOR A.Y. 2007-08 HAS ALLOWED THE CLAIM OF THE ASSESSEE BY STATING AS UNDER :- IN VIEW OF ABOVE, AS THE ISSUES INVOLVED ARE SAME, FOLLOWING THE ORDER OF CIT(A) FOR A.Y. 2004-05, ASSESSEES STATUS IS CO NSIDERED AS A CO- OPERATIVE SOCIETY AND DEDUCTION U/S. 80P(2)(A)(VI). IN VIEW OF THE ABOVE, ONCE THE DEPARTMENT HAS ACCEP TED IN A.Y. 2007-08 THAT THE FACTS OF THIS YEAR ARE IDENTICAL TO THOSE OF ASSESSMENT YEAR UNDER CONSIDERATION, IN OUR CONSIDERED OPINION, THERE REMAINS NO CASE FOR THE D EPARTMENT TO TAKE THE STATUS OF THE ASSESSEE AS AN AOP AND CONSEQUENTIALLY DENY THE DED UCTION U/S. 80P(2)(A)(VI) OF THE ACT. 6.3. WE FURTHER OBSERVE THAT THE A.O. WHILE DENYIN G THE DEDUCTION U/S. 80P(2)(A)(VI) OF THE ACT RELIED ON THE DECISION IN THE CASE OF NI LGIRI ENGINEERING CO-OP. SOCIETY LTD. VS. CIT (SUPRA). HOWEVER, WE FIND THAT THE FACTS AN D CIRCUMSTANCES IN THE ABOVE CASE ARE TOTALLY DIFFERENT THAN THOSE OF THE ASSESSEES CASE. IN THE SAID CASE THE ASSESSEE, WHICH WAS FORMED BY GRADUATE ENGINEERS, UNDERTOOK L ABOUR CONTRACT AND CLAIMED BENEFIT OF SEC. 80P(2)(A)(VI) OF THE ACT. THE CONTR IBUTION OF THE MEMBER-ENGINEERS WAS CONFINED ONLY TO OVERALL SUPERVISION IN THE OFFICE AND THE ACTUAL SUPERVISION OF THE WORKS IN THEFIELD WAS DONE BY THE PAID EMPLOYEES OF THE S OCIETY. THE INCOME DECLARED BY THE SOCIETY WAS EARNED BY UNDERTAKING CONTRACT WORKS AN D GETTING THEM EXECUTED THROUGH ENGAGEMENT OF SUB-CONTRACTORS AND BY DEPLOYMENT OF OUTSIDE LABOUR. ON THE ABOVE FACTS, IT WAS HELD THAT NO LABOUR WAS EXERCISED BY THE MEMBERS AND THAT THEY HAD ACTED LIKE ANY OTHER BUSINESSMEN. HOWEVER, IN THE CASE BE FORE US, AS ALREADY STATED ABOVE, THE FACTS ARE DIFFERENT. THERE WAS NO SUB-CONTRACT OF T HE ASSIGNED JOB AND ACTUAL LABOUR IS EXERCISED BY THE MEMBERS OF THE SOCIETY. THEREFORE, THE AFORESAID DECISION OF HONBLE ORISSA HIGH COURT IS NOT APPLICABLE TO THE CASE OF THE ASSESSEE. 6.4. BEFORE PARTING, WE MAY STATE THAT THOUGH IT I S MENTIONED IN THE GROUNDS OF APPEAL THAT THE REMAND REPORT CONTAINING THE DECISI ON OF ITAT, AMRITSAR BENCH IN THE CASE OF ASSESSING OFFICER VS. GANESH CO-OPERATIVE ( L&C) SOCIETY LTD. [67 ITR 436] HAS NOT BEEN CONSIDERED BY THE LD. C.I.T.(A), BUT HOWEV ER THE LD. DEPARTMENTAL REPRESENTATIVE HAS NOT FILED ANY REMAND REPORT BEFO RE US ON WHICH THE REVENUE IS PLACING RELIANCE. ON THE OTHER HAND, WE OBSERVE FRO M THE PAPERS PLACED IN THE PAPER BOOK UNDER A-6 THAT THE LD. C.I.T.(A) VIDE HIS LETT ER DATED 13/1/2009 SOUGHT FROM THE A.O. ASSESSMENT RECORD IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION AND THE A.O. VIDE HIS REPLY DATED 21/ 1/2009 HAS COMPLIED WITH THE REQUIREMENT AS MADE BY THE LD. C.I.T.(A). THEREFORE , WE ARE OF THE OPINION THAT THIS ASSERTION OF THE DEPARTMENT IN THE GROUNDS OF APPEA L IS MISPLACED AND OUT OF THE CONTEXT. EVEN OTHERWISE ALSO, THE DECISION OF THE T RIBUNAL IN THE CASE OF ASSESSING OFFICER VS. GANESH CO-OPERATIVE (L&C) SOCIETY LTD. (SUPRA) IS NOT APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE ASSESSEES CASE. IN THAT CASE THE TRIBUNAL HELD THE DEDUCTION U/S. 80P(2)(A)(VI) NOT ALLOWABLE ON THE R EASONINGS THAT THE BYE-LAWS OF THE CO-OPERATIVE SOCIETY LAYING DOWN RULES FOR MEMBERSH IP AND VOTING RIGHTS VIOLATED PROVISO TO SEC. 80P(2)(A)(VI) AND FURTHER THE MAJOR CONTRIBUTION OF INDIVIDUAL LABOUR TO CONTRACT WORK UNDERTAKEN BY THE SOCIETY WAS FROM NO N-MEMBERS. BUT SO FAR AS THE CASE OF THE ASSESSEE IS CONCERNED, THE DEPARTMENT COULD NOT ESTABLISH ANY VIOLATION OF BYE- ITA NO. 934/KOL./2010 6 LAWS AND FURTHER WE HAVE ALREADY HELD THAT CORE ACT IVITY OF THE ASSESSEE-SOCIETY HAS BEEN PERFORMED BY THE MEMBERS OF THE SOCIETY WITHOU T ENGAGEMENT OF OUTSIDERS. IN THAT VIEW OF THE MATTER THE AFORESAID DECISION OF THE TR IBUNAL IS ALSO NOT APPLICABLE TO THE FACTS OF THE ASSESSEES CASE. 6.5. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE LD. C.I.T.(A) HAS DEALT WITH EACH AND EVERY OBJECTION RAISED BY THE A.O. AND THUS CORRECTLY DIRECTED HIM TO TAKE THE STATUS OF THE ASSESSEE AS COOPERATIVE SOCIETY AND TO ALLOW DEDUCTION U/S. 80P (2)(A)(VI) OF THE ACT, AS CLAIMED BY THE ASSESSEE. WE UPHOLD HIS ORDER ON THIS ISSUE AND THE GROUND OF APPEAL OF THE DEPARTMENT IS DISMISSED. 6.1. RESPECTFULLY FOLLOWING THE SAME, WE DO NOT FIN D ANY REASON TO INTERFERE WITH THE ORDER OF LD. CIT(APPEALS) AND DISMISS THE APPEAL OF THE R EVENUE. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. / 0 / 0 / 0 / 0 ! 1 ! 1 ! 1 ! 1 /' /' /' /' 2 2 2 2 ' ' ' ' 34 3434 34 ORDER PRONOUNCED IN THE OPEN COURT ON 11/01/2012. SD/- SD/- [N. VIJAYA KUMARAN / . . . . !' # !' # !' # !' # ] [S.V. MEHROTRA/ ( . . )] JUDICIAL MEMBER/ ACCOUNTANT MEMBER/ DATED : 11/ 01/ 2012 COPY OF THE ORDER FORWARDED TO: 1. PIONEER COOPERATIVE CAR PARKING SERVICING & CONSTRU CTION SOCIETY LTD., 33/1, N.S. ROAD, KOLKATA-1. 2 DCIT, CIRCLE-35, KOLKATA, 18, RABINDRA SARANI, PODD AR COURT, 3 RD FLOOR, KOLKATA-1 3. CIT(APPEALS)- ,KOLKATA 4. CIT, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, I.T.A.T., KOLKATA LAHA, SR. P.S.