TATA MEMORIAL CENTRAL EMPLOYEES CO-OP. CREDIT SOCIETY, MUMBAI V. ITO WARD 20(3)(4), MUMBAI

MA 146/MUM/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5656 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2012-2013
• Appeal Filed On: 05-03-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 80P

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 146 /MUM/2019 ARISING OUT OF ITA NO. 862 /MUM/201 7 ASSESSMENT YEAR 2012 - 13 TATA MEMORIAL CENTRAL EMPLOYEES CO - OPERATIVE CREDIT SOCIETY GROUND FLOOR, TATA MEMORIAL CENTRAL, ANNEX BUILDING, DR. E BORGES ROAD JERBAI WADIA ROAD PAREL, MUMBAI - 400012 V. ITO WARD 20(3)(4) ROOM NO. 616 6 TH FLOOR, PIRAMAL CHAMBERS LALBAUG, PAREL MUMBAI - 400012 APPLICANT RESPONDENT PAN AAAAT7660A ASSESSEE BY SHRI PRAKASH JHUNJHUNWALA RESPONDENT BY SHRI AJAY KUMAR, DR DATE OF HEARING : 03 - 05 - 2019 DATE OF PRONOUNCEMENT : 29 - 05 - 2019 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATION(MA) IN MA NO. 146 /MUM/2019 ARISING OUT OF ASSESSEE S APPEAL IN ITA NO. 862 /MUM/201 7 FOR ASSESSMENT YEAR 20 12 - 13 SEEKING RECALL OF THE APPELLATE ORDER DATED 31.07.2018 PASSED BY INCOME - TAX APPELLATE TRIBUNAL, E BENCH , MUMBAI IN ITA NO. 862/MUM/2017 FOR AY 2012 - 13. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAD CLAIMED DEDUCTION U /S 80P OF THE 1961 ACT TO THE TUNE OF RS. 82, 46,705/ - ON THE GROUNDS THAT THE ASSESSEE IS A CO - OPERATIVE CREDIT SOCIETY AND THE ASSESSEE IS GRANTING LOANS TO ITS MEMBERS. THE ASSESSEE CLAIMED THAT IT PROVIDES CREDIT FACILITIES TO ITS MEMBERS ONLY AND HENCE IT IS ENTITLED FOR DEDUCTION U/S 80P(2)(A)(I) OF THE 1961 ACT TO THE EXTENT OF WHOLE OF ITS PROFITS AND GAINS FROM BUSINESS OF PROVIDING CREDIT FACILITIES TO ITS MEMBERS. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE IS NOT ENTITLED FOR DEDUCTIO N U/S 80P(2)(A)(I) OF THE 1961 ACT BY MA NO. 146/MUM/2019 ARISING OUT OF ITA NO.862/MUM/2017 2 HOLDING THAT THE ASSESSEE IS A CO - OPERATIVE B ANK IN THE CATEGORY OF PRIMARY CO - OPERATIVE BANK AND IS HIT BY PROVISIONS OF SECTION 80P(4) OF THE 1961 ACT. THUS, THE AO DENIED DEDUCTION U/S 80P(2)(A)(I) TO THE ASSESEE FO R THE YEAR UNDER CONSIDERATION. 2. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LEARNED CIT(A) WHO DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLD ING THAT THE ASSESSEE IS NOT A C O - OPERATIVE BANK BUT A CO - OPERATIVE CREDIT SOCIETY ENTITLED FOR DEDUC TION U/S. 80P(2)(A)(I) AND 80P(2)(D) OF THE 1961 ACT. 3. AGGRIEVED BY DECISION OF LEARNED CIT(A), THE REVENUE FILED FIRST APPEAL WITH TRIBUNAL. THE TRIBUNAL AFTER HEARING BOTH THE PARTIES HELD THAT BASED ON MATERIAL WHICH IS AVAILABLE O N RECORD THE ASSESS EE IS NOT A CO - OPERATIVE BANK BUT A C O - OPERATIVE CREDIT SOCIETY. THE TRIBUNAL WHILE GOING THROUGH BYE LAWS ALSO NOTICED THAT THERE ARE TWO TYPES OF MEMBERS WHICH THE ASSESSEE CAN MAKE AS PER BYE LAWS FIRSTLY ACTIVE MEMBERS AND SECOND NOMINAL MEMBERS. THE A CTIVE MEMBERS CAN GIVE DEPOSIT , TAKE LOANS AND ALSO ARE ENTITLED TO VOTE AT THE MEE TINGS BUT THERE IS ANOTHER CLASS OF MEMBERS NAMELY NOMINAL MEMBERS WHO ARE RETIRED EMPLOYEES OF TATA MEMORIAL HOSPITAL WHO CANNOT GIVE DEPOSIT S TO ASSESSEE , NOR TAKE LOANS FROM ASSESSEE AS WELL THESE NOMINAL MEMBERS ARE NOT ENTITLED TO VOTE AT THE MEETINGS. THESE NOMINAL MEMBERS CAN ONLY PLACE THEIR RETIREMENT BENEFITS WITH ASSESSEE AND GET INTEREST ON THE SAME. THE TRIBUNAL OBSERVED THAT T HERE IS A RECENT JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF THE CITIZEN CO - OPERATIVE SOCIETY LIMITED V. ACIT, HYDERABAD IN CIVIL APPEAL NO. 10245 OF 2017 (ARISING OUT OF SLP(C) NO. 20044 OF 2015) ; 397 ITR 1 DEALING WITH NOMINAL MEMBERS AND IT WAS HELD THAT FOR LIMI TED PURPOSES OF VERIFICATION OF AS TO THE RIGHTS, ROLES, ENTITLEMENTS, DUTIES AND RESPONSIBILITIES OF THESE NOMINAL MEMBERS IN CONTEXT OF AFORESAID DECISION OF HONBLE SUPREME COURT IN THE CASE OF THE CITIZEN CO - OPERATIVE SOCIETY LIMITED(SUPRA), THIS MATT ER NEED TO BE RESTORED TO THE FILE OF THE AO FOR LIMITED VERIFICATION TO SEE WHETHER THERE IS A BREACH OF PRINCIPLES OF MUTUALITY AS TO WHETHER THERE IS A COMPLETE IDENTITY BETWEEN CONTRIBUTOR OR PARTICIPANT OF SURPLUS OR NOT . THE AUTHORITIES BELOW DID NO T LOOK INTO THIS ASPECT OF NOMINAL MEMBERS BEING MA NO. 146/MUM/2019 ARISING OUT OF ITA NO.862/MUM/2017 3 ENROLLED BY THE ASSESSEE WHO ARE RETIRED EMPLOYEES OF TATA MEMORIAL AS NO ENQUIRY AS TO THIS ASPECT WAS UNDERTAKEN BY AUTHORITIES BELOW . THE TRIBUNAL IN VIEW OF THE AFORESAID RECENT DECISION OF HONBLE SUPRE ME COURT IN THE CASE OF THE CITIZEN CO - OPERATIVE SOCIETY LIMITED (SUPRA) TOOK A WELL CONSIDERED VIEW TO RESTORE THE MATTER TO AO FOR LIMITED VERIFICATIONS OF THESE NOMINAL MEMBERS ROLES, RIGHTS, RESPONSIBILITIES, ENTITLEMENTS AND DUTIES OF THESE NOMINAL M EMBERS AND TO SEE WHETHER THERE IS ANY BREACH OF MUTUALITY, VIDE ITS APPELLATE ORDER DATED 31.07.2018 . THE ASSESSEE IS NOW SEEKING RECALL OF THE SAID WELL REASONED ORDER DATED 31.07.2018 PASSED BY TRIBUNAL ON THE GROUNDS THAT THERE WAS NO DISPUTE BETWEEN THE REVENUE AND THE ASSESSEE AS TO THE NOMINAL MEMBERS AND ALSO IT IS MADE OUT THAT FACTS IN THE CASE OF CITIZEN CO - OPERATIVE SOCIETY LIMITED(SUPRA) WERE DIFFERENT. ARGUMENTS TO THIS EFFECT WERE MADE BY LEARNED COUNSEL FOR THE ASSESSEE. THE AUTHORITIES B ELOW DID NOT CONDUCT ANY ENQUIRY AS TO THE ACTIVE MEMBERS AND NOMINAL MEMBERS MADE BY THE ASSESSEE AND THE STATE OF AFFAIRS WITH RESPECT TO THE DEPLOYMENT OF FUNDS ETC. RESPECT TO THESE TWO CATEGORIES OF MEMBERS, IN LIGHT TO DECISION OF HONBLE SUPREME IN THE CASE OF THE CITIZEN CO - OPERATIVE(SUPRA) AND WHETHER THERE WAS ANY BREACH OF MUTUALITY . THE LEARNED DR HAS STRONGLY OBJECTED TO RECALL OF THE APPELLATE ORDER PASSED BY TRIBUNAL ON 31.07.2018 . THE SCOPE AVAILABLE WITH TRIBUNAL U/S 254(2) IS LIMITED TO CORRECTING MISTAKES APPARENT FROM RECORDS AND WE DO NOT FIND ANY MISTAKE APPARENT FROM RECORDS IN WELL REASONED ORDER DATED 31.07.2018 PASSED BY TRIBUNAL IN VIEW OF RECENT DECISION OF HONBLE SUPREME COURT IN THE CASE OF THE CITIZEN CO - OPERATIVE(SUPRA) , A S IN CASE OF THE ASSESSEE THERE IS A LSO AN CLASS OF NOMINAL MEMBERS WHO ARE NOT ENTITLED TO GIVE DEPOSITS, TAKE LOANS OR EVEN THEY ARE NOT ALLOWED TO VOTE IN MEETINGS BUT THEY ARE ONLY ALLOWED TO PLACE THEIR RETIREMENT BENEFITS . THUS, WE FIND THERE IS NO MISTAKE APPARENT FROM RECORDS IN THE APPELLATE ORDER DATED 31.07.2018 PASSED BY TRIBUNAL WHICH CAN BE RECTIFIED WITHIN LIMITED MANDATE OF SECTION 254(2) OF THE 1961 ACT. AT THIS STAGE WE WOULD ALSO LIKE TO REFER TO RECENT DECISION OF HONBLE KERALA HIGH CO URT IN THE CASE OF THE MAVILAYI SERVICE CO - OPERATIVE BANK LIMITED V. CIT IN ITA NO. 97 /2016 JUDGMENT DATED 19.03.2019. THUS, MA NO. 146/MUM/2019 ARISING OUT OF ITA NO.862/MUM/2017 4 IN OUR CONSIDERED VIEW THIS MA LACKS MERIT AND WE ARE INCLINED TO DISMISS THIS MA. WE ORDER ACCORDINGLY. 4 . THUS, THIS M.A. NO. 146 /MUM/2019 ARISING OUT OF APPEAL IN ITA NO. 862/MUM/2017 FOR AY 2012 - 13 FILED BY ASSESSEE IS DISMISSED AS INDICATED ABOVE. ORDER P RONOUNCED IN THE OPEN COURT ON 2 9 .05.2019 2 9 .05 .2019 S D / - S D / - ( SAKTIJIT DEY ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 2 9 .05 .2019 COPY TO 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI