Income Tax Officer, Ward-2, Raichur V. M/s. Siddartha Pattina Souharda Sahakari Niyamita, Manvi

MA 155/BANG/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1257 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-12-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2016-2017
• Appeal Filed On: 04-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 13; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC - C BENCH : BANGALORE BEFORE SHRI N. V. VASUDEVAN, VICE PRESIDENT MP NO.155/BANG/2019 (IN ITA NO.1234/BANG/2019) ASSESSMENT Y EAR : 20 16 - 17 THE INCOME TAX OFFICER, WARD - 2, RAICHUR. VS. M/S. SIDDHARTHA PATTINA SOUHARDA SAHAKARI NIYAMITHA, V. H. COMPLEX, I B ROAD, MANVI 584 123. PAN : AAIAS 1911 K APPELLANT RESPONDENT REVENUE BY : SHRI. GANESH R. GHALE, STANDING COUNSEL ASSESSEE BY : MR.CHAITANTYA V.MUDRABETTU, ADVOCATE ON EARLIER DATES AND NONE ON 11.12.2020 DATE OF HEARING : 11 . 12 .20 20 DATE OF PRONOUNCEMENT : 16 . 1 2 .20 20 O R D E R PER N. V. VASUDEVAN, VICE PRESIDENT THIS IS A MISCELLANEOUS APPLICATION FILED BY THE REVENUE U/S.254(2) OF THE INCOME TAX ACT, 1961 (THE ACT) PRAYING FOR RECTIFICATION OF CERTAIN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 26.07.2019. 2. UNDER SEC.80P(2)(A)(I) OF THE ACT, WHERE THE GROSS TOTAL INCOME OF A CO-OPERATIVE SOCIETY INCLUDES INCOME FROM CARRYING ON THE BUSINESS OF BANKING OR PROVIDING CREDIT FACILITIES TO ITS MEMBERS, THE SAME IS ALLOWED DEDUCTION. ACCORDING TO THE AO, THE BENEFIT OF DEDUCTION U/S.80P(2)(A)(I) OF THE ACT WAS AVAILABLE ONLY TO A CO- OPERATIVE SOCIETY AND SINCE THE ASSESSEE IS ONLY A SOUHARDA SAHAKARI REGISTERED UNDER THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997 AND SINCE UNDER THE SAID ACT, CO- MP NO.155/BANG/2019 (IN ITA NO.1234/BANG/2019) PAGE 2 OF 10 OPERATIVE SOCIETIES ARE NOT BEING REGISTERED, THE ASSESSEE SHOULD NOT BE ALLOWED THE BENEFIT OF DEDUCTION U/S.80P(2)(A)(I) OF THE ACT. ACCORDING TO THE AO, CO-OPERATIVE AND CO-OPERATIVE SOCIETIES ARE 2 DIFFERENT ENTITIES. IF THE CO-OPERATIVE WANTS TO CONVERT ITSELF INTO A CO-OPERATIVE SOCIETY, IT HAS TO BE CONVERTED AS PER THE AMENDED PROVISIONS OF KARNATAKA SOUHARDA SAHAKARI ACT,1997 AS AMENDED BY ACT 13/2004. SIMILARLY, UNDER THE KARNATAKA CO-OPERATIVE SOCIETIES ACT, 1959 CO-OPERATIVE HAS BEEN DEFINED ACCORDING TO WHICH THE CO-OPERATIVE MEANS A CO-OPERATIVE REGISTERED UNDER THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997. THE AO HAS MADE REFERENCE TO THE FACT THAT UNDER THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997 THE WORD CO- OPERATIVE HAS BEEN DEFINED IN CLAUSE 2(E) ACCORDING TO WHICH CO-OPERATIVE MEANS A CO-OPERATIVE INCLUDING A CO-OPERATIVE BANK DOING THE BUSINESS OF BANKING REGISTERED OR DEEMED TO BE REGISTERED UNDER SECTION 5 AND WHICH HAS THE WORD SOUHARDA SAHAKARI IN ITS NAME. IN SOUHARDA SAHAKARI ACT, THE WORD CO-OPERATIVE SOCIETY HAS ALSO BEEN DEFINED IN CLAUSE 2(G), ACCORDING TO WHICH THE CO-OPERATIVE SOCIETY MEANS A CO-OPERATIVE SOCIETY REGISTERED UNDER THE KARNATAKA CO-OPERATIVE SOCIETIES ACT, 1959. THUS ACCORDING TO THE AO, IF BOTH THE ACTS ARE READ JOINTLY, IT WOULD BE VERY CLEAR THAT THE CO-OPERATIVE AND CO-OPERATIVE SOCIETIES ARE TWO DIFFERENT ENTITIES. THE BENEFIT OF DEDUCTION CAN ONLY BE GIVEN TO THE CO-OPERATIVE SOCIETIES AND NOT TO THE CO-OPERATIVE. THEREFORE, THE ASSESSEE IS NOT EVEN ELIGIBLE TO CLAIM DEDUCTION UNDER SECTION 80P(2) OF THE ACT. THE CIT(A) CONFIRMED THE ORDER OF THE AO. 3. ON FURTHER APPEAL BY THE ASSESSEE, THE QUESTION THAT CAME UP FOR CONSIDERATION IN THE AFORESAID APPEAL WAS AS TO WHETHER A SOUHARDA REGISTERED UNDER THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997 CAN BE REGARDED AS CO-OPERATIVE SOCIETY ENTITLED TO BENEFIT OF DEDUCTION U/S.80P(2)(A)(I) OF THE ACT. THE RELIANCE BY THE REVENUE WAS ON THE DECISIONS RENDERED BY THE ITAT BANGALORE DIVISION BENCH, IN THE CASE OF M/S. MILLENNIUM CREDIT CO-OPERATIVE SOCIETY LTD. VS. ITO ITA NOS. 2606 & 2607/BANG/2017 IN WHICH THE TRIBUNAL FOLLOWED THE DECISION OF ITAT BANGALORE BENCH IN THE CASE OF MS.UDAYA SOUHARDA CREDIT CO-OPERATIVE SOCIETY LTD. ITA MP NO.155/BANG/2019 (IN ITA NO.1234/BANG/2019) PAGE 3 OF 10 NO.2831/BANG/2017 ORDER DATED 17.8.2018 IN WHICH THE ISSUE WHETHER SOUHARDA REGISTERED UNDER THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997 CAN BE REGARDED AS CO- OPERATIVE SOCIETY ENTITLED TO BENEFIT OF DEDUCTION U/S.80P(2)(A)(I) OF THE ACT WAS REMANDED TO THE AO FOR FRESH CONSIDERATION. 4. THE TRIBUNAL CONSIDERED THE ISSUE AND CONCLUDED THE DECISIONS CITED BY THE REVENUE WERE CASES WHERE THE TRIBUNAL FOUND THAT THE RELEVANT PROVISIONS OF THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997, WERE NOT EXAMINED BY THE REVENUE AUTHORITIES AND THE ISSUE HAD TO BE REMANDED FOR FRESH CONSIDERATION TO DECIDE THE QUESTION TO WHETHER A SOUHARDA REGISTERED UNDER THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997 CAN BE REGARDED AS CO-OPERATIVE SOCIETY ENTITLED TO BENEFIT OF DEDUCTION U/S.80P(2)(A)(I) OF THE ACT. THE TRIBUNAL OBSERVED THAT IN THE APPEAL BEFORE THE TRIBUNAL, OUT OF WHICH THE PRESENT MP HAS BEEN FILED, THE AO AND CIT(A) HAVE ALREADY CONSIDERED THIS ISSUE IN THE LIGHT OF THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997 AND THEREFORE THE ISSUE HAS TO BE DECIDED BY THE BENCH AND CANNOT BE REMANDED TO THE AO AS WAS CANVASSED BY THE REVENUE. 5. THE TRIBUNAL THEREAFTER EXAMINED THE RELEVANT PROVISIONS OF THE ACT AS WELL AS THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997 AND HELD AS FOLLOWS: 6. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. SEC.2(19) DEFINES CO-OPERATIVE SOCIETIES FOR THE PURPOSE OF THE ACT AND THE SAME IS AS FOLLOWS: DEFINITIONS. 2. IN THIS ACT, UNLESS THE CONTEXT OTHERWISE REQUIRES, (19) 'CO-OPERATIVE SOCIETY' MEANS A CO-OPERATIVE SOCIETY REGISTERED UNDER THE CO-OPERATIVE SOCIETIES ACT, 1912 (2 OF 1912), OR UNDER ANY OTHER LAW FOR THE TIME BEING IN FORCE IN ANY STATE FOR THE REGISTRATION OF CO-OPERATIVE SOCIETIES ; 7. AS CAN BE SEEN FROM THE AFORESAID DEFINITION OF CO-OPERATIVE SOCIETY UNDER THE ACT, ANY CO-OPERATIVE SOCIETY REGISTERED UNDER ANY OTHER LAW OF ANY STATE FOR REGISTRATION OF CO-OPERATIVE SOCIETY IS ALSO MP NO.155/BANG/2019 (IN ITA NO.1234/BANG/2019) PAGE 4 OF 10 REGARDED AS CO-OPERATIVE SOCIETY UNDER THE ACT. SOUHARDAS ALSO OPERATE ON THE PRINCIPLE OF CO-OPERATION AND ADOPT THE PRINCIPLES OF CO-OPERATION. CO-OPERATIVE SOCIETIES AND CO-OPERTIVES ARE ALL FOUNDED ON THE PRINCIPLE OF CO-OPERATION. 8. SINCE THE BEGINNING OF MANKIND THE CONCEPT OF CO-OPERATION HAS BEEN THE FOUNDATION FOR HARMONIOUS EXISTENCE IN INDIA, THE CO- OPERATIVE SOCIETIES ACT 1912 REGULATED FORMATION, MANAGEMENT, WINDING UP AND OTHER SUPERVISION BY THE GOVERNMENT ETC. THIS ACT BECAME THE MODEL FOR THE PROVINCIAL GOVERNMENTS TO FORM THEIR OWN COOPERATIVE ACTS. POST-INDEPENDENCE, VARIOUS STATE GOVERNMENTS FRAMED THEIR OWN INDEPENDENT COOPERATIVE ACTS AND THE CENTRAL GOVERNMENT ITS MULTI-STATE COOPERATIVE ACT. ACCORDINGLY, KARNATAKA STATE COOPERATIVE SOCIETIES ACT, 1959 (KSCS ACT, 1959) REGULATES CO-OPERATIVE SOCIETIES IN THE STATE OF KARNATAKA. A PANCHAYAT, A COOPERATIVE SOCIETY AND A SCHOOL FOR EVERY VILLAGE WERE CONSIDERED AS THE THREE PILLARS OF THE INTEGRATED COMMUNITY DEVELOPMENT. AS TIME PASSED BY, OTHER ASPECTS WERE INCLUDED INTO THE COOPERATIVE ACT THUS HERALDING THE RESURGENCE OF A NEW ERA IN COOPERATIVE MOVEMENT. THE STATE AND THE CENTRAL GOVERNMENTS WERE INVESTING MILLIONS OF RUPEES IN THE FORM OF SHARES, GRANTS, SUBSIDY, CONTRIBUTIONS, GOVERNMENT SUPPORT, ETC BUT THE EXPECTED RESULTS COULDNT BE ACHIEVED IN COOPERATIVE MOVEMENTS. THIS CONDITION CONTINUED ALMOST UNTIL EARLY 1980S. 9. KEEPING THIS IN MIND, THE CENTRAL GOVERNMENT SETUP A COMMITTEE UNDER THE CHAIRMANSHIP OF SHRI ARDHANARISHWARAN, WHICH SUBMITTED ITS REPORT IN 1987. IT ATTRIBUTED THE FAILURE OF THE COOPERATIVE MOVEMENT TO THE EXCESSIVE INTERFERENCE OF THE GOVERNMENTS. IT IS ALSO TRUE THAT THE UNABATED PARTY POLITICS IN THE CO-OPERATIVE MOVEMENT IS ALSO A BIG HINDRANCE TO ITS PROGRESS. REALIZING THE VITAL ROLE OF THE COOPERATIVE MOVEMENT IN THE PROGRESS OF THE SOCIETY, THE CENTRAL PLANNING COMMISSION SET UP A COMMITTEE BY APPOINTING SHRI CHAUDARI BRAHMAPRAKASH AS ITS HEAD & WITH A TASK OF DRAFTING A MODEL COOPERATIVE ACT WHICH WILL PREVENT INTERFERENCE OF THE GOVERNMENTS. THIS COMMITTEE, AFTER A DETAILED STUDY OF THE COOPERATIVE ACTS OF VARIOUS STATES, DRAFTED A MODEL COOPERATIVE ACT IN 1991 AND CENTRAL GOVERNMENT RECOMMENDED THE STATE GOVERNMENTS TO ADOPT THIS. ACCORDINGLY, IN 1997 A BILL ON PARALLEL COOPERATIVE ACT WAS TABLED IN THE STATE LEGISLATURE OF KARNATAKA. DEMANDING AN EARLY APPROVAL OF THIS BILL BY BOTH THE HOUSES OF KARNATAKA LEGISLATURE, A COMMITTEE SOUHARDA SAMVARDHANA MP NO.155/BANG/2019 (IN ITA NO.1234/BANG/2019) PAGE 5 OF 10 SAMITHI UNDER THE CHAIRMANSHIP OF JUSTICE RAMA JOIS CAME INTO EXISTENCE. IT WAS DUE TO THE COMBINED EFFORTS OF SAHAKARA BHARATHI KARNATAKA AND SOUHARDA SAMVARDHANA SAMITHI, THE KARNATAKA SOUHARDA SAHAKARI ACT1997 (KSSA, 1997) WAS PASSED IN THE LEGISLATURE. WITH THE CONSENT OF THE PRESIDENT OF INDIA, IT WAS ENFORCED FROM JANUARY 2001. PREAMBLE TO THE ACT READS THUS: AN ACT TO PROVIDE FOR RECOGNITION, ENCOURAGEMENT AND VOLUNTARY FORMATION OF CO-OPERATIVES BASED ON SELF-HELP, MUTUAL AID, WHOLLY OWNED, MANAGED AND CONTROLLED BY MEMBERS AS ACCOUNTABLE, COMPETITIVE, SELF-RELIANT AND ECONOMIC ENTERPRISES GUIDED BY CO- OPERATIVE PRINCIPLES AND MATTERS CONNECTED THEREWITH; WHEREAS IT IS EXPEDIENT TO PROVIDE FOR RECOGNITION ENCOURAGEMENT AND VOLUNTARY FORMATION OF CO-OPERATIVES BASED ON SELF-HELP, MUTUAL AID, WHOLLY OWNED, MANAGED AND CONTROLLED BY MEMBERS AS ACCOUNTABLE, COMPETITIVE SELF-RELIANT AND ECONOMIC ENTERPRISES GUIDED BY CO- OPERATIVE PRINCIPLES AND FOR MATTERS CONNECTED THEREWITH; BE IT ENACTED BY THE KARNATAKA STATE LEGISLATURE IN THE FORTY-EIGHTH YEAR OF REPUBLIC OF INDIA AS FOLLOWS:- 10. THE SOUHARDA COOPERATIVES ENJOY FUNCTIONAL AUTONOMY IN DESIGN AND IMPLEMENTATION OF THEIR BUSINESS PLANS, CUSTOMER SERVICE ACTIVITIES, ETC BASED ON THE NEEDS OF THEIR MEMBERS. UNLIKE OTHER FORMS OF COOPERATIVES IN INDIA, THE INTERFERENCE OF STATE / CENTRAL IN DAY-TO-DAY OPERATIONS OF SOUHARDA COOPERATIVES IS ALMOST MINIMAL. 11. THE ABOVE DISCUSSION WOULD SHOW THAT SOUHARDA CO-OPERATIVES ARE ALSO ONE FORM OF CO-OPERATIVE SOCIETIES REGISTERED UNDER A LAW IN FORCE IN THE STATE OF KARNATAKA FOR REGISTRATION OF CO-OPERATIVE SOCIETIES. THEREFORE THE CONCLUSION OF THE REVENUE AUTHORITIES THAT CO-OPERATIVE SOCIETIES AND CO- OPERATIVES ARE DIFFERENT AND THAT CO-OPERATIVE REGISTERED AS SOUHARDA SAHAKARI CANNOT BE REGARDED AS CO-OPERATIVE SOCIETIES IS UNSUSTAINABLE. WE THEREFORE HOLD THAT THE ASSESSEE SHOULD BE ALLOWED DEDUCTION U/S.80P(2)(A)(I) OF THE ACT, AS THE ONLY GROUND ON WHICH THE SAME WAS DENIED TO THE ASSESSEE IS HELD TO BE INCORRECT. 6. IN THIS MP IT IS THE CONTENTION OF THE REVENUE THAT THE SINGLE MEMBER HAS TO FOLLOW THE DECISION OF THE DIVISION BENCH AND CANNOT TAKE A CONTRARY VIEW. IF THE SINGLE MEMBER HAS ANY DOUBTS ON THE VIEW EXPRESSED BY A DIVISION BENCH, THE PROPER COURSE TO FOLLOW WOULD BE TO REFER THE MATTER FOR CONSTITUTION OF A LARGER BENCH. IT IS ALSO THE CONTENTION OF THE REVENUE IN THE MP THAT MISREADING A DECISION OF CO-ORDINATE BENCH IS A MISTAKE APPARENT FROM RECORD. IT IS ALSO THE CONTENTION IN MP NO.155/BANG/2019 (IN ITA NO.1234/BANG/2019) PAGE 6 OF 10 THE MP THAT THE TRIBUNAL HAS ARRIVED AT A WRONG CONCLUSION ON THE ISSUE WHICH IS ALSO A MISTAKE APPARENT ON THE FACE OF THE RECORD. THE REVENUE HAS PRAYED THAT THE ORDER SHOULD BE RECALLED. 7. I HAVE HEARD THE SUBMISSION OF THE LEARNED DR, WHO REITERATED THE STAND OF THE REVENUE AS CONTAINED IN THE MP. THE LEARNED COUNSEL FOR THE ASSESSEE DREW MY ATTENTION TO THE FACT THAT IN THE CASE OF UDAYA SOUHARDHA CREDIT CO-OPERATIVE SOCIETY LTD. (SUPRA), ON WHICH THE LEARNED DR HAS PLACED PRINCIPAL RELIANCE, THE TRIBUNAL HAS IN PARAGRAPH-8 HAS SPECIFICALLY OBSERVED THAT THE LEARNED DR HAS RAISED A FEW VALID POINTS WHICH CANNOT BE OUTRIGHTLY IGNORED. THE TRIBUNAL HAS ALSO OBSERVED THAT THE ARGUMENTS SO RAISED WERE THE ARGUMENTS ON THE ISSUE FOR THE FIRST TIME BEFORE THE TRIBUNAL AND OBSERVED THAT THESE LEGAL ARGUMENTS GOES TO THE ROOT OF THE CASE. IN PARAGRAPH 13 OF THE SAID ORDER, THE TRIBUNAL HAS FURTHER OBSERVED AS FOLLOWS: SINCE ALL THESE NEW POINTS HAVE BEEN RAISED DURING THE COURSE OF HEARING BEFORE US AND ACCORDING TO US ALL THESE POINTS GOES TO THE ROOT OF THE CASE, WE ARE OF THE VIEW THAT PROPER ADJUDICATION OF THE ISSUES IS REQUIRED BY THE AO. WE ACCORDINGLY SET ASIDE THE ORDER OF THE CIT(A) AND RESOTORE THE MATTER TO THE AO TO RE-EXAMINE ALL THESE ASPECTS BY MAKING NECESSARY ENQUIRY AND INVESTIGATION AND ALSO BY PASSING A REASONED ORDER IN THIS REGARD. SINCE WE HAVE RESTORED THE MATTER TO THE AO, WE FIND NO JUSTIFICATION TO ADJUDICATE THE ISSUE RAISED ON MERIT. ACCORDINGLY, THE ORDER OF THE CIT(A) IS SET ASIDE AND MATTER IS RESTORED TO THE AO FOR ADJUDICATION OF THE IMPUGNED ISSUE IN TERMS INDICATED ABOVE. 8. THUS THE ISSUE WHETHER A SOUHARDA REGISTERED UNDER THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997 CAN BE REGARDED AS CO-OPERATIVE SOCIETY ENTITLED TO BENEFIT OF DEDUCTION U/S.80P(2)(A)(I) OF THE ACT, WAS RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL AND HENCE THE TRIBUNAL REMANDED THE ISSUE FOR FRESH CONSIDERATION BY THE AO. THERE WAS THEREFORE NO VIEW TAKEN BY THE TRIBUNAL THAT SOUHARDAS ARE NOT ENTITLED TO CLAIM BENEFIT OF DEDUCTION U/S.80P OF THE ACT. MP NO.155/BANG/2019 (IN ITA NO.1234/BANG/2019) PAGE 7 OF 10 9. HE POINTED OUT THAT THE TRIBUNAL HAS IN THE ORDER WHICH IS SUBJECT MATTER OF THIS MP SPECIFICALLY OBSERVED IN PARAGRAPH-5 AS FOLLOWS: 5. I HAVE HEARD THE RIVAL SUBMISSIONS. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SOUHARDA SAHAKARI REGISTERED UNDER THE KARNATAKA SAUHARDA SAHAKARI ACT, 1997 ARE ALSO CO-OPERATIVE SOCIETIES WITHIN THE MEANING OF SEC.2(19) OF THE ACT AND THEREFORE THE REVENUE AUTHORITIES WERE NOT JUSTIFIED IN DENYING THE BENEFIT OF DEDUCTION TO THE ASSESSEE. THE LEARNED DR RELIED ON A DECISION OF THE ITAT BANGALORE BENCH IN THE CASE OF M/S.MILLENNIUM CREDIT CO-OPERATIVE SOCIETY LTD. VS. ITO ITA NOS. 2606 & 2607/BANG/2017 IN WHICH THE TRIBUNAL FOLLOWED THE DECISION OF ITAT BANGALORE BENCH IN THE CASE OF MS.UDAYA SOUHARDA CREDI CO-OPERATIVE SOCIETY LTD. ITA NO.2831/BANG/2017 ORDER DATED 17.8.2018 IN WHICH THE ISSUE WHETHER SOUHARDA REGISTERED UNDER THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997 CAN BE REGARDED AS CO-OPERATIVE SOCIETY ENTITLED TO BENEFIT OF DEDUCTION U/S.80P(2)(A)(I) OF THE ACT WAS REMANDED TO THE AO FOR FRESH CONSIDERATION. WE ARE OF THE VIEW THAT IN THE PRESENT CASE, THE AO AND CIT(A) HAVE ALREADY CONSIDERED THIS ISSUE IN THE LIGHT OF THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997 AND THEREFORE THIS ISSUE HAS TO BE DECIDED BY ME AND CANNOT BE REMANDED TO THE AO AS WAS CANVASSED BY THE REVENUE. 10. IT WAS THUS SUBMITTED BY HIM THAT THE TRIBUNAL HAS FOUND THAT FACTS AND CIRCUMSTANCES OF THE CASE WERE DIFFERENT AND SINCE THE ISSUE HAS BEEN DEALT WITH IN THE LIGHT OF THE PROVISIONS OF THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997, BY THE REVENUE AUTHORITIES, THERE WAS NO PURPOSE IN REMANDING THE ISSUE TO THE AO AND HENCE DECIDED THE CASE ON MERITS. 11. IT WAS ALSO SUBMITTED BY HIM THAT THE DECISION IN THE CASE OF UDAYA SOUHARDA CREDIT CO-OPERATIVE SOCIETY LTD. (SUPRA) DID NOT CONSIDER THE PROVISIONS OF SEC.2(19) OF THE ACT, WHICH WERE VERY CRUCIAL TO A DECISION ON THE ISSUE IN QUESTION. IT WAS THEREFORE SUBMITTED BY HIM THAT THERE WAS NO VIEW ON THE ISSUE EXPRESSED BY THE UDAYA SOUHARDHA CREDIT CO-OPERATIVE SOCIETY LTD., WHICH CAN BE SAID TO BE A BINDING PRECEDENT NOR WERE THE PROVISIONS OF SEC.2(19) OF THE ACT CONSIDERED BY THE DIVISION BENCH, RENDERING IT PER INCURIUM. MP NO.155/BANG/2019 (IN ITA NO.1234/BANG/2019) PAGE 8 OF 10 12. LASTLY IT WAS SUBMITTED THAT THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF M/S.SWABHIMANI SOUHARDA CREDIT CO-OPERATIVE LTD., VS. GOVERNMENT OF INDIA & 3 OTHERS W.P.NO.48414 OF 2018 JUDGMENT DATED 16.1.2020, IN WHICH THE PRINCIPAL COMMISSIONER OF INCOME TAX, BENGALURU AND THE ITO WARD-5(2)(3), BENGALURU WERE ALSO PARTIES AND AFTER CONSIDERING THE PROVISIONS OF SEC.2(19) OF THE ACT DECLARED THAT THE ENTITIES REGISTERED UNDER THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997 FIT INTO THE DEFINITION OF CO-OPERATIVE SOCIETY AS ENACTED IN SEC.2(19) OF THE ACT AND THEREFORE SUBJECT TO ALL JUST EXCEPTIONS, ARE ENTITLED TO STAKE THEIR CLAIM FOR THE BENEFIT OF SEC.80P OF THE ACT. 13. I HAVE GIVEN A VERY CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. UNDER SEC.254(2) OF THE ACT, WHAT CAN BE RECTIFIED IS ONLY A MISTAKE THAT IS APPARENT ON THE FACE OF THE RECORD. THE EXPRESSION MISTAKE APPARENT ON THE FACE OF THE RECORD WILL NOT INCLUDE A MISTAKE WHICH CAN BE IDENTIFIED ONLY BY A DIFFICULT PROCESS OF LONG DRAWN REASONING. THE TRIBUNAL DOES NOT HAVE POWERS TO REVIEW ITS ORDER U/S.254(2) OF THE ACT. I AM OF THE VIEW THAT THE PRESENT MP IS DEVOID OF ANY MERIT AS WHAT THE REVENUE SEEKS THROUGH THIS MP U/S.254(2) OF THE ACT IS ONLY A REVIEW OF THE ORDER OF THE TRIBUNAL. AS TO WHETHER THE DECISION IN THE CASE OF UDAYA SOUHARDHA CREDIT CO-OPERATIVE SOCIETY LTD. (SUPRA) HAS ONLY REMANDED THE ISSUE TO THE AO FOR FRESH CONSIDERATION OR HAS LAID DOWN THE LAW ON THE ISSUE IS A DEBATABLE ISSUE. SUCH DEBATABLE ISSUES CANNOT BE SUBJECT MATTER OF AN MP U/S.254(2) OF THE ACT. 14. I AM OF THE VIEW THAT THE DECISION OF THE TRIBUNAL IN THE CASE OF UDAYA SOUHARDHA CREDIT CO-OPERATIVE SOCIETY LTD. (SUPRA) DOES NOT LAY OUT ANY LAW THAT A SOUHARDA REGISTERED UNDER THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997 CANNOT BE REGARDED AS CO-OPERATIVE SOCIETY ENTITLED TO BENEFIT OF DEDUCTION U/S.80P(2)(A)(I) OF THE ACT. THE TRIBUNAL IN THE SAID ORDER HAS ONLY REMANDED THE ISSUE TO THE AO FOR FRESH CONSIDERATION BECAUSE THE ISSUE WAS RAISED FOR THE FIRST TIME BEFORE TRIBUNAL AND REQUIRED A DEEPER EXAMINATION. IN THE APPEAL DECIDED BY THE TRIBUNAL THE MP NO.155/BANG/2019 (IN ITA NO.1234/BANG/2019) PAGE 9 OF 10 TRIBUNAL HAS IN PARAGRAPH-5 OF THE ORDER WHICH IS SUBJECT MATTER OF THIS MP, HAS CLEARLY GIVEN THE REASON AS TO WHY THEY CANNOT REMAND THE ISSUE TO THE REVENUE AUTHORITIES BECAUSE IN THE CASE WHICH WAS SUBJECT MATTER OF THE APPEAL, THE AO AND CIT(A) HAVE ALREADY CONSIDERED THIS ISSUE IN THE LIGHT OF THE KARNATAKA SOUHARDA SAHAKARI ACT, 1997. THE TRIBUNAL THEREFORE HELD THAT IT HAS TO DECIDE THE ISSUE AND CANNOT REMAND THE SAME TO THE AO AS WAS CANVASSED BY THE REVENUE. THEREFORE THE DECISION RENDERED IN THE CASE OF UDAYA SOUHARDHA CREDIT CO-OPERATIVE SOCIETY LTD. (SUPRA) CANNOT BE REGARDED AS A PRECEDENT AND THEREFORE THE OTHER CONTENTIONS OF THE REVENUE IN THE MP THAT A SINGLE MEMBER HAS TO FOLLOW THE DECISION OF THE DIVISION BENCH AND CANNOT TAKE A CONTRARY VIEW AND THAT IF A SINGLE MEMBER HAS ANY DOUBTS ON THE VIEW EXPRESSED BY A DIVISION BENCH, THE PROPER COURSE TO FOLLOW WOULD BE TO REFER THE MATTER FOR CONSTITUTION OF A LARGER BENCH, IS WITHOUT ANY MERIT. THE FURTHER STAND OF THE REVENUE IN THE MP THAT THE SINGLE MEMBER HAS MISREAD THE DECISION OF CO-ORDINATE BENCH AND HENCE THERE IS A MISTAKE APPARENT FROM RECORD, IS ALSO WITHOUT ANY MERIT. I AM THEREFORE OF THE VIEW THAT THERE IS NO ERROR IN THE ORDER OF THE TRIBUNAL WHICH CALLS FOR ANY INTERFERENCE U/S.254(2) OF THE ACT. 15. FOR THE REASONS GIVEN ABOVE, I AM OF THE VIEW THAT THE MP IS WITHOUT ANY MERIT AND THE SAME IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- BANGALORE. DATED: 16.12.2020. /NS/* (N. V. VASUDEVAN) VICE PRESIDENT MP NO.155/BANG/2019 (IN ITA NO.1234/BANG/2019) PAGE 10 OF 10 COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.