Kannur Dist.Co-op Bank Ltd, Kannur V. ACIT, Kannur

MA 60/COCH/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8947 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-08-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 02-07-2012
• Court: TRIBUNAL
• Department Lawyers: PRADUMNA KUMAR SINGH
• Assessee Lawyers: V SATHYANARAYANAN
• Keywords: Rectification of order
• Section: 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM M.P. NO. 60/COCH/2012 (ARSG. OUT OF I.T.A. NO. 323/COCH/2010) ASSESSMENT YEAR : 2007-08 THE KANNUR DIST. CO-OP. BANK LTD., 545A, JILA BANK BUILDING, KANNUR. [PAN: AABFT 6295R] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-2(1), KANNUR. (ASSESSEE APPLICANT) (REVENUE-RE SPONDENT) ASSESSEE BY SHRI V.SATHYANARAYANAN, CA REVENUE BY SHRI PRADUMNA KUMAR SINGH, JR. DR DATE OF HEARING 27/07/2012 DATE OF PRONOUNCEMENT 10/08/2012 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THIS MISCELLANEOUS PETITION HAS BEEN FILED BY T HE ASSESSEE SEEKING RECTIFICATION OF ORDER DATED 23-03-2012 PASSED BY THIS BENCH IN THE ASSESSEES CASE IN I.T.A. NOS. 323 & 433/COCH/2010. 2. IN THE SAID ORDER, THE TRIBUNAL HAD TAKEN A VIEW THAT THE COOPERATIVE BANK WOULD BE CLASSIFIED AS A NON-SCHEDULED BANK FOR THE PUR POSE OF SEC. 36(1)(VIIA) OF THE ACT FOR THE PURPOSES OF IDENTIFYING THE RURAL BRANCHES OF THE BANK. THE ASSESSEE HAS MOVED THIS PETITION WITH THE PLEA THAT THE TRIBUNAL HAS M ADE ERRONEOUS INTERPRETATION OF LAW AND THE SAME HAS RESULTED IN MISTAKE APPARENT FROM RECORD. 3. THE SUBMISSIONS MADE BY THE ASSESSEE IN THIS REG ARD ARE EXTRACTED BELOW:- 1. THE HON. BENCH HAD CONSIDERED THE CLAIM OF THE APPELLANT THAT SOME OF ITS BRANCHES ARE RURAL BRANCHES ELIGIBLE FOR DEDUCTION U/S. 36(1)(VIIA) IN THE ORDER OF M.P. NO. 60/COCH/2012 2 THE HON. INCOME TAX APPELLATE TRIBUNAL, DATED 23.3 .2012. FOLLOWING THE ORDER OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CA SE OF LORD KRISHNA BANK LTD. (WHICH IS A SCHEDULED BANK), IT WAS HELD THAT THE APPELLANT IS NOT ELIGIBLE TO CLAIM DEDUCTION U/S. 36(1)(VIIA) OF THE I.T. ACT, SINCE AS PER DEFINITION IN THAT SECTION NONE OF ITS BRANCHES WILL BE RURAL BRANCHES. 2. THE HON. BENCH HAD ALSO DISPOSED OFF THE ALTER NATE PLEA OF THE APPELLANT THAT THE DEFINITION OF RURAL BRANCH GIVEN IN SEC. 36( 1)(VIIA) WILL NOT APPLY TO CO- OPERATIVE BANKS AND HENCE THE ORDER OF THE HONBLE JURISDICTIONAL HIGH COURT WOULD NOT APPLY ON FACTS AND LAW. THE DEFINITION OF RURAL BRANCH IN SEC. 36(1)(VIIA) APPLIES ONLY TO A SCHEDULED BANK OR NO N-SCHEDULED BANK AND NOT TO A CO-OPERATIVE BANK. 3. IN PARA 8 OF THE ORDER, THE HON. TRIBUNAL CONS IDERED WHETHER THE CO-OP. BANK IS SCHEDULED OR NON-SCHEDULED BANK AS DEFINED IN THE SAID SECTION. THE HON. BENCH HELD THAT THE APPELLANT IS A NON-SCHED ULED BANK AS PER DISCUSSION IN PARA 8, 8.1 & 8.2 OF THE ORDER. 4. THE DEFINITION OF NON-SCHEDULED BANK, SCHEDULE D BANK AND CO-OPERATIVE BANK FOR THE PURPOSE OF SEC. 36(1)(VIIA) IS REPRODUCED IN PARA 8 OF THE ORDER OF THE HON. TRIBUNAL. IN PARA 8.1 THE HON. TRIBUNAL HAS REFERRED TO THE PROVISIONS OF THE BANKING REGULATION ACT SECTION 5 (C) & SEC. 56 , AND HELD AS UNDER: ON A CAREFUL PERUSAL OF THE RELEVANT PROVISIONS O F PART V OF BANKING REGULATION ACT, 1949, WE NOTICE THAT THE TERM BANKING COMPAN Y ALSO INCLUDES A CO- OPERATIVE BANK. THUS A CO-OPERATIVE BANK FALLS U NDER THE DEFINITION OF BANKING COMPANY. FURTHER, AS PER THE DEFINITION GIVEN I N EXPLANATION U/S. 36(1)(VIIA) OF THE INCOME TAX ACT, A BANKING COMPANY AS DEFINED IN SECTION 5(C) OF THE BANKING REGULATION ACT, WHICH IS NOT A SCHEDULED B ANK, IS CLASSIFIED AS A NON- SCHEDULED BANK. CONSEQUENTLY, A CO-OPERATIVE BAN K, IN OUR VIEW, WOULD BE CLASSIFIED AS A NON-SCHEDULED BANK FOR THE PURPO SE OF SEC. 36(1)(VIIA) OF THE ACT. IT IS SUBMITTED THAT THE ABOVE FINDING OF THE HON. TRIBUNAL CONTAIN A MISTAKE APPARENT ON RECORDS BEING AN ERRONEOUS INTERPRETAT ION OF LAW AS SUBMITTED BELOW. 5. AS PER SEC. 36(1)(VIIA), EXPLANATION TO CAUSE ( VI) READ WITH EXPLANATION TO SEC. 80P(4), A CO-OPERATIVE BANK SHALL HAVE THE MEANING ASSIGNED BY IT IN PART V OF THE BANKING REGULATION ACT, 1949, WHICH ONLY DEALS WITH APPLICATION OF THE SAID ACT TO A CO-OPERATIVE BANK. MEANING OF CO-OPERATI VE BANK GIVEN IN THE SAID PART IS AS UNDER: (CCI) CO-OPERATIVE BANK MEANS A STATE CO-OPERAT IVE BANK, A CENTRAL CO- OPERATIVE BANK AND A PRIMARY CO-OPERATIVE BANK. M.P. NO. 60/COCH/2012 3 6. AS PER THE SETTLED LAW, WHEN A PROVISION IN T HE ACT, REFERS TO ANOTHER STATUTE, ONLY THAT SPECIFIC PROVISION OF THE OTHER STATUTE IS RELEVANT FOR THE PURPOSE OF THE ACT. ALL OTHER PROVISIONS OF THE OTHER STATUTE AR E NOT RELEVANT OR APPLICABLE, FOR THE PURPOSE OF INTERPRETING THE INCOME TAX ACT. IT SHOULD BE AS IF THE MEANING OF CO-OPERATIVE BAN K AS PER SEC. 56(C) OF THE BANKING REGULATION ACT IS INCORPORATED INTO THE AC T, AND ACCORDINGLY THE MEANING OF CO-OPERATIVE BANK AS PER CLAUSE (VI) OF EXPLANA TION TO SEC.36(1)(VIIA) READ WITH EXPLANATION TO SEC. 80P(4) IS TO BE READ AS U NDER: CO-OPERATIVE BANK MEANS A STATE CO-OPERATIVE BA NK, A CENTRAL CO- OPERATIVE BANK AND A PRIMARY CO-OPERATIVE BANK. THE ABOVE IS THE MEANING OF CO-OPERATIVE BANK GI VEN IN PART V (SECTION 56(C) ) OF THE BANKING REGULATION ACT. FOR THE PURPOSE OF INTERPRETING THE MEANING OF CO-OPERATIVE BANK U/S. 36(1)(VIIA) READ WITH EXPLA NATION TO SECTION 80P(4), NO OTHER PROVISIONS OF BANKING REGULATION ACT IS RELE VANT, PARTICULARLY SECTION 5(C) OF THE SAID ACT WHICH IS NOT REFERRED TO IN THE INCOM E TAX ACT. 7. IT IS SUBMITTED THAT THE ABOVE MISTAKE IS APP ARENT FROM RECORDS IN THE ORDER OF THE HON. ITAT AS THE HON. ITAT HAS TRAVELLED BE YOND THE MEANING OF CO- OPERATIVE BANK AS DEFINED UNDER CLAUSE (VI) OF SE CTION 36(1)(VIIA) READ WITH EXPLANATION TO SECTION 80P(4) AS SUBMITTED EARLIER . 8. IT IS PRAYED THAT THE HON. BENCH MAY RECTIFY ITS ORDER DATED 23.3.2012 SINCE THE SAID ORDER SUFFERS AN APPARENT ERROR IN THE AP PLICATION OF LAW. 4. WE HAVE HEARD THE PARTIES AND CAREFULLY CONSIDER ED THE RIVAL SUBMISSIONS. ON A CAREFUL PERUSAL OF THE ORDER DATED 23-03-2012, REFE RRED SUPRA, WE NOTICE THAT THE TRIBUNAL HAS CONSIDERED THE PROVISIONS OF BANKING R EGULATION ACT, 1949 ONLY TO UNDERSTAND THE MEANING OF NON-SCHEDULED BANK. TH E CONTENTION OF THE ASSESSEE BEFORE THE BENCH AT THE TIME OF HEARING THE APPEAL WAS THAT THE TERM RURAL BRANCH DEFINED UNDER EXPLANATION TO SEC. 36(1)(VIIA) DOES NOT INCLUDE BRANCHES OF CO-OPERATIVE BANKS AND HENCE THE CONDITION OF RURAL BRANCH DOE S NOT APPLY TO CO-OPERATIVE BANKS. FOR THE SAKE OF CONVENIENCE, WE EXTRACT BELOW THE D EFINITION OF RURAL BRANCH REFERRED ABOVE. RURAL BRANCH MEANS A BRANCH OF A SCHEDULED BANK O R A NON-SCHEDULED BANK SITUATED IN A PLACE WHICH HAS A POPULATION OF NOT M ORE THAN TEN THOUSAND ACCORDING TO THE LAST PRECEDING CENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBLISHED BEFORE THE FIRST DAY OF PREVIOUS YEAR. M.P. NO. 60/COCH/2012 4 WHILE ADDRESSING THE SAID CONTENTION OF THE ASSESSE E, THE TRIBUNAL HAD TO REFER TO THE BANKING REGULATION ACT, SINCE THE TERM NON-SCHEDUL ED BANK HAS BEEN DEFINED IN THE EXPLANATION BELOW SEC. 36(1)(VIIA) AS A BANKING COM PANY AS DEFINED IN CLAUSE (C) OF SEC. 5 OF THE BANKING REGULATION ACT, 1949, WHICH I S NOT A SCHEDULED BANK. AFTER A CAREFUL CONSIDERATION OF THE RELEVANT PROVISIONS OF BANKING REGULATION ACT, 1949, THE TRIBUNAL HAS TAKEN THE VIEW THAT A CO-OPERATIVE BA NK SHALL FALL IN THE CATEGORY OF NON-SCHEDULED BANK AS DEFINED IN THE EXPLANATION T O SEC. 36(1)(VIIA) OF THE ACT. THUS IT CAN BE NOTICED THAT THE TRIBUNAL HAS ONLY INTERP RETED THE MEANING OF NON-SCHEDULED BANK AND HAS FINALLY CAME TO THE CONCLUSION THAT T HE CO-OPERATIVE BANKS FALL IN THE CATEGORY OF NON-SCHEDULED BANKS. HENCE, WE ARE U NABLE TO ACCEPT THE CONTENTION MADE IN THE MISCELLANEOUS PETITION THAT THE TRIBUNA L DID REFER TO OTHER PROVISIONS IN ORDER TO UNDERSTAND THE MEANING OF CO-OPERATIVE BA NK. WITH REGARD TO THE MEANING OF NON-SCHEDULED BANK, WE NOTICE THAT THE TRIBUNA L HAS TAKEN A PARTICULAR VIEW AFTER CONSIDERATION OF RELEVANT PROVISIONS OF THE BANKING REGULATION ACT, 1949, WHICH, IN OUR VIEW, CANNOT BE TERMED AS A MISTAKE APPARENT FROM R ECORD WITHIN THE SCOPE OF THE PROVISIONS OF SEC. 254(2) OF THE ACT. HENCE, WE DO NOT FIND ANY MERIT IN THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. PRONOUNCED ACCORDINGLY ON 10-08- 2012 (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 10TH AUGUST, 2012 GJ COPY TO: 1. THE KANNUR DIST. CO-OP. BANK LTD., 545A, JILA BA NK BUILDING, KANNUR. 2.THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE- 2(1), KANNUR. 3.THE COMMISSIONER OF INCOME-TAX(APPEALS)-II, KOCHI . 4.THE COMMISSIONER OF INCOME-TAX, KANNUR. M.P. NO. 60/COCH/2012 5 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN