ITO, Cochin V. The Pattuvam Service Co-op Bank Ltd, Kannur

MA 64/COCH/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0523 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-07-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 29-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: R KRISHNA IYER

Judgement Text

1 MA NOS.63 TO 65 & 667 TO 70-COCH-2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.A. NO.63/COCH/2013 (ARISING OUT OF I.T.A NO. 04/COCH/2013 (ASSESSMENT YEAR 2009-10) ITO, WD.4 VS THE KURUMATHUR SERVICE KANNUR CO-OPERATIVE BANK LTD KURUMATHUR, THALIPARAMPA PAN : AAEFT2178E (APPLICANT) (RESPONDENT) M.A. NO.64/COCH/2013 (ARISING OUT OF I.T.A NO. 05/COCH/2013 (ASSESSMENT YEAR 2009-10) ITO, WD.4 VS THE PATTUVAM SERVICE KANNUR CO-OPERATIVE BANK LTD PATTUVAM, KANNUR DIST PAN : AADCP6738N (APPLICANT) (RESPONDENT) M.A. NO.65/COCH/2013 (ARISING OUT OF I.T.A NO. 06/COCH/2013 (ASSESSMENT YEAR 2009-10) ITO, WD.4 VS THE KUTTIYERI SERVICE KANNUR CO-OPERATIVE BANK LTD KUTTIYERI PO, KANNUR DIST PAN : AABK0485D (APPLICANT) (RESPONDENT) M.A. NO.67/COCH/2013 (ARISING OUT OF I.T.A NO. 251/COCH/2012 (ASSESSMENT YEAR 2009-10) 2 MA NOS.63 TO 65 & 667 TO 70-COCH-2013 ITO, WD.1 VS THE KADACHIRA SERVICE KANNUR CO-OPERATIVE BANK LTD KADACHIRA PO, KANNUR PAN : AAIFK5391E (APPLICANT) (RESPONDENT) M.A. NO.68/COCH/2013 (ARISING OUT OF I.T.A NO. 253/COCH/2012 (ASSESSMENT YEAR 2009-10) ITO, WD.1 VS THE KANNAPURAM SERVICE KANNUR CO-OPERATIVE BANK LTD KANNAPURAM PO, KANNUR PAN : AABAT3964G (APPLICANT) (RESPONDENT) M.A. NO.69/COCH/2013 (ARISING OUT OF I.T.A NO. 254/COCH/2012 (ASSESSMENT YEAR 2009-10) ITO, WD.1 VS THE CHERUKUNNU SERVICE KANNUR CO-OPERATIVE BANK LTD CHERUKUNNU PO, KANNUR PAN : AAAAC5016F (APPLICANT) (RESPONDENT) M.A. NO.70/COCH/2013 (ARISING OUT OF I.T.A NO. 255/COCH/2012 (ASSESSMENT YEAR 2009-10) ITO, WD.1 VS THE MAVILAYI SERVICE KANNUR CO-OPERATIVE BANK LTD MOORAMPLAM, MAVILAYI PO KANNUR PAN : AAAAM8091L (APPLICANT) (RESPONDENT) 3 MA NOS.63 TO 65 & 667 TO 70-COCH-2013 APPLICANT BY : SMT. S VIJAYAPRABHA RESPONDENT BY : SHRI R KRISHNA IYER DATE OF HEARING : 26-07-2013 DATE OF PRONOUNCEMENT : 31-07-2013 O R D E R PER N.R.S. GANESAN (JM) THE REVENUE HAS FILED ALL THE MISCELLANEOUS APPLIC ATIONS ON THE GROUND THAT THERE IS AN ERROR IN THE RESPECTIVE ORD ER OF THIS TRIBUNAL. 2. SMT. S VIJAYAPRABHA, THE LD.DR SUBMITTED THAT TH IS TRIBUNAL IN THE KADCHIRA SERVICE CO-OPERATIVE BANK LTD & ORS IN ITA NO.251/COCH/2012 & OTHERS ORDER DATED 31-01-2013 FOUND THAT THE CO-OPE RATIVE SOCIETIES ACTIVITIES HAS TO BE EXAMINED IN EACH CASE. IF THE CO-OPERATIVE SOCIETY IS NOT ENGAGED IN BANKING ACTIVITY, THEY ARE ELIGIBLE FOR EXEMPTION AS PROVIDED IN SECTION 194A(3)(VIIA) OF THE ACT. IF THE ASSESS EE IS FOUND TO HAVE ENGAGED IN THE BANKING ACTIVITY, THE TAX HAS TO BE DEDUCTED. THIS HAS TO BE EXAMINED INDEPENDENTLY IN EACH CO-OPERATIVE SOCIETI ES CASE AS FOUND BY THIS TRIBUNAL. THEREFORE, THE LD.DR SUBMITTED THAT THE ISSUE OF NON DEDUCTION OF TAX U/S 194A MAY BE REMITTED BACK TO T HE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION. 4 MA NOS.63 TO 65 & 667 TO 70-COCH-2013 3. WE HEARD, SHRI R KRISHNA IYER, THE LD.REPRESENTA TIVE FOR THE ASSESSEE ALSO. THIS TRIBUNAL, AFTER CONSIDERING TH E JUDGMENT OF THE KERALA HIGH COURT IN THE CASE OF MOOLAMATTOM ELECTRICITY B OARD EMPLOYEES CO- OPERATIVE BANK LTD, IN RE & ORS (1999) 238 ITR 630 (KER) AND ITO VS THODUPUZHA URBAN CO-OPERATIVE BANK LTD & ANR (2003) 264 ITR 36 (KER) FOUND THAT THE TAXPAYERS ARE REGISTERED UNDER KERAL A STATE CO-OPERATIVE SOCIETIES ACT AND NO APPROVAL WAS OBTAINED FROM R ESERVE BANK OF INDIA FOR CARRYING OUT THE ACTIVITY. THEREFORE, WHEN THE INTEREST WAS PAID BY THE RESPECTIVE CO-OPERATIVE SOCIETY, THERE IS NO NEED F OR DEDUCTION OF TAX. IN VIEW OF THIS FINDING, ACCORDING TO THE LD.REPRESENT ATIVE, THERE IS NO ERROR, MUCH LESS, A PRIMA FACIE ERROR IN THE ORDER OF THIS TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AFTER CO NSIDERING THE JUDGMENTS OF THE KERALA HIGH COURT IN MOOLAMATTOM ELECTRICITY BOARD EMPLOYEES CO- OPERATIVE BANK LTD, IN RE & ORS (SUPRA) AND THODUPU ZHA URBAN CO- OPERATIVE BANK LTD (SUPRA) FOUND THAT THEY ARE REGI STERED UNDER THE KERALA STATE CO-OPERATIVE SOCIETIES ACT AND NO APPROVAL W AS OBTAINED FROM THE RESERVE BANK OF INDIA. THEREFORE, FOR ALL PRACTICA L PURPOSE IT WAS FOUND THAT THE ASSESSEES HAVE TO BE TREATED AS PRIMARY AG RICULTURAL CO-OPERATIVE SOCIETIES WITHIN THE MEANING OF SECTION 2(19) OF TH E INCOME-TAX ACT. IN VIEW OF THIS SPECIFIC FINDING, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT 5 MA NOS.63 TO 65 & 667 TO 70-COCH-2013 THERE IS NO ERROR, MUCH LESS, A PRIMA FACIE ERROR W ITHIN THE MEANING OF SECTION 254(2) OF THE ACT. AN APPLICATION U/S 254( 2) IS MADE ONLY FOR RECTIFICATION OF PRIMA FACIE ERROR APPARENT FROM TH E FACE OF THE RECORD. THIS TRIBUNAL HAS NO POWER OF REVIEW OR REVISION. WHEN A CONSCIOUS DECISION WAS TAKEN BY FOLLOWING THE JUDGMENTS OF THE KERALA HIGH COURT THAT WHEREVER THE ASSESSEE IS NOT ENGAGED IN BANKING BUS INESS TAX IS NOT TO BE DEDUCTED AT SOURCE FROM PAYMENT OF INTEREST, THIS T RIBUNAL IS OF THE CONSIDERATION OPINION THAT THERE IS NO ERROR IN THE ORDER. EVEN OTHERWISE, THE RECTIFICATION SOUGHT BY THE DEPARTMENT IS BEYON D THE SCOPE OF SECTION 254(2) OF THE ACT. THEREFORE, WE DO NOT FIND ANY ME RIT IN ALL THE APPLICATIONS FILED BY THE DEPARTMENT. ACCORDINGLY, THE SAME ARE DISMISSED. 5. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATION S ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST JULY, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 31 ST JULY, 2013 PK/- COPY TO: 1. THE APPLICANTS 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH