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Income Tax Appellate Tribunal, AHMEDABAD SPECIAL BENCH, AHMEDABAD
Per Bench :
This special bench has been constituted by the then Hon’ble President to decide the following questions:-
“(1) Whether the assessee being a co-operative credit society, in view of its function in providing credit facilities to its members, is into the business of banking and is it not being impeded or hit by the provisions of section 80P(4) of IT Act 1961? Further, in view of section 5 of Banking Regulation Act, 1949 and section 2 of NABARD Act, 1981 whether this co-operative credit
Special Bench-Group of 16 appeals The People Co Op Credit So Ltd +3 other groups Page 3 of 7 society is carrying on the Banking business, and for all practical purposes acting a co-operative bank? (2) Whether a co-operative credit society being providing credit facilities to its members can be held as banking function, so as to deny the benefit of section 80P(2)(a)(i) by invoking the provisions of section 80P(4)? ”
When these appeals were called out for hearing, learned representatives fairly agreed that the aforesaid issues are now covered, in favour of the assessee, by various decisions of Hon’ble jurisdictional High Court – including in the cases of PCIT Vs. Ekta Co-operative Credit Society Ltd [(2018) 402 ITR 85 (Guj)] and CIT Vs. Jafari Momin Vikas Co-operative Credit Society Ltd [(2014) 362 ITR 331 (Guj)]. Learned Departmental Representatives, however, dutifully relied upon the stand of the Assessing Officer.
We find that, in the case of Ekta Co-operative Credit Society (supra), Hon’ble jurisdictional High Court has observed as follows:-
“2. The assessee filed its return of income for assessment year 2010-11 showing 'nil' income after claiming deduction of Rs.16,96,744/- under section 80P(2)(a)(i) of the Act. The Assessing Officer was of the view that the deduction claimed by the assessee under Chapter VI-A was not an allowable deduction for the reason that the society was engaged in the business of providing credit facility to members and banking business. Under section 80P(2)(a) of the Act, in case of cooperative society providing credit facilities to its members, the whole of the amount of profit and gains from such business are deductible. However as per sub-section (4) of section 80P of the Act, which came to be inserted by Finance Act, 2006 with effect from assessment year 2007-08, deduction under section 80P will not be available to any co-operative bank or primary cooperative agricultural and rural development bank with the principal object of providing long term credit for agricultural and rural development activities. Being of the view that the assessee was a cooperative bank other than a primary agricultural credit society or a primary cooperative agricultural and rural development bank, the Assessing Officer held that the provisions of sub-section (4) of section 80P of the Act would be applicable to the assessee and disallowed the deduction claimed under section 80P of the Act. The assessee carried the matter in appeal before the Commissioner (Appeals), who allowed the said ground of appeal and deleted the disallowance under section 80P of the Act. The revenue carried the matter in appeal before the Tribunal, but did not succeed. 3. Mrs. Mauna Bhatt, learned senior standing counsel for the appellant, assailed the impugned order on the grounds set out in the memorandum of appeal and on the reasons recorded by the Assessing Officer in the assessment order.
Special Bench-Group of 16 appeals The People Co Op Credit So Ltd +3 other groups Page 4 of 7 4. As can be seen from the order passed by the Commissioner (Appeals), he has recorded that the provisions of sub-section (4) of section 80P of the Act would be attracted in case of a cooperative bank other than primary agricultural credit society or a primary cooperative agricultural and rural bank. In terms of clause (a) of the Explanation to section 80P(4), cooperative bank and primary agricultural credit society shall have the meanings respectively assigned to them in Part V of the Banking Regulation Act, 1949. The Commissioner (Appeals) has recorded that the assessee society being a cooperative credit society limited is not a bank as contemplated under the Banking Regulation Act and hence, the provisions of sub-section (4) of section 80P of the Act would not be applicable to it. 5. The Tribunal has concurred with the view adopted by the Commissioner (Appeals). The above view of the Tribunal is fortified by a decision of this court in the case of CIT v. Surat Vankar Sahakari Sangh Ltd., [2014] 225 Taxman 162/43 taxmann.com 431 (Guj.), wherein the court has repelled the contention of the revenue that section 80P(4) would exclude not only the cooperative banks other than those fulfilling description contained therein but also credit societies, which are not cooperative banks. In the facts of the said case, the assessee was a credit cooperative society and not a cooperative bank. The court held that the exclusion clause of sub-section (4) of section 80P of the Act would, therefore, not apply. The above decision would be squarely applicable to the facts of the present case. 6. The impugned order passed by the Tribunal being in consonance with the view adopted by this court in the above decision, does not suffer from any legal infirmity so as to give rise to a question of law, much less, a substantial question of law, warranting interference. The appeal, therefore, fails and is, accordingly, summarily dismissed.”
Similarly, in the case of Safari Momin Co-operative Credit Society Ltd (supra), Hon’ble jurisdictional High Court has observed as follows:-
“3. The issue pertains to the interpretation of section 80P(2) and section 80P(4) of the Income-tax Act, 1961 ("the Act" for short). The respondent- assessee is a co-operative credit society and claims the benefit of deduction under section 80P(1) of the Act by virtue of the provisions contained in section 80P(2)(a)(i) of the Act. As is well known under sub-section (1) of section 80P certain co-operative societies are granted deductions of the sum specified in sub-section (2) in computing the total income. As per section 80P(2)(a)(i), the sums referred in sub-section (1) would be in the case of a co-operative society engaged in carrying on the business of banking or providing credit facilities to its members the whole of the amount of profits and gains of business attributable to any one or more of such activities. The Revenue, however, contends that by virtue of newly amended sub-section (4) of section 80P inserted with effect from April 1, 2007, by the Finance Act, 2006, section 80P would not apply to the respondent-assessee. Section 80P(4), in the present form, refers as under :
Special Bench-Group of 16 appeals The People Co Op Credit So Ltd +3 other groups Page 5 of 7 "(4) The provisions of this section shall not apply in relation to any co- operative bank other than a primary agricultural credit society or a primary co-operative agricultural and rural development bank. Explanation.-For the purposes of this sub-section,—
(a 'co-operative bank' and "primary agricultural credit society" shall have the meanings respectively assigned to them in Part V of the Banking Regulation Act, 1949 (10 of 1949);
(b 'primary co-operative agricultural and rural development bank' means a society having its area of operation confined to a taluk and the principal object of which is to provide for long-term credit for agricultural and rural development activities."
As per section 80P(4), the provisions of section 80P would not apply in relation to any co-operative bank other than primary agricultural credit society or primary co-operative agricultural and rural development bank. As per the Explanation, the terms "co-operative bank" and "primary agricultural credit society" shall have the meanings respectively assigned to them in Part V of the Banking Regulation Act, 1949. 5. The Assessing Officer held that by virtue of section 80P(4), the respondent- assessee would not be entitled to the benefits of deduction under section 80P. The Commissioner (Appeals) as well as the Tribunal reversed the decision of the Assessing Officer on the premise that the respondent-assessee not being a bank, exclusion provided in sub-section (4) of section 80P would not apply. This, irrespective of the fact that the respondent would not fall within the expression "primary agricultural credit society". 6. Had this been the plain statutory provisions under consideration in isolation, in our opinion, the question of law could be stated to have arisen. When, as contended by the assessee, by virtue of sub-section (4) only co- operative banks other than those mentioned therein were meant to be excluded for the purpose of deduction under section 80P, a question would arise why then the Legislature specified primary agricultural credit societies along with primary co-operative agricultural and rural development banks for exclusion from such exclusion and, in other words, continued to hold such entity as eligible for deduction. However, the issue has been considerably simplified by virtue of the Central Board of Direct Taxes Circular No. 133 of 2007, dated May 9, 2007. Circular provides as under : "Subject : Clarification regarding admissibility of deduction under section 80P of the Income-tax Act, 1961. 1. Please refer to your letter No. DCUS/30688/2007, dated March 28, 2007, addressed to the Chairman, Central Board of Direct Taxes, on the above given subject.
Special Bench-Group of 16 appeals The People Co Op Credit So Ltd +3 other groups Page 6 of 7 2. In this regard, I have been directed to state that sub-section(4) of section 80P provides that deduction under the said section shall not be allowable to any co-operative bank other than a primary agricultural credit society or a primary co-operative agricultural and rural development bank. For the purpose of the said sub-section, co- operative bank shall have the meaning assigned to it in Part V of the Banking Regulation Act, 1949. 3. In Part V of the Banking Regulation Act, 'co-operative bank' means a State co-operative bank, a Central co-operative bank and a primary co-operative bank. 4. Thus, if the Delhi Co-op. Urban Thrift and Credit Society Ltd. does not fall within the meaning of 'co-operative bank' as defined in Part V of the Banking Regulation Act, 1949, sub-section (4) of section 80P will not apply in this case. 5. This is issued with the approval of the Chairman, Central Board of Direct Taxes." 7. From the above clarification, it can be gathered that sub-section (4) of section 80P will not apply to an assessee which is not a co-operative bank. In the case clarified by the Central Board of Direct Taxes, the Delhi Co-op. Urban Thrift and Credit Society Ltd. was under consideration. The circular clarified that the said entity not being a co-operative bank, section 80P(4) of the Act would not apply to it. In view of such clarification, we cannot entertain the Revenue's contention that section 80P(4) would exclude not only the co-operative banks other than those fulfilling the description contained therein but also credit societies, which are not co-operative banks. In the present case, the respondent-assessee is admittedly not a credit co-operative bank but a credit co-operative society. The exclusion clause of sub-section(4) of section 80P, therefore, would not apply.”
The legal position is thus quite clear and unambiguous. As held by Hon’ble jurisdictional High Court, the benefit of section 80P(2)(a)(i) cannot be denied in these cases of co-operative credit societies, in view of their functions of providing credit facilities to the members, and the same is not hit by the provisions of section 80P(4) of the Act. The questions before us must be answered in favour of the assessee. The first question before us is answered in affirmative and in favour of the assessee, and the second question before us is answered in negative and in favour of the assessee. As this is the only issue in appeals before us, challenging the relief granted by the CIT(A), with the consent of the parties, we dispose of the appeals on merits. The grievances raised by the Revenue in appeals, in the light of the above discussions, must be dismissed, and the relief granted by the CIT(A) on this point must be upheld. We, therefore, uphold the relief granted by the CIT(A) in all these cases and decline to interfere in the matter.
Special Bench-Group of 16 appeals The People Co Op Credit So Ltd +3 other groups Page 7 of 7 6. As regards the cross objections filed before us, these cross objections only support the order passed by the CIT(A) and do not raise any other issues requiring our adjudication. The cross objections are, therefore, dismissed as infructuous.
In the result, all the appeals as also the cross-objections are dismissed. Pronounced in the open court today on the 18th day of April, 2019.
Sd/- Sd/- Sd/- Justice P P Bhatt Rajpal Yadav Pramod Kumar (President) (Judicial Member) (Vice President) Ahmedabad, dated 18th day of April, 2019
Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) DR (6) Guard File By order etc True Copy Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad
Date of dictation: ......Order prepared as per 4 pages manuscripts of Hon’ble VP which are attached....18.04.2019.. 2. Date on which the typed draft is placed before the Dictating Member: 18.04.2019.. 3. Date on which the approved draft comes to the Sr. P.S./P.S.: …18.04.2019... 4. Date on which the fair order is placed before the Dictating Member for Pronouncement: .... 18.04.2019... 5. Date on which the file goes to the Bench Clerk : . …18.04.2019…. 6. Date on which the file goes to the Head Clerk : ……………………………. 7. The date on which the file goes to the Assistant Registrar for signature on the order: …. 8. Date of Despatch of the Order: ………………......