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Income Tax Appellate Tribunal, B BENCH : BANGALORE
Before: SHRI.LAXMI PRASAD SAHU & SHRI. KESHAV DUBEY
Per Laxmi Prasad Sahu, Accountant Member :
These two appeals are filed by the Revenue against separate Orders passed by the CIT(A) for Assessment Years 2017-18, 2018-19vide DIN and Order No.ITBA/NFAC/S/250/2024-25/1067460218(1) and No.ITBA/NFAC/S/250/2024-25/1067460540(1) dated 08.08.2024 respectively.
2. The grounds raised
by the Revenue are as follows:
1. The decision of CIT(A)/ NFAC is opposed to facts of the case in allowing the entire deduction u/s 80P(2)(a)(i) of the Act.
2. As per section 2(24)(viia)- Profits and Gains of any business of banking(including providing credit facilities) carried on by a Co-operative society with its members is "income. The provisions of section 80P apply only to Primary Agricultural , 2095/Bang/2024 Page 2 of 16 Credit Society or a Primary Co-operative Agricultural and Rural Development Bank as per section 80P(4).The appellant is not a primary agricultural credit society(PACS) as defined in Part V of the Banking Regulations Act,1949. In view of the above, the decision of C1T(A)/ NFAC to allow entire deduction u/s 80P(2)(a)(i) of the Act is opposed to the facts of the case.
3. The CIT(A)/ NFAC has erred in not distinguishing the fact that the assessee in the case of Mavilayi Service Co-op Bank Ltd was registered under the Kerala State Co-operative Act and the present assessee is registered under the Karnataka State Souharda Sahakari Act, 1997. Under the Kerala State Co- operative Act there is no restriction on admission of any type of member, whereas the Karnataka State Souharda Sahakari Act places restriction on the admission of associate & nominal members. It states that associate / nominal members cannot be admitted in excess of 15% of the total membership. The CIT(A)/ NFAC has not appreciated the findings of the AO wherein it has been brought on record that the assessee Souharda Society has admitted and transacted with associate / nominal members in excess of 15% of the total membership thereby violating the law under which the Souharda Society has been registered.
4. The Hon'ble Supreme Court in the case of Mavilayi Service Co-op Bunk Ltd vs CIT has held that proportionate deduction u/s 80P(2)(a)(i) of the Act needs to be allowed if the society had transacted with non members. The CIT(A) ought to have considered the transactions made with associate / nominal members in excess of 15% of membership us transactions with non members.
5. The appellant requests to add, alter, and amend any other grounds of appeal
during the course of appellate proceedings.
3. On going through the above grounds of appeal, we noted that issue raised in both the appeals are identical and were heard together. Therefore, we are passing a common Order for both the years.
4. At the outset of hearing, we noted that the appeal filed by the Revenue are delayed by 5 days. In this AO has filed condonation petition stating the reason for delay in filling the appeal is in paras 4 and 5 that he was busy in time barring scrutiny assessment cases.
, 2095/Bang/2024 Page 3 of 16 5. Considering the reasons given by the AO and relying on the judgment in the case of Collector of Land Acquisition Vs. MST Katiji and Others, (1987) 2 SCC 107 : 1987 (2) SC, the delay in filing the appeal is condoned.
Briefly stated, the facts of the case are that the assessee filed its return of income and claimed deduction under section 80P(2)(a)(i) of the Act. The case was selected for scrutiny and statutory notices were issued to the assessee. From the documents filed, it was noticed that the assessee is registered under the Karnataka State Souharda Sahakari Act, 1997. From the detailed submissions, it was observed that assessee has claimed deduction under section 80P(2)(a)(i) of the Act and it is noted that the functioning of the society is mainly based on the principle of mutuality wherein each and every member does not have equal and identical rights and participation in the business of the society and from the judicial precedence, noted that a society can only be considered for deduction under section 80P(2)(a)(i) of the Act on the income earned from the business but in the instant case assessee is carrying main business of providing credit facilities to its members and society is having 2 categories of members viz., regular / normal members and nominal members. Both type of members are utilizing facilities provided by the society. However the nominal members do not have voting rights and facilities as that of regular / normal members in that : i. They do not earn dividend out of profit of the society, ii. They do not have right over the property and assets of the society iii. They do not have right to participate in the general body or special body meeting. iv. They do not have voting right or contest in the election of the society. Their life in the society is limited to 3 years or till completion of the services provided by them for services utilized by them. They are not prominent members like that of normal / regular members.
, 2095/Bang/2024 Page 4 of 16 They are contributors to the surplus but are not participators in the business activities of the society.
Thus the principle of mutuality between the regular / normal members and nominal members is lowest. Hence, society cannot be considered a co- operative society eligible for deduction under section 80P(2)(a)(i) of the Act. This fact has been confirmed by the Hon’ble Supreme Court in the case of Citizen Co-operative Society Ltd. vs. ACIT in Civil Appeal No. 10245/2017 and he relied on para No.25. After relying on the above judgment of the Hon’ble Apex Court, The AO denied assessee’s claim of deduction under section 80P(2)(a)(i) of the Act. Further, the AO noted that for the Assessment Year 2017-18, assessee has deposited cash during demonetization period of Rs.1,99,33,500/- which was added back under section 69A of the Act and applied section 115BBE of the Act.
Aggrieved from the above Order, assessee filed appeal before the CIT(A). The learned CIT(A) allowed appeal of the assessee and he has allowed deduction under section 80P(2)(a)(i) of the Act on the business income earned by it. However, he has not given deduction under section 80P(2)(d) of the Act on the interest income received from scheduled banks and other financial institutions and these interests have been treated as income from other sources. Therefore, these interest incomes are not eligible for deduction under sections 80P(2)(a)(i) as well as 80P(2)(d) of the Act and he also deleted addition made under section 69A of the Act.
8. Aggrieved from the Order of the learned CIT(A), Revenue filed appeals before the Tribunal.
Learned DR relied on the Order of the AO and submitted that assessee is not eligible for deduction under section 80P(2)(a)(i) of the Act. It is , 2095/Bang/2024 Page 5 of 16 applicable only to primary agricultural credit society or primary co-operative agricultural and rural development as per section 80P(4) of the Act and the assessee does not fall under these 2 categories. It is registered under the Karnataka State Souharda Sahakari Act, 1997. Assessee has violated maintaining 15% of the nominal members cap as imposed by the Karnataka State Souharda Sahakari Act, 1997. Major surplus are contributed by the nominal members more than specified limit. The AO has rightly denied deduction under section 80P(2)(a)(i) of the Act and the judgment relied on by the learned CIT(A) in the case of Mavilayi Service Co-op Bank Ltd., which was registered under the Kerala State Co-operative Act and the assessee is registered under the Karnataka State Souharda Sahakari Act, 1997. Both the Acts cannot be read together. The Karnataka State Souharda Sahakari Act places a restriction on the admission in society for nominal members. The assessee has not followed the maximum limit of Nominal members as per the Karnataka State Souhadra Sahkari Act 1997. The nominal members do not have equal rights as regular members. The AO has analysed the issue in detail and the assessee has also violated the principle of nominal members and it exceeded 15% of the total membership. He further submitted that in the Mavilayi Service Co-op Bank Ltd., the Hon’ble Apex Court has held that proportionate deduction under section 80P(2)(a)(i) of the Act needs to be allowed if the society had transacted with non members and the ld. CIT(A) should have allowed only on proportionate basis as decided by the Hon’ble Apex Court. The ld. Dr had no objection for uncertified paper books filed
10. On the other hand, learned Counsel for the assessee relied on the Order of learned CIT(A). He has filed written synopsis which is as under:
, 2095/Bang/2024 Page 6 of 16 1. Briefly, the Respondent submits the questions that arise for consideration before this Hon’ble Tribunal out of this appeal are as follows: a. Issue No. 1: The Respondent is a co-operative society engaged in providing credit facility to its members and does not fall within the exclusion of 80P(4) of the Act and is entitled to deduction u/s 80P(2)(a)(i) of the Act. b. Issue No. 2: Disallowance of deduction u/s 80P(2)(a)(i) of the Act on 2 the ground that the Respondent has violated the Karnataka State Souharda Sahakari Act, 1997 as the associate/ nominal members are in excess of 15% of the total membership and hence transactions made in excess of 15% should be considered as transactions with non- members.
2. The Respondent submits the facts of the case for this Tribunal’s kind consideration: a) The Respondent is registered under Karnataka Souharda Sahakari Act, 1997 (Refer Page 64-65 of PB). The main object of the society is providing Credit facilities to the members by way of loans For Business, House Construction Loans, Property Mortgage Loans and Vehicle Loans. The Bye-laws of the society is enclosed and marked as Annexure 1. b) For the impugned year, the Respondent filed the return of income claiming deduction u/s 80P of the Act. c) The learned AO disallowed deduction u/s 80P of the Act as theprinciple of mutuality does not exist between resident/regular 3 members and nominal members and hence, it is not eligible for deduction under section 80P(2)(a)(i) of the Act relying on the decision of Hon’ble Apex Court in the case of Citizen Co-operative Society vs ACIT d) Aggrieved by the order, an appeal was filed before CIT(A) who based on the Supreme Court decision in the case of Mavilayi Service Co- operative Bank Ltd. Vs. Commissioner of Income Tax, Calicut [2021] 123 taxmann.com 161 allowed the deduction u/s 80P(2)(a)(i) of the Act. e) Aggrieved by the order of CIT(A), the Department has filed an appeal before this Hon’ble Tribunal.
, 2095/Bang/2024 Page 7 of 16 3. Issue No. 1: The Respondent is a co-operative society engaged in providing credit facility to its members and does not fall within the exclusion of 80P(4) of the Act and is entitled to deduction u/s 80P(2)(a)(i) of the Act. a. At the outset, it is humbly submitted that the Respondent is a co- operative society registered under Karnataka Souharda Sahakari Act,1997 ( refer Page 64-65 of PB). b. Any co-operative society registered under Karnataka Souharda Sahakari Act, 1997 would fit into definition of 'co-operative society' as appearing in section 2(19) and subject to all just exceptions, would be entitled to claim benefit of section 80P of the Act. c. Reliance is placed on the definition of Swabhimani Souharda Credit Cooperative Ltd. vs. Government of India [2020] 122 taxmann.com 37 (Karnataka)/[2020] 421 ITR 670 (Karnataka)[16-01-2020] and Shri Vitthalray Souharda Pattin Sahakari Niyamit vs. Union of India [2020] 121 taxmann.com 300 (Karnataka)/[2021] 277 Taxman 276 (Karnataka)/[2020] 426 ITR 457 (Karnataka)[10-06-2020] (copy of judgement is enclosed and marked as Annexure 2) wherein it was held that: (f)the employment of the word "Sahakari" in the very title of the 1997 Act is also not sans any significance; 'Sahakaar' in Sanskrit is the equivalent of 'sahakaara' in Kannada which means 'co- operation'; as already mentioned above both the terminology; the 1959 Act and the 1997 Act employ this 1997 Act is woven with the principles of co-operation;sec.4 of this Act bars registration of an entity unless its main objectsare to serve the interest of the members in the area of co-operation and its bye-laws provide for economic and social betterment of its members through self-help & mutual principles; this apart, aid in accordance with the cooperative even sub-section (2) of sec.4 is heavily loaded with co- operative substance. In the above circumstances, these writ petitions succeed; a declaration is made to the effect that the entities registered Souharda Sahakari Act, 1997 fit into the under the Karnataka definition of "co-operative society" as enacted in sec.2(19) of the Income-tax Act, 1961 and therefore subject to all just exceptions, petitioners are entitled to stake their claim for the benefit of sec.80P of the said Act; a Writ of Certiorari issues quashing the , 2095/Bang/2024 Page 8 of 16 impugned notice dated 30-3-2018 at W.P.No.48414/2018; other legal Annexure-D in consequences accordingly do follow. It is needless to mention that the other provisions of sec. 1961 Act and their effect on the claim of the 80P of petitioner-like-societies have been left to be addressed by the concerned authorities. d. Wherefore, once the Respondent is a co-operative society within the meaning of section 2(19) of the Act, it would be eligible to claimexemption u/s 80P of the Act provided it is not a co-operative bankand falls within the exclusion of section 80P(4) of the Act. We have reproduced the section below: "80P. Deduction in respect of income of co-operative societies.— (1) Where, in the case of an assessee being a co-operative society, the gross total income includes any income referred to in sub section (2), there shall be deducted, in accordance with and subject to the pro visions of this section, the sums specified in sub-section (2), in computing the total income of the assessee. (2) The sums referred to in sub-section (1) shall be the following, namely:— (a) in the case of a co-operative society engaged in— (i) carrying on the business of banking or providing credit facilities to its members, or . . . the whole of the amount of profits and gains of business attributable to any one or more of such activities : . . ." e. Section 80P was amended by the Finance Act, 2006 with effect from April 1, 2007 and sub-section (4) was inserted thereto. This sub section (4) reads as under : "(4) The provisions of this section shall not apply in relation to any cooperative 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."
, 2095/Bang/2024 Page 9 of 16 f. As in the instant case, the Respondent is a co-operative society engaged in providing credit facilities to its members and not being aco- operative bank falling within the exclusion of 80P(4) of the Act, it is eligible for exemption u/s 80P(2)(a)(i) of the Act. g. Reliance is placed on the Respondent’s own judgement by this Hon’ble Tribunal in ITA 1320/Bang/2013 wherein it was held that (copy of the judgement is enclosed and marked as Annexure 3): 9. The learned AR also placed reliance on the decision of the Hon’ble Karnataka High Court in the case of CIT vs. Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha in dated 5-2-2014 wherein it was held that where the status of the assessee is a co-operative society, also carrying on the business of lending money for providing credit facilities to its members and not a co-operative bank, the assessee is entitled to the grant of exemption u/s 80P(2)(a)(i) of the Act.
10. In view of the aforesaid decisions, we are of the view that there is no merit in this appeal by the revenue. Consequently, the same is dismissed h. Wherefore, it is humbly submitted that the Respondent is eligible for deduction u/s 80P of the Act.
4. Issue No. 2: Disallowance of deduction u/s 80P of the Act on the ground that the Respondent has violated the Karnataka State Souharda Sahakari Act, 1997 as the associate/ nominal members are in excess of 15% of the total membership. a. At the outset, the Respondent wishes to submit that it has 0.52% of total membership being nominal member for AY 2017-18 (refer Page 59 of PB) and no nominal members for AY 2018-19. b. It is humbly submitted that nominal members are included in the definition of members as defined u/s 2(r) of the Karnataka Souharda Sahakari Act, 1997 Act (extract of the act is enclosed and marked as Annexure 4). 2(r)Member” means a person who has contributed towards the share capital of a co-operative before its and includes a person admitted to registration membership after such registration in accordance with the Act, rules 3 [and the bye-laws and include a nominal 4 [*****] member.] , 2095/Bang/2024 Page 10 of 16 c. Further, the Karnataka Souharda Sahakari Act, 1997 Act does not provide any restriction of 15% membership of nominal members as claimed by the learned AO as nominal members are clearly defined under the Karnataka Souharda Sahakari Act, 1997 (refer Annexure 4) 1 [21A – Nominal members.- (1) A cooperative may, in its interest, admit,- (a) any person; (b) any firm, company, cooperative society or cooperative or anybody or corporation constituted by or under any law for the time being in force; as a nominal member for a period not exceeding three years for a specific purpose mentioned in the bye-laws. 3 [(c) or a recognized self-help group which do not have Government aid]3 Provided that such person or institution has any kind of business relationship with the cooperative or who or which is in need of the services of the cooperative or who or which is in a position to provide services required by the cooperative. 2[XXX] 2 . (2) A nominal member shall not beentitled to any share in any form whatsoever in the assets or profits of the cooperative and shall not have the right to participate in the management and to vote at any meeting of the co-operative including the election to the board of the co-operative and shall not be eligible to be elected as a director or an office-bearer of the cooperative. (3) A nominal member shall have such rights and privileges and be subject to such liabilities as may be specified in the byelaws of the co- operative] d. Therefore, as the nominal members are minimal in AY 2017-18 and NIL in AY 2018-19, hence the principles laid down by Supreme Court in the case of Mavilayi Service Co-operative Bank Ltd. Vs. Commissioner of Income Tax, Calicut [2021] 123 taxmann.com 161 are squarely applicable to the case as deduction has to be allowed irrespective of status of member including nominal members , if the members are mentioned in the respective state act. e. Wherefore, the Respondent is entitled to deduction u/s 80P(2)(a)(i) of 11 the Act for the interest income earned from members.
5. Therefore it is prayed that appeal of the department may be dismissed in the interest of justice.
Considering the rival submissions and perusing the entire materials available on record and Orders of authorities below, we noted that assessee has filed uncertified common Paper Books for both the years containing page , 2095/Bang/2024 Page 11 of 16 Nos.1 to 260. Assessee is registered under the Karnataka State Souharda Sahakari Act, 1997. Assessee has following objectives:
1.To encourage minimal expenditure (Thrift Parsimony) Self-help and Co operative Principles among the members.
To provide services to full fill the Investment requirements of the members and to enter into the agreement with such Institution who full fill such requirement of the members.
To provide Loan and Advances to members for various purposes.
To make the members aware of the various savings schemes beneficial under Income Tax Act and such schemes available under various laws and provide services to avail benefit under those schemes.
To make arrangements for Procure, Sell, the Government Secured Bonds on behalf of the members.
6. To make arrangement with Banks/Co-operative Banks/Private Banks, to carry the business of the of the Co-operative smoothly. 7.To Provide Financial Support and Other facilities to the members.
Taking up various steps like acquisition of site, building, construction of building and renovation of building and do other task as per the needs and requirements for smooth functioning of the society. 9.To Provide vehicle loans among members by hypothecating the vehicle as per Motor Vehicle Act or to provide facility of Hire Purchase to the members.
To create funds out of Net Profits for the benefit of the Staff and Members of the Society as recommended by the Board and with the approval of members in the General Meeting.
11. To create funds out of Net Profits for the education of Members and their Children as recommended by the Board and with the approval of members in the General Meeting within the limits prescribed therein.
, 2095/Bang/2024 Page 12 of 16 12. Formation of Unions, Associates, Concerns as per the Rules and Regulations and Provisions of the Act to full fill the objects of the Co- operative Society.
To Accept deposit from the Members only as per By-laws of the society to carry the business of the Co-operative society.
14. To improve, strengthen the business of the Co-operative and To Provide Services to Members, Co-operative shall adopt the internet faciality or other advanced technology for the benefit of the members of the Co-operative. 15 To carry out chit busines among members with the approval of Registrar as per The Karnataka Chit Act, 1982 and The Karnataka Chit Rules 1983.
AO has also noted that assessee is carrying main business of providing credit facilities to its members and not for any other business. On going through the Order of learned CIT(A) it is noticed that learned CIT(A) relied on the judgment in the case of Mavilayi Service Co-op Bank Ltd., Vs. CIT, Calicut reported in (2021) 123 taxmann.com 161 (SC) in which it has been observed that deduction has to be allowed irrespective of status of members. The AO has classified members into two categories viz., regular/normal and nominal members. For the sake of convenience, we are reproducing Order of learned CIT(A) as under:
13. On going through the above observation of the learned CIT(A) and relying on the judgment of jurisdictional High Court in the case of Swabhimani Souharda Credit Cooperative Ltd., V. Government of India in which it has been held that assessee registered under the Karnataka State Souharda Sahakari Act, 1997 shall be equally treated as registered under Karnataka Co-operative Society Act for the income tax purpose. Since assessee satisfied the provision of section 80P(2)(a)(i) of the Act therefore it cannot be deprived for the eligibility of deduction under section 80P(2)(a)(i) of the Act since the assessee is fulfilling the requirement of section. Merely there are two categories of members viz., regular/normal and nominal members. Member has been defined in section 2(r) of the Karnataka State Souharda Sahakari Act, 1997 in which nominal members have also been included. Therefore, the for purpose of income tax, nominal members cannot be treated separately for deduction under section 80P(2)(a)(i) of the Act. Accordingly, we hold that learned CIT(A) has rightly allowed deduction under section 80P(2)(a)(i) of the Act on the operational income. We do not find any infirmity in the Order of learned CIT(A). On going through the grounds raised by the Revenue, ground No.2 does not arise from the Order of the AO. Therefore, ground No.2 is dismissed. Ground Nos.3 and 4 are dismissed as per above terms.
In the result, appeals of the Revenue are dismissed.