MAHARASHTRA SHRAMIK SAHAKARI PATHPEDHI MARYADIT,MUMBAI vs. ITO WD 17(2)(3), MUMBAI

Date of hearing : 21/06/2018. Date of pronouncement : 27/06/2018. O R D E R PERDr.A.L. SAINI, ACCOUNTANT MEMBER The captioned two appeals filed by the assessee, pertaining to Assessment Years 2012-13 & 2013-14, are directed against the separate orders passed by the ld. Commissioner of Income Tax (Appeals), Mumbai, eachdated 02/12/2016, which in turn arise out of the assessment orders passed by the Assessing Officer under sec. 143(3) of the Income Tax Act, 1961 (for short, "Act"), dated 30/03/2015 & 22/02/2016 respectively.

raised by the assessee in its lead case in for Assessment Year 2012-13 are as follows:-

1. On the facts and circumstances of the Appellants case the Learned CIT (A) has erred in rejection the deduction claimed u/s.80P (2)(a)(i) of the Income Tax Act, 1961.

2. The Learned CIT (A) has failed to appreciate cumulative satisfaction of all three conditions as mentioned in the definition of primary co-operative bank as defined under section 5(CCV) of the Banking regulation Act, 1949 and upheld the Assessing Officer order without testing as Assessee is a co-op bank or co-operative society. The appellant has satisfied second condition only and not by the First and Third one hence it is not a co-op bank.

3. The Appellant does have banking licence as required to do the banking business and not doing a banking business. 4. The Learned CIT (A) has pointed out that the Assessing officers finding in Para 2 i.e. the Appellant is maintaining a running account in the Mumbai District central co-operative Bank having a Cash credit facility as also availing a term loan from that bank. The AO was therefore of the view that the appellant is a co-operative bank and therefore the deduction u/s.80P is not available in view of section 80P(4) and confirmed the same without appreciating the basic conditions to treat the appellant is co-op bank. Please Note that; i) All the state co-operative banks and all the district central co-operative banks are different from the primary co-operative banks. ii) All primary co-operative societies are running their accounts with District Central Co-operative banks and accepting as a membership of District central co-operative bank and not giving membership to the District central Co-operative bank. iii) The GIT(4) erred to appreciate the litmus test as mentioned in condition No. 3 of the definition of primary co-operative bank as mentioned in section 5(CCV) of the banking regulation Act, in the case ofAppellant. Appellant has not given admission as member to other cooperative society but accepted the membership of Mumbai district central co-op bank which is not a primary co- operative bank and not a primary co operative credit society, therefore taking cash credit facility and term loan from District Central Co- operative bank is not coming under litmus test of condition No.3 of the definition ofprimary co- operative bank, hence finding of Learned Assessing officer is baseless and bad in law.

5. The Appellant prays the please consider given facts and above mentioned ground of Appeal, delete the addition made by disallowances of deduction u/s.80P of Rs.72,57,553/-.

6. The Appellant may carve, leave, add, amend, modify, alter and change the above mentioned ground of appeal whenever necessary.”

4. At the outset itself, when this appeal was called out for hearing, ld. Authorized Representative of the assessee invited our attention to the order dated 29/11/2017 passed by the Division Bench of this Tribunal, in assessee’s own case in & 6251/MUM/2013 for the Assessment Years 2009-10 & 2010-11, whereby the Tribunal has set aside the order passed by the ld.CIT(A) and directed the Assessing Officer to examine and consider as to whether or not the assessee’s activities are in compliance with the Maharashtra State Co-operative Act, 1960 as also the Maharashtra State Co-operative Regulations, 1961. If it is so found, then, in the absence of any licence from the Reserve Bank of India, the assessee cannot be treated as an entity falling within the restrictions imposed in Sec. 80P(4) of the Act. So however, if the findings of the Assessing Officer are to the contrary, he shall be free to take appropriate action as per law.

Therefore, ld. Authorized Representative of the assessee submitted that the present appeal is squarely covered by the above said order, copy of which is also placed before the Bench.

6. We see no reasons to take any other view of the matter than the view so taken by the Division Bench of this Tribunal in assessee’s own case vide order dated 29/11/2017, in assessee’s own case in & 6251/MUM/2013 for the Assessment Years 2009-10 & 2010-11 (supra). In this order, the Tribunal has inter alia observed as follows:-

“5. Insofar as the reference by the Assessing Officer to assessee‟s claim of deductions under Section 36(1)(viia)(b) as well as 36(i)(viii) of the Act and the remark by the Tax Auditor are concerned, the same can at best be taken as wrong claims and cannot be determinative of the legal position. It is judicially well- settled that the position taken by the parties on an issue is not conclusive, and rather it is the legal position on the issue, which is relevant to decide the controversy. In the present case, even if the assessee has made certain claims considering it to be a banking company, same are untenable inasmuch as there is no denying the fact that the assessee does not have a licence from the Reserve Bank of India to carry on banking business and, therefore, cannot be construed as a co-operative bank, an aspect which is now well-settled by the judgment of the Hon'ble Supreme Court in the case of The Citizen Co-operative Society Ltd. (supra).

out by the Assessing Officer that the assessee is catering to two distinct categories of people. The first category is that of resident members or ordinary members. There may not be any difficulty as far as this category is concerned. However, the assessee had carved out another category of „nominal members‟. These are those members who are making deposits with the assessee for the purpose of obtaining loans, etc. and, in fact, they are not members in real sense. Most of the business of the appellant was with this second category of persons who have been giving deposits which are kept in Fixed Deposits with a motive to earn maximum returns. A portion of these deposits is utilised to advance gold loans, etc. to the members of the first category. It is found, as a matter of fact, that he depositors and borrowers are quiet distinct. In reality, such activity of the appellant is that of finance business and cannot be termed as co-operative society. It is also found that the appellant is engaged in the activity of granting loans to general public as well. All this is done without any approval from the Registrar of the Societies. With indulgence in such kind of activity by the appellant, it is remarked by the Assessing Officer that the activity of the appellant is in violation of the Co-operative Societies Act. Moreover, it is a co- operative credit society which is not entitled to deduction under Section 80P(2)(a)(i) of the Act. 26) It is in this background, a specific finding is also rendered that the principle of mutuality is missing in the instant case. Though there is a detailed discussion in this behalf in the order of the Assessing Officer, our purpose would be served by taking note of the following portion of the discussion: “As various courts have observed that the following three conditions must exist before an activity could be brought under the concept of mutuality; that no person can earn from him; that there a profit motivation; and that there is no sharing of profit. It is noticed that the fund invested with bank which are not member of association welfare fund, and the interest has been earned on such investment for example, ING Mutual Fund [as said by the MD vide his statement dated 20.12.2010]. [Though the bank formed the third party vis- a-vis the assessee entitled between contributor and recipient is lost in such case. The other ingredients of mutuality are also found to be missing as discussed in further paragraphs].

In the present case both the parties to the transaction are the contributors towards surplus, however, there are no participators in the surpluses. There is no common consent of whatsoever for participators as their identity is not established. Hence, the assessee fails to satisfy the test of mutuality at the time of making the payments the number in referred as members may not be the member of the society as such the AOP body by the society is not covered by concept of mutuality at all.” 27) These are the findings of fact which have remained unshaken till the stage of the High Court. Once we keep the aforesaid aspects in mind, the conclusion is obvious, namely, the appellant cannot be treated as a co-operative society meant only for its members and providing credit facilities to its members. We are afraid such a society cannot claim the benefit of Section 80P of the Act”

7. In the context of the instant case, what is required to be examined is whether or not the activities of the assessee are confined to its members so as to fall within the provisions of Sec. 80P(2)(a)(i) of the Act. Pertinently, Sec. 80P(2)(a)(i) of the Act, so far as is relevant for the present case, deals with exemption with regard to the income earned by co-operative society from providing credit facilities to its members. The aforesaid was put to the learned representative for the assessee who submitted that the assessee had no objection if the matter is restored back to the file of the Assessing Officer for proper verification on this aspect.

8. We, therefore, in view of the aforesaid discussion, set-aside the order of the CIT(A) and direct the Assessing Officer to examine and consider as to whether or not the assessee‟s activities are in compliance with the Maharashtra State Co- operative Act, 1960 as also the Maharashtra State Co-operative Regulations, 1961. If it is so found, then, in the absence of any licence from the Reserve Bank of India, the assessee cannot be treated as an entity falling within the restrictions imposed in Sec. 80P(4) of the Act. So however, if the findings of the Assessing Officer are to the contrary, he shall be free to take appropriate action as per law. Needless to mention, the Assessing Officer shall allow the assessee a reasonable opportunity of being heard and only thereafter shall pass an order afresh in accordance with law keeping in mind our aforesaid directions.”

Order Pronounced in open Court on this day of 27th June, 2018.