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Income Tax Appellate Tribunal, “B”
Before: SHRI G. S. PANNU, AM &
M/s Mazgaon Dock ITO 20(2)(2), Room No. 212, 2nd floor, Employees Co-op. Credit Society Ltd. Piramal Chambers, Lalbaug, बिधम/ C/o- Mazgaon Dock Parel, Mumbai-400012 Vs. Ltd, Dockyard Road, Mazgaon, Mumbai-400010 स्थायीलेखासं./जीआइआरसं./ PAN No. AAAAM5070F (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant by : Shri Suman Kumar प्रत्यथीकीओरसे/Respondentby : Shri Anil Sathe सुनवाईकीतारीख/ : 28/02/2018 Date of Hearing घोषणाकीतारीख / : 28/02/2018 Date of Pronouncement आदेश / O R D E R
Per Sandeep Gosain, Judicial Member:
The present Appeal filed by the revenue is against the order of Ld. CIT (Appeal) – 32, Mumbai dated 15.02.16 for AY 2012-13 on the grounds mentioned herein below:-
M/s Mazgaon Dock Employees Co-op. Credit Society Ltd. 1. "On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in allowing deduction u/s 80P(2)(a)(i) of Rs. 1,45,60,5851- to the assessee even though assessee carries on banking business."
2. "On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in allowing deduction u/s. 80P(2)(a)(i) without considering the fact that the income of the assessee is taxable with the insertion of section 80P(4) and sub clause (viia) to section 2(24) vide Finance Act, 2006 w.e.f. 01.04.2007".
"On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in allowing a deduction of Rs.8,50,000/- being staff leave encashment and election expenditure".
4. The appellant prays that the order of the CIT(A) on the above grounds be reversed and that of the Assessing Officer be restored.
5. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary.
M/s Mazgaon Dock Employees Co-op. Credit Society Ltd.
The brief facts of the case are that the assessee is a co- operative credit society and filed its return of income on 24/09/2012 declaring total income of Rs. Nil after claiming deduction u/s 80P of the Act, for an amount of Rs.1,45,60,585. The assessee AOP is a co- operative credit society and doing banking business for their members. The society was collecting deposits from members by way of fixed deposits, saving deposits and recurring daily deposits, etc. The paid-up capital of the society as on 31/03/2012 was Rs.5,22,59,050. The assessee had received the interest on loans from members Rs.5,38,78,774 and paid interest to the members under various schemes at Rs.5,22,13,646. Further the assessee also received interest on FDs made in various scheduled banks and co-operative banks for Rs.2, 14,29,474. The profit shown by the assessee for FY 2011- 12 relevant to AY 2042-13 was Rs.1,45,60,585. The assessee had claimed deduction u/s 80P(2)(a)(i) at Rs.1,45,60,585. The assessee was asked by the A.O. to explain regarding its claim of deduction u/s 80P(2)(a)(i) of the Act. In reply to the same the assessee had submitted a letter dated 19/08/2014. The same was M/s Mazgaon Dock Employees Co-op. Credit Society Ltd. not acceptable to the A.O. for the reasons recorded in detail in his assessment order.
The A.O. held that the assessee is a co-operative bank other than a primary agricultural credit society or a primary co- op. agriculture and rural development bank. The appellant fulfilled the conditions laid down u/s 56(c)(ccv) of Part V of the Banking Regulation Ac, 1949 for being a primary co-operative bank. Thus, under sub-section (4) of section 80P, the deduction u/s 80P(2)(a)(i) would not be allowable to the assessee. Accordingly, the deduction claimed by the assessee at Rs.1,45,60,585 was disallowed by the A.O. and added to the total income of the assessee. The A.O. further made addition of Rs.8,59,440/- out of various expenses claimed by the assessee.
Aggrieved by the order of AO, assessee preferred appeal before Ld. CIT(A) and Ld. CIT(A) after considering the case of both the parties allowed the appeal of the assessee.
Now before us, the revenue has preferred the present appeal by raising the above grounds.
M/s Mazgaon Dock Employees Co-op. Credit Society Ltd. Ground No. 1 to 3 3. These grounds raised by the revenue relates to challenging the order of Ld. CIT(A) in allowing deduction u/s 80P(2)(a)(i) of I.T. Act , therefore we thought it fit to dispose of these grounds by this common order.
4. We have heard counsels for both the parties and we have also perused the material placed on record as well as the orders passed by revenue authorities. Before we decide the merits of the case, it is necessary to evaluate the orders passed by Ld. CIT(A). The Ld. CIT(A) has dealt with the above grounds raised by the revenue in its detailed order. The operative portion of the order of Ld. CIT(A) is contained in para no. 4 & 5 of its order and the same is reproduced below:-
Before me, Shri Anand Desai, CA appeared and the case was discussed. The AR of the appellant filed written submissions dated 02/02/2016 and also filed copy of Hon'ble ITAT Bench, Mumbai ' s order dated 12/01/2015 in the appellant's own case for AY 2010-11 wherein the same issue was raised and decided in favor
M/s Mazgaon Dock Employees Co-op. Credit Society Ltd. of the appellant. The relevant portion of the said order is reproduced below:
"5. The Ld. Departmental representative (DR) submitted that even though the assessee is receiving deposits from its members but it is also earning interest from such deposits and such an interest income cannot be held to be eligible for deduction u/s 80P. In support of his contention, he strongly relied upon the decision of Hon 'ble Supreme Court in the case of M/s Totgars Co-operative Sales Society Ltd Vs. ITO reported in (2010) 322 ITR page 283. Thus, he submitted that interest income shown by the assessee cannot be claimed as deduction u/s 80p.
On the other hand, learned counsel submitted that the assessee has not deposited any funds with any commercial banks or government securities for the earning of interest. The assessee is a co-operative credit society and it is accepting fixed deposits from its members or giving loan to its members and providing other credit facilities. It is earning interest income from its members on the loan advanced to them. It is not State CO-operative Bank and therefore, it cannot be held that section 80P(4) is applicable. In support of his contention, he strongly relied upon the decision of Hon 'ble Gujarat High Court in the case of Jafari Momin Vikash Cooperative Credit Society Ltd.
M/s Mazgaon Dock Employees Co-op. Credit Society Ltd. Reported in (2014) 362 ITR 331(Guj), wherein the Hon 'ble High Court held that the exclusion clause of sub- section 4 of section 80p was applicable to cooperative societies also and bar is on the co-operative banks. He also referred to the series of other decision oJITAT benches, wherein it has been held that deduction u/s 80p of the Act cannot be denied to the co-operative societies but only to the co-operative banks after insertion of section 80p(4), the list of such decisions are as under.
(i) Jayalakshmi Mahila Vividodeshagala Souharda Sahakari Ltd, reported in (2012) 137 lTD 163 (Panji); (ii) Jankalyan Nagri Shakaqri Pat Sanstha Ltd. ,reported in 54 SOT 60 (Pune) (URO); '(iii) The (iii) Kasipalayam Primary Agricultural Co-operative Bank Ltd., reported in 147 lTD 70 (Chennai Trib); (iv) Rama Krishna Credit Co-operative Society Ltd., reported in (2014) 39 CCH 186 Bang Trib; (v) Sagar Credit cooperative Society Ltd., reported in (2014) 40 CCH 036 (Bang Trib)
We have heard the rival submissions and also perused the relevant findings giving in the impugned orders. The only issue before us is whether the assessee being a Co-operative Credit Society
M/s Mazgaon Dock Employees Co-op. Credit Society Ltd. registered under the Maharashtra State Co-operative Act, 1960, created for the employees of Mazagaon Dock, can be said to be engaged in the banking business or equated with the Co-operative Bank, so as to be treated under exclusionary clause of sub-section 4 of section 86p. The Hon 'ble Gujarat High Court in the case of CIT Vs. Jafari Momin Vikash Cooperative4 Credit Society Ltd. (supra), after noting down the CBDT circular no. 133 of 2007 dated 09.05.2007 has explained the said provision in the following manner.- Thus, it was held by the Hon 'ble High Court that deduction in respect of Co-operative Credit Society is available u/s. 80P(1) and they cannot be equated with Co-operative Bank. In the other decisions of the Tribunal as referred by the Ld. Counsel, we find that in all the cases, the Tribunal had taken note of the definition of the Co-operative Bank under the Banking Regulation Act, 1949 and also the definition of Co- operative Society and the effect of the amendment made in sub-section 4 of section 80P, w.e.f 0110412007. Herein this case, the Ld. CIT(A) has given a categorical finding that assessee is not providing any banking facilities either to the general public or to its members. As per it bylaws it cannot provide any banking activities. All its activities are limited to the members of specified group and its area
M/s Mazgaon Dock Employees Co-op. Credit Society Ltd. of operation is limited to acceptance of deposits from the members in providing credit facilities and does not fall under the banking activities as defined in the Banking Regulation Act. Thus, the finding of the CIT(A) is legally correct and is in consonance with the judicial precedence in aforesaid cases and, therefore, the same is upheld.
So far as the decision of the Hon 'ble Supreme Court in the case of Totgars Co-operative Sales Society Ltd. (supra), the same is not applicable here because, it is not the case of the A. 0. or the CIT(A) that assessee has invested any surplus funds in the Bank or Government Securities for earning interest income. Thus the ration of the said decision and the plea that interest income is to be taxed u/s 56 is not applicable. Accordingly, grounds raised by the department is dismissed."
DECISION: I have carefully considered the matter and the material on record. In respect of ground no 1, I find that the matter is squarely covered in favor of the appellant by the order of the Hon'ble ITAT in the appellants own case for AY 2010-11. In the circumstances, respectfully following the decision of the Hon'ble ITAT in the appellants own case, the addition of Rs 1,45,60,585 is deleted and the AO is directed to grant deduction u/s 80P as claimed by the appellant. Ground 1 is allowed.
M/s Mazgaon Dock Employees Co-op. Credit Society Ltd.
After having gone through the facts of the present case as well as considering the orders passed by revenue authorities and order of Hon’ble ITAT as mentioned above in assessee’s own case, we find that Ld. CIT(A) after appreciating the facts of the present case and while reaching to the conclusion for granting deduction to the assessee u/s 80P had relied upon the decision of the Hon’ble ITAT in assessee’s own case for AY 2010-11 in ITA No. 5285/Mum/13. Even before us, the Ld. DR could not demonstrate any difference in factual position from that of AY 2010-11. Therefore respectfully following the decision of the coordinate bench and in order to maintain judicial consistency which is applicable mutatis mutandis in this case, we dismiss these grounds. Resultantly, these grounds raised by the revenue stands dismissed.
Ground No. 3 5. This ground raised by the revenue relates to challenging the order of Ld. CIT(A) in allowing a deduction of Rs.8,50,000/- being staff leave encashment and election expenditure.
M/s Mazgaon Dock Employees Co-op. Credit Society Ltd.
6. We have heard counsels for both the parties and we have also perused the material placed on record as well as the orders passed by revenue authorities. Before we decide the merits of the case, it is necessary to evaluate the orders passed by Ld. CIT(A). The Ld. CIT(A) has dealt with the above grounds raised by the revenue in its detailed order. The operative portion of the order of Ld. CIT(A) is contained in para no. 5.1 of its order and the same is reproduced below:-
5.1 Ground 2: This is against the action of the AO in disallowing a sum of Rs 8,59,440 which as per the AO is appropriation of profit and not eligible deductible expenditure u/s 37(l). From the details submitted by the appellant before the AO, it is seen that the appellant debited Rs 49,75,000 in its P&L A/c before arriving at net profit and then disallowed Rs 41,15,560 only while computing total income as per the IT Act. The AO held that the whole of Rs 49,75,000 should have been disallowed as it is only appropriation of profit. The appellant submitted that Rs 4,50,000 is staff leave encashment while Rs 4,00,000 are election
M/s Mazgaon Dock Employees Co-op. Credit Society Ltd. expenditure. The AO did not accept this position and added these amounts to the total income. From the details before me, it is apparent that these are allowable expenses u/s 37(l). Be that as it may, as I have already held that the appellant is eligible to claim a deduction of the whole of the profits attributable to its activities, this allowance or otherwise of this expenditure is infructuous. To put it simply, even if these amounts are disallowed, the same would be eligible for a deduction u/s 80P. Accordingly, the disallowance of Rs 8,59,560 is deleted. Ground 2 is allowed.
After having gone through the facts of the present case as well as considering the orders passed by revenue authorities, we find that Ld. CIT(A) after appreciating the facts of the present case has correctly held that since the assessee is eligible to claim deduction of the whole of the profits attributable to its activities, therefore allowing these expenses u/s 37(1) has become infructuous. It was clarified by Ld. CIT(A) that even if these amounts are disallowed, the same would be eligible for deduction u/s 80P of the I.T. Act. Moreover, no new facts or contrary judgments have been brought on record before us in order to controvert or rebut the M/s Mazgaon Dock Employees Co-op. Credit Society Ltd. findings recorded by Ld. CIT(A). Therefore, there are no reasons for us to interfere into or deviate from the findings recorded by the Ld.CIT(A). Hence, we are of the considered view that the findings so recorded by the Ld. CIT (A) are judicious and are well reasoned. Resultantly, these grounds raised by the revenue stands dismissed.
Ground No. 4 & 5 7. These grounds are general in nature, thus requires no specific adjudication. 8. In the net result the appeal filed by the revenue stands dismissed. Order pronounced in the open court on 28th Feb. 2018 Sd/- Sd/- (G. S. Pannu) (Sandeep Gosain) लेखासदस्य / Accountant Member न्याययकसदस्य / Judicial Member मुंबई Mumbai;यदनांकDated : 28.02.2018 Sr.PS. Dhananjay