ITO 21(2)(4), MUMBAI vs. NAVSANDESH SAHAKARI PATPEDHI MARYADIT, MUMBAI
In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.
What did the Tribunal hold?
The Tribunal upheld the decision of the learned CIT(A) and dismissed the appeals filed by the Revenue. The Tribunal found no infirmity in the CIT(A)'s order, which had relied on the jurisdictional High Court's decision in the case of Quepem Urban Co-operative Credit Society Limited v. ACIT. The CIT(A) had noted that the assessee's principal business was not banking, as deposits and lending were only with members, not the public. Additionally, the CIT(A) found that the assessee's bye-laws allowed other cooperative societies to be members, thus failing the conditions to be classified as a cooperative bank under Section 80P(4). The Tribunal acknowledged that the AO had noted a pending appeal before the Supreme Court against the Quepem Urban Co-operative Credit Society Ltd. decision but found that the CIT(A) correctly followed the High Court's binding precedent. Therefore, the deletion of the disallowance made by the AO was confirmed.
What were the facts?
The Revenue has filed appeals against the common order of the CIT(A) dated October 25, 2016, for assessment years 2010-11 and 2013-14. The assessee, M/s. Navsandesh Sahakari Podpedhi Maryadit, is a cooperative credit society engaged in accepting deposits and lending to its members. The Assessing Officer (AO) disallowed the deduction claimed by the assessee under Section 80P(2)(a)(i) for Rs. 29,51,778 (AY 2010-11) and Rs. 49,75,020 (AY 2013-14), invoking Section 80P(4). The AO held that the assessee's business was akin to banking, its paid-up share capital exceeded Rs. 1 lakh, and its bye-laws did not permit other cooperative societies as members, thus classifying it as a primary cooperative bank not eligible for deduction. The CIT(A) deleted the disallowance, relying on the Bombay High Court's decision in Quepem Urban Co-operative Credit Society Ltd. v. ACIT.
What were the issues?
1. Whether the learned CIT(A) erred in deleting the disallowance of deduction under Section 80P(2)(a)(i) of Rs. 29,51,778 for AY 2010-11 and Rs. 49,75,020 for AY 2013-14, by holding that the assessee is not a cooperative bank for the purposes of Section 80P(4) of the Income Tax Act, 1961. Assessee's Contention: The assessee argued that it is not a cooperative bank as defined under Section 80P(4). Specifically, it contended that its principal business is not banking, as it accepts and lends money only to its members, not the public. Furthermore, its bye-laws permit the admission of other cooperative societies as members, failing the second condition for being classified as a cooperative bank under Section 80P(4). The assessee relied on the decision of the Hon'ble Bombay High Court in Quepem Urban Co-operative Credit Society Ltd. v. ACIT. Revenue's Contention: The Revenue contended that the CIT(A) erred in deleting the disallowance without appreciating the AO's action. The AO had determined that the assessee's business was of banking as per Section 5(b) of the Banking Regulation Act, 1949, and also as a business of banking being an adventure in the nature of trade, commerce, or manufacture as defined in Section 2(13) of the Income Tax Act, 1961. The AO also noted the paid-up share capital exceeding Rs. 1 lakh and bye-laws not permitting other cooperative societies as members.
Which sections of the Income-tax Act were involved?
Section 80P(2)(a)(i),Section 80P(4),Section 5(b),Section 2(13)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCHES “SMC”, MUMBAI
Before: Shri Shamim Yahya
O R D E R These are appeals by the Revenue directed against common order of the learned CIT(A) dated 25.10.2016 and pertains to assessment years 2010-2011 & 2013-2014.
The issue raised in these appeals is that on the facts and circumstances of the case and law, the learned CIT(A) has erred in deleting the disallowance of the deduction u/s 80P(2)(a)(i) of Rs.29,51,778 for assessment year 2010-2011 and Rs.49,75,020 for assessment year 2013- 2014, without appreciating the action of the Assessing Officer.
In this case the assessee is a Cooperative Credit Society having the business of accepting deposits and lending money to the members of the society. The society is registered with the Registrar of Co-operative Societies of Maharashtra. Assessee’s claim for deduction u/s 80P was disallowed by “Further, the case law referred by the authorized representative of the assessee of M/s.Quepem Urban Co-operative Credit Society Ltd., the department has preferred an appeal before the Honorable Supreme Court. In the case of the assessee during the F.Y. 2012-13 relevant to A.Y. 2013-14, the nature of business was of banking as mentioned in section 5(b) of the Banking Regulation Act 1949, and also as business of banking being the adventure or concern in the nature of trade, commerce or manufacture as defined in Section 2(13) of the Income tax Act, 1961 as discussed above. Further, as seen from the records of the society, it seen that the paid up share capital of the assessee was more than one lakh i.e. Rs.63,60,000/- and the bye-laws of 'the society does not permit admission of any other co-operative society as a member (para D-l.l and D-1.2 of Bye laws). Accordingly, the assessee falls into the category of Primary Cooperative Bank as per Banking Regulation Act, 1949 satisfying all the three conditions mentioned therein. The definition of Primary Co-operative Bank is meant for Co-operative Society other than primary agricultural credit society. Accordingly, deduction claimed by the assessee u/s.80P of the Income Tax Act, 1961 is not allowed read with sub section (4) of section 80P and explanation to section 80P of the Income Tax Act, 1961 as discussed above in detail.”
Upon assessee’s appeal, the learned CIT(A) following the decision of the Hon’ble jurisdictional High Court in the case of Quepem Urban Co- operative Credit Society Limited v. ACIT dated 17.04.2015 (2015) 58 taxmann.com 113 (Bombay), deleted the addition holding as under:-
I find that, the issue involved in the instant case is covered by the decision of Hon'ble Bombay High Court in the case of 3 & 50/Mum/2017 M/s.Navsandesh Sahakari Podpedhi Maryadit. Quepem Urban Co-operative Credit Society Ltd. vs ACIT dated 17.04.2015 (2015) 58 taxmann.com 113 (Bombay) wherein it is held that the assessee cannot be considered to be a co- operative Bank for the purposes of section 80P(4) of the Act, unless following three conditions are satisfied- (i) the principal business or primary objective should be business of banking (ii) its paid up share capital and reserves should not be less than rupee one lac (ii) its bye-laws do not permit admission of any other co operative society as its members On analysis of the above conditions we find that the word "banking" means accepting, a for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawal by cheque, draft, order or otherwise. In the appellant's case, acceptance and lending of money are from members only. Hence, condition 1 mentioned above is not applicable to the appellant. Apart from that, it is submitted by the appellant that as per the bye-law no.(10) of the society, the society can admit any other co-operative society registered under the Maharashtra Co-Op. Society Act as a member. Hence, condition no. 2 is also not satisfied in this case. It is also seen that, the appellant has submitted clear distinction between Co-operative Banks registered under Banking Regulations Act, 1949 and Co-operative Societies registered under Co-operative Societies Act. From that it is apparent that the appellant cannot be categorized under Co-operative Bank governed under Banking Regulations Act, 1949. The above judgment has been followed by the Hon'ble Mumbai ITAT in a no. of judgements some of which are highlighted by the appellant in his written submission.”
“In view of the facts and circumstances as well as the juridical pronouncements cited above, in my considered opinion, the income earned by the appellant society is eligible for deduction u/s 80P(2)(a)(i) of the Act. The addition made by the AO on account of disallowance of Rs.29,51,780 for assessment year 2010-2011 and of Rs.49,75,020 for assessment year 2013-2014 is not in order and hence deleted.” 6. Against the above order, Revenue is in appeal before the ITAT.
I have heard both the Counsel and perused the records. I find that the learned CIT(A) decided the issue in favour of the assessee by placing reliance upon the jurisdictional High Court decision as referred above. The said decision was also cited before the Assessing Officer, but he did not follow by observing that Department has filed appeal against the said decision before the Hon’ble Supreme Court. When the learned CIT(A) has followed the decision of the Hon’ble High Court, I do not find any infirmity in the same. Accordingly, I uphold the same.
In the result, both the appeals by the Revenue stand dismissed.
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