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Income Tax Appellate Tribunal, ‘B’ BENCH : BANGALORE
Before: SHRI VIJAY PAL RAO & SHRI INTURI RAMA RAO
This appeal by the Revenue is directed against the order of CIT(A) dated 08/06/2015 for the assessment year 2012-13.
2. The revenue has raised the following grounds of appeal:
“(1)The learned CIT(Appeals) erred in law and on facts in not appreciating the fact that the assessee is a co- operative society which fulfills all the three conditions of being held a Primary Cooperative Bank, as specified in section 5(ccv) of the Banking Regulation Act, 1949.
M/s.Merchants Credit Co-op. Society Ltd. Page 2 of 9 (2)The learned CIT(Appeals) erred in law and on facts in not appreciating the definition of a co-operative bank, wherein the Explanation to section 80P(4) of the Income Tax Act 1961, clarifies that "the co-operative bank" shall have the meaning assigned to it in Part- V of the Banking Regulation Act, 1949. (3)The learned CIT(Appeals) erred in law and on facts in not appreciating the fact that the assessee society being a credit cooperative society which is engaged in banking business is a Primary Co-operative Bank within the definition of section 5(ccv) of the Banking Regulation Act, 1949 and as such, is not eligible for deduction under section 80P(2) (a) (i) of the I.T. Act, 1961. (4) The learned CIT(Appeals) erred in not appreciating the facts of the case and also relying upon the decision of High Court of Karnataka in CIT vs. Sri Biluru Gurubasava Pattin Sahakari Sangh Niyamit, Bagalkot, dated 5.2.2014 and other decisions, ignoring the decision of the ITAT, Panaji Bench. The Hon ble Bench in the case of Sri Durdundeshwar was urban co-operative credit society Ltd., has upheld the stand of the department and has categorically distinguished the decision of Sri Biluru Gurubasava Pattin Sahakari Sangh Niyamit, in various cases of co-operative societies. ”
The assessee is a co-operative society registered under the Karnataka Co-operative Societies Act, 1959. The assessee filed its return of income on 26/9/2012 declaring gross total income of Rs.26,03,970/- and after claiming deduction u/s 80P(2)(a)(i) of the IT Act, the total income is declared at ‘nil’. While completing assessment u/s 143(3), the AO denied deduction u/s 80P on the ground that the assessee is a co- operative bank and hence not entitled to claim deduction by virtue of sec.80P(4) of the Act.
M/s.Merchants Credit Co-op. Society Ltd. Page 3 of 9 4. On appeal, the CIT(A) has allowed the claim of the assessee by following various decisions of this Tribunal as well as the Hon'ble jurisdictional High Court in the case of Sri Biluru Gurubasappa Pattina Sahakari Sangha Niyamita (369 ITR 86).
We have heard the learned DR as well as the learned AR of the assessee and considered the relevant material on record. At the outset, we note that this issue is covered by the judgement ( of the Hon'ble jurisdictional High Court in the case of Sri Biluru Gurubasappa Pattina Sahakari Sangha Niyamita (supra). We further note that the co-ordinate bench of this Tribunal in the case of the assessee’s own case for assessment years 2009-10 and 2010-11 vide order dated 10/10/2014 in & 1287/Bang/2013 has considered and decided this issue in paragraphs 6 and 7 as under: “6. At the time of hearing, it was brought to our notice by the parties that the issue raised by the Assessee has already been considered and decided by this Tribunal in the case of ACIT Circle 3(1), Bangalore v. M/s. Bangalore Commercial Transport Credit Co-operative Society Ltd. in ITA No. 1069/Bang/2010, wherein this Tribunal held that section 80P(4) is applicable only to cooperative banks and not to credit cooperative societies. The intention of the legislature of bringing in cooperative banks into the taxation structure was mainly to bring in par with commercial banks. Since the assessee is a cooperative society and not a cooperative bank, the provisions of section 80P(4) will not have application in the assessee's case and therefore, it is entitled to deduction u/s 80P(2)(a)(1) of the Act. The following were the relevant observations of the Tribunal:- “9. We have heard the rival submissions and perused the material on record. The assessee was denied the deduction u/s 80-P(2)(a)(i) of the Act for the reason of introduction of sub M/s.Merchants Credit Co-op. Society Ltd. Page 4 of 9 section 4 to section 80P. Section 80P(4) reads as follows:-
"(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 cooperative 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 cooperative 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 c redit fo r agricultura l and ru ral development activities".
9.1 The above sub-section 4 of section 80P provides that deduction under the said section shall not be available to any cooperative bank other than a primary agricultural credit society or rural development bank. For the purpose of the said sub section, cooperative bank shall have the meaning assigned to it in part V of the Banking Regulation Act, 1949. In Part V of the Banking Regulation Act, "cooperative bank" means a State Cooperative Bank, a Central Cooperative Bank and a Primate Cooperative Bank.
9.2 From the above section, it is clear that the provisions of section 80P(4) has got its • application only to cooperative banks. Section 80P(4) does not define the word "cooperative society". The existing sub-section 80P(2)(a)(i) shall be applicable to a cooperative society carrying on credit facility to its members. This view is clarified by Central Board. of Direct Tax vide its clarification No.133/06/2007-TPL dated 9th May, 2007. The difference between a cooperative bank and a M/s.Merchants Credit Co-op. Society Ltd. Page 5 of 9 cooperative society are as follows:- Nature Cooperative society Cooperative society registered under registered under Karnataka Banking Regulation Cooperative Society Act, Act, 1949 1959 Registration Under the Banking Cooperative Societies Regulation Act, 1949 Act,1959 and Cooperative Societies Act, 1959 Nature of 1. As defined in 1. As per the bye laws of business section 6 of Banking the cooperative society. Regulation Act.
2. Society cannot open 2. Can open savings savings bank account, bank account, current current account, issue letter account, overdraft of credit, discounting bills account, cash credit of exchange, issue cheques, account, issue letter of demand drafts, pay orders, credit, discounting bills gift cheques, lockers, bank of exchange, issue guarantees etc. cheques, demand drafts 3. Society cannot act as (DD), Pay Orders, Gift clearing agent, for cheques, cheques, lockers, bank DDs, pay orders and other guarantees etc. forms.
3. Cooperative Banks 4. Society are bound by can act as clearing rules and regulations as agent for cheques, DDs, specified by in the pay orders and other cooperative societies Act. forms.
4. Banks are bound to follow the rules, regulations and directions issued by Reserve Bank of India. Filing of Cooperative banks have Society has to submit the returns to submit annual return annual return to Registrar of to RBI every year. Societies. Inspection RBI has the power to Registrar has the power to inspect accounts and inspect accounts and overall overall functioning of functioning of the bank. the bank. Part V Part V of the Banking Part V of the Banking Regulation Act is Regulation Act is not applicable to applicable to cooperative M/s.Merchants Credit Co-op. Society Ltd. Page 6 of 9 cooperative banks. banks. Use of The word ‘bank’, The word 'bank', banker', words ‘banker’, ‘’banking’ 'banking' cannot be used by can be used by a a cooperative society. cooperative bank. 9.3 If the intention of the legislature was not to grant deduction u/s 80P(2)(a)(i) to cooperative societies carrying on the business of providing credit facilities to its members, then this section would have been deleted. The new proviso to section 80P(4) which is brought into statute is applicable only to cooperative banks and not to credit cooperative societies. The intention of the legislature of bringing in cooperative banks into the taxation structure was mainly to bring in par with commercial banks. Since the assessee is a cooperative society and not, a cooperative bank, the provisions of section 80P(4) will not have application in the assessee's case and therefore, it is entitled to deduction u/s 80P(2)(a)(1) of the Act. Hence, we are of the view that the order of the CIT(A) is correct and in consonance with law and no interference is called for."
7. The Hon'ble Gujarat High Court in the case of Tax appeal No.442 of 2013 with Tax appeal No.443 of 2013 with Tax appeal No.863 of 2013 in the case of CIT Vs. Jafari Momin Vikas Co-op Credit Society Ltd. by judgment dated 15.1.2014 had to deal with the following question of law: "Whether the Hon'ble Tribunal is correct in allowing deduction under section 80P(2)(a)(i) to assessee's society even though same is covered under section 80P(4) rws 2(24) (viia) being income from providing credit facilities carried on by a co-operative society with its member?" The Hon'ble Court held as follows: "4. 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 "cooperative bank" and "primary agricultural credit society" shall have the meanings respectively assigned to them in Part V of the Banking Regulation Act, 1949.
M/s.Merchants Credit Co-op. Society Ltd. Page 7 of 9 5. Assessing Officer held that by virtue of section 80P(4), the respondent assessee would not be entitled to benefits of deduction under section 80P. CIT(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 . Ha d t his b e e n t he p la in st atu to r y p r o visio ns u nd er 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 subsection(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 Legislature specified primary agricultural credit societies along with primary cooperative 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 CBDT circular No.133 of 2007 dated 9.5.2007. Circular provides as under:- "Subject: Clarification regarding admissibly of deduction under section 80P of the Income-Tax Act, 1961.
Please refer to your letter no.DCUS/30688/2007, dated 28.03.2007 addressed to Chairman, Central Board of Direct Taxes, on the above given subject.
In this regard, I have been directed to state that sub-section(4) of section 8oP provides that deduction under the said section shall not be allowable to any cooperative 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 M/s.Merchants Credit Co-op. Society Ltd. Page 8 of 9 Central Co-operative Bank and a primary Co- operative bank.
Thus, if the Delhi Co op Urban T & C Society Ltd. does not fall within the meaning of "Co- operative Bank" as defined in part V of the Banking Regulation Act, 1949, subsection(4) of section 8oP will not apply in this case.
5. The issues with the approval of Chairman, Central Board of Direct Taxes."
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 CBDT, Delhi Coop Urban Thrift & Credit Society Ltd. was under consideration. Circular clarified that the said entity not being a cooperative 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 cooperative banks other than those fulfilling the description contained therein but also credit societies, which are not cooperative banks. In the present case, respondent assessee is admittedly not a credit co-operative bank but a credit co-operative society. Exclusion clause of sub-section (4) of section 80P, therefore, would not apply. In the result, Tax Appeals are dismissed.’ In view of the aforesaid decisions, we are of the view that there is merit in these appeals by the Assessee. Consequently, the assessee’s appeals for A.Ys 2009-10 & 2010-11 are allowed.” Following the earlier order of this Tribunal in assessee’s own case as well as the judgment of the Hon'ble jurisdictional High Court in the case of Sri Biluru Gurubasappa Pattina Sahakari Sangha Niyamita (supra), we do not find any error or illegality in the order of the CIT(A).
M/s.Merchants Credit Co-op. Society Ltd. Page 9 of 9 6. In the result, the appeal of the revenue is dismissed.