Hind Vijay Nagari Sahakari Patsanstha Maryadit,, Pune v. ITO, Ward 9(3), Pune

ITA 845/PUN/2013 | 2008-2009
Pronouncement Date: 24-04-2014 | Result: Allowed

Appeal Details

RSA Number 84524514 RSA 2013
Assessee PAN AAAAH0897B
Bench Pune
Appeal Number ITA 845/PUN/2013
Duration Of Justice 1 year(s) 11 day(s)
Appellant Hind Vijay Nagari Sahakari Patsanstha Maryadit,, Pune
Respondent ITO, Ward 9(3), Pune
Appeal Type Income Tax Appeal
Pronouncement Date 24-04-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 24-04-2014
Assessment Year 2008-2009
Appeal Filed On 12-04-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHE B PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI G.S. PANNU ACCOUNTANT MEMBER ITA NOS.845 & 846/PN/2013 (A.YS. : 2008-09 & 2009-10) HIND VIJAY NAGARI SAHAKARI PATSANSTHA MARYADIT OPP : SYNDICATE BANK TALEGAON-DABHADE (ST.) TAL : MAVAL PUNE : 410 507. PAN : AAAAH0897B . APPELLANT VS. INCOME TAX OFFICER WARD 9(3) PUNE. . RESPONDENT ITA NOS.1068 & 1069/PN/2013 (A.YS. : 2008-09 & 2009-10) INCOME TAX OFFICER WARD 9(2) PUNE. . APPELLANT VS. HIND VIJAY NAGARI SAHAKARI PATSANSTHA MARYADIT SAMARTH CHHAYA BLDG. NEAR SYNDICATE BANK TALEGAON CHAKAN ROAD TALEGAON PUNE 410 507. PAN : AAAAH0897B . RESPONDENT ITA NO.60/PN/2014 (ASSESSMENT YEAR : 2010-11) HIND VIJAY NAGARI SAHAKARI PATSANSTHA MARYADIT OPP : SYNDICATE BANK TALEGAON-DABHADE (ST.) TAL : MAVAL PUNE : 410 507. PAN : AAAAH0897B . APPELLANT VS. INCOME TAX OFFICER WARD 9(2) PUNE. . RESPONDENT ITA NO.162/PN/2013 ITA NO.384/PN/2013 ITA NO.178/PN/2014 (ASSESSMENT YEAR : 2010-11) INCOME TAX OFFICER WARD 9(2) PUNE. . APPELLANT VS. HIND VIJAY NAGARI SAHAKARI PATSANSTHA MARYADIT SAMARTH CHHAYA BLDG. NEAR SYNDICATE BANK TALEGAON CHAKAN ROAD TALEGAON PUNE 410 507 PAN : AAAAH0897B . RESPONDENT ASSESSEE BY : MR. PRAMOD SHINGTE DEPARTMENT BY : MR. S. P. WALIMBE DATE OF HEARING : 11-04-2014 DATE OF PRONOUNCEMENT : 24-04-2014 ORDER PER G. S. PANNU AM THESE ARE THREE SET OF CROSS-APPEALS BY THE ASSESSE E AND THE REVENUE RELATING TO THE ASSESSMENT YEARS 2008-09 2009-10 A ND 2010-11. SINCE THE APPEALS RELATE TO THE SAME ASSESSEE AND INVOLVE COM MON ISSUES THEY HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. FIRST WE SHALL TAKE-UP THE APPEALS IN ITA NO.84 5 & 1068/PN/2013 WHICH ARE CROSS-APPEALS BY ASSESSEE AND THE REVENUE ARISING OUT OF THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-V PUNE DATED 28.02.2013 WHICH IN TURN HAS ARISEN FROM AN ORDER DATED 07.1 2.2010 PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2008-09. ITA NO.162/PN/2013 ITA NO.384/PN/2013 3. THE SOLITARY ISSUE IN THE APPEAL OF THE ASSESSEE RELATES TO THE ACTION OF THE LOWER AUTHORITIES IN DENYING EXEMPTION U/S 80P( 2)(A)(I) OF THE ACT IN RELATION TO A SUM OF RS.22 27 523/-. 4. THE ASSESSEE BEFORE US IS A CO-OPERATIVE SOCIETY REGISTERED UNDER THE MAHARASHTRA CO-OPERATIVE SOCIETIES ACT 1960 AND IS INTER-ALIA ENGAGED IN THE BUSINESS OF PROVIDING CREDIT FACILITIES TO ITS MEMBERS. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION IT FILED A RETURN OF INCO ME DECLARING TOTAL INCOME AT RS. NIL WHICH INTER-ALIA INCLUDED A CLAIM OF EXEM PTION U/S 80P(2)(A)(I) OF THE ACT WITH RESPECT TO THE SURPLUS DECLARED BY IT IN I TS PROFIT & LOSS ACCOUNT WHICH AMOUNTED TO RS.22 27 523/-. IN THE COURSE OF ASSES SMENT PROCEEDINGS THE ASSESSING OFFICER NOTED THAT IN THE PROFIT & LOSS A CCOUNT ASSESSEE HAD CREDITED INCOMES WHICH WERE FROM ACTIVITIES OTHER T HAN THE PROVIDING OF CREDIT FACILITIES TO THE MEMBERS THE DETAILS OF WHICH ARE TABULATED IN PARA 5 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER HAS TABULA TED THE AMOUNT OF INTEREST EARNED BY THE ASSESSEE FROM INVESTMENTS MADE IN OTH ER BANKS. AS PER THE ASSESSING OFFICER PRIMARILY THE SURPLUS IN THE PRO FIT AND LOSS ACCOUNT DECLARED BY THE ASSESSEE WAS DIRECTLY ATTRIBUTABLE TO INTEREST EARNED ON INVESTMENTS MADE WITH NON-MEMBERS NAMELY BANKS AN D THEREFORE ACCORDING TO HIM ASSESSEE WAS NOT ELIGIBLE FOR EXEMPTION U/S 80P OF THE ACT IN RELATION TO SUCH INCOME. AS PER THE ASSESSING OFFICER SUCH INC OME COULD NOT BE SAID TO BE ATTRIBUTABLE TO THE ACTIVITY OF PROVIDING CREDIT FACILITIES TO THE MEMBERS. THE ASSESSING OFFICER RELIED ON THE JUDGEMENT OF THE HO NBLE SUPREME COURT IN THE CASE OF TOTGARS CO-OPERATIVE SALE SOCIETY LTD. VS. ITO (2010) 322 ITR 283 (SC) AND ULTIMATELY HELD THAT SUCH INTEREST INCOME WHICH WAS EARNED ON INVESTMENTS MADE WITH BANKS COULD NOT BE SAID TO BE ATTRIBUTABLE TO THE ACTIVITIES OF THE ASSESSEE SOCIETY NAMELY THE BUS INESS OF PROVIDING CREDIT FACILITIES TO ITS MEMBERS AND THEREFORE HE DENIED E XEMPTION U/S 80P(2)(A)(I) OF THE ACT. ACCORDINGLY THE TOTAL INCOME WAS ASSESSE D AT RS.22 27 520/- AFTER REJECTING THE ASSESSEES CLAIM FOR EXEMPTION U/S 80 P(2)(A)(I) OF THE ACT WITH ITA NO.162/PN/2013 ITA NO.384/PN/2013 RESPECT TO THE AFORESAID AMOUNT OF SURPLUS DECLARED IN ITS PROFIT & LOSS ACCOUNT. 5. THE AFORESAID MATTER WAS CARRIED IN APPEAL BEFOR E THE CIT(A). THE CIT(A) HAS CONCURRED WITH THE ASSESSING OFFICER AND AFFIRMED THE ACTION OF DENYING EXEMPTION U/S 80P(2)(A)(I) OF THE ACT WITH RESPECT TO THE INCOME OF RS.22 27 523/- REPRESENTING INTEREST INCOME EARNED ON INVESTMENTS MADE WITH THE BANKS. HOWEVER THE ALTERNATIVE PLEA OF THE AS SESSEE THAT INTEREST INCOME IN QUESTION WAS EARNED FROM INVESTMENTS MADE WITH O THER CO-OPERATIVE BANKS AND WAS THUS ELIGIBLE FOR EXEMPTION U/S 80P(2)(D) O F THE ACT WAS UPHELD BY THE CIT(A). 6. IN THE BACKGROUND OF THE AFORESAID ORDER OF THE CIT(A) ASSESSEE IS IN FURTHER APPEAL CHALLENGING THE DECISION OF THE CIT( A) OF AFFIRMING THE ACTION OF THE ASSESSING OFFICER IN DENYING EXEMPTION U/S 80P( 2)(A)(I) OF THE ACT AMOUNTING TO RS.22 27 523/- WHEREAS THE REVENUE IN ITS CROSS-APPEAL IS CHALLENGING THE ACTION OF THE CIT(A) IN HOLDING THA T THE INTEREST INCOME IN QUESTION HAVING BEEN EARNED FROM INVESTMENTS MADE WITH OTHER CO-OPERATIVE BANKS WAS ENTITLED FOR EXEMPTION U/S 80P(2)(D) OF THE ACT. IN THE ABOVE BACKGROUND THE RIVAL COUNSELS HAVE BEEN HEARD. 7. IN SO FAR AS THE APPEAL OF THE ASSESSEE IS CONCE RNED IT WAS A COMMON POINT BETWEEN THE PARTIES THAT AN IDENTICAL CONTROV ERSY HAS BEEN CONSIDERED BY THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF ANOTH ER CO-OPERATIVE SOCIETY NAMELY ITO VS. NIPHAD NAGARI SAHAKARI PATSANSTHA L TD. VIDE ITA NO.1336/PN/2011 DATED 31.07.2013 WHEREIN THE ISSUE HAS BEEN HELD IN FAVOUR OF THE ASSESSEE AFTER CONSIDERING SIMILAR OBJECTION WHICH HAS BEEN RAISED BY THE ASSESSING OFFICER IN THE PRESENT CASE. THE LEA RNED REPRESENTATIVE FOR THE ASSESSEE HAS FURNISHED A COPY OF THE SAID ORDER OF THE TRIBUNAL DATED 31.07.2013 (SUPRA) AND HAS ALSO POINTED OUT THAT TH E TRIBUNAL HAS DULY ITA NO.162/PN/2013 ITA NO.384/PN/2013 CONSIDERED THE DECISION OF THE HONBLE SUPREME COUR T IN THE CASE OF TOTGARS CO-OPERATIVE SALE SOCIETY LTD. (SUPRA) WHICH HAS B EEN RELIED UPON BY THE ASSESSING OFFICER IN THE PRESENT CASE. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NEITHER CONTROVERTED THE ABOVE M ATRIX AND NOR REFERRED TO ANY CONTRARY DECISION AND THEREFORE FOR THE SAKE OF MAINTAINING CONSISTENCY WE FOLLOW THE DECISION OF OUR CO-ORDINATE BENCH IN THE CASE OF NIPHAD NAGARI SAHAKARI PATSANSTHA LTD. (SUPRA) AND UPHOLD THE PLE A OF THE ASSESSEE. HOWEVER BEFORE PARTING WE MAY REPRODUCE HEREINAFT ER THE FOLLOWING PORTION OF THE ORDER OF THE TRIBUNAL DATED 31.07.2013 (SUPRA) WHICH BRINGS OUT THE REASONING PREVAILING WITH THE TRIBUNAL TO UPHOLD TH E PLEA OF THE ASSESSEE :- 11. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAV E ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. IN THE INSTANT CASE THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE IS A COOPERATIVE SOCIETY ENG AGED IN THE BUSINESS ACTIVITY OF CREDIT COOPERATIVE SOCIETY I.E. PROVID ING CREDIT FACILITY TO ITS MEMBERS. ACCORDING TO THE REVENUE THE INCOME OF TH E SOCIETY ON ACCOUNT OF INTEREST FROM BANKS OTHER THAN COOPERATIVE BANKS I NTEREST ON MUTUAL FUNDS LONG TERM AND SHORT TERM CAPITAL GAIN ON SALE OF MU TUAL FUNDS ETC. ARE NOT COVERED BY THE ACTIVITY OF PROVIDING CREDIT FACILIT IES TO ITS MEMBERS AND HENCE NOT ELIGIBLE FOR DEDUCTION U/S.80P(2)(A)(I) OF THE INCOME TAX ACT IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF TO TAGARS COOPERATIVE SALE SOCIETY LTD. (SUPRA). WE FIND THE LD. CIT(A) ALLOW ED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE IS ENTITLE D TO DEDUCTION U/S.80P(2)(A)(I) ON ACCOUNT OF INTEREST FROM BANKS OTHER THAN COOPERATIVE BANKS INTEREST ON MUTUAL FUNDS LONG TERM AND SHORT TERM CAPITAL GAIN ON MUTUAL FUNDS ETC. WHILE DOING SO HE HELD THAT THE DECISION IN THE CASE OF TOTAGARS COOPERATIVE SALE SOCIETY LTD. (SUPRA) IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE SINCE IN THAT CASE THE AMOUNT I NVESTED IN SHORT TERM DEPOSITS AND SECURITIES WAS NOT OUT OF INTEREST BEA RING DEPOSITS COLLECTED FROM MEMBERS BUT OUT OF SALE PROCEEDS OF AGRICULTURAL PR ODUCE OF FARMER MEMBERS MARKETED BY THE SOCIETY. FURTHER THE HONBLE APEX COURT HAS CONSIDERED ONLY THE LATTER PART OF SECTION 80P(2)(A)(I) I.E. INCOM E OF A COOPERATIVE SOCIETY ENGAGED IN PROVIDING CREDIT FACILITIES TO ITS MEMBE RS IS ELIGIBLE FOR DEDUCTION AND HAS NOT CONSIDERED THE EARLIER PART OF SECTION 80P(2)(A)(I) I.E. INCOME OF A COOPERATIVE SOCIETY ENGAGED IN CARRYING ON THE BUSI NESS OF BANKING IS ELIGIBLE FOR DEDUCTION. 11.1 WE FIND THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF M/S. JAFARI MOMIN VIKAS COOPERATIVE CREDIT SOCIETY LTD. (SUPRA) AFTER CONSIDERING THE DECISION OF HONBLE SUPREME COURT I N THE CASE OF TOTAGARS COOPERATIVE SALE SOCIETY LTD. (SUPRA) HAS OBSERVED AS UNDER : 17. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE EITHER PARTY PERUSED THE RELEVANT RECORDS AND ALSO THE CASE LAW ON WHICH THE LEARNED AR HAD RESERVATION IN ITS APPLIC ABLY IN THE CIRCUMSTANCES OF THE ASSESSEE'S CASE. ITA NO.162/PN/2013 ITA NO.384/PN/2013 18. IT WAS THE STAND OF THE LEARNED CIT (A) THAT T HE ENTIRE INCOME WAS NOT EXEMPT AND THAT IT WAS TO BE EXAMINE D AS TO WHETHER THERE WAS ANY INTEREST INCOME ON THE SHORT TERM BAN K DEPOSITS AND SECURITIES INCLUDED IN THE TOTAL INCOME OF THIS SOC IETY WHICH HAS BEEN CLAIMED AS EXEMPT. ACCORDING TO THE CIT (A) A SIMI LAR ISSUE TO THAT OF THE PRESENT ONE WAS DEALT WITH BY THE HON'BLE SUPRE ME COURT IN THE CASE OF TOTGARS CO-OP. SALE SOCIETY LTD V. ITO (SUP RA). THE ISSUE BEFORE THE HON'BLE COURT FOR DETERMINATION WAS WHET HER INTEREST INCOME ON SHORT TERM BANK DEPOSITS AND SECURITIES W OULD BE QUALIFIED AS BUSINESS INCOME U/S 80P (2)(A)(I) OF THE ACT. 19. THE ISSUE DEALT WITH BY THE HON'BLE SUPREME CO URT IN THE CASE OF TOTGARS (SUPRA) IS EXTRACTED FOR APPRE CIATION OF FACTS AS UNDER: 'WHAT IS SOUGHT TO BE TAXED UNDER SECTION 56 OF THE ACT IS THE INTEREST INCOME ARISING ON THE SURPLUS INVESTED IN SHORT TERM DEPOSITS AND SECURITIES WHICH SURPLUS WAS NOT REQUI RED FOR BUSINESS PURPOSES? THE ASSESSEE(S) MARKETS THE PROD UCE OF ITS MEMBERS WHOSE SALE PROCEEDS AT TIMES WERE RETAI NED BY IT. IN THIS CASE WE ARE CONCERNED WITH THE TAX TREATME NT OF SUCH AMOUNT. SINCE THE FUND CREATED BY SUCH BY SUCH RETE NTION WAS NOT REQUIRED IMMEDIATELY FOR BUSINESS PURPOSES IT WAS INVESTED IN SPECIFIED SECURITIES. THE QUESTION BEFORE US I S-WHETHER INTEREST ON SUCH DEPOSITS/SECURITIES WHICH STRICTL Y SPEAKING ACCRUES TO THE MEMBERS' ACCOUNT COULD BE TAXED AS BUSINESS INCOME UNDER SECTION 28 OF THE ACT? IN OUR VIEW SU CH INTEREST INCOME WOULD COME IN THE CATEGORY OF 'INCOME FROM O THER SOURCES' HENCE SUCH INTEREST INCOME WOULD BE TAXA BLE UNDER SECTION 56 OF THE ACT AS RIGHTLY HELD BY THE ASSES SING OFFICER...' 19.1 HOWEVER IN THE PRESENT CASE ON VERIFICATION OF THE BALANCE SHEET OF THE ASSESSEE AS ON 31.3.2009 IT WAS OBSER VED THAT THE FIXED DEPOSITS MADE WERE TO MAINTAIN LIQUIDITY AND THAT T HERE WAS NO SURPLUS FUNDS WITH THE ASSESSEE AS ATTRIBUTED BY THE REVENU E. HOWEVER IN REGARD TO THE CASE BEFORE THE HON'BLE SUPREME COURT - '(ON PAGE 286) 7............BEFORE THE ASSESSING OF FICER IT WAS ARGUED BY THE ASSESSEE(S) THAT IT HAD INVESTED THE FUNDS ON SHORT TERM BASIS AS THE FUNDS WERE NOT REQUIRED IMM EDIATELY FOR BUSINESS PURPOSES AND CONSEQUENTLY SUCH ACT OF IN VESTMENT CONSTITUTED A BUSINESS ACTIVITY BY A PRUDENT BUSINE SSMAN; THEREFORE SUCH INTEREST INCOME WAS LIABLE TO BE TA XED UNDER SECTION 28 AND NOT UNDER SECTION 56 OF THE ACT AND CONSEQUENTLY THE ASSESSEE(S) WAS ENTITLED TO DEDUC TION UNDER SECTION 80P(2)(A)(I) OF THE ACT. THE ARGUMENT WAS R EJECTED BY THE ASSESSING OFFICER AS ALSO BY THE TRIBUNAL AND T HE HIGH COURT HENCE THESE CIVIL APPEALS HAVE BEEN FILED B Y THE ASSESSEE(S).' 19.2 FROM THE ABOVE IT EMERGES THAT (A) THAT ASSESSEE (ISSUE BEFORE THE SUPREME COURT) HAD ADMITTED BEFORE THE AO THAT IT HAD INVESTED SURPLUS FUNDS WHICH WERE NOT IMMEDIATELY REQUIRED FOR THE PURPOSE OF ITS BUSINESS IN SHORT TERM DEPOSITS; (B) THAT THE SURPLUS FUNDS AROSE OUT OF THE AMOUNT RETAINED FROM MARKETING THE AGRICULTURAL PRODUCE OF THE MEMB ERS; ITA NO.162/PN/2013 ITA NO.384/PN/2013 (C) THAT ASSESSEE CARRIED ON TWO ACTIVITIES NAMELY (I) ACCEPTANCE OF DEPOSIT AND LENDING BY WAY OF DEPOSIT S TO THE MEMBERS; AND (II) MARKETING THE AGRICULTURAL PRODUC E; AND (D) THAT THE SURPLUS HAD ARISEN EMPHATICALLY FROM M ARKETING OF AGRICULTURAL PRODUCES. 19.3 IN THE PRESENT CASE UNDER CONSIDERATION THE ENTIRE FUNDS WERE UTILIZED FOR THE PURPOSES OF BUSINESS AND THERE WER E NO SURPLUS FUNDS. 19.4 WHILE COMPARING THE STATE OF AFFAIRS OF THE P RESENT ASSESSEE WITH THAT ASSESSEE (BEFORE THE SUPREME COURT) THE FOLLOWING CLINCHING DISSIMILARITIES EMERGE NAMELY: (1) IN THE CASE OF THE ASSESSEE THE ENTIRE FUNDS WERE UTILIZED FOR THE PURPOSES OF BUSINESS AND THAT THER E WERE NO SURPLUS FUNDS; - IN THE CASE OF TOTGARS IT HAD SURPLUS FUNDS AS ADMITTED BEFORE THE AO OUT OF RETAINED AMOUNTS ON MARKETING OF AGRICULTURAL PRODUCE OF ITS MEMBERS; (2) IN THE CASE OF PRESENT ASSESSEE IT DID NOT CA RRY OUT ANY ACTIVITY EXCEPT IN PROVIDING CREDIT FACILITIES TO I TS MEMBERS AND THAT THE FUNDS WERE OF OPERATIONAL FUNDS. THE ONLY FUND AVAILABLE WITH THE ASSESSEE WAS DEPOSITS FROM ITS M EMBERS AND THUS THERE WAS NO SURPLUS FUNDS AS SUCH; - IN THE CASE OF TOTGARS THE HON'BLE SUPREME COURT HAD NOT SPELT OUT ANYTHING WITH REGARD TO OPERATIONAL F UNDS; 19.5 CONSIDERING THE ABOVE FACTS WE FIND THAT THE RE IS FORCE IN THE ARGUMENT OF THE ASSESSEE THAT THE ASSESSEE NOT A CO -OPERATIVE BANK BUT ITS NATURE OF BUSINESS WAS COUPLED WITH BANKING WITH ITS MEMBERS AS IT ACCEPTS DEPOSITS FROM AND LENDS THE SAME TO I TS MEMBERS. TO MEET ANY EVENTUALITY THE ASSESSEE WAS REQUIRED TO MAINTAIN SOME LIQUID FUNDS. THAT WAS WHY IT WAS SUBMITTED BY THE ASSESSEE THAT IT HAD INVESTED IN SHORT-TERM DEPOSITS. FURTHERMORE T HE ASSESSEE HAD MAINTAINED OVERDRAFT FACILITY WITH DENA BANK AND TH E BALANCE AS AT 31.3.2009 WAS RS.13 69 955/- [SOURCE: BALANCE SHEET OF THE ASSESSEE AVAILABLE ON RECORD] 19.6 IN OVERALL CONSIDERATION OF ALL THE ASPECTS WE ARE OF THE CONSIDERED VIEW THAT THE RATIO LAID DOWN BY THE HON 'BLE SUPREME COURT IN THE CASE OF TOTGARS CO-OP SALE SOCIETY LTD (SUPR A) CANNOT IN ANY WAY COME TO THE RESCUE OF EITHER THE LD. CIT (A) OR THE REVENUE. IN VIEW OF THE ABOVE FACTS WE ARE OF THE FIRM VIEW TH AT THE LEARNED CIT (A) WAS NOT JUSTIFIED IN COMING TO A CONCLUSION THA T THE SUM OF RS.9 40 639/- WAS TO BE TAXED U/S 56 OF THE ACT. IT IS ORDERED ACCORDINGLY. 19.7 BEFORE PARTING WITH WE WOULD WITH DUE REGAR DS LIKE TO RECORD THAT THE RULING OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. MANEKBANG CO-OP HOUSING SOCIETY LTD REPORTED IN (2012) 22 TAXMANN.COM 220(GUJ) HAS BEEN KEPT IN VIEW WHILE DE CIDING THE ISSUE. 11.2 WE FIND THE COCHIN BENCH OF THE TRIBUNAL IN TH E CASE OF MUTTOM SERVICE COOPERATIVE APLAPPUZHA BANK LTD. VS. ITO (S UPRA) AFTER CONSIDERING THE DECISION OF HONBLE SUPREME COURT IN THE CASE O F TOTAGARS COOPERATIVE SALE SOCIETY LTD. (SUPRA) AND VARIOUS OTHER DECISIO NS HAS OBSERVED AS UNDER : 5. WE HAVE CONSIDERED THE RIVAL SUBMISSION ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. WE H AVE ALSO CAREFULLY ITA NO.162/PN/2013 ITA NO.384/PN/2013 GONE THROUGH THE ORDER OF THE LOWER AUTHORITY. NO D OUBT THE LATEST JUDGMENT IN TOTGAR'S CO-OPERATIVE SALE SOCIETY LTD VS ITO (SUPRA) THE APEX COURT FOUND THAT THE DEPOSIT OF SURPLUS FUNDS BY THE CO-OPERATIVE SOCIETY IS NOT ELIGIBLE FOR DEDUCTION U/S 80P(2). I N THE CASE BEFORE THE APEX COURT IN TOTGAR'S CO-OPERATIVE SALE SOCIETY LT D VS ITO (SUPRA) THE ASSESSEE CO-OPERATIVE SOCIETY WAS TO PROVIDE CR EDIT FACILITY TO ITS MEMBERS AND MARKET THE AGRICULTURAL PRODUCE. THE AS SESSEE IS NOT IN THE BUSINESS OF BANKING. THEREFORE THIS TRIBUNAL I S OF THE OPINION THAT THE JUDGMENT OF THE APEX COURT IN TOTGAR'S CO-OPERA TIVE SALE SOCIETY LTD (SUPRA) IS NOT APPLICABLE IN RESPECT OF THE CO- OPERATIVE SOCIETY WHOSE BUSINESS IS BANKING. ADMITTEDLY THE ASSESSEE HAS INVESTED FUNDS IN STATE PROMOTED TREASURY SMALL SAVINGS FIXE D DEPOSIT SCHEME. SINCE GOVERNMENT OF INDIA HAS WITHDRAWN INDIA VIKAS PATRA AS A SMALL SAVINGS INSTRUMENT FUNDS INVESTED AT THE DISCRETIO N OF THE BANK IS ONE OF THE ACTIVITIES OF THE BANKING AS PER THE BANKING REGULATION ACT. SINCE THE ASSESSEE CO-OPERATIVE SOCIETY IS IN THE B USINESS OF BANKING THE INVESTMENT IN THE STATE PROMOTED TREASURY SMALL SAVINGS FIXED DEPOSIT CERTIFICATE SCHEME IS A BANKING ACTIVITY T HEREFORE THE INTEREST ACCRUED ON SUCH INVESTMENT HAS TO BE TREATED AS BUS INESS INCOME IN THE COURSE OF ITS BANKING ACTIVITY. ONCE IT IS A BU SINESS INCOME THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S 80P(2)((A)(I ). THEREFORE THIS TRIBUNAL IS OF THE OPINION THAT THE JUDGMENT OF THE LARGER BENCH OF THE APEX COURT IN KARNATAKA STATE CO- OPERATIVE APEX BA NK (SUPRA) IS APPLICABLE TO THE FACTS OF THIS CASE. BY RESPECTFUL LY FOLLOWING THE JUDGMENT OF THE APEX COURT IN KARNATAKA STATE CO-OP ERATIVE BANK (SUPRA) THE ORDER OF THE COMMISSIONER OF INCOME-TA X(A) IS UPHELD. 6. IN THE RESULT THE APPEAL OF THE REVENUE STANDS DISMISSED. 11.3 IN THE INSTANT CASE THERE IS NO DISPUTE TO THE FACT THAT THE SOCIETY IS A CREDIT COOPERATIVE SOCIETY AUTHORISED BY THE REGIST RAR OF COOPERATIVE SOCIETIES FOR ACCEPTING DEPOSITS AND LENDING MONEY TO ITS MEM BERS AS PER LICENSE GRANTED BY THE REGISTRAR OF COOPERATIVE SOCIETIES A ND THE MAIN OBJECT OF THE SOCIETY IS TO PROVIDE CREDIT FACILITY TO MEMBERS WH O CAN BE ANY PERSON OF THE SOCIETY. WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF MAHAVIR NAGARI SAHAKARI PAT SANSTHA LTD. REPORTED IN 74 TTJ 793 (P UNE) HAS HELD THAT THE CREDIT SOCIETY WHICH IS CARRYING ON THE BUSINESS OF BANKING ACTIVITY AND PROVIDING CREDIT FACILITY TO ITS MEMBERS IS ELIGIBL E FOR DEDUCTION U/S.80P(2)(A)(I). IN VIEW OF THE ABOVE DISCUSSION AND FOLLOWING THE D ECISIONS OF THE AHMEDABAD BENCH OF THE TRIBUNAL AND COCHIN BENCH OF THE TRIBU NAL WHICH IN TURN HAVE CONSIDERED THE DECISION OF THE HONBLE SUPREME COUR T IN THE CASE OF TOTAGARS COOPERATIVE SALE SOCIETY LTD. (SUPRA) WE FIND NO IN FIRMITY IN THE ORDER OF THE LD.CIT(A). ACCORDINGLY THE SAME IS UPHELD AND THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 12. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED. 8. FOLLOWING THE AFORESAID PRECEDENT WHICH HAS BEE N RENDERED IN IDENTICAL CIRCUMSTANCES AND FOR THE SAKE OF MAINTAINING CONSI STENCY WE ALLOW THE PLEA OF THE ASSESSEE. ACCORDINGLY ASSESSEE SUCCEEDS IN ITS APPEAL. 9. IN SO FAR AS THE CROSS-APPEAL IS CONCERNED IN RE LATES TO THE DECISION OF THE CIT(A) IN HOLDING THAT THE INTEREST INCOME EARN ED FROM THE INVESTMENTS ITA NO.162/PN/2013 ITA NO.384/PN/2013 MADE WITH OTHER CO-OPERATIVE BANKS IS ELIGIBLE FOR THE EXEMPTION U/S 80P(2)(D) OF THE ACT. IN THIS CONNECTION THE CIT(A) HAS REF ERRED TO THE DETAILS OF INTEREST INCOME NOTED BY THE ASSESSING OFFICER IN PARA 5 OF THE ASSESSMENT ORDER AND NOTED THAT THE SAME HAVE BEEN RECEIVED FROM OTHER C O-OPERATIVE BANKS/SOCIETIES. FOR THE SAID REASON THE CIT(A) F OUND THAT SUCH INCOME WAS ELIGIBLE FOR EXEMPTION ON ACCOUNT OF THE PROVISIONS OF SECTION 80P(2)(D) OF THE ACT WHICH READS AS FOLLOWS :- (D) IN RESPECT OF ANY INCOME BY WAY OF INTEREST OR DIVIDENDS DERIVED BY THE CO-OPERATIVE SOCIETY FROM ITS INVESTMENTS WI TH ANY OTHER CO-OPERATIVE SOCIETY THE WHOLE OF SUCH INCOME; 10. WE FIND THAT THE DECISION OF THE CIT(A) TO ALLO W EXEMPTION U/S 80P(2)(D) OF THE ACT IS EXPRESSLY IN ACCORDANCE WITH THE PROV ISIONS OF CLAUSE (D) OF SUB- SECTION (2) OF SECTION 80P OF THE ACT AND NO INFIRM ITY ON THE SAME HAS BEEN POINTED OUT BY THE LEARNED DEPARTMENTAL REPRESENTAT IVE BEFORE US. ACCORDINGLY WE HEREBY AFFIRM THE ORDER OF THE CIT( A) AND THE REVENUE FAILS IN ITS CROSS-APPEAL. 11. IN THE RESULT FOR ASSESSMENT YEAR 2008-09 WHER EAS THE APPEAL OF THE ASSESSEE IS ALLOWED THAT OF THE REVENUE IS DISMISSE D. 12. IT WAS COMMON POINT BETWEEN THE PARTIES THAT TH E ISSUES INVOLVED IN OTHER CROSS-APPEALS RELATING TO THE ASSESSMENT YEAR S 2009-10 AND 2010-11 ARE PARI-MATERIA TO THOSE CONSIDERED BY US IN THE CROSS-APPEALS FOR ASSESSMENT YEAR 2008-09 IN THE EARLIER PARAGRAPHS A ND THEREFORE OUR DECISION IN THE CROSS-APPEALS FOR ASSESSMENT YEAR 2008-09 SH ALL APPLY MUTATIS- MUTANDIS IN THE OTHER CROSS-APPEALS FOR ASSESSMENT YEARS 20 09-10 AND 2010-11 ALSO. ITA NO.162/PN/2013 ITA NO.384/PN/2013 13. RESULTANTLY WHEREAS THE APPEALS OF THE ASSESSE E ARE ALLOWED THOSE OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH APRIL 2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G . S. PANNU) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE DATED : 24 TH APRIL 2014 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-V PUNE; 4) THE CIT-V PUNE; 5) THE DR B BENCH I.T.A.T. PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T. PUNE