ITO, Cochin v. The Kuttiyeri Service Co-op Bank Ltd, Kannur

MA 65/COCH/2013 | 2009-2010
Pronouncement Date: 31-07-2013 | Result: Dismissed

Appeal Details

RSA Number 6521924 RSA 2013
Assessee PAN AAEFT2178E
Bench Cochin
Appeal Number MA 65/COCH/2013
Duration Of Justice 2 month(s) 1 day(s)
Appellant ITO, Cochin
Respondent The Kuttiyeri Service Co-op Bank Ltd, Kannur
Appeal Type Miscellaneous Application
Pronouncement Date 31-07-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 31-07-2013
Assessment Year 2009-2010
Appeal Filed On 29-05-2013
Judgment Text
1 MA NOS.63 TO 65 & 667 TO 70-COCH-2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.A. NO.63/COCH/2013 (ARISING OUT OF I.T.A NO. 04/COCH/2013 (ASSESSMENT YEAR 2009-10) ITO WD.4 VS THE KURUMATHUR SERVICE KANNUR CO-OPERATIVE BANK LTD KURUMATHUR THALIPARAMPA PAN : AAEFT2178E (APPLICANT) (RESPONDENT) M.A. NO.64/COCH/2013 (ARISING OUT OF I.T.A NO. 05/COCH/2013 (ASSESSMENT YEAR 2009-10) ITO WD.4 VS THE PATTUVAM SERVICE KANNUR CO-OPERATIVE BANK LTD PATTUVAM KANNUR DIST PAN : AADCP6738N (APPLICANT) (RESPONDENT) M.A. NO.65/COCH/2013 (ARISING OUT OF I.T.A NO. 06/COCH/2013 (ASSESSMENT YEAR 2009-10) ITO WD.4 VS THE KUTTIYERI SERVICE KANNUR CO-OPERATIVE BANK LTD KUTTIYERI PO KANNUR DIST PAN : AABK0485D (APPLICANT) (RESPONDENT) M.A. NO.67/COCH/2013 (ARISING OUT OF I.T.A NO. 251/COCH/2012 (ASSESSMENT YEAR 2009-10) 2 MA NOS.63 TO 65 & 667 TO 70-COCH-2013 ITO WD.1 VS THE KADACHIRA SERVICE KANNUR CO-OPERATIVE BANK LTD KADACHIRA PO KANNUR PAN : AAIFK5391E (APPLICANT) (RESPONDENT) M.A. NO.68/COCH/2013 (ARISING OUT OF I.T.A NO. 253/COCH/2012 (ASSESSMENT YEAR 2009-10) ITO WD.1 VS THE KANNAPURAM SERVICE KANNUR CO-OPERATIVE BANK LTD KANNAPURAM PO KANNUR PAN : AABAT3964G (APPLICANT) (RESPONDENT) M.A. NO.69/COCH/2013 (ARISING OUT OF I.T.A NO. 254/COCH/2012 (ASSESSMENT YEAR 2009-10) ITO WD.1 VS THE CHERUKUNNU SERVICE KANNUR CO-OPERATIVE BANK LTD CHERUKUNNU PO KANNUR PAN : AAAAC5016F (APPLICANT) (RESPONDENT) M.A. NO.70/COCH/2013 (ARISING OUT OF I.T.A NO. 255/COCH/2012 (ASSESSMENT YEAR 2009-10) ITO WD.1 VS THE MAVILAYI SERVICE KANNUR CO-OPERATIVE BANK LTD MOORAMPLAM MAVILAYI PO KANNUR PAN : AAAAM8091L (APPLICANT) (RESPONDENT) 3 MA NOS.63 TO 65 & 667 TO 70-COCH-2013 APPLICANT BY : SMT. S VIJAYAPRABHA RESPONDENT BY : SHRI R KRISHNA IYER DATE OF HEARING : 26-07-2013 DATE OF PRONOUNCEMENT : 31-07-2013 O R D E R PER N.R.S. GANESAN (JM) THE REVENUE HAS FILED ALL THE MISCELLANEOUS APPLIC ATIONS ON THE GROUND THAT THERE IS AN ERROR IN THE RESPECTIVE ORD ER OF THIS TRIBUNAL. 2. SMT. S VIJAYAPRABHA THE LD.DR SUBMITTED THAT TH IS TRIBUNAL IN THE KADCHIRA SERVICE CO-OPERATIVE BANK LTD & ORS IN ITA NO.251/COCH/2012 & OTHERS ORDER DATED 31-01-2013 FOUND THAT THE CO-OPE RATIVE SOCIETIES ACTIVITIES HAS TO BE EXAMINED IN EACH CASE. IF THE CO-OPERATIVE SOCIETY IS NOT ENGAGED IN BANKING ACTIVITY THEY ARE ELIGIBLE FOR EXEMPTION AS PROVIDED IN SECTION 194A(3)(VIIA) OF THE ACT. IF THE ASSESS EE IS FOUND TO HAVE ENGAGED IN THE BANKING ACTIVITY THE TAX HAS TO BE DEDUCTED. THIS HAS TO BE EXAMINED INDEPENDENTLY IN EACH CO-OPERATIVE SOCIETI ES CASE AS FOUND BY THIS TRIBUNAL. THEREFORE THE LD.DR SUBMITTED THAT THE ISSUE OF NON DEDUCTION OF TAX U/S 194A MAY BE REMITTED BACK TO T HE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION. 4 MA NOS.63 TO 65 & 667 TO 70-COCH-2013 3. WE HEARD SHRI R KRISHNA IYER THE LD.REPRESENTA TIVE FOR THE ASSESSEE ALSO. THIS TRIBUNAL AFTER CONSIDERING TH E JUDGMENT OF THE KERALA HIGH COURT IN THE CASE OF MOOLAMATTOM ELECTRICITY B OARD EMPLOYEES CO- OPERATIVE BANK LTD IN RE & ORS (1999) 238 ITR 630 (KER) AND ITO VS THODUPUZHA URBAN CO-OPERATIVE BANK LTD & ANR (2003) 264 ITR 36 (KER) FOUND THAT THE TAXPAYERS ARE REGISTERED UNDER KERAL A STATE CO-OPERATIVE SOCIETIES ACT AND NO APPROVAL WAS OBTAINED FROM R ESERVE BANK OF INDIA FOR CARRYING OUT THE ACTIVITY. THEREFORE WHEN THE INTEREST WAS PAID BY THE RESPECTIVE CO-OPERATIVE SOCIETY THERE IS NO NEED F OR DEDUCTION OF TAX. IN VIEW OF THIS FINDING ACCORDING TO THE LD.REPRESENT ATIVE THERE IS NO ERROR MUCH LESS A PRIMA FACIE ERROR IN THE ORDER OF THIS TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AFTER CO NSIDERING THE JUDGMENTS OF THE KERALA HIGH COURT IN MOOLAMATTOM ELECTRICITY BOARD EMPLOYEES CO- OPERATIVE BANK LTD IN RE & ORS (SUPRA) AND THODUPU ZHA URBAN CO- OPERATIVE BANK LTD (SUPRA) FOUND THAT THEY ARE REGI STERED UNDER THE KERALA STATE CO-OPERATIVE SOCIETIES ACT AND NO APPROVAL W AS OBTAINED FROM THE RESERVE BANK OF INDIA. THEREFORE FOR ALL PRACTICA L PURPOSE IT WAS FOUND THAT THE ASSESSEES HAVE TO BE TREATED AS PRIMARY AG RICULTURAL CO-OPERATIVE SOCIETIES WITHIN THE MEANING OF SECTION 2(19) OF TH E INCOME-TAX ACT. IN VIEW OF THIS SPECIFIC FINDING THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT 5 MA NOS.63 TO 65 & 667 TO 70-COCH-2013 THERE IS NO ERROR MUCH LESS A PRIMA FACIE ERROR W ITHIN THE MEANING OF SECTION 254(2) OF THE ACT. AN APPLICATION U/S 254( 2) IS MADE ONLY FOR RECTIFICATION OF PRIMA FACIE ERROR APPARENT FROM TH E FACE OF THE RECORD. THIS TRIBUNAL HAS NO POWER OF REVIEW OR REVISION. WHEN A CONSCIOUS DECISION WAS TAKEN BY FOLLOWING THE JUDGMENTS OF THE KERALA HIGH COURT THAT WHEREVER THE ASSESSEE IS NOT ENGAGED IN BANKING BUS INESS TAX IS NOT TO BE DEDUCTED AT SOURCE FROM PAYMENT OF INTEREST THIS T RIBUNAL IS OF THE CONSIDERATION OPINION THAT THERE IS NO ERROR IN THE ORDER. EVEN OTHERWISE THE RECTIFICATION SOUGHT BY THE DEPARTMENT IS BEYON D THE SCOPE OF SECTION 254(2) OF THE ACT. THEREFORE WE DO NOT FIND ANY ME RIT IN ALL THE APPLICATIONS FILED BY THE DEPARTMENT. ACCORDINGLY THE SAME ARE DISMISSED. 5. IN THE RESULT ALL THE MISCELLANEOUS APPLICATION S ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST JULY 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN DT : 31 ST JULY 2013 PK/- COPY TO: 1. THE APPLICANTS 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR INCOME-TAX APPELLATE TRIBUNAL COCHIN BENCH