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2016 (3) TMI 322 - ITAT PANAJI

2016 (3) TMI 322 - ITAT PANAJI - TMI - Eligibility of deduction to the assessee under sec. 80P(2)(a)(i) - Held that:- Commissioner of Income Tax (Appeals) has allowed the claim of deduction under sec. 80P(2)(a)(i) of the Act after following the decision of the Hon'ble Bombay High Court at Panaji in the case of M/s. The Quepem Urban Cooperative Credit Society Ltd. Vs. ACIT [2015 (6) TMI 573 - BOMBAY HIGH COURT ] wherein held contention of Ms. Dessai, learned Counsel for the revenue that the appel .....

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only to the extent that the same is earned by the appellant in carrying on its business of providing credit facilities to its members. - Decided in favour of assessee. - ITA No. 437/PAN/2015, ITA No. 438/PAN /2015, ITA Nos. 443 to 445/PAN/2015, ITA No. 446 & 447/PAN/2015 - Dated:- 18-2-2016 - N. S. Saini, AM And George Mathan, JM For the Appellant : None For the Respondent : Shri K Mehboob Ali Khan - DR ORDER Per George Mathan, Judicial Member These are the appeals filed by the Revenue against t .....

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ief, are that the assessee filed its return of income at NIL after claiming deduction under sec. 80P(2)(a)(i) of the Act. It was claimed that the society is entitled to deduction under sec. 80P(2)(a)(i) as it was a Cooperative Society carrying on the business of banking or providing credit facilities to its members. However, the claim of the assessee for deduction under sec. 80P(2)(a)(i) was rejected by the Assessing Officer in the order passed under sec. 143(3) of the Act on the ground that the .....

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o dispute between the parties that the appellant is a co-operative society as the same is registered under the Co-operative Act. The appellant is claiming deduction of income earned on providing credit facilities to its members as provided under section 80P(2)(a)(i) of the Act. It is appellant's case that, it is not carrying on the business of the banking. Consequently, not being a co-operative bank the provisions of Section 80P(4) of the Act would not exclude the appellant from claiming the .....

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examined is whether the appellant is a Primary Cooperative Bank as defined in Para V of the Banking Regulation Act. Section 5(ccv) of the Banking Regulation Act defines a primary cooperative bank to mean a cooperative society which cumulatively satisfies the following three conditions: 1) Its principal business or primary object should be banking business of Banking, 2) Its paid up share capital and reserves should not be less that rupees one lakh. 3) Its bye-laws do not permit admission of any .....

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king Regulation Act, held that the principal business of the Appellant is Banking Section 5b of the Banking Regulation Act defines banking to mean accepting of deposits for the purpose of lending or investment, of deposit of money from the public repayable on demand or otherwise. The impugned order juxtaposes the above definition with the finding of fact that the apel1ant did deal with non members in a few cases by seeing deposits. This read with Bye law 43 leads to the conclusion that it is car .....

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ceipt of deposits from persons other then members, the word "any person" is a gloss added in the impugned order as it is not found in Bye law 43. It is undisputed that the transactions with non members are insignificant/miniscule. On the above basis it cannot be concluded that the appellant's, principal business is of accepting deposits from public and therefore it is in banking business. In fact, the impugned order erroneously relies upon bye-law 43 of the society which enables th .....

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basis to deprive the appellant the benefit of Section 80P of the Act The impugned order sets out the object clause of the appellant, which has 24 objects but thereafter draws no sequiter to conclude that the primary object is banking. Consequently there is no occasion to deal with the same as that is not the basis on which the impugned order holds that it is a Primary Cooperative bank. In the above view, the alternative contention of the appellant that it is not in the business of Banking as th .....

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bye-law 9(b) clearly provided that no co-operative society shall be admitted to 'the membership of the society. Thus there was a bar but the same was amended w.e.f. 12 January, 2001 as to permit a society to be admitted to the membership of the society. Therefore for the subject assessment years there is no prohibition to admitting a society to its membership and one of three cumulative conditions precedent to be a primary cooperative bank is not satisfied. However the impugned order constru .....

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o-operative society. This is so as the definition of a society under the Co-operative Act is co-operative registered under the Co-operative Act. Besides the qualifying condition 3 for being considered as a Primary Cooperative Bank is that the bye laws must not permit admission of any other cooperative society This is a mandatory condition i.e. the bye laws must specifically prohibit admission of any other cooperative society to its membership. The Revenue has not been able to show any such prohi .....

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is entitled to the benefit of deduction available under Section 80P(2)(a)(i) of the Act. The contention of Ms. Dessai, learned Counsel for the revenue that the appellant is not entitled to the benefit of Section 80P (2)(a)(i) of the Act in view of the fact that it deals with non-member cannot be upheld. This for the reason that section 80P(1) of the Act restricts the benefits of deduction of income of co-operative society to the extent it is earned by providing credit facilities to its members. .....

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