9911796707
TMI Blog2018 (6) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... t orders passed by the Assessing Officer under sec. 143(3) of the Income Tax Act, 1961 (for short, 'Act'), dated 30/03/2015 & 22/02/2016 respectively. 2. Since, the issues involved in these appeals are common and identical; therefore, these appeals have been heard altogether and are being disposed of by this consolidated order. For the sake of convenience, the grounds as well as the facts narrated in ITA No. 1044/MUM/2017, for assessment Year 2012-13, have been taken into consideration for deciding the above appeals. 3. The grounds of appeal raised by the assessee in its lead case in ITA No. 1044/MUM/2017, for Assessment Year 2012-13 are as follows:- '1. On the facts and circumstances of the Appellants case the Learned CIT (A) has erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bank and not giving membership to the District central Co-operative bank. iii) The GIT(4) erred to appreciate the litmus test as mentioned in condition No. 3 of the definition of primary co-operative bank as mentioned in section 5(CCV) of the banking regulation Act, in the case ofAppellant. Appellant has not given admission as member to other cooperative society but accepted the membership of Mumbai district central co-op bank which is not a primary co-operative bank and not a primary co operative credit society, therefore taking cash credit facility and term loan from District Central Co-operative bank is not coming under litmus test of condition No.3 of the definition ofprimary co-operative bank, hence finding of Learned Assessing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Learned Departmental Representative relied on the order of the Assessing Officer. 6. We see no reasons to take any other view of the matter than the view so taken by the Division Bench of this Tribunal in assessee's own case vide order dated 29/11/2017, in assessee's own case in ITA Nos. 1237 & 6251/MUM/2013 for the Assessment Years 2009-10 & 2010-11 (supra). In this order, the Tribunal has inter alia observed as follows:- '5. Insofar as the reference by the Assessing Officer to assessee‟s claim of deductions under Section 36(1)(viia)(b) as well as 36(i)(viii) of the Act and the remark by the Tax Auditor are concerned, the same can at best be taken as wrong claims and cannot be determinative of the legal position. It is judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the provisions of the MACSA under which it is formed. It is pointed out by the Assessing Officer that the assessee is catering to two distinct categories of people. The first category is that of resident members or ordinary members. There may not be any difficulty as far as this category is concerned. However, the assessee had carved out another category of „nominal members‟. These are those members who are making deposits with the assessee for the purpose of obtaining loans, etc. and, in fact, they are not members in real sense. Most of the business of the appellant was with this second category of persons who have been giving deposits which are kept in Fixed Deposits with a motive to earn maximum returns. A portion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investment for example, ING Mutual Fund [as said by the MD vide his statement dated 20.12.2010]. [Though the bank formed the third party vis-a-vis the assessee entitled between contributor and recipient is lost in such case. The other ingredients of mutuality are also found to be missing as discussed in further paragraphs]. In the present case both the parties to the transaction are the contributors towards surplus, however, there are no participators in the surpluses. There is no common consent of whatsoever for participators as their identity is not established. Hence, the assessee fails to satisfy the test of mutuality at the time of making the payments the number in referred as members may not be the member of the society as such th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any licence from the Reserve Bank of India, the assessee cannot be treated as an entity falling within the restrictions imposed in Sec. 80P(4) of the Act. So however, if the findings of the Assessing Officer are to the contrary, he shall be free to take appropriate action as per law. Needless to mention, the Assessing Officer shall allow the assessee a reasonable opportunity of being heard and only thereafter shall pass an order afresh in accordance with law keeping in mind our aforesaid directions.' 7. As the issue is squarely covered in favour of the assessee by the decision of the coordinate bench of this Tribunal in assessee's own case, in ITA Nos.1237 & 6251/MUM/2013 (supra) and there is no change in facts and law and the Revenue is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
