Dharti Nagrik Sarafi Sahkari Mandali ... vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI KUL BHARAT, JUDICIAL MEMBER आयकर अपील सं./ ./ ITA No. 912/Ahd/2011 िनधा रण वष /Assessment Year: 2007-08 The Dharti Nagrik Sarafi V/s. ACIT, Sahkari Mandali Limited, B.K. Circle, 2nd Floor, Yash Building, Palanpur Choksi Block, Oldganj Bazar Road, Tal: Palanpur, Dist: Banaskantha PAN : AAAAT 5025 D

अपीलाथ / अपीलाथ / (Appellant) ू!यथ यथ / थ / (Respondent)

Assessee(s) by : Shri Vivek N. Chavda, AR Revenue by : Shri Dinesh Singh, Sr. DR.

सुनवाई क$ तार&ख/ / Dateof Hearing : 02/06/2015 घोषणा क$ तार&ख / Date of Pronouncement: 05/06/2015

आदे श/O R D E R

PER G.D. AGRAWAL, VICE PRESIDENT:

This is an appeal filed by the assessee and is directed against the order of the Ld. Commissioner of Income-tax(Appeals)-XX, Ahmedabad dated 13.12.2010, pertaining to Assessment Year 2007-08.

2. The only ground raised in this appeal by the assessee reads as under:-

The Ld. C.I.T. (Appeals) erred in law and on fact while confirming rejection of claim by Ld. A.O. u/s 80P(2)(a)(i) of the Income Tax Act, 1961 and treating the Co-operative Credit Society as Co-operative Bank u/s 80P(4) of the Income Tax Act, 1961 and the deduction u/s 80P(2)(a)(i) of the Income Tax Act, 1961 is required to be allowed against appellant income.

ITA No. 912/Ahd/2011 The Dharti Nagrik Sarafi Sahkari Mandali Ltd vs. ACIT For AY 2007-08 2

3. At the time of hearing before us, it is submitted by the ld. Counsel that the issue is now covered in favour of the assessee by the decision of Hon'ble Jurisdictional High Court in the case of CIT vs. Jafari Momin Vikas Co-Op. Credit Society Ltd., reported in [2014] 362 ITR 331 (Guj.).

4. The ld. Departmental Representative, on the other hand, relied upon the orders of the authorities below and submitted that the Hon'ble Jurisdictional High Court only says that the exclusion clause of sub-clause (4) of Section 80P would be applicable to the Co-operative Bank and not to Credit Co-operative Society. He submitted that the ld. CIT(A) has examined this aspect in details and after considering the definition of Co-operative Bank as per Banking Regulation Act has arrived at the conclusion that the assessee-society would fall within the definition of Co-operative Bank. He, therefore, submitted that the order of the ld. CIT(A) should be sustained.

5. In rejoinder, the ld. Counsel also referred to the decision of ITAT, Ahmedabad Bench in the case of Shri Jay Ambe Nagarik Sarafi Sahkari Mandi Ltd. vs. ACIT, vide ITA No.814/Ahd/2011 in which the matter is set aside to the file of the Assessing Officer for re-examination. He reiterated that the assessee is a co-operative society and not a co-operative bank. Therefore, the decision of the Hon'ble jurisdictional High Court would be squarely applicable.

6. We have carefully considered the arguments of both the sides and perused the material placed before us. We find that the Assessing Officer denied exemption u/s 80P to the assessee on the ground that as per sub- section (4) of Section 80P, the provision of Section 80P is not applicable in relation to any co-operative bank other than a primary agricultural credit society or a primary co-operative agricultural and rural development bank.

ITA No. 912/Ahd/2011 The Dharti Nagrik Sarafi Sahkari Mandali Ltd vs. ACIT For AY 2007-08 3

The Hon'ble jurisdictional High Court in the case of Jafari Momin Vikas Co- Op. Credit Society Ltd. (supra) held as under:-

"Held, dismissing the appeals, that the assessee was admittedly not a credit co-operative bank but a credit co-operative society. The exclusion clause of sub-section (4) of Section 80), therefore, would not apply."

7. That the Hon'ble Jurisdictional High Court has held that Section 80P, sub-section (4), would be applicable only in the case of a credit co-operative bank and not credit co-operative society. Still the dispute remains whether the assessee is a credit co-operative bank or a credit co-operative society. Admittedly, the Assessing Officer has not examined this aspect. The CIT(A), of course, has dealt with on this, but he has not allowed any specific opportunity to the assessee so as to point out how the assessee is not a co- operative bank. In our opinion, it would meet the ends of justice if the orders of the authorities below are set aside and the matter is restored back to the file of the Assessing Officer for re-examination in the light of the decision of Hon'ble Jurisdictional High Court in the case of Jafari Momin Vikas Co-Op. Credit Society Ltd. (supra). We order accordingly and direct the Assessing Officer to re-adjudicate the issue after allowing adequate opportunity of being heard to the assessee.

8. In the result, the assessee's appeal is deemed to be allowed for statistical purposes.

Order pronounced in the Court on 5th June, 2015 at Ahmedabad.

Sd/- Sd/-

(KUL BHARAT) (G.D. AGRAWAL) JUDICIAL MEMBER VICE-PRESIDENT Ahmedabad; Dated 05/06/2015 Biju T., PS ITA No. 912/Ahd/2011

The Dharti Nagrik Sarafi Sahkari Mandali Ltd vs. ACIT For AY 2007-08 4

षत Copy आदे श क$ ूितिल,प अमे,षत/ of the Order forwarded to :

1. अपीलाथ / The Appellant

2. ू!यथ / The Respondent.

3. संबंिधत आयकर आयु. / Concerned CIT

4. आयकर आयु.(अपील) / The CIT(A)

5. ,वभागीय ूितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad

6. गाड फाईल / Guard file.

/ BY ORDER, आदे शानु सार

TRUE COPY

Dy./Asstt.Registrar) उप/सहायक पंजीकार ( उप/ अिधकरण, अहमदाबाद / आयकर अपीलीय अिधकरण, ITAT, Ahmedabad