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TMI Blog2013 (4) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation by 60 days and the cross objection of the assessee is barred by limitation by 10 days. Both the parties have moved petitions before the bench requesting the bench to condone the delay. Having regard to the submissions made in their respective petition, we condone the delay in both the cases and admit them for hearing. 2. The revenue is assailing the decision of the Ld. CIT(A) in holding that the assessee is entitled for deduction u/s. 80P(2)(a)(vi) of the Act and is also assailing his decision in granting partial relief u/s 40(a)(ia) of the Act. In the Cross Objection the assessee is assailing the decision of the Ld. CIT(A) in partially confirming the disallowance made u/s. 40(a)(ia) of the Act. 3. The facts relating to the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Hon'ble Supreme Court in the case of Hindustan Coco Cola Beverage P. Ltd. vs. CIT (2007) 293 ITR 226. Aggrieved by the order passed by the Ld. CIT(A), the revenue has filed this appeal before us and the assessee has filed the Cross Objection. 5. The Ld. DR submitted that the term "collective disposal of labour" would envisage a situation where a society is formed for the benefit of labourers who cannot get work on their own but through an organization like a co-operative society. She quoted the example of "Red Cross Society", which provides nurses to patients and take a portion of the fees collected on behalf of the nurse/nurses who has been sent for the work in a hospital or a residence. The Ld. DR further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled for exemption u/s. 80P(2)(a)(vi) of the Act if the voting right is extended to individuals who do not contribute their labour. The Ld. DR further submitted that the exemption u/s. 80P(a)(vi) is available only when the earning of the assessee-society was through utilisation of the actual labour of its members. For this proposition, the Ld. DR placed reliance on the decision of the Hon'ble High Court of Orissa, Nilagiri Engineering Co-operative Society Ltd. vs. CIT, (1994) 208 ITR 326. 6. On the contrary, the Ld. Counsel for the assessee submitted that the assessee society was formed to give employment to the workers who have retired from the Coffee Board and they themselves carry on the activities of the society. Further, as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld D.R submitted that the facts prevailing in the case of Uralungal Labour Contract Co-operative society are totally different and hence the ratio of the said decision cannot be applied in the instant case. 8. We have heard the rival contentions on this issue and carefully perused the record. We have also gone through the various case laws cited by both the parties. For the sake of convenience, we extract below the relevant provisions of Section 80P of the Act:- "80P (1) Where, in the case of an assessee being a cooperative society, the gross total income includes any income referred to in sub-section (2), there shall be deducted, in accordance with and subject to the provisions of this section, the sums specified in sub-section (2), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9. Though both the parties have put forth their respective view points, we notice that the assessment order is silent about the claim of the assessee for deduction u/s 80P(2)(a)(vi) of the Act. Before us also, the assessee did not furnish any material to show that it did make a claim before the assessing officer. Even if it is assumed that the assessee would have made such a claim, we notice that the assessing officer did not discuss anything about the eligibility of the assessee for deduction u/s 80P(2)(vi) of the Act. Hence, we are unable to examine the views of the assessing officer on this issue. 10. Be that as it may, a careful reading of the relevant provisions extracted would show that, in the case of a co-operative society engag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of its members and further the voting rights are restricted by the bye-laws and rules of the society to the three classes of the members specified in the proviso to sec. 80P(2) of the Act. As already stated, the assessing officer did not examine both the issues during the course of assessment proceedings. 12. The Ld D.R also furnished a copy of Profit and Loss account before us. On a perusal of the same, we notice that the assessee is deriving income from Sales, Commission on sale of Lottery, Lucky Vat Commission, dividend income, interest income and rental income. However, the Ld CIT(A) has held that the members of the society themselves do the work and run coffee house. The other types of income earned by the assessee society has escap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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