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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 ..... O for fresh consideration. Since main issue has been restored the issue relating to sec. 40(a)(ia) may also be examined afresh by the assessing officer. - I.T.A. No. 590/Coch/2011, C.O. No. 01/Coch/2012 (Arsg. out of I.T.A. No. 590/Coch/2011) - - - Dated:- 12-4-2013 - Shri N. R. S. Ganesan, JM and B. R. Baskaran, AM,JJ. For the Appellant : Smt. Susan George Varghese, Sr. DR For the Respondents : Shri T. M. Sreedharan, Sr. Adv. ORDER Per B. R. Baskaran, Accountant Member:- The appeal filed by the revenue and the Cross Objection filed by the assessee are directed against the order dated 28-06-2011 passed by the Ld. CIT(A)-V, Kochi and they relate to the assessment year 2008-09. The appeal of the revenue is barred by 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtion 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 the assessee- society is claimed that it was started for the benefit of the employees who were retrenched from the Coffee Board. However, the assessee is carrying on the business of purchase and sale of coffee and is also engaged in other trading activities like sale of lottery tickets. The assessee is also receiving rental and interest income. Accordingly, the Ld. DR submitted that the assessee cannot be classified as a co-operative society formed for "collective disposal of labour". The Ld. DR further submitted that the deduction u/s 80P(2)(a)(vi) can be granted only if the proviso to sec. 80P(2) is also satisfied. She submitted that the said proviso puts a condition that the society formed for collective disposal of labour of its members should restrict its voting rights to following three categories, viz., (1) the individuals who contribute their labour or, as the case may be, carry on the fishing or allied activities; (2) the co-operative credit societies which provide financial assistance to the society. (3) the State G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing case law:- CIT vs. Gurdaspur Hardochhanni Co-op L/C Society (2008) 303 ITR 145 P H) CIT vs. Salem District Printers Service Industrial Co-operative Society Ltd. (2007) 290 ITR 371 (Mad.) Nasik District Labour Societies Co-op. Federation Ltd. Vs. ITO, (1988) 18 ITD (PN) 354. 7. In the rejoinder, 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), in computing the total income of the assessee. 80P (2) The sums referred to in sub-section (1) shall be the following , namely- (a) I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the proviso to sub-section (2) of 80P, viz., the voting rights should be restricted by the "rules and bye- laws of the society" to the three class of members mentioned therein. 11. As submitted by Ld D.R, the Bye-Laws of the society (titled as "Special conditions") is silent about the voting rights. However clause 58 there of states that the "Matters not specifically mentioned in the special conditions, will be dealt with as per the Act and Rules. The words "Act and Rules" have not been defined in the Bye- Laws and hence it is not clear as to which Act and Rules, these words refer to. Hence, one has to make a reference to the relevant "Act and Rules" in order to find out the list of persons who have got voting rights in the assessee society. After carrying out such an examination only, one would be able to decide about the applicability or violation of the proviso to sec. 80P(2), apart from the main question, viz., whether the assessee society can be categorised as a society engaged in the collective disposal of the labour of its members. There should not be any dispute that the assessee has to cumulatively satisfy both the conditions viz., that it is a society engaged in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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