9911796707
TMI Blog2014 (11) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... a Co-operative Society, registered under the provisions of the Tamil Nadu Co-operative Societies Act, 1983 (in short the Act) and it derives income from carrying on the business of Banking or providing credit facilities to its members, who are the employees of the State Government. The Society has also been subjected to Co-operative Audit as contemplated under the Act. The petitioner is assessed to tax on the files of the Assistant Commissioner of Income-Tax, Circle-I / 1st respondent. 4. The issue involved in these writ petitions relates to five assessment years from 2007-2008 to 2011-2012. Since the scope of these writ petitions is narrow, it may not be necessary to go into the factual details of each and every assessment order and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arat High Court's judgment and also CBDT instruction No.1914 dated 02.12.1993, the same were not taken into consideration by the said Officer. In the CBDT instruction No.1914 dated 02.12.1993, it has been clearly mentioned that the Assessing Officer could consider the stay of demand for collection of tax in the following cases: i) Dispute has arisen due to interpretation of law by the AO and during the pendency of first appeal; ii) if the demand in dispute relate to issues, which have been decided in favour of the assessee by the appellate authority. 7. However, the Commissioner of Income Tax VIII / 3rd respondent herein, vide order dated 18.09.2014, observed that stay of demand cannot be granted unless there is a case of finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary agricultural credit society or a Primary Co-operative Agricultural and Rural Development Bank. Accordingly, deduction under Section 80P was no more available to any Regional Rural Bank from assessment year 2007-2008 onwards. It was contended that the expressions co-operative bank, primary agricultural credit society have been taken as per the definition given in Part V of the Banking Regulation Act, 1949 (10 of 1949) and the primary co-operative agricultural and rural development bank have also been defined in the Act to bring clarity. The petitioner placed reliance on the decision of the Gujarat High Court in the case of CIT vs. Jafari Momin Vikas Co-operative Credit Society Ltd., (Guj), reported in (2014) 362 ITR 331 (Guj). The pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 2(14)(viia) of the Act only applies to co-operative societies, carrying on business of banking and it does not apply to the present case, since the petitioner is not carrying on the business of banking, as it does not hold the mandatory license from the RBI to carry the business of banking. It was also submitted that merits of the petitioner's case was not properly considered at the time, when the stay petition was rejected. It was further stated that if the petitioner is called upon to pay the entire demand, it would cripple their financial position and all the members will be put an irreparable hardship and therefore, requested for grant of stay. 10. It is to be noted that the petitioner in the stay petition has specifically ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the Department has not accepted that judgment. 11. Undoubtedly, the guidelines are binding upon the Officer, while considering the application for grant of stay. The case on hand clearly falls within Clause-C (i) (c) of the above guidelines. That apart, three cardinal principles to be adopted for grant of interim order are that; i) prima facie case; ii) balance of convenience; iii) irreparable loss or hardship. 11 (i). When the petitioner has placed reliance on the decision of the Hon'ble Gujarat High Court, that can very well be considered. Since the said decision has not been considered, the petitioner has duly established the prima facie case. 11 (ii) The next aspect to be considered is whether balance of convenience is in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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