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TMI Blog2015 (9) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... in A.Y. 2007-08 had not been accepted by the department. By respectfully following the decision of Hon’ble Gujarat High Court in the case of CIT Vs. Jafari Momin Vikas Cooperative Credit Society Ltd.(2014 (2) TMI 28 - GUJARAT HIGH COURT) on identical issue, we hold that the assessee is a cooperative society not a cooperative bank and is entitled for deduction U/s 80P(2)(a)(i) of the Act. - Decided in favour of assessee. - ITA No. 177/JP/2013 - - - Dated:- 11-8-2015 - SHRI R. P. TOLANI AND SHRI T. R. MEENA, JJ. For The Assessee : Shri Mahendra Gargiya (Adv) For The Revenue : Mrs. Neena Jeph (JCIT) ORDER PER: T. R. MEENA, A. M. This is an appeal filed by the assessee against the order dated 27/11/2012 passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was scrutinized U/s 143(3) of the Income Tax Act, 1961 (in short the Act). The assessee is a society and engaged in the business of banking. During the year under consideration, the assessee earned income of ₹ 71,62,624/-. Against this income, the assessee cooperative society claimed deduction U/s 80P of the same amount and declared NIL income. The ld Assessing Officer further observed that the assessee claimed before him that the assessee is a primary agricultural credit society and primary cooperative agricultural and rural development bank. As per Section 80P(4) of the Act w.e.f. 01/4/2007 only primary agricultural credit society of primary cooperative agricultural and rural development bank are entitled for deduction. The Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idential building or any immovable property of the borrower. The ld Assessing Officer concluded that the assessee is not a primary agricultural credit society. Secondly, a primary agricultural credit society s bye laws should not permit admission of any other cooperative society as a member but Section 12 of the bye laws of M/s Sikar Sahakari Bhoomi Vikas Bank Ltd. provide for four types of members. This provision also keeps the assessee away from the ambit of the definition of a primary agricultural credit society. Thirdly, the assessee is also not covered in the definition of a primary cooperative agricultural and rural development bank as is given in Explanation (b) to Section 80P(4) of the Act. The assessee bank s area of operation is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer by observing as under:- It is evident from records that identical issue in the case of the appellant was decided by CIT(A) for A.Y. 2008-09 in ITA No. 314/JPR/10-11 vide order dated 29/08/2011. It was held therein that the appellant is not eligible for deduction U/s 80P after the amendment made w.e.f. 01/04/2007. Since the facts are same in the instant year i.e. A.Y. 2009-10, the disallowance of deduction U/s 80P is confirmed for the reasons given in the appellant order of A.Y. 2008-09. 4. Now the assessee is in appeal before us. The ld. A. R. for the assessee has submitted that a bare reading of the provisions contained U/s 80P of the Act, it is explicitly clear that if a co-operative society is engaged in carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Ltd. (2013) 358 ITR 295 (SC). The burden lies on the revenue to establish that the assessee is a cooperative bank, which has not been discharged by the revenue. Further the assessee is not a State/Central Cooperative Bank. He has further drawn our attention of difference between cooperative bank and cooperative society. The intention of the legislation was also to disentitle only those cooperative banks, who were and are working at par with the other commercial bank, from getting the deduction. He has drawn our attention on Board s circular on it w.e.f. 01/4/2007. The definition of income U/s 2(24)(viia) also had been amended (including providing credit facilities) carried on by a cooperative society with its members. The assessee is a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee is not a cooperative bank but cooperative society. The exclusive provision to Sub-section (4) of Section 80P is not applicable in the case of the assessee. The case law referred by the assessee in the case of CIT Vs. Jafari Momin Vikas Cooperative Credit Society Ltd. (supra) is squarely applicable. The Hon ble Gujarat High Court has held as under:- From the above clarification, it can be gathered that sub-section (4) of section 80P will not apply to an assessee which is not a cooperative bank. In the case clarified by CBDT, Delhi Coop Urban Thrift Credit Society Ltd. was under consideration. Circular clarified that the said entity not being a cooperative bank, section 80P(4) of the Act would not apply to it. In view of such clar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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