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TMI Blog2019 (7) TMI 1446X X X X Extracts X X X X X X X X Extracts X X X X ..... uestions including the questions/grounds raised in the instant writ petitions to be canvassed in statutory appeals before Commissioner (Appeals) under Section 246-A. At his juncture, learned counsel for writ petitioners submit that writ petitioner would opt for the alternate remedy (obviously in cases where appeals have not already been filed) and this Court may consider condonation of delay. Condonation of delay - the relevant provision is Section 249(3) of IT Act and power vests with the Appellate Authority, namely Commissioner (Appeals) to condone the delay. Therefore, this Court considers it appropriate to exclude the time spent in the instant writ petitions i.e, the time from the date of presentation of instant writ petitions to the date on which instant order copy is made available in computing the time within which statutory appeals under Section 246A of IT Act have to be preferred. This course is adopted by placing reliance on Section 14 of Limitation Act. However, it is made clear that notwithstanding such exclusion, if there is delay, it is open to the writ petitioners to seek condonation of such delay inter alia under Section 249(3) of IT Act and the Appellate Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;impugned orders' in plural and wherever necessary 'impugned order' in singular. 6. Entire matter turns on Section 80P of IT Act captioned 'Deduction in respect of Income of Cooperative Societies'. 7. From the pleadings and the rival submissions made before this Court, it also comes to light that the judgment on which reliance was placed by the writ petitioners is a judgment made by a Hon'ble Division Bench of this Court being judgment dated 06.12.2018 made in Tax Case Appeal Nos.882 and 891 of 2019. 'Tax Case Appeals' shall be referred to as 'TCAs' for the sake of brevity. To be noted, TCAs in this context are statutory appeals under Section 260A of IT Act. 8.The three substantial questions of law on which the TCAs were admitted by Hon'ble Division Bench are as follows: 'i.Whether the Appellate Tribunal was right and justified in following the jurisdictional High Court decision when there is an Apex Court decision of latter date available? ii. Whether, on the facts and circumstances of the case and in law, the Tribunal was right and justified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zen Cooperative Society Limited Vs. ACIT (reported in (2017) 84 Taxmann.com 114) . 12. Before this Court proceeds further, it is also to be noticed that some other writ petitions pertaining to 80P deductions filed by the some other Cooperative Societies were disposed of by this Court by a common order dated 27.06.2019 made in W.P.No.2552 of 2019 etc., It is submitted by both sides in unison that instant writ petitions on hand are not directly covered by the aforesaid common order dated 27.06.2019 made in 33 writ petitions owing to slight factual variations. 13. As far as these writ petitions on hand are concerned, it comes to light that the impugned assessment orders turn on deductions claimed by the respective cooperative societies/writ petitioners under Section 80P(2)(d) which pertains to income by way of interest derived by the writ petitioners from investments. With regard to sub-section (4) which was inserted into Section 80P of IT Act, it is submitted that distinction between a Cooperative Bank and a Primary Agricultural Credit Society on one side and a Primary Cooperative Agricultural and Rural Development Bank on the other side is only for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest income arising on the surplus invested in short-term deposits and securities which surplus was not required for business purposes. Assessee(s) markets the produce of its members whose sale proceeds at times were retained by it. In this case, we are concerned with the tax treatment of such amount. Since the fund created by such retention was not required immediately for business purposes, it was invested in specified securities. The question, before us, is - whether interest on such deposits/securities, which strictly speaking accrues to the members' account, could be taxed as business income under Section 28 of the Act? In our view, such interest income would come in the category of Income from other sources , hence, such interest income would be taxable under Section 56 of the Act, as rightly held by the Assessing Officer. In this connection, we may analyze Section 80P of the Act. This section coms in Chapter VI-A, which, in turn, deals with Deductions in respect of certain Incomes . The Headnote to Section 80P indicates that the said section deals with deductions in respect of income of cooperative Societies. Section 80P(1), inter alia, states tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case, we are of the view that the Assessing Officer was right in taxing the interest income, indicated above, under Section 56 of the Act. 11. An alternative submission was advanced by the assessee(s) stating that, if interest income in question is held to be covered by Section 56 of the Act, even then, the assessee- Society is entitled to the benefit of Section 80P(2)(a)(i) of the Act in respect of such interest income. We find no merit in this submission. Section 80P(2) (a)(i) of the Act cannot be placed at par with Explanation (baa) to Section 80HHC, Section 80HHD(3) and Section 80HHE(5) of the Act. Each of the said sections has to be interpreted in the context of its subject-matter. For example, Section 80HHC of the Act, at the relevant time, dealt with deduction in respect of profits retained for export business. The scope of Section 80HHC is, therefore, different from the scope of Section 80P of the Act, which deals with deduction in respect of income of cooperative Societies. Even Explanation (baa) to Section 80HHC was added to restrict the deduction in respect of profits retained for export business. The words used in Explanation (baa) to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners have already preferred statutory appeals. If that be the case, it is open to the writ petitioners to pursue their appeals and obviously this order can be pressed into service before the Appellate Authority. 17. With regard to exercise of writ jurisdiction on the teeth of alternate remedy, this Court reminds itself that alternate remedy is a rule of discretion. In other words, alternate remedy is not a absolute rule and is therefore not a rule of compulsion, but it is a rule of discretion. This Court also reminds itself that alternate remedy rule is a self-imposed restraint as far as this Court exercising writ jurisdiction is concerned. Notwithstanding the obtaining position that alternate remedy rule is a rule of discretion and that it is a selfimposed restraint, Hon'ble Supreme Court in Satyawati Tandon principle [ United Bank of India Vs. Satyawati Tondon and others reported in (2010) 8 SCC 110] has held that when it comes to cases pertaining to taxes, cess etc., i.e., fiscal laws in general, rule of alternate remedy has to be applied with utmost rigour. Satyawati Tandon principle was reiterated by Hon'ble Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumspection.' ( Underlining made by Court to supply emphasis and highlight) 18. Therefore, this Court disposes of these writ petitions leaving open all questions including the questions/grounds raised in the instant writ petitions to be canvassed in statutory appeals before Commissioner (Appeals) under Section 246-A. At his juncture, learned counsel for writ petitioners submit that writ petitioner would opt for the alternate remedy (obviously in cases where appeals have not already been filed) and this Court may consider condonation of delay. 19. As far as condonation of delay is concerned, the relevant provision is Section 249(3) of IT Act and power vests with the Appellate Authority, namely Commissioner (Appeals) to condone the delay. Therefore, this Court considers it appropriate to exclude the time spent in the instant writ petitions i.e, the time from the date of presentation of instant writ petitions to the date on which instant order copy is made available in computing the time within which statutory appeals under Section 246A of IT Act have to be preferred. This course is adopted by placing reliance on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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