Case Law Details
RELEVANT PARAGRAPH
14. We have heard both the parties and perused the record. First, we will take up the ground no.3, wherein the assessee is disputing the ld. ClT (A)’s finding that entire income of the appellant is out side the purview of section 80P. We find that the Id. CIT(A) came to the above conclusion for the following reasons :-
1) The assessee co-operative society did not conform to the stipulation and limitation of the types of activities in which a banking company is allowed to engage as per the Banking’ Regulation Act, 1949.
2) The other businesses carried on by the assessee were not only with its members, but also with non- members.
15. Part V of Banking Regulation Act 1949 deals with application of the Act to co-operative societies. The relevant provisions of the Banking Act 1949, which are applicable in the assessee’s case are reproduced here under:-
1. Section 5(ccv) :- “Primary co-operative bank means a co-operative society, other than primary agricultural credit society.
1. Primary objects or principal business of which is the transaction of banking business :
2. The paid up share capital and reserves of which are not less than of Rs.
3. Bye-laws of which do not permit admission of any other co-operative society as a member provided that this clause shall apply to the admission of a co-operative bank member by reason of such co-operative bank subscribing to the share capital of such co-operative society out of funds provided by the State Government for that purpose.
2. 5 A- Act to override bye laws, etc –
i. The provisions of this Act shall have effect, not with standing anything to the contrary contained in the bye- laws of a cooperative society before or after the commencement of Banking Laws (application to Cooperative Societies Act, 1965).
ii. Any provision contained in the bye-laws,… …….. – to the extent to which it is repugnant to the provisions of this Act become or be void, as the case may be. “
3. Section 7 .-Use of words ‘bank’, ‘banker’ or ‘banking’ :-
i. No co-operative society other than a co-operative bank shall use as part of its name or in connection with its business any of the word ‘bank’ ‘banker’, or ‘banking’, and no cooperative society shall carry on the business of banking in India unless it uses as part of its name at least one of such words.
15. In the statement of fact the assessee has clearly admitted that it is a ‘Primary Agricultural Co-operative Credit Society’. As per section 5(ccv) of the Banking Regulation Act, the assessee cannot be a ‘Bank*. Thus, we uphold the finding of the ld. CIT(A) that the assessee is not a co-operative bank and therefore, not entitled to any deduction u/s.80P(2)(a) (i) of the Act as a bank. But as it is a primary co-operative credit society, it may be entitled to some deductions on the income earned by it from its transactions with its members.
16. Section 80 P of the Act reads as under :-
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 that total income of the assessee. (2) The sums referred to in sub-section (I) shall be the following, namely –
(a) in the case of a co-operative society engaged in
(i) carrying on the business of Ranking or providing credit facilities to its members, or
(ii) a cottage industry, or
(iii) the marketing of agricultural produce grown by its members, or
(iv) the purchase of agricultural implements, seeds, livestock or other articles intended for agriculture for the purpose of supplying them to its members, or
(v) the processing without the aid of power, of the agricultural produce of its members, or
(vi) the collective disposal of the labour of its members, or
(vii) fishing or allied activities, that is to say, the catching, curing processing, preserving, storing or marketing of fish or the purchase of materials and equipment in connection therewith for the purpose of supplying them to its members], the whole of the amount of profits and gains of business attributable to any one or more of such activities.
(2)(b)
(c ) in the case of a co-operative society engaged in activities” other than those specified in clause(a) or * clause(b) (either independently of or in addition to, all or any of the activities so specified), so much of its profits and gains attributable” to such activities as [does not exceed
i) where such co-operative society is a consumers’ co-operative society, [one hundred] thousand rupees, and
(ii) in any other case, [fifty] thousand rupees. Explanation- in this clause, ‘consumers’ co-operative society’ means a society for the benefit of the consumers]
(d) in respect of any income by way of interest or dividends derived by the co-operative society from its investments with any other co-operative society, the whole of such income;
(e) in respect of any income derived by the co-operative society from the letting of godowns or warehouse for storage, processing or facilitating the marketing of commodities, the whole of such income.
From sub section (1) of the section it is amply clear that in the case of co-operative society income as referred to in sub-section (2) should be allowed as deduction, if the requisite conditions arc fulfilled.
17. In sub-section( 2) the expression used is as under :-
“Whole of the amounts of profits and gains of business attributable to any one or more of such activities”. It would show that such a co-operative society would be entitled to deduction under any other clauses of section 80P(2)(a). Reading of section 80P as a whole would show that further deduction is admissible to a co-operative society as per section 80P(2) (d) & (e). The Id .CIT(A) has not brought on record any evidence or case law in support of his finding that separate deductions in terms of sub clause (d) and (e) are not allowable. In this view of the matter, we are of the considered opinion that the ld. CIT(A) was not justified in holding that the assessee was not entitled to any deduction u/s.80P of the Act. Thus ground no.3 taken by the assessee is allowed to the above extent.
18. Coming to the issue, when the assessee is required to deal only with its members for getting deduction u/s.80I and it also deals with non- » members whether whole of the income attributable to such activity should go out of the ambit of Sec.80P, we find that the Hon’ble Apex Court in the case of CIT Vs. Bankipur Club Ltd 226 ITR 97 (SC), with reference to a members’ club, has held that when there are mutual as well as non-mutual activities, only activities relating to non-members would go out of the ambit of taxation. We, therefore, are of the view that only that income, which is attributable to dealing with non-members excluding activities covered by S.80P(2)(d) & (e) ] will not be entitled to deduction u/s.80P of the Act. We hold accordingly. Ground no.5 taken by the assessee is allowed to the above extent.
19. Ground nos. l & 4 taken by the assessee are inter-linked. As regards ground no. l, we have already held that the assessee is not a co-operative bank. Thus, there is no question of creation of SLR & CRR and no question of investment made out of such reserve or voluntary reserve. Thus, ground no. 1 taken by the assessee is rejected.
please sent latest rules for co-op credit society, rgarding duties of chairman,secetary driectors
Finance Bill of 2006 has inserted a new sub section for sec. 80(P) limiting the benefit of sec. 80(p)(2) to PACS and PCARD banks.
Here we see that “A primary agricultural co-operative credit society is not a co-operative bank and therefore, not entitled to any deduction under section 80P(2)(a)(i) as a bank.”
Therefore what is the relavance of sec.80(P)(4)?
Guide regarding audit format of multy state co-op society and procedure of submission of reports authority,
All urban Co operative credit society and Pat-Pedhis by virtue of provisions of [Note :Part V contains amendement in definition ] – Section 5(ccii),5(ccv) and 5(ccvi) of Banking Regulation Act, 1949 Further, Section 5A of Banking regulation Act,1949 overrides Bye laws of the co op credit society whose principal business of a primary credit society is the transaction of banking business and When its paid up capital and reserves attain the level of Rs.1 lakh, a primary credit society automatically becomes a primary cooperative bank.
Further, vide para 8 in the case of [Salgaon Sanmitra Sahakari Pathpedhi Ltd. v. Additional Commissioner of Income-tax, Ward-17(3),Mumbai. – [12 Taxmann.com 246 (2011)] the assessee society was classified as ‘cooperative bank’ under section 12(1) of the Maharashtra Cooperative Society Act, 1960 as per the registration certificate issued by the Assistant Registrar, Cooperative Society, Mumbai.
Once the urban Co operative credit society and Pat-Pedhis are classified as Bank then they are not eligible for benefit provided under section 80P of the Income Tax Act,1961, from Assessment Year 2007-08 by virtue of Section 80P(4) read with section 2(24)(viia) both of income Tax Act, 1961.
Further, Federation doing Banking Activities with co operative credit societies or Pat Pedhi’s who are its members and located in urban area is also not entitled for benefit provided under section 80P of the Income Tax Act,1961, from Assessment Year 2007-08 by virtue of Section 80P(4) read with section 2(24)(viia) both of income Tax Act, 1961. The said view is Kerala State Co-operative Agricultural Rural Development Bank Ltd., Statue, Trivandrum-695001. Vs. The Assistant Commissioner of Income-tax, Circle-1(2), Trivandrum vide ITA No. 506/Coch/2010 & S.P. No.67/Coch/2010 For AY 2007-08.(unreported but available on internet)
Note : Please also refer point no. 4 of page 15 of Banking regulation Amendment Bill No. 18 of 2011 introduced in the loksabha.
All urban Co operative credit society and Pat-Pedhis by virtue of provisions of [Note :Part V contains amendement in definition ] – Section 5(ccii),5(ccv) and 5(ccvi) of Banking Regulation Act, 1949 Further, Section 5A of Banking regulation Act,1949 overrides Bye laws of the co op credit society whose principal business of a primary credit society is the transaction of banking business and When its paid up capital and reserves attain the level of Rs.1 lakh, a primary credit society automatically becomes a primary cooperative bank. Further, vide para 8 in the case of [Salgaon Sanmitra Sahakari Pathpedhi Ltd. v. Additional Commissioner of Income-tax, Ward-17(3),Mumbai. – [12 Taxmann.com 246 (2011)] the assessee society was classified as ‘cooperative bank’ under section 12(1) of the Maharashtra Cooperative Society Act, 1960 as per the registration certificate issued by the Assistant Registrar, Cooperative Society, Mumbai. Once the urban Co operative credit society and Pat-Pedhis are classified as Bank then they are not eligible for benefit provided under section 80P of the Income Tax Act,1961, from Assessment Year 2007-08 by virtue of Section 80P(4) read with section 2(24)(viia) both of income Tax Act, 1961. Note : Please also refer point no. 4 of page 15 of Banking regulation Amendment Bill,2011 introduced in the loksabha.
Types of co operative societies :
1. Although all types of cooperative societies work on the same principle, they differ with regard to the nature of activities they perform. Followings are different types of co-operative societies that exist in our country.
2. Consumers’ Co-operative Society: These societies are formed to protect the interest of general consumers by making consumer goods available at a reasonable price. They buy goods directly from the producers or manufacturers and thereby eliminate the middlemen in the process of distribution. Kendriya Bhandar, Apna Bazar and Sahkari Bhandar are examples of consumers’ co-operative society.
3. Producers’ Co-operative Society: These societies are formed to protect the interest of small producers by making available items of their need for production like raw materials, tools and equipments, machinery, etc. Handloom societies like APPCO, Bayanika, Haryana Handloom, etc., are examples of producers’ co-operative society.
4. Co-operative Marketing Society: These societies are formed by small producers and manufacturers who find it difficult to sell their products individually. The society collects the products from the individual members and takes the responsibility of selling those products in the market. Gujarat Co-operative Milk Marketing Federation that sells AMUL milk products is an example of marketing co-operative society.
5. Co-operative Credit Society: These societies are formed to provide financial support to the members. The society accepts deposits from members and grants them loans at certain rates of interest. Primary Credit Society and Urban Cooperative Banks are examples of co-operative credit society.
6. Co-operative Farming Society: These societies are formed by small farmers to work jointly and thereby enjoy the benefits of large-scale farming. Lift-irrigation co-operative societies and pani-panchayats are some of the examples of co-operative farming society.
7. Housing Co-operative Society: These societies are formed to provide residential houses to members. They purchase land, develop it and construct houses or flats and allot the same to members. Some societies also provide loans at low rate of interest to members to construct their own houses. The Employees’ Housing Societies and Metropolitan Housing Co-operative Society are examples of housing co-operative society.
Types of Co-operative Banks :
There are three types of co-operative banks operating in our country. They are primary credit societies, central co-operative banks and state co-operative banks. These banks are organized at three levels, village or town level, district level and state level.
(i) Primary Credit Societies: These are formed at the village or town level with borrower and non-borrower members residing in one locality. The operations of each society are restricted to a small area so that the members know each other and are able to watch over the activities of all members to prevent frauds.
(ii) Central Co-operative Banks: These banks operate at the district level having some of the primary credit societies belonging to the same district as their members. These banks provide loans to their members (i.e., primary credit societies) and function as a link between the primary credit societies and state co-operative banks.
(iii) State Co-operative Banks: These are the apex (highest level) co-operative banks in all the states of the country. They mobilise funds and help in its proper channelisation among various sectors. The money reaches the individual borrowers from the state co-operative banks through the central co-operative banks and the primary credit societies.
Provision under the Banking regulation Act,1949 :
Section 22(1) Save as hereinafter provided, no co-operative society shall carry on banking business in India unless:-
(a) it is a primary credit society, or
(b) it is a Co-operative Bank and holds a license issued in that behalf by the Reserve Bank, subject to such conditions, if any, as the Reserve Bank may deem fit to impose:
PROVIDED that nothing in this sub-section shall apply to a co-operative society, not being a primary credit society or a Co-operative Bank carrying on banking business at the commencement of the Banking Laws (Application to Co-operative Societies) Act, 1965 (23 of 1965), for a period of one year from such commencement.
Part V vide Section 56(ccii) of Banking Regulation Act, 1949, “a Cooperative Credit Society is defined as a cooperative society”, “the primary object of which is to provide financial accommodation to its members and includes a cooperative land mortgage bank.” This type of institutions are thrift societies. The distinction between a primary credit society and a cooperative credit society is with reference to their nature of business. The primary object or principal business of a primary credit society is the transaction of banking business. When its paid up capital and reserves attain the level of Rs.1 lakh, a primary credit society automatically becomes a primary cooperative bank.
Part V Section 56(ccv) of Banking Regulation Act, 1949 defines “primary Co-operative Bank means a co-operative society, other than a primary agricultural credit society-
(1) the primary object or principal business of which is the transaction of banking business;
(2) the paid-up share capital and reserves of which are less than one lakh of rupees; and
(3) the bye-laws of which do not permit admission of any other co-operative society as a member:
PROVIDED that this sub-clause shall not apply to the admission of a Co-operative Bank as a member by reason of such co-operative Bank subscribing to the share capital of such co-operative society out of funds provided by the State Government for the purpose;
Amendments made by the Finance Act, 2006 made applicable from A.Y. 2007-08 :
(i) The Finance Act, 2006 has withdrawn this benefit w.e.f. A.Y.2007-08 in respect of all co-operative banks, other than primary agricultural credit societies (i.e. as defined in Part V of the Banking Regulation Act, 1949) and primary cooperative agricultural and rural development banks (i.e. societies having its area of operation confined to a taluk and the principal object of which is to provide for long-term credit for agricultural and rural development activities).
(ii) This is for the purpose of treating co-operative banks at par with other commercial banks, which do not enjoy similar tax benefits.
(ii) The scope of the definition of ‘income’ as given in section 2(24)(viia) has accordingly been widened to include within its ambit, the profits and gains of any business of banking (including providing credit facilities) carried on by a co-operative society with its members.
Explanation inserted under Section 80P(4) – for the purpose of this sub section –
a. “Cooperative Bank” and “Primary Agricultural Credit Society” shall have the meanings respectively assigned to them in Part V of the Banking Regulation Act, 1949.
b. “Primary Cooperative Agricultural and Rural Development Bank” means a society having its area of operation confined to a taluk and the principal object of which is to provide for long term credit for agricultural and rural development activities.
Discussion and findings :
1. First condition is that the said co operative credit society or Pat Pedhi is not primary credit society. Co Operative Credit Society or Pat Pedhi is formed in Mumbai, hence, is not having its area of operation confined to a vilage or taluk and the principal object of which is not to provide credit facilities for long-term credit for agricultural and rural development activities.
2. Second condition is that the Co operative Credit Society or Pat Pedhi is carrying on banking business i.e. accepting deposits and lending money and having paid up capital and reserve exceeding Rs. 1 lakh, which is satisfied here.
3. Third condition for the Co operative Credit Society or Pat Pedhi to be called Bank has to have Fourth condition is that the income derived by the Co operative Credit Society or Pat Pedhi from its members is to be treated as income within the definition of Section 2(24)(viia) of the Income Tax Act,1961 w.e.f. A.Y. 2007-08.
4. Fourth condition is benefit provided under Income Tax Act, 1961 to co operative credit society or Pat Pedhi vide section 80P of the Income Tax Act,1961 is withdrawn w.e.f. A.Y. 2007-08 through insertion of section 80P(4) of the Income Tax Act,1961.
5. It is seen from the Profit and loss account and submissions made by the Assessee that all the conditions laid down above are satisfied to tax the income of co operative credit society or Pat Pedhi as income from Business of banking and is taxed accordingly.
Types of Co-operative Banks :
There are three types of co-operative banks operating in our country. They are primary credit societies, central co-operative banks and state co-operative banks. These banks are organized at three levels, village or town level, district level and state level.
(i) Primary Credit Societies: These are formed at the village or town level with borrower and non-borrower members residing in one locality. The operations of each society are restricted to a small area so that the members know each other and are able to watch over the activities of all members to prevent frauds.
(ii) Central Co-operative Banks: These banks operate at the district level having some of the primary credit societies belonging to the same district as their members. These banks provide loans to their members (i.e., primary credit societies) and function as a link between the primary credit societies and state co-operative banks.
(iii) State Co-operative Banks: These are the apex (highest level) co-operative banks in all the states of the country. They mobilise funds and help in its proper channelisation among various sectors. The money reaches the individual borrowers from the state co-operative banks through the central co-operative banks and the primary credit societies.
Provision under the Banking regulation Act,1949 :
Section 22(1) Save as hereinafter provided, no co-operative society shall carry on banking business in India unless:-
(a) it is a primary credit society, or
(b) it is a Co-operative Bank and holds a license issued in that behalf by the Reserve Bank, subject to such conditions, if any, as the Reserve Bank may deem fit to impose:
PROVIDED that nothing in this sub-section shall apply to a co-operative society, not being a primary credit society or a Co-operative Bank carrying on banking business at the commencement of the Banking Laws (Application to Co-operative Societies) Act, 1965 (23 of 1965), for a period of one year from such commencement.
Part V Section 56(ccv) of Banking Regulation Act, 1949 defines “primary Co-operative Bank means a co-operative society, other than a primary agricultural credit society-
(1) the primary object or principal business of which is the transaction of banking business;
(2) the paid-up share capital and reserves of which are less than one lakh of rupees; and
(3) the bye-laws of which do not permit admission of any other co-operative society as a member:
PROVIDED that this sub-clause shall not apply to the admission of a Co-operative Bank as a member by reason of such co-operative Bank subscribing to the share capital of such co-operative society out of funds provided by the State Government for the purpose;
Part V vide Section 56(ccii) of Banking Regulation Act, 1949, a Cooperative Credit Society is defined as a cooperative society, “the primary object of which is to provide financial accommodation to its members and includes a cooperative land mortgage bank.” This type of institutions are thrift societies. The distinction between a primary credit society and a cooperative credit society is with reference to their nature of business. The primary object or principal business of a primary credit society is the transaction of banking business. When its paid up capital and reserves attain the level of Rs.1 lakh, a primary credit society automatically becomes a primary cooperative bank.
Amendments made by the finance Act,2006 made applicable from A.Y. 2007-08 :
(i) The Finance Act, 2006 has withdrawn this benefit w.e.f. A.Y.2007-08 in respect of all co-operative banks, other than primary agricultural credit societies (i.e. as defined in Part V of the Banking Regulation Act, 1949) and primary cooperative agricultural and rural development banks (i.e. societies having its area of operation confined to a taluk and the principal object of which is to provide for long-term credit for agricultural and rural development activities).
(ii) This is for the purpose of treating co-operative banks at par with other commercial banks, which do not enjoy similar tax benefits.
(ii) The scope of the definition of ‘income’ as given in section 2(24)(viia) has accordingly been widened to include within its ambit, the profits and gains of any business of banking (including providing credit facilities) carried on by a co-operative society with its members.
Discussion and findings :
1. First condition is that the co operative credit society is carrying on banking business.
2. Second condition is that the said society is not primary credit society as it is not formed in village or town level for agricultural finance or rural development activities.
3. Third condition for the co operative credit society to be called Bank has paid up capital and reserve exceeding Rs. 1 lakh, which is satisfied here.
4. Fourth condition is that the income derived by the society from its members is to be treated as income within the definition of section 2(24)(viia) of the Income Tax Act,1961.
5. Fifth condition is societies is not having its area of operation confined to a taluk and the principal object of which is to provide for long-term credit for agricultural and rural development activities.
6. Sixth condition is that benefit provided vide section 80P of the Income Tax Act,1961 is withdrawn w.e.f. A.Y. 2007-08 vide insertion of section 80P(4) of the Income Tax Act,1961.
7. If it is seen from the Profit and loss account and submissions made by the Assessee that all the conditions laid down above are satisfied to tax the income as income from Business of banking and needs to be taxed accordingly.
Under the provisions of Section 5(ccii) of Banking Regulation Act, 1949 (AACS), a cooperative credit society is defined as a cooperative society, “the primary object of which is to provide financial accommodation to its members and includes a cooperative land mortgage bank.” This type of institutions are thrift societies. The distinction between a primary credit society and a cooperative credit society is with reference to their nature of business. The primary object or principal business of a primary credit society is the transaction of banking business. When its paid up capital and reserves attain the level of Rs.1 lakh, a primary credit society automatically becomes a primary cooperative bank. However, even after a primary credit society becomes a cooperative bank, it has to apply to RBI licencefor a to carry on banking business. But it can carry on banking business until it is granted licence a or notified that licence cannot be granted to it.
Section 56(ccii) of Banking Regulation Act, 1949 defines “co-operative credit society” means a co-operative society, the primary object of which is to provide financial accommodation to its members and includes a co-operative land mortgage bank;
Section 56(ccv) of Banking Regulation Act, 1949 defines “primary Co-operative Bank means a
co-operative society, other than a primary agricultural credit society-
(1) the primary object or principal business of which is the transaction of banking business;
(2) the paid-up share capital and reserves of which are less than one lakh of rupees; and
(3) the bye-laws of which do not permit admission of any other co-operative society as a member:
PROVIDED that this sub-clause shall not apply to the admission of a Co-operative Bank as a member by reason of such co-operative Bank subscribing to the share capital of such co-operative society out of funds provided by the State Government for the purpose;
(a) Profits and gains of any business of banking carried on by a co-operative society with its members included in the definition of income [Insertion of sub-clause (viia) in section 2(24)]
Sub-clause (viia) has been inserted in section 2(24) to include within the scope of definition of income, the profits and gains of any business of banking (including providing credit facilities) carried on by a co-operative society with its members
(Effective from A.Y.2007-08)
(b) Withdrawal of tax benefit to co-operative banks [Section 80P]
Related amendment in section: 2(24)
(i) Section 80P provides for deduction in respect of income of co-operative
societies.
(ii) The Finance Act, 2006 has withdrawn this benefit w.e.f. A.Y.2007-08 in respect of all co-operative banks, other than primary agricultural credit societies (i.e. as defined in Part V of the Banking Regulation Act, 1949) and primary cooperative agricultural and rural development banks (i.e. societies having its area of operation confined to a taluk and the principal object of which is to provide for long-term credit for agricultural and rural development activities).
(iii) This is for the purpose of treating co-operative banks at par with other commercial banks, which do not enjoy similar tax benefits.
(iv) The scope of the definition of ‘income’ as given in section 2(24) has accordingly been widened to include within its ambit, the profits and gains of any business of banking (including providing credit facilities) carried on by a co-operative society with its members.
(Effective from A.Y.2007-08)
Far reaching impact on cooperative socities working