Income Tax Appellate Tribunal - Cochin
The Kuttiyeri Service Co-Op Bank Ltd, ... vs Department Of Income Tax on 26 July, 2013
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MA Nos.63 to 65 & 667 to 70-Coch-2013
IN THE INCOME TAX APPELLATE TRIBUNAL
COCHIN BENCH, COCHIN
Before Shri N.R.S. Ganesan (JM) and Shri B.R. Baskaran(AM)
M.A. No.63/Coch/2013
(Arising out of I.T.A No. 04/Coch/2013
(Assessment year 2009-10)
ITO, Wd.4 vs The Kurumathur Service
Kannur Co-operative Bank Ltd
Kurumathur, Thaliparampa
PAN : AAEFT2178E
(Applicant) (Respondent)
M.A. No.64/Coch/2013
(Arising out of I.T.A No. 05/Coch/2013
(Assessment year 2009-10)
ITO, Wd.4 vs The Pattuvam Service
Kannur Co-operative Bank Ltd
Pattuvam, Kannur Dist
PAN : AADCP6738N
(Applicant) (Respondent)
M.A. No.65/Coch/2013
(Arising out of I.T.A No. 06/Coch/2013
(Assessment year 2009-10)
ITO, Wd.4 vs The Kuttiyeri Service
Kannur Co-operative Bank Ltd
Kuttiyeri PO, Kannur Dist
PAN : AABK0485D
(Applicant) (Respondent)
M.A. No.67/Coch/2013
(Arising out of I.T.A No. 251/Coch/2012
(Assessment year 2009-10)
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MA Nos.63 to 65 & 667 to 70-Coch-2013
ITO, Wd.1 vs The Kadachira Service
Kannur Co-operative Bank Ltd
Kadachira PO, Kannur
PAN : AAIFK5391E
(Applicant) (Respondent)
M.A. No.68/Coch/2013
(Arising out of I.T.A No. 253/Coch/2012
(Assessment year 2009-10)
ITO, Wd.1 vs The Kannapuram Service
Kannur Co-operative Bank Ltd
Kannapuram PO, Kannur
PAN : AABAT3964G
(Applicant) (Respondent)
M.A. No.69/Coch/2013
(Arising out of I.T.A No. 254/Coch/2012
(Assessment year 2009-10)
ITO, Wd.1 vs The Cherukunnu Service
Kannur Co-operative Bank Ltd
Cherukunnu PO, Kannur
PAN : AAAAC5016F
(Applicant) (Respondent)
M.A. No.70/Coch/2013
(Arising out of I.T.A No. 255/Coch/2012
(Assessment year 2009-10)
ITO, Wd.1 vs The Mavilayi Service
Kannur Co-operative Bank Ltd
Mooramplam, Mavilayi PO
Kannur
PAN : AAAAM8091L
(Applicant) (Respondent)
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MA Nos.63 to 65 & 667 to 70-Coch-2013
Applicant by : Smt. S Vijayaprabha
Respondent by : Shri R Krishna Iyer
Date of hearing : 26-07-2013
Date of pronouncement : 31-07-2013
ORDER
Per N.R.S. Ganesan (JM) The revenue has filed all the miscellaneous applications on the ground that there is an error in the respective order of this Tribunal.
2. Smt. S Vijayaprabha, the ld.DR submitted that this Tribunal in The Kadchira Service Co-operative Bank Ltd & Ors in ITA No.251/Coch/2012 & others order dated 31-01-2013 found that the co-operative societies' activities has to be examined in each case. If the co-operative society is not engaged in banking activity, they are eligible for exemption as provided in section 194A(3)(viia) of the Act. If the assessee is found to have engaged in the banking activity, the tax has to be deducted. This has to be examined independently in each co-operative societies' case as found by this Tribunal. Therefore, the ld.DR submitted that the issue of non deduction of tax u/s 194A may be remitted back to the file of the assessing officer for reconsideration.
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MA Nos.63 to 65 & 667 to 70-Coch-2013
3. We heard, Shri R Krishna Iyer, the ld.representative for the assessee also. This Tribunal, after considering the judgment of the Kerala High Court in the case of Moolamattom Electricity Board Employees' Co- operative Bank Ltd, in Re & Ors (1999) 238 ITR 630 (Ker) and ITO vs Thodupuzha Urban Co-operative Bank Ltd & Anr (2003) 264 ITR 36 (Ker) found that the taxpayers are registered under Kerala State Co-operative Societies' Act and no approval was obtained from Reserve Bank of India for carrying out the activity. Therefore, when the interest was paid by the respective co-operative society, there is no need for deduction of tax. In view of this finding, according to the ld.representative, there is no error, much less, a prima facie error in the order of this Tribunal.
4. We have considered the rival submissions on either side and also perused the material available on record. After considering the judgments of the Kerala High Court in Moolamattom Electricity Board Employees' Co- operative Bank Ltd, in Re & Ors (supra) and Thodupuzha Urban Co- operative Bank Ltd (supra) found that they are registered under the Kerala State Co-operative Societies' Act and no approval was obtained from the Reserve Bank of India. Therefore, for all practical purpose it was found that the assessees have to be treated as primary agricultural co-operative societies within the meaning of section 2(19) of the Income-tax Act. In view of this specific finding, this Tribunal is of the considered opinion that 5 MA Nos.63 to 65 & 667 to 70-Coch-2013 there is no error, much less, a prima facie error within the meaning of section 254(2) of the Act. An application u/s 254(2) is made only for rectification of prima facie error apparent from the face of the record. This Tribunal has no power of review or revision. When a conscious decision was taken by following the judgments of the Kerala High Court that wherever the assessee is not engaged in banking business tax is not to be deducted at source from payment of interest, this Tribunal is of the consideration opinion that there is no error in the order. Even otherwise, the rectification sought by the department is beyond the scope of section 254(2) of the Act. Therefore, we do not find any merit in all the applications filed by the department. Accordingly, the same are dismissed.
5. In the result, all the miscellaneous applications are dismissed.
Order pronounced in the open court on this 31st July, 2013.
Sd/- sd/-
(B.R. Baskaran) (N.R.S. Ganesan)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Cochin, Dt : 31st July, 2013
pk/-
copy to:
1. The applicants
2. The respondent
3. The Commissioner of Income-tax
4. The Commissioner of Income-tax(A)
5. The DR
(True copy) By order
Asstt. Registrar, Income-tax Appellate Tribunal, Cochin Bench