COMMISSIONER OF INCOME TAX vs CO-OPERATIVE SUPPLY and COMMISSION SHOP LTD.

V. K. SINGHAL, J. :

The Tribunal, Jaipur Bench, Jaipur has referred the following question under s. 256(1) of the IT Act, for decision of this Court, in respect of the asst. yr. 1978-79 :

"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the interest of Rs. 17,292 received by the co-operative society from 13 members and from bank on outstanding balance could qualify for exemption under s. 80P(2)(a)(i) of the Act ?"

The facts of the case are that during the course of examination of books of accounts of the assessee, the ITO found that the interest paid by the members on the closing balance as at the end of the accounting years, was of Rs., 15,167 and the assessee has also received interest from the bank of Rs. 2,125. The ITO came to the conclusion that the said amount of Rs. 17,292 does not qualify exemption as provided under s. 80P(2)(a)(i) of the IT Act, 1961. According to the ITO interest from the members attributable to extending credit facilities by way of advancing loans or giving cash assistance or guarantee protecting them from heavy rate of interest from other financial institutions, qualifies for exemption under s. 80P(2)(a)(i). Since this income is on the business transaction from C class members and is not attributable to extending credit facility, the amount was disallowed from exemption claim. The CIT(A) following the judgment of the Tribunal for the immediately preceding year, allowed deduction and the second appeal preferred by the Revenue before the Tribunal was also dismissed. The Tribunal in respect of preceding asst. yr. 1977-78 has held that where the primary object of a society is to provide credit facilities to its members whether as a loan or in any other way will be entitled to deduction under s. 80P(2)(a)(i) of the IT Act.

Reference was made in this judgment of Tribunal to the decision of the Punjab & Haryana (sic Gujarat) High Court in the case of Commissioner of Income Tax, Gujarat-IV Vs. Karjan Co-op. Cotton Sale, Ginning and Pressing Society Ltd., and Addl. Commissioner of Income Tax, Karnataka Vs. Ryots Agricultural, Produce Co-operative Marketing Society Ltd., , wherein the question was with regard to the interpretation of the provisions of s. 80P(2)(a)(i), for which it was held that the concept of marketing will include all activities connected with the process of taking over from the agricultural produce members and handing over marketable commodities to the purchaser and all the intermediate processes connected with the marketing of the agricultural produce of the members. It was held that the term marketing cannot be restricted only to buying and selling activity. These judgments were approved by the Honble Supreme Court in the case reported in Broach Distt. Co-operative Cotton Sales Ginning and Pressing Society Limited Vs. Commissioner of Income Tax, Ahmedabad,

From a bare perusal of the facts of this case, it would be evident that the dispute there was with regard to interpretation of s. 80P(2)(a)(iii) and not for 80P(2)(a)(i) and, therefore, the interest charges, godown charges, insurances charges which were received by the assessee society as part of its marketing activity or in the course of its marketing activity while marketing cotton to its members cannot be extended for the interpretation of s. 80P(2)(a)(i) of the Act.

Reliance was also placed by the Tribunal on the decision of the U.P. State Warehousing Corporation Vs. Income Tax Officer, A-Ward and Another, , where it was held that s. 10(29) of the IT Act applies only to an authority constituted for the marketing of commodities and, evidently, such authority will specifically be a business enterprise. Ex hypothesi the term authority there cannot possibly be construed as referring to an authority having quasi-governmental powers. Any legal entity or juristic personality constituted by law for the purpose of marketing commodities would be an authority within the meaning of s. 10(29). It was further held that the corporation was entitled to exemption in respect of income from letting of godowns and the warehouses for the mentioned activities including facilating of marketing of commodities. This judgment was also confirmed by the Honble Supreme Court in Union of India & Anr. vs. U. P. State Warehousing Corpn. (1991) 187 ITR 54.

Another judgment of Gujarat High Court in Commissioner of Income Tax Vs. Gujarat State Warehousing Corporation, , was also relied upon. From the facts of both these cases, it would be evident that there was no such dispute with regard to the interpretation of the provisions of s. 80P(2)(a)(i).

The provisions of s. 80P(2)(a)(i) are as under :

"80P. Deduction in respect of income of co-operative societies. -..........

(2) The sums referred to in sub-s. (1) shall be the following, namely :

(a) in the case of a co-operative society engaged in -

(i) carrying on the business of banking or providing credit facilities to its members, or....."

The purpose of enactment of s. 80P was to encourage and promote growth of co-operative sector in economic life of the country. Construction with regard to exemption has to be taken separately when it has to be examined as to whether a particular income falls within one of the various heads of exemption as provided under s. 80P(2). The basic requirement of the above clause is that the society must be engaged in carrying on the business of banking or providing credit facilities to its members. It is an admitted fact that the society is not engaged in the business of banking. The only point which has to be determined is as to whether providing credit facilities to its members would extend to supply of goods on credit ?

In Additional Commissioner of Income Tax Vs. U.P. Co-operative Cane Union, the Allahabad High Court has interpreted this expression "providing credit facility" that it takes its colour from preceding expression, viz., business of banking. In order, that banking or providing of credit facility may constitute a business, it is necessary that these activities must be the chief sources of income. It was held that where the goods are sold on credit, it is only a mode of carrying on of a business. It does not become business of providing credit facility and the society was held not entitled to exemption.

The Madhya Pradesh High Court in MALWA MILLS KARAMCHARI PARASPAR SAHAKARI SANSTHA Vs. COMMISSIONER OF Income Tax, M.P., has also held that the income of the assessee was attributable to the activity of selling the goods on credit and, therefore, the provisions of s. 80P(2)(a)(i) of the Act are not attracted.

The Madras High Court in Commissioner of Income Tax, Tamil Nadu-III Vs. Madras Autorickshaw Drivers'' Co-operative Society Ltd., has held that the object of the society was to purchase and sale auto rickshaw, the payment by the members being effected in the form of hire purchase agreement, which could not be considered to be offering a credit facility by the society to the member concerned and, therefore, the same was held not entitled to exemption.

The Kerala High Court in Kerala Co-operative Consumers'' Federation Ltd. Vs. Commissioner of Income Tax, has also interpreted the words "providing credit facilities" and it was held that it should be construed as similar to, or akin to the carrying on business of banking, the preceding clause in the same sub-section. It was held that every word in a statute should be construed in the context in which it occurs in order to discover its appropriate meaning.

The Madras High Court in Rodier Mill Employees Co-operative Stores Ltd. vs. CIT (1982) 29 CTR (Mad) 74 has held that even liberal construction of the expression "providing credit facilities" cannot include mere sales of goods on credit by out and out consumer co-operative society.

Sec. 5(b) of the Banking Regulations Act, 1949 defines banking as accepting for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise and withdrawal by cheques, drafts, order or otherwise. On the proper interpretation of the above clause, therefore, is that exemption which has been contemplated by s. 80P(2)(a)(i) is in respect of the banking as defined under s. 5(b) of the Banking Regulation Act, 1949. Admittedly, the assessee was not carrying on any of the business which may fall within this category. It is equally true that the words which are used in one particular clause has to be given the same colour and to be understood as the forming part of one genesis of which they may be different species. The words providing credit facilities would, therefore, have to be interpreted to comprehend the business of lending services of credit facilities in connection with the business of banking. In order to constitute the business of banking, it is necessary that these activities must be the main source of income of the society. The facility of selling the goods on credit to the members as an activity of business of selling of goods of which the facility is only an incidence and it will not amount to providing credit facilities in the nature of business of banking so as to amount as carrying on the business of banking or providing credit facilities to its members. As a matter of fact this clause is meant to cover the societies which are carrying on the business of banking and in the course of their business are providing credit facilities to its members.

From a perusal of the various decisions and on the basis of the interpretation of the provisions of s. 80P(2)(a)(i) of the Act, we are of the view that the Tribunal was not justified in coming to the conclusion that the interest on the outstanding balances in respect of supplies of goods would qualify for exemption under s. 80P(2)(a)(i) of the Act.

Accordingly, the reference is answered in favour of the Revenue and against the assessee.

No order as to costs.