Suffice To Say That The Writ Petitioner Is A Primary Agricultural Cooperative Credit Society, Registered Under 'Tamil Nadu Cooperative Societies Act, 1983' ['Tn v. Https://Hcservices.ecourts.gov.in/Hcservices

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :18.07.2019 CORAM THE HON'BLE MR.JUSTICE M.SUNDAR W.P.No.3385 of 2019andW.M.P.No.3666 of 2019 M/s.Kandasamypalayam Primary AgriculturalCo operative Bank Ltd.,Represented by its SecretaryKandasamypalayam, SivagiriErode-638 109PAN - AAAAK2140A ..Petitioner Income Tax Officer,Ward 2(4),No.15, Gandhiji Road,Erode – 638 001. ..Respondent Prayer: Writ Petition filed under Article 226 of theConstitution of India praying to issue a Writ of Certiorari,call for the records of the Respondent herein in OrderNo.ITBA/AST/S/143(3)/2018-19/1014536712(1)passedbytherespondent for the Assessment Year 2016-17 and quash the Orderdated 24.12.2018 passed therein and pass any such further orother orders as this Hon'ble Court may deem fit and proper inthe circumstances of the case and thus render justice. O R D E R Mr.B.Raveendran, learned counsel on record for writpetitioner and Mr.A.N.R.Jayaprathap, learned Junior Standingcounsel (Income Tax) on behalf of lone official respondent arebefore this Court. 2. With consent of learned counsel on both sides, main writpetition is taken up and is being disposed of. https://hcservices.ecourts.gov.in/hcservices/ has taken today, the entire writ petition now turns on a verynarrow compass. Therefore, it may not be necessary to set outfacts in great detail. 4. Suffice to say that the writ petitioner is a PrimaryAgricultural Cooperative Credit Society, registered under 'TamilNadu Cooperative Societies Act, 1983' ['TNCS Act' for brevity] 5. The instant writ petition has been filed, assailing anorder dated 24.12.2018 made by the lone official respondent andthis order bears reference Order No:ITBA/AST/S/143(3)/2018-19/1014536712(1). This order dated 24.12.2018 bearing reference'OrderNo:ITBA/AST/S/143(3)/2018-19/1014536712(1)',shallhereinafter be referred to as 'impugned order'. To be noted,impugned order is an assessment order, pertaining to AssessmentYear 2016-17 qua writ petitioner and the impugned order has beenmade by the lone official respondent under Section 143(3) of'Income Tax Act, 1961' ['IT Act' for brevity] 6. The pivotal submission is that the writ petitioner beinga Cooperative Society, is entitled to various deductionsenlisted / adumbrated under Section 80P of IT Act. ThatCooperative Societies akin to the writ petitioner, which areregistered under TNCS Act are entitled to claim deductions undervarious heads adumbrated under Section 80P of IT Act has beenlaid down by this Court in Commissioner of Income Tax, Salem Vs.Tiruchengode Agricultural Producers Cooperative MarketingSociety Ltd., [hereinafter 'Tiruchengode Agricultural ProducersCooperative Marketing Society case' for brevity] vide orderdated 02.08.2016 made in Tax Case Appeal Numbers.484 to 487 and490 of 2016. 'Tax Case Appeals' shall be referred to as 'TCAs'for the sake of brevity. 7. The aforesaid Tiruchengode Agricultural ProducersCooperative Marketing Society case was rendered by Hon'bleDivision Bench based on M/s. Veerakeralam Primary AgriculturalCo-operative Credit Society principle being principle laid downby another Hon'ble Division Bench vide judgment in Commissionerof Income Tax Vs. M/s. Veerakeralam Primary Agricultural Co-operative Credit Society dated 05.07.2016 made in Tax CaseAppeal Nos.735, 755 of 2014 and 460 of 2015 [hereinafter'Veerakeralam Primary Agricultural Co-operative Credit Societyprinciple' for brevity]. 8. In the aforesaid cases, Hon'ble Division Benchaddressed itself to the question as to whether PrimaryAgricultural Societies carrying on the business of providingcredit facilities to its members are entitled to claimdeductions under Section 80P of IT Act and the same was answeredin the affirmative. https://hcservices.ecourts.gov.in/hcservices/ 8. In the aforesaid cases, Hon'ble Division Benchaddressed itself to the question as to whether PrimaryAgricultural Societies carrying on the business of providingcredit facilities to its members are entitled to claimdeductions under Section 80P of IT Act and the same was answeredin the affirmative. https://hcservices.ecourts.gov.in/hcservices/ 9. Reverting to the case on hand, a perusal of the impugnedorder reveals that it turns on three heads, the same as set outin the impugned order reads as follows: '(i) Deduction under chapter VIA (ii) Investments/advances/loans (iii) High cash in hand shown in balance sheet ascompared to preceding year' 10. With regard to (i) supra, as the Hon'ble Division Benchof this Hon'ble Court has already held that CooperativeSocieties akin to the writ petitioner are entitled to claimdeductions under various heads adumbrated under Section 80P ofIT Act, the same does not survive. However, this Court isinformed that Income Tax Department is carrying bothTiruchengode Agricultural Producers Cooperative MarketingSociety case and Veerakeralam Primary Agricultural Co-operativeCredit Society TCAs to Hon'ble Supreme Court. On this basis,this Court has passed an order dated 27.06.2019 in W.P.No.2552of 2019 & etc., batch interalia to the effect that this questionis subject to the outcome of the Special Leave Petitions said tohave been filed by the department. To be noted, this aforesaidorder dated 27.06.2019 in W.P.No.2552 of 2019 & etc., batch cameto be passed by this Court as that was the lone issue therein,but in the instant case, that issue is dovetailed with two otherissues namely (ii) and (iii) supra. 11. In the aforesaid backdrop, learned counsel for writpetitioner submitted that the writ petitioner will opt for thealternate remedy of a statutory appeal with regard to thoseaspects of the impugned orders excluding the aforesaid issue,which is covered by Veerakeralam Primary Agricultural Co-operative Credit Society and Tiruchengode Agricultural ProducersCooperative Marketing Society principles. 12. This takes us to the alternate remedy aspect. Alternateremedy is available to the writ petitioner by way of an appealunder Section 246A of IT Act. 13. There is a time limit of 30 days prescribed forpreferring an appeal under Section 246A of IT Act, which lies toCommissioner (Appeals). 14. At the request of writ petitioner, time that has beenspent in the instant writ petition i.e., time from the date offiling of instant writ petition to the date on which this orderis made available shall stand excluded for computing limitationfor filing an appeal under Section 246A of IT Act. Even aftersuch exclusion, if there is a delay, it is open to the writpetitioner to seek condonation of the same under Section 249(3) of IT Act and such a prayer for condonation of delay shall bedealt with by the Appellate Authority on its own merits. 13. There is a time limit of 30 days prescribed forpreferring an appeal under Section 246A of IT Act, which lies toCommissioner (Appeals). 14. At the request of writ petitioner, time that has beenspent in the instant writ petition i.e., time from the date offiling of instant writ petition to the date on which this orderis made available shall stand excluded for computing limitationfor filing an appeal under Section 246A of IT Act. Even aftersuch exclusion, if there is a delay, it is open to the writpetitioner to seek condonation of the same under Section 249(3) of IT Act and such a prayer for condonation of delay shall bedealt with by the Appellate Authority on its own merits. 15. Before parting with this case, it is necessary tomention that alternate remedy rule qua exercise of writjurisdiction is a self imposed restraint. It is a rule ofdiscretion and it is not a rule of compulsion. Though it is notan absolute rule, Hon'ble Supreme Court in Satyawati Tandon Case[United Bank of India Vs. Satyawati Tondon and others reportedin (2010) 8 SCC 110] held that it should be exercised withgreater rigour in fiscal law statutes. More importantly, inSatyawati Tondon case, Hon'ble Supreme Court held that such arule has to be applied with utmost rigour when it comes to casesinvolving taxes, cess, fees etc., In other words, when it comesto fiscal statutes, these rules have to be applied with greaterrigour and it is to be applied very strictly with regard torecovery of taxes, CESS, fess etc., Satyawati Tondon principlewas reiterated by Hon'ble Supreme Court in K.C.Mathew case[Authorized Officer, State Bank of Travancore Vs. Mathew K.C.reported in (2018) 3 SCC 85]. Relevant paragraph in K.C.Mathewcase is paragraph 10 and the same reads as follows: '10. In Satyawati Tondon the High Court hadrestrained further proceedings under Section 13(4) ofthe Act. Upon a detailed consideration of thestatutory scheme under the SARFAESI Act, theavailability of remedy to the aggrieved under Section17 before the Tribunal and the appellate remedy underSection 18 before the Appellate Tribunal, the objectand purpose of the legislation, it was observed that awrit petition ought not to be entertained in view ofthe alternate statutory remedy available holding: (SCCpp.123 & 128, Paras 43 & 55) “43. Unfortunately, the High Courtoverlooked the settled law that the High Courtwill ordinarily not entertain a petition underArticle 226 of the Constitution if an effectiveremedy is available to the aggrieved person andthat this Rule applies with greater rigour inmatters involving recovery of taxes, cess, fees,other types of public money and the dues ofbanks and other financial institutions. In ourview, while dealing with the petitions involvingchallenge to the action taken for recovery ofthe public dues, etc., the High Court must keepin mind that the legislations enacted byParliament and State Legislatures for recoveryof such dues are a code unto themselves inasmuchas they not only contain comprehensive procedurefor recovery of the dues but also envisageconstitution of quasi-judicial bodies for redressal of the grievance of any aggrievedperson. Therefore, in all such cases, the HighCourt must insist that before availing remedyunder Article 226 of the Constitution, a personmust exhaust the remedies available under therelevant statute.55.It is a matter of serious concern thatdespite repeated pronouncement of this Court,the High Courts continue to ignore theavailability of statutory remedies under the DRTAct and the SARFAESI Act and exercisejurisdiction under Article 226 for passingorders which have serious adverse impact on theright of banks and other financial institutionsto recover their dues. We hope and trust thatin future the High Courts will exercise theirdiscretion in such matters with greater caution,care and circumspection.' redressal of the grievance of any aggrievedperson. Therefore, in all such cases, the HighCourt must insist that before availing remedyunder Article 226 of the Constitution, a personmust exhaust the remedies available under therelevant statute.55.It is a matter of serious concern thatdespite repeated pronouncement of this Court,the High Courts continue to ignore theavailability of statutory remedies under the DRTAct and the SARFAESI Act and exercisejurisdiction under Article 226 for passingorders which have serious adverse impact on theright of banks and other financial institutionsto recover their dues. We hope and trust thatin future the High Courts will exercise theirdiscretion in such matters with greater caution,care and circumspection.' 16. This writ petition is disposed of, leaving it open tothe writ petitioner to avail alternate remedy of statutoryappeal to Commissioner (Appeals) under Section 246A of IT Act,in the manner set out supra in this order. 17. This writ petition is disposed of with the aboveobservations. No costs. Consequently, connected miscellaneouspetition is closed. //True copy// kakToIncome Tax Officer,Ward 2(4),No.15, Gandhiji Road,Erode – 638 001.+1cc to Mr.B.Raveendran, Advocate SR.No.61648+1cc to Mr.AP.Srinivas, Advocate SR.No.61750 https://hcservices.ecourts.gov.in/hcservices/