W.P.No.25543 of 2019 IN HIGH COURT OF JUDICATURE AT MADRAS DATE: 28.08.2019 CORAM HONOURABLE MR.JUSTICE M.SUNDAR W.P.No.25543 of 2019 and W.M.P.No.25072 of 2019 K293 Ponneri Primary Agricultural Cooperative Credit Society Rep. By its Secretary A.Krishnasamy, M/51 S/o.R.Angamuthu Ponneri, Kottaiyangalam Post Udumalpet Taluk Tiruppur District .. Petitioner Vs. Income Tax Officer Ward-2 (4) TPR Income Tax Officer No.121, 60 Feet Road Tiruppur 641 602 .. Respondent Writ Petition is filed under Article 226 of Constitution of India, seeking for Writ of Certiorari calling for entire records relating to impugned order passed by respondent in Order No.ITBA/AST/S/143(3)/2018-19/1014538806(1) dated 24.12.2018 and quash same. For Petitioner : Ms.R.Hemalatha for Mr.C.Prakasam For Respondents : Mr.A.N.R.Jayaprathap Special Government Pleader (Taxes) http://www.judis.nic.in 1/10 W.P.No.25543 of 2019 ORDER Ms.R.Hemalatha, leaned counsel representing counsel on record for writ petitioner and Mr.A.N.R.Jayaprathap, learned Standing Counsel for Income Tax, who accepts notice on behalf of sole respondent are before this Court. 2.With consent of learned counsel on both sides, main writ petition is taken up. 3. It is submitted without any disputation or disagreement by both learned counsel that instant writ petition is covered by earlier order made by this Court being order dated 18.07.2019 in WP No.3385 of 2019 and WMP No.3666 of 2019. said order dated 18.07.2019 reads as follows: 'Mr.B.Raveendran, learned counsel on record for writ petitioner and Mr.A.N.R.Jayaprathap, learned Junior Standing counsel (Income Tax) on behalf of lone official respondent are before this Court. 2. With consent of learned counsel on both sides, main writ petition is taken up and is being disposed of. 3. Owing to nature of trajectory which hearing has taken today, entire writ petition now turns on very narrow compass. Therefore, it may not be necessary to set out facts in great detail. 4. Suffice to say that writ petitioner is Primary Agricultural Cooperative Credit Society, registered under 'Tamil Nadu Cooperative Societies Act, 1983' ['TNCS Act' for brevity] http://www.judis.nic.in 2/10 W.P.No.25543 of 2019 5. instant writ petition has been filed, assailing order dated 24.12.2018 made by lone official respondent and this order bears reference Order No:ITBA/ AST/S/143(3)/2018-19/1014536712(1). This order dated 24.12.2018 bearing reference 'Order No:ITBA/AST/S/143(3)/2018-19/ 1014536712(1)', shall hereinafter be referred to as 'impugned order'. To be noted, impugned order is assessment order, pertaining to Assessment Year 2016-17 qua writ petitioner and impugned order has been made by lone official respondent under Section 143(3) of 'Income Tax Act, 1961' ['IT Act' for brevity] 6. pivotal submission is that writ petitioner being Cooperative Society, is entitled to various deductions enlisted / adumbrated under Section 80P of IT Act. That Cooperative Societies akin to writ petitioner, which are registered under TNCS Act are entitled to claim deductions under various heads adumbrated under Section 80P of IT Act has been laid down by this Court in Commissioner of Income Tax, Salem Vs. Tiruchengode Agricultural Producers Cooperative Marketing Society Ltd., [hereinafter 'Tiruchengode Agricultural Producers Cooperative Marketing Society case' for brevity] vide order dated 02.08.2016 made in Tax Case Appeal Numbers.484 to 487 and 490 of 2016. 'Tax Case Appeals' shall be referred to as 'TCAs' for sake of brevity. 7. aforesaid Tiruchengode Agricultural Producers Cooperative Marketing Society case was rendered by Hon'ble Division Bench based on M/s. Veerakeralam Primary Agricultural Co-operative Credit Society principle being principle laid down http://www.judis.nic.in 3/10 W.P.No.25543 of 2019 by another Hon'ble Division Bench vide judgment in Commissioner of Income Tax Vs. M/s. Veerakeralam Primary Agricultural Co-operative Credit Society dated 05.07.2016 made in Tax Case Appeal Nos.735, 755 of 2014 and 460 of 2015 [hereinafter 'Veerakeralam Primary Agricultural Co-operative Credit Society principle' for brevity]. 8. In aforesaid cases, Hon'ble Division Bench addressed itself to question as to whether Primary Agricultural Societies carrying on business of providing credit facilities to its members are entitled to claim deductions under Section 80P of IT Act and same was answered in affirmative. 9. Reverting to case on hand, perusal of impugned order reveals that it turns on three heads, same as set out in impugned order reads as follows: '(i) Deduction under chapter VIA (ii) Investments/advances/loans (iii) High cash in hand shown in balance sheet as compared to preceding year' 10. With regard to (i) supra, as Hon'ble Division Bench of this Hon'ble Court has already held that Cooperative Societies akin to writ petitioner are entitled to claim deductions under various heads adumbrated under Section 80P of IT Act, same does not survive. However, this Court is informed that Income Tax Department is carrying both Tiruchengode Agricultural Producers Cooperative Marketing Society case and Veerakeralam Primary Agricultural Co- operative Credit Society TCAs to Hon'ble Supreme Court. On http://www.judis.nic.in 4/10 W.P.No.25543 of 2019 this basis, this Court has passed order dated 27.06.2019 in W.P.No.2552 of 2019 & etc., batch interalia to effect that this question is subject to outcome of Special Leave Petitions said to have been filed by department. To be noted, this aforesaid order dated 27.06.2019 in W.P.No.2552 of 2019 & etc., batch came to be passed by this Court as that was lone issue therein, but in instant case, that issue is dovetailed with two other issues namely (ii) and (iii) supra. 11. In aforesaid backdrop, learned counsel for writ petitioner submitted that writ petitioner will opt for alternate remedy of statutory appeal with regard to those aspects of impugned orders excluding aforesaid issue, which is covered by Veerakeralam Primary Agricultural Co-operative Credit Society and Tiruchengode Agricultural Producers Cooperative Marketing Society principles. 12. This takes us to alternate remedy aspect. Alternate remedy is available to writ petitioner by way of appeal under Section 246A of IT Act. 13. There is time limit of 30 days prescribed for preferring appeal under Section 246A of IT Act, which lies to Commissioner (Appeals). 14. At request of writ petitioner, time that has been spent in instant writ petition i.e., time from date of filing of instant writ petition to date on which this order is made available shall stand excluded for computing limitation for filing appeal under Section 246A of IT Act. Even after such exclusion, if there is delay, it is open to writ petitioner to seek condonation of same under Section http://www.judis.nic.in 5/10 W.P.No.25543 of 2019 249(3) of IT Act and such prayer for condonation of delay shall be dealt with by Appellate Authority on its own merits. 15. Before parting with this case, it is necessary to mention that alternate remedy rule qua exercise of writ jurisdiction is self imposed restraint. It is rule of discretion and it is not rule of compulsion. Though it is not absolute rule, Hon'ble Supreme Court in Satyawati Tandon Case [United Bank of India Vs. Satyawati Tondon and others reported in (2010) 8 SCC 110] held that it should be exercised with greater rigour in fiscal law statutes. More importantly, in Satyawati Tondon case, Hon'ble Supreme Court held that such rule has to be applied with utmost rigour when it comes to cases involving taxes, cess, fees etc., In other words, when it comes to fiscal statutes, these rules have to be applied with greater rigour and it is to be applied very strictly with regard to recovery of taxes, CESS, fess etc., Satyawati Tondon principle was 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.Mathew case is paragraph 10 and same reads as follows: '10. In Satyawati Tondon High Court had restrained further proceedings under Section 13(4) of Act. Upon detailed consideration of statutory scheme under SARFAESI Act, availability of remedy to aggrieved under Section 17 before Tribunal and appellate remedy under Section 18 before Appellate Tribunal, http://www.judis.nic.in 6/10 W.P.No.25543 of 2019 object and purpose of legislation, it was observed that writ petition ought not to be entertained in view of alternate statutory remedy available holding: (SCC pp.123 & 128, Paras 43 & 55) 43. Unfortunately, High Court overlooked settled law that High Court will ordinarily not entertain petition under Article 226 of Constitution if effective remedy is available to aggrieved person and that this Rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and dues of banks and other financial institutions. In our view, while dealing with petitions involving challenge to action taken for recovery of public dues, etc., High Court must keep in mind that legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of dues but also envisage constitution of quasi-judicial bodies for redressal of grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of Constitution, person must exhaust remedies available under relevant statute. 55. It is matter of serious concern that despite repeated pronouncement of this Court, http://www.judis.nic.in 7/10 W.P.No.25543 of 2019 High Courts continue to ignore availability of statutory remedies under DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on right of banks and other financial institutions to recover their dues. We hope and trust that in future High Courts will exercise their discretion in such matters with greater caution, care and circumspection.' 16. This writ petition is disposed of, leaving it open to writ petitioner to avail alternate remedy of statutory appeal to Commissioner (Appeals) under Section 246A of IT Act, in manner set out supra in this order. 17. This writ petition is disposed of with above observations. No costs. Consequently, connected miscellaneous petition is closed.' Therefore, instant writ petitioner is also disposed of observing that this writ petition also will be governed by aforesaid earlier order, which has been extracted and reproduced supra. No costs. Consequently, connected miscellaneous petitions are closed. 28.08.2019 Speaking order Index : Yes/No gpa To http://www.judis.nic.in 8/10 W.P.No.25543 of 2019 Income Tax Officer Ward-2 (4) TPR Income Tax Officer No.121, 60 Feet Road Tiruppur 641 602 http://www.judis.nic.in 9/10 W.P.No.25543 of 2019 M.SUNDAR, J., gpa W.P.No.25543 of 2019 and W.M.P.Nos.25071 and 25072 of 2019 28.08.2019 http://www.judis.nic.in 10/10 K293 Ponneri Primary Agricultural Cooperative Credit Society v. Income-tax Officer Ward-2(4), Tiruppur