2017 (11) TMI 522

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....r:- "6. It seems that totally diverted points as stated hereinabove have been taken into consideration and the authority has wrongly relied upon decision in case of Sri Venkata Satyanarayana Rice Mill Contractors Co. vs. CIT, 223 ITR 101. To extend the details, he has taken us to the Primary Agricultural Cooperative Society Managers, selection, appointment and service condition rules, 2003 wherein Rule 27B & 28 reads as under:-   7. He contended that these are the funds which are required to be used for specific purposes and the same are surplus fund which are kept. He has also relied on decision of this Court in case of Commissioner of Income Tax vs. Jodhpur Co-operative Marketing Society reported in [2005] 275 ITR 372 (Raj.) wherein it has been held as under:- "11. Rule 55 which gives effect to Section 63 clearly declares that reserve fund maintained by co-operative society will belong to the society. It also envisaged the purpose for which the fund can be used. Primarily, it is devised to meet unforeseen future losses. But, it makes flexibility about its user. In a given case, society may be permitted to invest the fund wholly or a portio....

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....assessee's business only, albeit its application is being regulated by the Registrar under the provisions of the Act but the statue does not give any power even to the Registrar to utilise the reserve fund so created out of the profits of the society for any purpose other than for the purpose of the society. Even on dissolution of the society the first obligation of the assets of the society including the reserve fund as part of the total assets and not specifically, is to the discharge of its debts outstanding and obligation towards the shareholders to pay their contribution with interest and dividend payable to them for the period such dividends are not paid. Surplus, if any, left thereafter, is to be applied according to the resolution of the general body of the members of the society only. Therefore, there is no insignia of diversion of income through an overriding title vesting in a third party outside the corpus of the society itself so as to consider it to be a case of diversion of income by overriding title to somebody other than the assessee. 32. We have already examined the scheme of the co-operative societies governing the creation of reserve fund in questio....

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....e used for an object of public utility is also an obligation of the net surplus of the society and not merely of the remainder of reserve fund, if any, towards object of public utility or charitable purposes as may be ordained by the members of the society. That also clearly amounts to application of the funds of the society as per the decision of the general body of the society. At the end of the day, it may be application of remainder as per the requirement of law, but it does not, at the time of creation of a reserve fund becomes a certain obligation which it is obliged to discharge but rest in domains of uncertain contingency. It remains a contingent obligation of the assets of the society in future dependent upon the surplus remaining after discharge of its liability and that too as per the resolution of the members of the society only. Thus, in our opinion, the principle governing dealing with the reserve fund in question, which is created under the Co-operative Societies Act, 1965, is fully governed by the ratio of the decision in Associated Power Co.'s case (supra), Vellore India Co. Ltd.'s case (supra) and not by the ratio laid down in Poona Electric Suppl....

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....f reserve fund, its object and the Government Rules about obligation to apply the reserve fund for the purposes of the society. Had the same been brought to the notice of the Court, perhaps the M.P. High Court would have reached the same conclusion to which we have reached. Be that as it may, in view of the direct decision of the Supreme Court in Associated Power Co. Ltd.'s case (supra) and Vellore India Co. Ltd.'s case (supra) making out a distinction between reserve fund created for the benefit of consumers and reserve fund to be used for the assessee's own income to meet any contingencies occurring in future cannot be excluded from the computation of total income either on principle of diversion of income by overriding title or on the principle of income not forming part of the real income or as the part of deductible expenses under Section 37; the decision in M.P. High Court cannot be considered as an authority laying down the proposition in respect of reserve fund created by co-operative societies for its own purposes as the law laid down correctly and is impliedly overruled. 36. As a result of aforesaid discussion, we allow this appeal and hold t....

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....गा वेतन सुरक्षा कोष बैंक स्तर पर संधारित किया जायेगा, एजिसमें केन्द्रीय सहकारी बैंक द्वारा विगत वर्ष के दौरान समितियों को दिये गये जीसत ऋण बकाया का 0.50 प्रतिशत तथा शीर्ष बैंक द्वारा बैंक को विगत वर्ष के #दौरान दिये गये औसत ऋण बकाà¤....

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....¹à¤¸à¥à¤¤à¤¾à¤•à¥à¤·à¤° से होगा, किन्तु वेतन का आहरण करने से पूर्व व्यवस्थापक को निम्न दस्तावेज / रिपोर्ट बैंक में आवश्यक रूप से जमा करानी होगी तथा इनके जमा होने का प्रमाण पत्र प्रस्तुत होने पर ही इस हेतु संधारित खाते से वेतन का भुगतान हो सकेà¤....

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....िशत समिति के व्यवस्थापक के वेतन एवं भत्तों के भुगतान हेतु कम पड़ता हो तो प्राथमिक वेतन कोष में इस कमी की पूर्ति हेतु बैंक से इस हेतु हुए एक समझौता पत्र के आधार पर वेतन सुरक्षा कोष से अधिकतम 3 वर्ष तक 4 प्रतिशत के ब्याज पर ऋण प्राप्त à¤....