Jamuna Apartments Co-operative Housing Society Limited, Mumbai V. Deputy Commissioner of Income Tax, Bengaluru

ITA 2465/MUM/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0243 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 31-10-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 12-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: YOGESH A.THAR
• Keywords: Rectification of order
• Section: 154; 139; 234B; 143(1); 80P; 250; 139(1); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA No. 2465/Mum/2023 (A.Y: 2018-19) Jamuna Apartments Co- OperativeHousingSocietyLtd, 68, Opp. Shoppers Stop, S.V. Road, Andheri (West), Mumbai -400058. Vs. DCIT, CPC, Bengaluru-560500. Karnataka. PAN/GIR No. : AAAAJ1509L Appellant .. Respondent Assessee by : Shri.Yogesh A.Thar, & Shri.Karan Jain.AR Revenue by : Shri G.J. Ninawe.Sr.DR Date of Hearing 01.11.2023 Date of Pronouncement 06.11.2023 आदेश / O R D E R PER PAVAN KUMAR GADALE JM: The asseessee has filed the appeal against the order of the National Faceless Appeal Centre (NFAC) Delhi / CIT(A) passed u/sec 154 and u/sec 250 of the Ac. The assessee has raised the following grounds of appeal: GROUND NO. I: DENIAL OF DEDUCTION U/S80P OF THE ACT: 3.1On the facts and circumstances of the case and in law, the Hon'ble CIT(A) erred in upholding the action of Ld. AO in not granting deduction of Rs7,89,816/- u/s80P of the Act in respect of interest income derived from Cooperative banks ITA No. 2465/Mum/2023 Jamuna Apartments Co-operative Housing Society Ltd., Mumbai. - 2 - 3.2The Hon'ble CIT(A) failed to appreciate and ought to have considered that 3.2.1 deduction under chapter VIA cannot be denied on the pretext that due date of filing return of income u/s. 139(1) applicable to the society was 31.08.2018 instead of correct and extended due date of 31.10.2018. 3.2.2 disallowing the claim of deduction u/s. 80P is dehors any power vested with the IdAO u/s143(1)(a) as amendment in section 143(1)(a)(v) was made with effect from AY 2021-22. 3.3The Appellant prays that the deduction claimed u/s. 80P of the Act be allowed. 3.1 On the facts and circumstance of the case and in law, the Hon'ble CIT(A) erred in upholding the action of IdAO in levying late fee of Rs5,000/- u/s. 234F by reckoning due date u/s139(1) as 31.08.2018 instead of correct and extended due date of 31.10.2018 applicable to the Appellant 3.2 The Appellant prays that the levy of late fee u/s234F of the Act be deleted. GROUND NO. III: LEVY OF INTEREST U/S 234A, 234B & 234C OF THE ACT: 4.1 On the facts and circumstance of the case and in law, the Hon'ble CIT(A) erred in upholding the action of IdAO in charging interest u/s234A234B and 234C of the Act 4.2 The Appellant prays that the levy of interest u/s234A234B and 234C of the Act be deleted/appropriately reduced GROUND NO. IV: GENERAL: ITA No. 2465/Mum/2023 Jamuna Apartments Co-operative Housing Society Ltd., Mumbai. - 3 - The Appellant craves leaves to add to alter, amend and / or delete the above grounds of appeal. 2. The brief facts of the case are that, the assessee is a Cooperative Housing Society, registered under Maharashtra Cooperative Societies (MCS) Act 1960.The assessee function primarily on the concept of mutuality. The assessee derives income from letting out the part of terrace premises on rent and the interest on fixed deposits with cooperative banks. The assessee has filed the return of income for the A.Y 2018-19 on 15.10.2018 disclosing a total income of Rs.19,84,690/- after claiming deduction u/sec 80(P)(2)(d) of the Act of Rs. 8,89,816/-.Whereas the return of income was processed u/s 143(1) of the Act by denying the deduction u/sec 80(P)(2)(d) of the Act as the return of income was filed after the due date u/sec 139(1) of the Act and the order u/sec 143(1) of the Act dated 13- 05-2019 was passed determining a total income of Rs. 27,74,510/-.Against the order u/sec 143(1) of the Act, the assessee has filed rectification petition u/sec154 of the Act and it was rejected vide order dated 28.06.2019. 3. Aggrieved by the rectification order, the assessee has filed an appeal before the CIT(A), whereas the CIT(A) has ITA No. 2465/Mum/2023 Jamuna Apartments Co-operative Housing Society Ltd., Mumbai. - 4 - considered the grounds of appeal, statement of facts, submissions of the assessee substantiating the filing of the return of income within the extended due date u/sec 139(1) of the Act but the CIT(A) has sustained the action of the Assessing officer and dismissed the assessee appeal. Aggrieved by the CIT(A)order, the assessee has filed an appeal before the Hon’ble Tribunal. 4. At the time of hearing, the Ld. AR submitted that the CIT(A) has erred in confirming the disallowance u/s 80(P)(2)(d) of the Act treating the due date of filling the return of is 31-08-2018, irrespective of the fact that the assessee has filed the return of income within the extended time allowed u/s 139(1) of the Act. Further, where the books of accounts are audited under any other Law, the due date of filling of return of income for the A.Y.2018-19 is 30-09-2018.And as per CBDT order U/sec119 of the Act dated 8-10-2018, the due date was extended up to 31-10- 2018.Whereas the Books of Accounts of the Assessee are Audited under the Provisions of Cooperative societies Act and obtained Audit report on 19-08-2018 and filed the return of income on 24-10-2018 with the extended period of filling the return of income. On the Alternative ground, the ITA No. 2465/Mum/2023 Jamuna Apartments Co-operative Housing Society Ltd., Mumbai. - 5 - Ld.AR made submissions on the disallowance of the claim of deduction U/sec 80P of the Act, U/sec 143(1)(a) of the Act. Whereas the amendment in section 143(1(a)(v) of the Act is made in Finance Act 2021 effective from 01.04.2021 i.e A.Y.2021-22 and the present Assesseement Year is A.Y.2018-19. The Ld.AR substantiated the submissions with the factual paper book, judicial decisions and prayed for allowing the appeal. Per Contra, the Ld. DR relied on the order of the CIT(A) appeal. 5. Heard the rival submissions and perused the material on record. The Ld. AR contentions are that the CIT(A) has erred in confirming the action of the AO in denying deduction u/sec 80(P)(2)(d) of the Act overlooking the fact that the assessee is a cooperative society and the Books Of Account are audited under Cooperative societies Act and return of income was filed within the extended due date U/sec139(1)as per CBDT order. Whereas the due date of filing of the return of income is 30-09-2018, as the assessee being a cooperative society and the books of accounts are audited under other laws. The Ld. AR referred to the page 74 of the paper book, CBDT order U/sec119 of the Act dated 8-10-2018, were the due date was extended ITA No. 2465/Mum/2023 Jamuna Apartments Co-operative Housing Society Ltd., Mumbai. - 6 - up to 31-10-2018. Since the Books of Accounts of the Assessee are Audited under the Cooperative societies Act and the asseessee has obtained Audit report on 19-08-2018 placed at Page 1to 13 of the paper book and the assessee has filed the return of income on 24-10-2018 with in the extended period of filling the return of income and the Assessing officer cannot be deny the claim of deduction u/s 80P(2)(d) of the Act. The Ld. AR referred to the submissions relying on the provisions of the Act, CBDT circular, and judicial decisions made before the CIT(A) placed at page 95 to 146 paper book Whereas in respect of claim of deduction u/s 80(P)(2)(d) of the Act, the contentions of the Ld. AR that the due date of filing of return of income U/sec139(1) of the Act for the A.Y 2018- 19 is 30 th September 2018 but not the 30 th August 2018 as mentioned in the order U/sec 143(1) of the Act order and was wrongly confirmed in the rectification order U/sec154 of the Act. Further the Ld.AR made submissions on the disallowance of the claim of deduction U/sec80P of the Act, U/sec 143(1)(a) of the Act. Whereas the amendment in section 143(1(a)(v) of the Act is made in Finance Act 2021 effective from 01.04.2021 i.e A.Y.2021-22 and the present Assessement Year is A.Y.2018-19. The Coordinate Bench of ITA No. 2465/Mum/2023 Jamuna Apartments Co-operative Housing Society Ltd., Mumbai. - 7 - the Honble Tribunal in the case of The Nutan Laxmi Co- Operative Housing Society Ltd Vs ACIT in ITA.No1214/Mum/2023 dated 27-07-20232023 has dealt on the applicability of due date U/sec139(1) of the Act in respect of Cooperative societies were the books of Accounts are Audited at Page 6 Para 8 to 9 of the order, which is read as under: “8. The only controversy involved in this case relates to the due date for filing of its return of income by the Assessee which the department claimed that the last date for filing of ITR in this case was 31st Aug, 2018, whereas the Assessee has claimed the same was 31st Oct, 2018 u/s139(1) of the Act. 8.1 We have given thoughtful consideration to the peculiar and circumstances of the case, as well as the provisions of section 139 of the Act and observe that in the AY 2018-19, in case of person (other than a company) whose accounts were required to the audited under this Act or under any other law for the time being in force, as per Explanation-2 (a)(ii) of section 139(1) of the Act, the due date for filling of ITR was 30th September however the said due date of 30th September, has subsequently been substituted with 31st October vide finance Act 2020 with effect from 1st April, 2020. 8.2 The Assessee being a Co-Operative Housing Society governed by Maharashtra Co-Operative Society Act 1960 required to be audited under Maharashtra State Co-Operative Act and therefore was liable to file its return of income upto 30-09- 2018 and hence the Assessee filed on 18-09-2018, which goes to show that the Assessee has filed ITA No. 2465/Mum/2023 Jamuna Apartments Co-operative Housing Society Ltd., Mumbai. - 8 - its return of income before the due date as prescribed u/s. 139 of the Act and therefore the Assessee is entitled for the deduction as claimed for Hence we are inclined to accept the claim of the Assessee and consequently delete the addition made by the AO and affirmed by the Ld. Commissioner. 9. In the result, appeal filed by the Assessee stands allowed”. 6. Whereas, in respect of applicability of the amendment in section 143(1(a)(v) of the Act made in Finance Act 2021 effective from 01.04.2021 i.e A.Y.2021-22. The Hon’ble Tribunal in the case of Lanjani Co-operative Agri Service Society Ltd Vs. DCIT,[2023] 146 taxmann.com 468 (Chandigarh - Tribunal) has observed at Para 14.4 to 15 of the order read as under: “14.4 It is also necessary to refer to the decision of the Hon'ble Madras High Court in the case of Neerappam palayam Primary Agricultural Cooperative Credit Society Ltd(supra) (cited supra)A perusal of the same shows that the issue for consideration before the Hon'ble High Court in the Writ Jurisdiction invoked by the assessee was very fact specific The assessee therein was canvassing that u/s143(1)(a) for considering denial on the grounds of "incorrect claims" the scope was limited to "entry" in the return of income The Court therein did not permit such a restrictive interpretation commenting variously on the conduct of the assessee Hence, the decision is distinguishable Further before the Hon'ble High Court the amendment carried out in Section 143(1)(a) by the Finance Act 2021 was neither argued nor referred to for consideration of the Hon'ble Court ITA No. 2465/Mum/2023 Jamuna Apartments Co-operative Housing Society Ltd., Mumbai. - 9 - 14.5 It is further seen that the decision of the Apex Court in the case of BCSrinivasa Shetty (supra) fully supports the view takenThe Court therein at page 299 has held as under: ...............The character of the computation provisions in each case bears a relationship to the nature of the chargeThusthe chagrining section and the computation provisions together constitute an integrated code. When there is a case to which the computation provisions cannot apply at all it is evident that such a case was not intended to fall within the charging section Otherwise one would be driven to conclude that while a certain income seems to fall within the charging section there is no scheme of computation for quantify (Emphasis supplied) 14.6 In the facts of the present case admittedly the provision enabling the AO to pass an order relying upon sub- clause 5) of Section 143(1)(a) was not on the Statute for 2018-19 assessment year Accordingly, for the detailed reasons hereinabove setting aside the impugned order the appeal of the assessee is allowed. 15. Since in the remaining appeals the facts, circumstances and position of law continues to remain the same, accordingly mutatis mutandis the decision arrived at in ITA 332/CHD/2021 would apply Accordingly all appeals of the assessees are allowed.” 7. In the present case, the Books of Account of the assessee society are audited on 19-08-2018 which is not disputed by the revenue. The assessee has filed the return of income on 14-10-2018 within the extended due date U/sec 139(1)as per CBDT order. The due date of filing of the return of income is 30-09-2018,since the assessee is a ITA No. 2465/Mum/2023 Jamuna Apartments Co-operative Housing Society Ltd., Mumbai. - 10 - cooperative society and the books of accounts are audited under other laws and as per CBDT order U/sec119 of the Act dated 8-10-2018,the due date was extended up to 31- 10-2018. Further the applicability of the amendment in section 143(1(a)(v) of the Act made in Finance Act 2021 effective from 01.04.2021 i.e from A.Y.2021-22 and the Assessement year in consideration is A.Y.2018-19. Accordingly, considering the facts, circumstances and the ratio of the judicial decisions, set aside the order of the CIT(A) and direct the Assessing officer to allow the claim of deduction u/sec 80P(2)(d) of the Act and the grounds of appeal allowed in favour of the assessee. 8. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on 06.11.2023. Sd/- (PAVAN KUMAR GADALE) JUDICIAL MEMBER Mumbai, Dated 06.11.2023 KRK, PS Copy of the Order forwarded to : 1. The Appellant ITA No. 2465/Mum/2023 Jamuna Apartments Co-operative Housing Society Ltd., Mumbai. - 11 - 2. The Respondent 3. The CIT (Judicial) 4. The PCIT 5. DR, ITAT, Mumbai 6. Guard File आदेशान ु सार/ BY ORDER, //True Copy// 1. ( Asst. Registrar) ITAT, Mumbai