MAYOOR COOPERATIVE HOUSING SOCIETY LIMITED, MUMBAI V. INCOME TAX OFFICER 21(2)(3), MUMBAI

ITA 263/MUM/2018

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0150 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 10-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VIDHYADHAR
• Keywords: Application of stay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI PAWAN SINGH (JM) S.A. NO. 165/MUM/2018 ARISING OUT OF I.T.A. NO. 263 /MUM/20 18 (ASSESSMENT YEAR 20 13 - 14 ) & I.T.A. NO. 263/MUM/2018 (ASSESSMENT YEAR 2013 - 14) MAYO OR CO. HSG. SOC. LTD. COLLEGE LANE, AGAR BAZAR DADAR WEST MUMBAI - 400 028. PAN : AAATM8490L V S . ITO 21(2)(3) MUMBAI ( APPELLANT ) ( RESPONDENT ) A SSESSEE BY SHRI ANIL SATHE DEPARTMENT BY S HRI V. VIDHYADHAR DATE OF HEARING 9 . 0 3 . 201 8 DATE OF PR ONOUNCEMENT 9 . 0 3 . 201 8 O R D E R PER B.R. BASKARAN (AM) : - THE ASSESSEE HAS MOVED THIS STAY APPLICATION SEEKING STAY OF OUTSTANDING DEMAND RAISED IN ITS HANDS FOR AY 2013 - 14. 2. THE LD COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE ASSESS EE IS A HOUSING CO - OPERATIVE SOCIETY. IN RESPECT OF INTEREST INCOME EARNED FROM CO - OPERATIVE BANKS, THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80P(2)(D) OF THE ACT. HOWEVER, THE AO REJECTED THE CLAIM BY PLACING RELIANCE ON THE PROVISIONS OF SEC. 80P(4) OF TH E ACT, WHICH DENIED DEDUCTION U/S 80P TO CO - OPERATIVE BANKS. HE SUBMITTED THAT THE ASSESSEE HAS ONLY PLACED DEPOSITS WITH CO - OPERATIVE BANKS, WHICH OTHERWISE IS A CO - OPERATIVE SOCIETY. ACCORDINGLY HE SUBMITTED THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80P(2)(D) OF THE ACT AS THE INTEREST RECEIVED FROM CO - OPERATIVE SOCIETY IS DEDUCTIBLE UNDER THAT PROVISION. HE SUBMITTED THAT THIS ISSUE IS COVERED BY THE DECISIONS RENDERED BY THE TRIBUNAL AND ACCORDINGLY HE SUBMITTED THAT THE ASSESSEE HAS GOT FAIR C HANCE IN GETTING RELIEF. ACCORDINGLY HE PRAYED FOR COMPLETE STAY OF OUTSTANDING DEMAND. MAYOOR CO. HSG. SOC. LTD. 2 3. THE LD D.R, ON THE CONTRARY, STRONGLY OPPOSED THE PLEA OF THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE MAY BE DIRECTED TO PAY ATLEAST 50% OF THE OUTSTANDING DE MAND. 4. WE HEARD THE PARTIES AND PERUSED THE RECORD. WE NOTICE THAT THE ISSUE AGITATED IN THE APPEAL IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISIONS RENDERED BY THE TRIBUNAL. IN THIS VIEW OF THE MATTER, WITH THE CONCURRENCE OF BOTH THE PARTIE S, WE TOOK UP THE APPEAL FOR HEARING. 5. THE SOLITARY ISSUE URGED IN THE APPEAL IS WHETHER THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S 80P(2)(D) OF THE ACT IN RESPECT OF INTEREST EARNED FROM CO - OPERATIVE BANKS. 6. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A CO - OPERATIVE HOUSING SOCIETY. IT DERIVES INCOME BY WAY OF SUBSCRIPTION, SERVICE CHARGES ETC FROM MEMBERS AND INTEREST INCOME FROM SAVINGS AND FIXED DEPOSITS KEPT WITH VARIOUS BANKS. THE ASSESSEE CLAIMED THAT THE INTEREST EARNED FROM CO - OPE RATIVE BANKS IS DEDUCTIBLE U/S 80P(2)(D) OF THE ACT. SINCE THE PROVISIONS OF SEC. 80P(4) HAS WITHDRAWN DEDUCTION U/S 80P TO CO - OPERATIVE BANKS, THE AO HELD THAT THE ASSESSEE CANNOT AVAIL DEDUCTION OF INTEREST EARNED ON DEPOSITS WITH CO - OPERATIVE BANKS U/S 80P OF THE ACT. THE LD CIT(A) ALSO CONFIRMED THE SAME. 7. WE NOTICE THAT AN IDENTICAL ISSUE WAS CONSIDERED IN THE CASE OF M/S CITISCAPE CO - OP HOUSING SOCIETY LTD (ITA NO.5435 & 5436/MUM/2017 DATED 08 - 12 - 2017) AND FOR THE SAKE OF CONVENIENCE, WE EXTRAC T BELOW THE ORDER PASSED IN THE ABOVE SAID CASE: - 2. THE ASSESSEE IS A CO - OPERATIVE HOUSING SOCIETY. IT EARNED INTEREST ON DEPOSITS KEPT WITH CO - OPERATIVE BANKS AND CLAIMED THE INTEREST INCOME AS EXEMPT U/S 80P(2)(D) OF THE ACT. SEC. 80P(2)(D) PROVIDES T HAT THE INTEREST INCOME OR DIVIDEND DERIVED BY A CO - OPERATIVE SOCIETY FROM ITS INVESTMENTS WITH ANY OTHER CO - OPERATIVE SOCIETY IS DEDUCTIBLE U/S 80P OF THE ACT. THE ASSESSEE TOOK THE VIEW THAT THE CO - OPERATIVE BANKS ARE BAS ICALLY CO - OPERATIVE SOCIETIES AND INTEREST RECEIVED FROM THEM QUALIFIES FOR DEDUCTION U/S 80P(2)(D) OF THE ACT. ACCORDINGLY IT CLAIMED DEDUCTION. MAYOOR CO. HSG. SOC. LTD. 3 3. THE AO TOOK THE VIEW THAT THE INCOME OF CO - OPERATIVE BANKS IS NOT DEDUCTIBLE U/S 80P OF THE ACT IN TERMS OF SEC. 80P(4) OF THE ACT AND CONSE QUENTLY THE PROVISIONS OF SEC.80P CANNOT BE AVAILED BY THE ASSESSEE IN RESPECT OF INCOME RECEIVED FROM CO - OPERATIVE BANK. ACCORDINGLY THE AO REOPENED THE ASSESSMENTS OF BOTH THE YEARS UNDER CONSIDERATION AND REJECTED THE CLAIM FOR DEDUCTION U/S 80P(2)(D) O F THE ACT IN RESPECT OF INTEREST INCOME RECEIVED FROM CO - OPERATIVE BANKS. 4. THE LD CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE IN BOTH THE YEARS BY FOLLOWING THE DECISION RENDERED BY HON'BLE KARNATAKA HIGH COURT IN THE CASE OF PCIT VS. TOTAGARS CO - OPERATIVE SALE SOCIETY (2017)(392 ITR 74), WHEREIN THE HON'BLE KARNATAKA HIGH COURT HAD HELD THAT THE CO - OPERATIVE BANKS ARE CO - OPERATIVE SOCIETIES. AGGRIEVED, THE REVENUE HAS FILED THESE APPEALS. 5. THE LD D.R SUBMITTED THAT THE HON'BLE KARNATAKA HIGH HAD DELIVERE D THE DECISION REPORTED IN 392 ITR 74 ON JANUARY 5, 2017. HOWEVER, IN ITS SUBSEQUENT DECISION IN THE CASE OF VERY SAME ASSESSEE, THE HON'BLE KARNATAKA HIGH COURT HAS TAKEN A DIFFERENT VIEW, VIZ., IN THE CASE OF THE PRINCIPAL CIT VS. THE TOTAGARS CO - OPERATI VE SALE SOCIETY (INCOME TAX APPEAL NO.100066 OF 2016 & OTHERS DATED 16 - 06 - 2017). THE HON'BLE KARNATAKA HIGH COURT HAS EXPRESSED THE VIEW THAT THE INTEREST INCOME EARNED FROM CO - OPERATIVE BANKS IS NOT DIFFERENT FROM THE INTEREST EARNED FROM SCHEDULED BANK A ND HENCE CLAUSE (D) OF SECTION 80P(2) OF THE ACT WOULD NOT APPLY TO INTEREST EARNED FROM DEPOSITS KEPT WITH CO - OPERATIVE BANK. 6. ON THE CONTRARY, THE LD A.R SUBMITTED THAT THE FACT THAT THE COOPERATIVE BANKS ARE BASICALLY CO - OPERATIVE SOCIETIES ONLY CANNO T BE DENIED. HE SUBMITTED THAT THE HON'BLE HIGH COURT OF HIMACHAL PRADESH HAS TAKEN THE VIEW IN THE CASE OF CIT VS. KANGRA CO - OPERATIVE BANK LTD (2009)(309 ITR 106) THAT CO - OPERATIVE BANKS ARE COOPERATIVE SOCIETIES AND HENCE THE INTEREST INCOME FROM INVEST MENTS MADE IN ANY CO - OPERATIVE SOCIETY WOULD BE ENTITLED FOR DEDUCTION U/S 80P(2)(D) OF THE ACT. HE SUBMITTED IDENTICAL CLAIM MADE IN RESPECT OF INTEREST INCOME EARNED FROM CO - OPERATIVE BANKS HAS BEEN ALLOWED BY THE SMC BENCH IN THE CASE OF MURUDE SAHAKARI PARSANSTHA MARYADID (ITA NO.1058/MUM/2017 DATED 21 - 08 - 2017) AND BY THE DIVISION BENCH IN THE CASE OF LANDS END CO - OPERATIVE HOUSING SOCIETY LTD (ITA NO.3566/MUM/2014 DATED 15 - 01 - 2016). 7. I HEARD THE PARTIES AND PERUSED THE RECORD. I NOTICE THAT THE HON'B LE KARNATAKA HIGH COURT HAS INITIALLY TAKEN THE FOLLOWING VIEW IN THE CASE OF TOTAGARS CO - OPERATIVE SALE SOCIETY LTD (392 ITR 74) '....THE WORD 'CO - OPERATIVE BANK' IS A WORD OF LIMITED EXTENT, WHICH MERELY DEMARCATES AND IDENTIFIES A PARTICULAR SPECIES OF THE GENUS CO - OPERATIVE SOCIETIES. CO - OPERATIVE SOCIETY CAN BE OF DIFFERENT NATURE, AND CAN BE INVOLVED IN DIFFERENT ACTIVITIES; THE COOPERATIVE SOCIETY BANK IS MERELY A VARIETY OF THE MAYOOR CO. HSG. SOC. LTD. 4 CO - OPERATIVE SOCIETIES. THUS THE CO - OPERATIVE BANK WHICH IS A SPECIES OF THE GENUS WOULD NECESSARILY BE COVERED BY THE WORD 'CO - OPERATIVE SOCIETY'....... ADMITTEDLY, THE INTEREST WHICH THE ASSESSEE RESPONDED HAD EARNED WAS FROM A CO - OPERATIVE SOCIETY BANK. THEREFORE, ACCORDING TO SEC. 80P(2)(D) OF THE I.T ACT , THE SAID AMOUNT OF INTEREST EARNED FROM A CO - OPERATIVE SOCIETY BANK WOULD BE DEDUCTIBLE FROM THE GROSS INCOME OF THE CO - OPERATIVE SOCIETY IN ORDER TO ASSESS ITS TOTAL INCOME.' 8. HOWEVER, THE VERY SAME HON'BLE KARNATAKA HIGH COURT IN THE VERY SAME ASSESSEE'S CASE IN ITA NO.100066 OF 2016 & OTHERS DATED 16 - 06 - 2017 HAS TAKEN THE VIEW THAT THE INTEREST INCOME EARNED BY A CO - OPERATIVE SOCIETY FROM A CO - OPERATIVE BANK IS NOT DEDUCTIBLE U/S 80P(2)(D) OF THE ACT. 9. THE LD A.R HAS REFERRED TO ME THE DECISION RENDERED BY HON'BLE HIMACHAL PRADESH HIGH COURT IN THE CASE OF KANGRA CO - OPERATIVE BANK LTD (SUPRA), WHEREIN THE HIGH COURT HAS OBSERVED AS UNDER: - '....FURTHERMORE, THE INVESTMENTS HAVE BEEN MADE IN H.P. STATE CO - OPERATIVE BANK WHICH IS ALSO A CO - OPERATIVE SOCIETY AND THEREFORE EVEN UNDER SEC. 80P(2)(D) OF THE ACT, INTEREST INCOME FROM INVESTMENTS MADE IN ANY CO - OPERATIVE SOCIETY WOULD ALSO BE ENTITLED FOR DEDUCTION.' 10. THUS, I NOTICE THAT THERE ARE DIVERGENT VIEWS ON T HIS MATTER. THE HON'BLE KARNATAKA HIGH COURT HAS EXPRESSED THE VIEW THAT THE DEDUCTION U/S 80P(2)(D) WOULD NOT BE AVAILABLE IN RESPECT OF INTEREST INCOME RECEIVED FROM CO - OPERATIVE BANK, WHEREAS THE HON'BLE HIMACHAL PRADESH HIGH COURT HAS HELD THAT THE SAI D DEDUCTION WOULD BE AVAILABLE. THE HON'BLE SUPREME COURT HAS HELD IN THE CASE OF VEGETABLE PRODUCTS LTD (88 ITR 192) THAT IF TWO REASONABLE CONSTRUCTIONS OF A TAXING PROVISION ARE POSSIBLE THAT CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED. BY A PPLYING THE SAID PRINCIPLE, THE VIEW TAKEN BY HON'BLE HIMACHAL PRADESH HIGH COURT, WHICH IS IN FAVOUR OF THE ASSESSEE, IS REQUIRED TO BE ADOPTED IN THIS CASE. ACCORDINGLY I HOLD THAT THE INTEREST INCOME EARNED BY THE ASSESSEE FROM CO - OPERATIVE BANKS, WHICH ARE BASICALLY CO - OPERATIVE SOCIETIES CARRYING ON BANKING BUSINESS, IS DEDUCTIBLE U/S 80P(2)(D) OF THE ACT. ON THIS REASONING, I UPHOLD THE DECISION TAKEN BY LD CIT(A) IN BOTH THE YEARS ON THIS ISSUE. 8. CONSISTENT WITH THE VIEW TAKEN IN THE ABOVE SAID CASE, WE SET ASIDE THE ORDER PASSED BY LD CIT(A) AND DIRECT THE AO TO ALLOW DEDUCTION TO THE INTEREST EARNED FROM CO - OPERATIVE BANKS TO THE ASSESSEE U/S 80P(2)(D) OF THE ACT. MAYOOR CO. HSG. SOC. LTD. 5 9. SINCE WE HAVE DISPOSED OF THE APPEAL ITSELF, THE STAY APPLICATION FILED BY THE ASSESSEE SHALL BECOME INFRUCTUOUS. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED AND THE STAY APPLICATION IS DISMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 9 . 0 3 .201 8 . SD/ - SD/ - (PAWAN SINGH ) (B.R.BASKARAN) JUDICIA L MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 9 / 0 3 / 20 1 8 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUA RD FILE. BY ORDER, //TRUE COPY// SENIOR P RIVATE S ECRETARY PS ITAT, MUMBAI