DHRUVA TARA CO OPERATIVE HOUSING SOCIETY LTD, MUMBAI V. Income Tax officer ward 42(1)(2) , Mumbai

ITA 2997/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5511 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-11-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 24-08-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 154; 139; 143(1); 250; 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA No. 2997 & 2998/Mum/2023 (A.Y: 2011-12 & 2017-18) Dhruva Tara Cooperative Housing Society, Dhruva Shiv Vallabh Road, Borivali (E), Mumbai-400066. Vs. ITO, Ward-42(1)(2), Room No. 706, Kautilya Bhawan, C-41 to 43, G-Block, BKC, Bandra (E), Mumbai-400051. PAN/GIR No. : AAAAD1399L Appellant .. Respondent Appellant by : Shri. Ajay R. Singh.AR Respondent by : Shri. G.J. Ninawe. Sr. DR Date of Hearing 02.11.2023 Date of Pronouncement 07.11.2023 आदेश / O R D E R PER PAVAN KUMAR GADALE JM: These two appeals are filed by the assessee against the separate orders of the National Faceless Appeal Centre (NFAC)/CIT(A) passed u/sec 154 and U/sec 250 of the Act. 2. Since the issues involved in these appeals are common and identical, hence are clubbed, heard and a consolidated order is passed. For the sake of convenience, shall take up the ITA No. 2997/Mum/2023 for A.Y 2011-12 as lead case ITA No. 2997 & 2998/Mum/2023 Dhruva Tara Co-op Housing Society Ltd., Mumbai. - 2 - and facts narrated. The assessee has raised the following grounds of appeal 1. I. Addition of Rs. 2,06,737/-: 1. The ld CIT(A) erred in upholding the disallowance of deduction u/s 80P(2) clause (d) of the Act in regards to the interest income received from co-operative bank of Rs. 2,06,737/- by the assessee a co- operative society from its investments on the alleged ground that ITR was filed beyond due date, without appreciating that the due date for filing the return of income for AY 2011-12 was 30/09/2011 and return was filed on 20/09/2011 therefore the deduction may be allowed. 2. The learned CIT(A) erred in upholding disallowance of the claim u/s. 80P(2) on the ground that assessee had filed the return of income for AY 2011-12 beyond the due date specified in the Act and as per section 80AC deduction was not allowable without appreciating the fact that the CPC has rejected such claimed u/ 143 (1) of the Act considering incorrect due date of filing the return, as assessee was subjected to statutory audit under MCS Act and therefore the due date was 30/9/2011(Extended 31/10/2011). 3. The learned CIT(A) failed to appreciate that provisions of section 80AC of the Act was applicable from AY 2018-19 onward in regards to section 80P, therefore CPC has committed mistake apparent on record in not granting the deduction u/s 80P(2) clause (d) at the time of processing the return of income under section 143(1) of the Act. 4. As per the impugned order the notice was issued on 12.06.2023 for furnishing submission on ITBA portal, the said notice was send on old email ID [e-mail] and not on updated profile of Society email id i.e ITA No. 2997 & 2998/Mum/2023 Dhruva Tara Co-op Housing Society Ltd., Mumbai. - 3 - [e-mail], which led to non compliance to the notice. 5. The Assessee craves leave to add, alter modify or delete one or more ground before or at the time of hearing of Appeal. 3. The brief facts of the case are that, the assessee is a co- operative housing society and derives income from interest on fixed deposits with cooperative banks and security deposits. The assessee has filed the return of income for the A.Y 2011-12 on 20.09.2011 disclosing a total income of Rs. 1,29,933/- after claiming deduction u/s 80P(2)(d) of the Act of Rs.2,06,737/-.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 06-08-2014 was passed determining a total income of Rs.3,36,670/-.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 17.11.2022. 4. Aggrieved by the rectification order, the assessee has filed an appeal before the CIT(A), whereas the CIT(A) has considered the grounds of appeal, statement of facts, submissions of the assessee substantiating the filing of the return of income within the due date u/sec 139(1) of the ITA No. 2997 & 2998/Mum/2023 Dhruva Tara Co-op Housing Society Ltd., Mumbai. - 4 - 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. 5. 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 1-08-2011, irrespective of the fact that the assessee has filed the return of income within the 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.2011-12 is 30-09- 2011 and as per CBDT order U/sec119 of the Act the due date was extended up to 31-10-2011.Whereas the Books of Accounts of the Assessee are Audited under the Provisions of Cooperative societies Act and obtained Audit report on 09-07-2011 and filed the return of income on 20-09-2011. Further the disallowance of claim of deduction U/sec 80P(2)(d) of the Act, U/sec 143(1) of the Act is not acceptable, as the provisions of section 80AC of the Act are incorporated in Finance Act 2018 effective from 01.04.2018 i.e A.Y.2018-19 and the present Assessement Year is A.Y.2011-12. The Ld.AR substantiated the ITA No. 2997 & 2998/Mum/2023 Dhruva Tara Co-op Housing Society Ltd., Mumbai. - 5 - submissions with the factual paper book and prayed for allowing the appeal. Per Contra, the Ld. DR relied on the order of the CIT(A) appeal. 6. 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 due date U/sec139(1) of the Act though the due date was extended to 31-10- 2011 as per CBDT order. Whereas the due date of filing of the return of income is 30-09-2011, as the assessee being a cooperative society and the books of accounts are audited under other laws. Whereas the Books of Accounts of the Assessee are Audited under the Cooperative societies Act and the asseessee has obtained Audit report on 09-07-2011 and the assessee has filed the return of income on 20-09- 2011. Whereas in respect of claim of deduction u/s 80(P)(2)(d) of the Act, the contentions of the Ld. AR are that the due date of filing of return of income U/sec139(1) of the Act for the A.Y 2011-12 is 30 th September 2011 but not the 01 August 2011 as mentioned in the order U/sec ITA No. 2997 & 2998/Mum/2023 Dhruva Tara Co-op Housing Society Ltd., Mumbai. - 6 - 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 in the order u/sec 143(1) of the Act. Whereas, the provisions of section 80AC of the Act are incorporated in Finance Act 2018 effective from 01.04.2018 i.e A.Y.2018-19 and the present Assesseement Year is A.Y.2011-12. The Coordinate Bench of the Honble Tribunal in the case of The Nutan Laxmi Co-Operative Housing Society Ltd Vs ACIT in ITA.No1214/Mum/2023 dated 27-07-2023 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 ITA No. 2997 & 2998/Mum/2023 Dhruva Tara Co-op Housing Society Ltd., Mumbai. - 7 - 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 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”. 7. In the present case, the Books of Account of the assessee society are audited on 09-07-2011 which is not disputed by the revenue. The assessee has filed the return of income on 20-09-2011 very much before the extended due date U/sec 139(1) as per CBDT order. Further the due date of filing of the return of income is 30-09-2018, as the assessee is a cooperative society and the books of accounts are audited under other laws. Further the applicability of the provisions U/sec 80AC of the Act are made in Finance Act 2018 effective from 01.04.2018 i.e from A.Y.2018-19 and the assesseement year in consideration is A.Y.2011-12. ITA No. 2997 & 2998/Mum/2023 Dhruva Tara Co-op Housing Society Ltd., Mumbai. - 8 - Accordingly, considering the facts, circumstances and the ratio of the judicial decision, 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. ITA No. 2998/Mum/2023, A.Y 2017-18 9. As the facts and circumstances in this appeal is identical to ITA No 2997/Mum/2023, for the A.Y 2011-12 (except variance in figures) and the decision rendered in above paragraph would apply mutatis mutandis for this appeal also. Accordingly, allow the grounds of appeal of the assessee. 10. In the result, both the appeals filed by the assessee are allowed. Order pronounced in the open court on 08.11.2023. Sd/- (PAVAN KUMAR GADALE) JUDICIAL MEMBER Mumbai, Dated 08.11.2023 ITA No. 2997 & 2998/Mum/2023 Dhruva Tara Co-op Housing Society Ltd., Mumbai. - 9 - KRK, PS Copy of the Order forwarded to : 1. The Appellant 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