ITO 25(3)(2), MUMBAI V. PRESIDENCY CO OP HSG SOCIETY LTD, MUMBAI

ITA 4058/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0114 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 02-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AARJU GARODIA
• Assessee Lawyers: PARRATI GANESH
• Keywords: Business income
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM ITA NO. 4058 / MUM/20 17 ( ASSESSMENT YEAR : 2012 - 13 ) ITO 25 (3)(2) R.NO.103, C - 10 PRATYAKSHKAR BHAVAN BKC, MUMBAI VS. M/S. PRESIDENCY CO - OP HSG.SOCIETY LTD., PLOT NO.A /B, 2 ND FLOOR VISHNU PRASAD DESAI BHAVAN, V.L.MARG JVPD SCHEME VILE PARLE (W) MUMBAI 400 056 PAN/GIR NO. AAAAT4479M APPELLANT ) .. RESPONDENT ) REVENUE BY MS. AARJU GARODIA ASSESSEE BY SHRI PARRATI GANESH DATE OF HEARING 25 / 01 /201 8 DATE OF PRONOUNCEME NT 06 / 0 3 /201 8 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY REVENUE AGAINST THE ORDER OF CIT(A) - 37, MUMBAI DATED 15/03/2017 FOR A.Y.2012 - 13 IN THE MATTER OF ORDER PASSED U/S.143(3) OF TH E IT ACT. 2. ONLY GRIEVANCE OF REVENUE RELATES TO ALLOWING CLAIM OF DEDUCTION U/S. 80P TO THE ASSESSEE - CO - OPERATIVE SOCIETY. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. 4. FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN AOP AND IS ENGAGED IN THE BU SINESS OF CO - OPERATIVE SOCIETY . THE RETURN OF INCOME HAS E - FILED ON 12/11/2012 DECLARING TOTAL INCOME OF RS.34,649/ - . THE AO HAS ASSESSED ITA NO. 4058/MUM/2017 M/S. PRESIDENCY CO - OP HSG. SOC. LTD., 2 THE TOTAL INCOME AFTER DISALLOWANCE OF CLAIM U/S.80P(2)(D) OF RS.42,57,348/ - . 5. BY THE IMPUGNED ORDER, CIT(A) ALLOWED ASSESSEES CLAIM OF DEDUCTION U/S.80P AFTER OBSERVING AS UNDER: - 5.7 THE APPELLANT IS A CO - OPERATIVE CREDIT SOCIETY. IT IS NOT CARRYING OUT ANY BANKING ACTIVITY SO AS TO SAY THAT IT IS A CO - OPERATIVE BANK. IT IS NOT REGISTERED WITH THE RESERVE BANK OF IND IA AND IT DOES NOT FULFILL ALL THE CONDITIONS PRESCRIBED UNDER SECTION 5(CCV) OF THE BANKING REGULATIONS ACT 1949. AS PER SECTIONS 2(19) OF THE INCOME - TAX ACT 1961, A CO - OPERATIVE SOCIETY MEANS A CO - OPERATIVE SOCIETY REGISTERED UNDER THE CO - OPERATIVE SOCIE TIES ACT. 1912 OR UNDER ANY OTHER LAW FOR THE TIME BEING IN FORCE IN ANY STATE FOR REGISTRATION OF CO - OPERATIVE SOCIETIES . FURTHER, AS PER SECTION 2(10) OF MAHARASHTRA CO - OPERATIVE SOCIETY ACT, 1960, CO - OPERATIVE BANK MEANS A SOCIETY WHICH IS DOING THE BU SINESS OF BANKING AS DEFINED IN SECTION 5(L)(B) OF THE BANKING COMPANIES ACT, 1949. HENCE, IT IS APPARENT FROM THE ABOVE THAT THE APPELLANT BEING A CO - OPERATIVE SOCIETY COULD NOT BE SAID TO BE A CO - OPERATIVE BANK SO AS TO DENY IT THE BENEFIT OF PROVISION O F SECTIONS 80 P AS PROVIDED IN SECTIONS 80P(4), WHERE AS A CO OPERATIVE BANK IS TO BE TREATED AS A CO - OPERATIVE SOCIETY FOR THE PURPOSE OF ALLOWING DEDUCTION AS PER SECTION 80P(2)(D). 5.8 THE HON'BLE BOMBAY HIGH COURT AS GOA, IN THE CASE OF M/S. THE QUEPEM URBAN CO - OPERATIVE CREDIT SOCIETY LTD., VS ACIT CIRCLE - 1, MARGOA IN TAX APPEALS NO. 22, 23, & 24 OF 2015 HAS EXAMINED THE ISSUE IN DETAIL AND AFTER CONSIDERING AL THE RELEVANT PROVISIONS AND FACTS OF THE CASE HAS COME TO A CONCLUSION AND HELD THAT THE ASSE SSES COULD NOT BE CONSIDERED TO BE A CO - OPERATIVE BANK FOR THE PURPOSE OF SECTIONS 80P(4) OF THE ACT. FURTHER, HON'BLE INCOME TAX APPELLATE TRIBUNAL 'A' BENCH, MUMBAI IN THE CASE OF LANDS END CO - OPERATIVE HOUSING SOCIETY LTD. VS ITO, IN ITA NO. 3566/MUM /2014 HAS THE PROVISOS OF SECTION 80P(2)(D) OF THE ACT PROVIDES FOR DEDUCTION IN RESPECT OF INCOME OF A CO - OPERATIVE SOCIETY BY WAY OF INVEST FOR DIVIDEND FROM ITS INVESTMENTS WITH OTHER CO - OP SOCIETY IF SUCH INCOME IS INCLUDED IN THE GROSS TOTAL INCOME OF THE SUCH CO - OP SOCIETY. IN VIEW OF THESE FACTS AND CIRCUMSTANCES WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE IS ENTITLED TO THE DEDUCTIONS OF RS. 1 4 , 88,107 IN RESPECT OF INTEREST RECEIVED/ DERIVED BY IT ON DEPOSIT 'WITH CO - OP BANKS AND THEREFORE THE APPEAL OF THE ASSESS E E IS ALLOWED BY REVERSING THE ORDER OF THE CIT(A). THE AO IS DIRECTED ACCORDINGLY.' 5.9 IN THE CASE OF THE ADVOCATES MUTUALLY AIDED CO - OPERATIVE SOCIETY VS ACIT(2015), IN ITA NO. 546,547 & 1331/HYD/2103, IT WAS HELD BY ITA NO. 4058/MUM/2017 M/S. PRESIDENCY CO - OP HSG. SOC. LTD., 3 THE HON'BLE ITAT, HYDERABAD BENCH THAT PROVISIONS OF SECTIONS 80P(4) DOES NOT APPLY AS THE ASSESS E E SOCIETY IS NOT IN THE BUSINESS OF BANKING AND THAT SECTIONS 80P(2)(D) IS APPLICABLE TO THE ASSESS E E SOCIETY IN RESPECT OF INTEREST RECEIVED FROM OTHER CO - OPERATIVE SOC IETY INCLUDING CO - OPERATIVE BANKS. IN SABARKANTHA DISTRICT CO - OPERATIVE MILK PRODUCERS UNION LIMITED VS CIT IN ITA NO. 2613/AHD/@012 IT WAS HELD BY HON'BLE AHMEDABAD TRIBUNAL THAT THE ONLY REQUIREMENT FOR CLAIMING DEDUCTION UNDER SECTIONS 80P(2)(D) WAS THA T THE INCOME SHOULD BE RECEIVED FROM THE INVESTMENTS MADE IN CO - OPERATIVE SOCIETY AND CO - OPERATIVE BANKS. 5.10 HON'BLE ITAT B BENCH MUMBAI'S IN THE CASE OF THE NUTANLAXMI CHS LTD, MUMBAI VS ASSESSEE DECIDED ON 24 AUGUST, 2016 IS HELD THAT. 'THUS IT IS AM PLY CLEAR THAT A COOPERATIVE SOCIETY CAN ONLY AVAIL DEDUCTION U/S 80P(2)(D)(I) IN RESPECT OF ITS INCOME ASSESSABLE AS BUSINESS INCOME AND NOT AS INCOME FROM OTHER SOURCES IF IT CARRIES ON BUSINESS OF THE BANKING OR PROVIDING CREDIT FACILITIES TO ITS MEMBER S AND HAS INCOME ASSESSABLE UNDER THE HEAD BUSINESS WHEREAS FOR CLAIMING U/S 80P(2)(D) IT MUST HAVE INCOME OF INTEREST AND DIVIDEND ON INVESTMENTS WITH OTHER CO - OPERATIVE SOCIETY MAY OR MAY NOT BE ENGAGED IN THE BANKING FOR PROVIDING CREDIT FACILITIES TO I TS MEMBERS AND THE HEAD UNDER WHICH THE INCOME IS ASSESSABLE IS NOT MATERIAL FOR THE CLAIM OF DEDUCTION UNDER THIS SECTION. THE PROVISIONS OF SECTION 80(P)(2)(D) OF THE ACT PROVIDES FOR DEDUCTION IN RESPECT OF INCOME OF A CO - OP SOCIETY BY WAY OF INTEREST O R DIVIDEND FROM ITS INVESTMENTS [Q \ 'WITH OTHER CO - OP SOCIETY IF SUCH INCOME IS INCLUDED IN THE GROSS TOTAL INCOME OF THE SUCH CO - OP SOCIETY. IN VIEW THESE FACTS AND CIRCUMSTANCES WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE IS ENTITLED TO THE DEDUCTION OF RS. 14,88,107/ - IN RESPECT OF INTEREST RECEIVED/DERIVED BY IT ON DEPOSITS WITH CO - OP, BANKS AND THEREFORE THE APPEAL OF THE ASSESSEE IS ALLOWED BY REVERSING THE ORDER OF THE CIT (A). THE AO IS DIRECTED ACCORDINGLY,' 5.11 FURTHER HON'BLE ITAT MUMBAI HA S DECIDED THE ISSUE IN THE CASE OF LANDS' END CO - OPERATIVE HOUSING SOCIETY LTD VS. I.T.O. I.T.A. NO. 3566/MUM/2014 (ITAT) DATED 15 - 01 - 20L6.THE OPERATIVE PART OF THE ABOVE DECISION READS AS UNDER: - ' THE PROVISIONS OF SECTION 80(P)(2)(D) OF THE ACT PROVIDE S FOR DEDUCTION IN RESPECT OF INCOME OF A COOP SOCIETY BY WAY OF INTEREST OR DIVIDEND FROM ITS INVESTMENTS WITH OTHER COOP SOCIETY IF SUCH INCOME IS INCLUDED IN THE GROSS TOTAL INCOME OF THE SUCH COOP SOCIETY. IN VIEW THESE FACTS AND CIRCUMSTANCES WE ARE O F THE CONSIDERED VIEW THAT THE ASSESS E E IS ENTITLED TO THE DEDUCTION OF RS. 14,88,107 / - IN RESPECT OF INTEREST RECEIVED/DERIVED BY IT ON DEPOSITS WITH COOP, BANKS AND ITA NO. 4058/MUM/2017 M/S. PRESIDENCY CO - OP HSG. SOC. LTD., 4 THEREFORE THE APPEAL OF THE ASSESSEE IS ALLOWED BY REVERSING THE ORDER OF THE CTT(A). T HE AO IS DIRECTED ACCORDINGLY '. 5.12 IN THE ACIT VS. M/S. JAWALA COOPERATIVE URBAN THRIFT & CREDIT SOCIETY LTD., - IT WAS HELD THAT 'WE HAVE HEARD RIVAL PARTIES AND HAVE GONE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT TOTAL INCOME EARNED BY THE ASSESSEE INCLUDED INCOME ON FIXED DEPOSITS PLACED WITH BOMBAY MERCANTILE BANK, INTEREST INCOME FROM A SCHEDULED BANK AND DIVIDEND INCOME FROM DELHI COOPERATIVE BANK. FROM THE CERTIFICATE AS PLACED AT PAPER BOOK PAGE 30, WE FIND THAT BOMBAY MERCANTILE COOP ERATIVE BANK IS A COOPERATIVE SOCIETY REGISTERED UNDER MAHARASHTRA COOPERATIVE SOCIETIES ACT AND WE FURTHER FIND THAT THE SAID SOCIETY HAS BEEN ASSESSED U/S 143(3) AS A COOPERATIVE SOCIETY AND ITS INCOME WAS ALLOWED TO BE EXEMPT U/S SOP(2) (I) AS HELD BY M UMBAI TRIBUNAL IN I. T.A. NO. 4128 AND 4129 VIDE ITS ORDER DATED 30.11.2005, FOR ASSESSMENT YEAR 1990 - 91 AND 1991 - 92 AND FURTHER BY MUMBAI TRIBUNAL VIDE ORDER DATED 07.09.2011 IN I.T.A. NO. 5292 FOR ASSESSMENT YEAR 1997 - 98. THEREFORE IT IS HELD THAT FIXED DEPOSITS PLACED WITH BOMBAY MERCANTILE BANK FALLS WITHIN THE EXEMPTION GRANTED BY SECTION 80P(2)(D) OF THE ACT. THE ASSESSEE WAS ALSO ELIGIBLE UNDER THE PROVISIONS OF SECTION 80P(2)A(I) AS THE FUNDS PLACED BY ASSESSEE IN THE FORM OF FIXED DEPOSITS CAN BE S AID TO BE KEPT FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE AS THE ASSESSEE HAD AVAILED CREDIT FACILITIES ALSO AGAINST SUCH FIXED DEPOSITS WHICH WERE AGAIN USED FOR THE PURPOSE OF BUSINESS OF ASSESSEE. MOREOVER, UNDER SIMILAR CIRCUMSTANCES, CHANDIGARH BENCH IN I.T.A. NO. 996/2009 AS NOTED BY LD. CIT(A) HAS DECIDED IN FAVOUR OF ASSESSEE. THE DIVIDEND INCOME IS EXEMPT FOR ALL PERSONS INCLUDING ASSESSEE. THE INTEREST INCOME FROM BANK AMOUNTING TO RS.18,190/ - IS THOUGH NOT EXEMPT U/S 80(P)(2)(D) BUT IS EXEMPT U/ S 80P(2)(I) OF THE ACT. THE CASE LAW OF TOTGAR'S COOPERATIVE SOCIETY WAS RIGHTLY DISTINGUISHED BY LD. CIT(A). THEREFORE, KEEPING IN VIEW ALL FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD. CIT(A). 10. IN VIEW OF ABOVE, APPEAL FILE D BY REVENUE IS DISMISSED.' 5.13 I HAVE CONSIDERED THE ASSESSMENT ORDER AND WRITTEN SUBMISSION OF THE APPELLANT AND FOUND THAT THE AO HAS DISALLOWED CLAIM OF DEDUCTION OF INTEREST INCOME OF RS.42,57,3487 - FROM CO - OPERATIVE BANK U/S 80P(2)(D) OF THE ACT AS CO - OPERATIVE BANK IS NOT A CO - OPERATIVE SOCIETY. I FIND FORCE IN THE ARGUMENTS OF THE APPELLANT AND DRAW STRENGTH FROM VARIOUS JUDICIAL PRONOUNCEMENTS OF THE JURISDICTION AT ITAT LIKE THE NUTAN LAXMI CHS LTD, MUMBAI VS ASSESSEE DECIDED ON 24 AUGUST, 2016, LANDS END CO OPERATIVE HOUSING SOCIETY LTD VS. ITA NO. 4058/MUM/2017 M/S. PRESIDENCY CO - OP HSG. SOC. LTD., 5 I.T.O. I.T.A. NO. 3566/MUM/2014 (ITAT) DATED 15 - 01 - 2016 AND ACIT VS. M/S. JAWALA COOPERATIVE URBAN THRIFT & CREDIT SOCIETY LTD. A CO - OPERATIVE BANK IS ALWAYS REGISTERED UNDER THE RELEVANT CO - OPERATIVE SOCIETI ES ACT OF THE RELEVANT STATE. HOWEVER, DURING THE APPELLATE PROCEEDINGS, APPELLANT HAS SUBMITTED THAT THE CLAIM OF DEDUCTION U/S. 80 P HAS BEEN ACCEPTED IN THE SUBSEQUENT YEAR AND NO ADDITION ON THE ABOVE GROUND HAS BEEN MADE IN THE AY 2013 - 14 AND AY 2014 - 15 IN VIEW OF ABOVE, THE APPELLANT IS ENTITLED TO CLAIM OF DEDUCTION U/S 80P OF THE ACT, THEREFORE, AO IS DIRECTED TO ALLOW RS.42,57,348/ - AS DEDUCTION U/S.80P OF THE ACT. THIS GROUND OF APPEAL IS ALLOWED. 6. I HAVE GONE THROUGH THE ORDERS OF THE AUTHORIT IES BELOW. IT IS CLEAR FROM THE ORDER OF CIT(A) THAT AFTER APPLYING JUDICIAL PRONOUNCEMENTS, AS LAID DOWN BY HONBLE BOMBAY HIGH COURT AND THE VARIOUS BENCHES OF TRIBUNAL HELD THAT ASSESSEE - CO - OPERATIVE SOCIETY IS ELIGIBLE FOR DEDUCTION U/S. 80P. THE F INDING RECORDED BY CIT(A) HAS NOT BEEN CONTROVERTED BY LEARNED DR BY BRINGING ANY POSITIVE MATERIAL ON RECORD. ACCORDINGLY, I DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 06 / 0 3 /201 8 SD/ - ( R.C.SHARMA ) ACCOUNTANT MEMBER MUMBAI ; DATED 06 / 0 3 /201 8 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDE NT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//