Asst. CIT, Circle 11(1), Pune V. M/s. Janata Grahak Madhyavarti Sahakari Sangh Maryadit, Pune

ITA 573/PUN/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5270 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 01-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S B WALIMBE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.573/PN/2013 A.Y. 2009-10 ASST.CIT, CIRCLE 11(1), PUNE APPELLANT VS. M/S. JANATA GRAHAK MADHYAVARTI SAHAKARI SANGH MARYADIT GRAHAK BHAVAN, 2020, SADASHIV PETH, PUNE-411030 RESPONDENT APPELLANT BY : SHRI S.B. W ALIMBE RESPONDENT BY : SHRI NIK HIL PATHAK DATE OF HEARING: 26.11.2013 DATE OF ORDER : 27.11.2013 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-I, (SHORT CIT(A )-I) PUNE, DATED 14.12.2012 FOR A.Y. 2009-10 ON THE FOLLOWING GROUNDS. 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IS CONTRARY TO LAW AND TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED IN HOLDING THAT THE ASSESSEE IS ENTIT LED TO DEDUCTION U/S. 80P(2)(D) AND ACCORDINGLY IN DELETI NG THE DISALLOWANCE MADE IN THE ASSESSMENT WITH REGAR D TO THE INTEREST OF RS.21,90,781/- RECEIVED BY THE ASS ESSEE FROM THE THANE JANATA SAHAKARI BANK LTD. 3. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) GROSSLY ERRED IN FAILING TO APPRECIATE THAT DEDUCTI ON U/S.80P(2)(D) IS AVAILABLE TO A COOPERATIVE SOCIETY IN 2 RESPECT OF INCOME BY WAY OF INTEREST OR DIVIDEND D ERIVED BY THE COOPERATIVE SOCIETY FROM ITS INVESTMENT WIT H ANY OTHER COOPERATIVE SOCIETIES, WHEREAS M/S. THANE JAN ATA SAHAKARI BANK LTD. IS A BANK AND THEREFORE CANNOT ROUTINELY BE CONSIDERED AS ANY OTHER COOPERATIVE SO CIETY WITHIN THE MEANING OF SEC.80P(2)(D). 4. FOR THESE AND SUCH OTHER GROUNDS AS MAY BE URGED AT THE TIME OF HEARING, THE ORDER OF THE LEARNED CIT (APPEALS) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND A NY OR ALL THE GROUNDS OF APPEAL. 2. AT THE OUTSET OF HEARING, LEARNED AUTHORIZED REP RESENTATIVE POINTED OUT THAT THIS ISSUE IS COVERED IN FAVOUR OF ASSESSEE BY THE DECISION OF ITAT, PUNE B BENCH IN ITA NO.1047/PN/20 12 IN THE CASE OF ACIT VS. M/S. BAJAJ AUTO LTD. EMPLOYEES CO- OP. CREDIT SOCIETY LTD., WHEREIN THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY OBSERVING AS UNDER: 4. WE HAVE HEARD THE LD. DR. NONE WAS PRESENT F OR THE ASSESSEE. WE HAVE ALSO PERUSED THE ORDER OF THE AUT HORITIES BELOW. IN OUR OPINION SO FAR AS THE AMOUNT OF INT EREST RECEIVED ON THE DEPOSIT WITH AURANGABAD DISTRICT CE NTRAL CO-OPERATIVE BANK IS CONCERNED THE ASSESSING OFFICE R HAS NOT PROPERLY APPRECIATED THE PROVISIONS OF LAW. SEC. 80P(2)(D) READS AS UNDER: 80P(1): WHERE, IN THE CASE OF AN ASSESSEE BEING A C O- OPERATIVE SOCIETY, THE GROSS TOTAL INCOME INCLUDES ANY INCOME REFERRED TO IN SUB-SECTION (2), THERE SHALL BE DEDUCTED, IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF THIS SECTION, THE SUMS SPECIFIED IN S UB- SECTION (2), IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE. 80P(2): THE SUMS REFERRED TO IN SUB-SECTION (1) SHA LL BE THE FOLLOWING, NAMELY: (A) .. (B) .. (C) .. 2(D): IN RESPECT OF ANY INCOME BY WAY OF INTEREST O R DIVIDENDS DERIVED BY THE CO-OPERATIVE SOCIETY FROM ITS 3 INVESTMENTS WITH ANY OTHER CO-OPERATIVE SOCIETY, TH E WHOLE OF SUCH INCOME; 5. SUB-SEC. (4) OF SEC. SOP HAS WITHDRAWN THE DEDUC TION TO THE CO OPERATIVE BANK OTHER THAN PRIMARY AGRICUL TURAL CREDIT SOCIETY OR A PRIMARY CO-OPERATIVE AGRICULT URAL AND RURAL DEVELOPMENT BANK W.E.F. THE A.Y. 2007-08. TH E SAID PROVISION IS APPLICABLE TO THE AURANGABAD DISTRI CT CENTRAL CO-OPERATIVE BANK (ADCCB) IN WHICH THE ASSE SSEE SOCIETY HAS KEPT DEPOSIT. THE WITHDRAWAL OF DEDUC TION BY INSERTION OF SUB-SECTION (4) OF SEC. SOP DOES NOT C HANGE 'STATUS' OF AURANGABAD DISTRICT CENTRAL CO-OPERATIV E BANK 'AS A CO-OPERATIVE SOCIETY WHICH IS CONTEMPLATED IN SEC. 80P(1) OF THE ACT. WE, THEREFORE, HOLD THAT THE INTEREST RECEIVED ON THE DEPOSIT WITH THE AURANGABAD DISTRIC T CENTRAL CO OPERATIVE BANK BY THE ASSESSEE ON THE DE POSITS ARE SQUARELY COVERED U/S. 80P(L)(D) AND THE INTERES T RECEIVED ON DEPOSIT KEPT WITH THE AURANGABAD DISTRICT CENTRA L CO- OPERATIVE BANK IS AN ALLOWABLE DEDUCTION. SO FAR AS THE FINDING OF THE LD. CIT(A) THAT THE PROVISIONS OF SE C. 80P(2)(A)(I), IN OUR OPINION THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF TOTAGARS COOPERAT IVE VS. ITO (SUPRA) IS AGAINST THE ASSESSEE AS INTEREST REC EIVED ON DEPOSITS WITH AURANGABAD DISTRICT CENTRAL CO-OPERAT IVE BANK CANNOT BE SAID TO BE THE INCOME DERIVED FROM PROVIDING CREDIT FACILITIES TO ITS MEMBERS. WE, AC CORDINGLY, ANSWER THE GROUND TAKEN BY THE REVENUE. BUT, FINAL LY WE HAVE CONFIRMED ORDER OF LD. CIT(A) GIVING RELIEF TO THE ASSESSEE U/S. 80P(2)(D). 2.1 FACTS BEING SIMILAR, SO FOLLOWING THE SAME REAS ONING, THE ASSESSEE IS ENTITLED TO DEDUCTION U/S.80P(2)(D). I N VIEW OF ABOVE, ASSESSEE IS ELIGIBLE FOR CLAIMING DEDUCTION U/S.80P (2)(D) OF I.T ACT, WHICH IS AVAILABLE FOR INCOME EARNED FROM BUSINESS AND NOT FROM OTHER SOURCES AS RIGHTLY HELD BY CIT(A). WE UPHOLD THE SAME. 3. IN THE RESULT, APPEAL FILED BY REVENUE IS DISMIS SED. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY 27 TH OF NOVEMBER, 2013. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 27 TH NOVEMBER 2013 GCVSR 4 COPY TO:- 1) DEPARTMENT 2) ASSESSEE 3) THE CIT(A)-I, PUNE 4) THE CIT-I, PUNE 5) THE DR, B BENCH, I.T.A.T., PUNE. 6) GUARD FILE //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE