MERWANJEE CAMA PARK CO OP HOUSING LTD, MUMBAI V. ITO RG 24(2)(5), MUMBAI

ITA 6696/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7913 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 15-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Assessee Lawyers: FALEE H BILLIMORIA
• Section: 143(3); 234B

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ./ I.T.A. NO. 6696/MUM/2016 ( / ASSESSMENT YEAR: 2012 - 13 ) MERWANJEE CAMA PARK CO - OP. HOUSING SOCIETY LTD. CAMA ROAD, ANDHERI (E), MUMBAI - 400 058 / VS. THE INCOME TAX OFFICER, RANGE 24(2)(5), PIRAMAL CHAMBERS, MUMBAI ./ ./ PAN/GIR NO. AAAAM 2119 B ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI FALEE H. BILLIMORIA / RESPONDENT BY : MS. N. HEMALATHA / DATE OF HEARING : 11.10.2017 / DATE OF PRONOUNCEMENT : 13.12 .2017 / O R D E R PER SHAMIM YAHYA , A. M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 10.08.2016 AND PERTAINS TO THE ASSESSMENT YEAR 2012 - 13. 2. THE GROUNDS OF APPEA L READ AS UNDER: 2 ITA NO. 6696/MUM/2016 (A.Y.2012 - 13) MERWANJEE CAMA PARK CO - OP. HOUSING SOCIETY LTD. VS. ITO 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE OF THE DEDUCTION UNDER SECTION 80P(2)(D) OF THE ACT, IN RESPECT OF INTEREST INCOME AGGREGATING TO RS.25,40,418/ - EARNED BY THE APPELLANT ON THE DEPOSI TS PLACED WITH CO - OPERATIVE BANKS, BY RELYING ON THE PROVISIONS OF SECTION 80P(4) OF THE ACT. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF THE ASSESSING OFFICER IN LEVYING INTEREST U/S. 234B OF THE ACT AMOUNTING TO RS.2,73,665/ - . THE APPELLANT DENIES THE LIABILITY TOWARDS THE ERRONEOUS LEVY OF INTEREST OF RS.2,73,665/ - U/S. 234B OF THE ACT, AND SUBMITS THAT THE SAME BE DELETED. 3. IN THIS CASE, THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A CO - OPERATIVE HOUSIN G SOCIETY AND HAS E - FILED ITS RETURN FOR A.Y. 2012 - 13 ON 14.08.2012 DECLARING TOTAL INCOME AT RS.NIL. THE RETURN WAS PROCESSED AND SELECTED FOR SCRUTINY. DURING SCRUTINY PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE SOCIETY HAD RECEIVED INCOME OF RS.25,40,418/ - FROM INTEREST ON DEPOSITS AND RS.10,210/ - AS MISCELLANEOUS INCOME. ON EXAMINATION OF THE CLAIM, THE ASSESSING OFFICER NOTED THAT THE INTEREST AND DIVIDEND INCOME WAS DERIVED FROM INVESTMENTS MADE WITH A CO - OPERATIVE BANK AND NOT WITH A CO - OPERATIVE SOCIETY. THE ASSESSING OFFICER, THEREFORE, ASKED THE ASSESSEE TO EXPLAIN WHY THE DEDUCTION U/S. 80P(2)(D) OF THE ACT SHOULD NOT BE DISALLOWED SINCE AFTER THE INTRODUCTION OF SUBSECTION 4 TO SECTION 80P OF THE ACT COOPERATIVE BANKS WERE EXCL UDED FROM THE PURVIEW OF THE SAID SECTION. THE ASSESSEE REPLIED THAT SUB - SECTION 4 TO SECTION 80P OF THE ACT WAS INTRODUCED FOR THE EXPRESS PURPOSE OF INCLUDING THE CO - OPERATIVE BANKS IN THE TAXATION NET. IT WAS FURTHER STATED THAT THE ASSESSEE SOCIETY WAS A MUTUAL CONCERN AND THE INTEREST RECEIPTS WERE EXEMPT UNDER THE PRINCIPLE OF MUTUALITY. THE ASSESSING OFFICER HOWEVER HELD THAT AFTER THE 3 ITA NO. 6696/MUM/2016 (A.Y.2012 - 13) MERWANJEE CAMA PARK CO - OP. HOUSING SOCIETY LTD. VS. ITO INTRODUCTION OF SECTION 80P(4) OF THE ACT, THE DEDUCTION OF INCOME FROM CO - OPERATIVE BANKS HAD BEEN WITHDRAWN AND AL L CO - OPERATIVE BANKS WERE CONSIDERED AT PAR WITH COMMERCIAL BANKS AND THEREFORE INCOME EARNED FROM THEM WAS NOT ELIGIBLE FOR DEDUCTION U/S. 80P(2)(D) OF THE ACT. ASSESSMENT WAS COMPLETED VIDE ORDER DATED 21.02.2015 U/S. 143(3) OF THE ACT DETERMINING TOTAL INCOME AT RS.25,40,420/ - AS A RESULT OF DISALLOWANCES U/S. 80P OF THE ACT. 4. AGAINST THE ABOVE ORDER, THE ASSESSEE APPEALED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), WHO CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 5. AGAINST THE ABOVE ORD ER, THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 6. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. IT TRANSPIRES THAT THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2011 - 12 VIDE ORDER DATED 27.09.2017 IN ITA NO. 6139/MUM/2014, HAS DECI DED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE TRIBUNAL HAD REFERRED TO SEVERAL CASE LAWS AND HAS HELD THAT THE PROVISIONS OF SECTION 80P(4) ARE NOT APPLICABLE AND THE ASSESSEE IS ENTITLED TO DEDUCTION U/S. 80P(2)(D). 7. FOLLOWING THE ABOVE PRECEDENT, I SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 4 ITA NO. 6696/MUM/2016 (A.Y.2012 - 13) MERWANJEE CAMA PARK CO - OP. HOUSING SOCIETY LTD. VS. ITO 8. IN THE RESULT, TH IS APPEAL BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.12.2017 SD/ - (S HAMIM YAHYA ) / A CCOUNTANT MEMBER MUMBAI ; DATED : 13.12.2017 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI