ITO 23 (2)(3), MUMBAI V. M/S MIG CO-OP HOUSING SOCIETY GROUP II LTD., MUMBAI

ITA 7325/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8305 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 29-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 234B; 143(1); 80P; 201; 139(1)

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI AMARJIT SINGH (JM) I.T.A. NO. 7325/MUM/2019 (ASSESSMENT YEAR 2012-13 ) I.T.A. NO. 7326/MUM/2019 (ASSESSMENT YEAR 2013-14 ) I.T.A. NO. 7327/MUM/2019 (ASSESSMENT YEAR 2015-16 ) ITO-23(2)(3) ROOM NO. 110 MATRU MANDIR GRANT ROAD MUMBAI-400 007. VS . M/S. MIG CO-OPERATIVE HOUSING SOCIETY GROUP II LTD. C/22/200, MIG COLONY GANDHI NAGAR, BANDRA EAST MUMBAI-400 051. PAN : AAAAM8129P (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI YOGESH THAR DEPARTMENT BY MS. USHA GAIKWAD DATE OF HEARING 02.06.2021 DATE OF PRONOUNCEMENT 09.08.2021 O R D E R PER SHAMIM YAHYA (AM) :- THESE ARE APPEALS BY THE REVENUE AGAINST A COMMON O RDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [IN SHORT LEAR NED CIT(A)] DATED 18.9.2019 FOR AFORESAID ASSESSMENT YEARS. 2. SINCE ISSUES ARE COMMON AND CONNECTED THESE ARE BEING DISPOSED OF BY THIS COMMON ORDER. 3. GROUNDS OF APPEAL FOR A.Y. 2012-13 READ AS UNDER :- 1. 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF R S.1,43,75,000/- BEING INTEREST @12.50% PA ON PART AMOUNT RECEIVABLE AS CORP US FROM DEVELOPERS ON THE ALLEGED GROUND THAT THE INTEREST U/S 12.50% IS DUE AND SINCE THE ASSESSEE IS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTI NG, THE SAID INTEREST IS CHARGEABLE TO TAX . 2. 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) WAS JUSTIFIED IN HOLDING THAT THE REGISTR AR OF CO-OPERATIVE HOUSING SOCIETY HAD NOT CANCELLED THE REGISTRATION OF THE HOU SING SOCIETY ON THE ALLEGED VIOLATION OF PRINCIPLE OF MUTUALITY OR BYE L AW, WITHOUT APPRECIATING THE 2 FACTS THAT COOPERATIVE BANK IS A COMMERCIAL BANK AND D OES NOT FALL UNDER THE PURVIEW OF A 'CO-OPERATIVE SOCIETY' REFERRED IN SECTIO N 80P(2)(D) OF THE INCOME TAX ACT, 1961'. 3. 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) WAS JUSTIFIED IN HOLDING THAT THE REGISTR AR OF CO-OPERATIVE HOUSING SOCIETY HAD NOT CANCELLED THE REGISTRATION OF THE HOU SING SOCIETY ON THE ALLEGED VIOLATION OF PRINCIPLE OF MUTUALITY OR BYE L AW, WITHOUT APPRECIATING THE FACTS THAT THE ASSESSEE HAS MADE DEPOSITS OUT OF MONEY RECEIVED AGAINST REDEVELOPMENT AGREEMENT AND FROM DIFFERENT CHANNELS W HICH IS NOT THE SPECIFIED ACTIVITY OF THE SOCIETY AND IS NOT QUALIFI ED FOR DEDUCTION U/S.80P(2)(C) OF THE ACT'. 4. 'THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) O N THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RE STORED.' 4. BRIEF FACTS THE ASSESSEE IS A CO-OPERATIVE HOUSI NG SOCIETY REGISTERED UNDER THE MAHARASHTRA CO-OPERATIVE SOCIETY ACT, 196 0. THE ASSESSEE HAS EXECUTED DEVELOPMENT AGREEMENT WITH KALPATARU PROPERTIES LTD. ON 26.04.2 010 AND TRANSFERRED ASSETS HAVING STAMP VALUE OF RS. 78 .52 CRORES AS AGAINST COMPENSATION RECEIVED AT RS. 51.36 CRORE. APART FRO M THIS, RS. 15.00 CRORE WAS RECEIVABLE AGAINST CORPUS FUND WHICH WAS TAXED IN A Y 2011-12 ON ACCRUAL BASIS. OUT OF ABOVE, CORPUS FUND OF RS. 1.50 CRORE WAS RECEIVED IN AY 2011-12 ON EXECUTION OF AGREEMENT AND THE BALANCE RS. 11.50 CRORE WAS PAYABLE TO THE SOCIETY ON THE EXPIRY OF 30 MONTHS FROM THE POSSESS ION DATE. IT WAS ALSO AGREED THAT KALPATARU SHALL ALSO PAY INTEREST @ 12 5 % PER ANNUM CALCULATED FROM POSSESSION DATE TILL THE ACTUAL PAYMENT DATE. POSSE SSION LATE WAS 31.03.2011. HENCE, ACCORDING TO THE ASSESSEE, THE SUM OF RS. 11 .50 CRORE WAS ONLY DUE ON OR AFTER 30.09.2013. TOTAL SUM OF RS. 15,53,97,935/ - WAS RECEIVE FROM KALPATARU ON 07.01.2014. AS PER ASSESSEE, THE INTER EST ON RS. 11.50 CRORE WAS PROPERLY REPORTED AND OFFERED IN AY 2014-15. 5. HOWEVER, THE AO TAXED INTEREST ON ACCRUAL BASIS @ 12.5 % ON RS. 11.50 CRORE WHICH COMES TO RS. 1,43,75,000/- FOLLOWING TH E ORDER FOR AY 2011-12. THE ASSESSEE HAD EARNED INTEREST INCOME OF RS. 63, 95,051/- FROM ITS INVESTMENTS WITH THE CO-OPERATIVE BANKS AND HAD CL AIMED DEDUCTION U/S 80P(2)(D) FOR THE SAME. THE AO DISALLOWED DEDUCTION OF RS. 63,95,051/-U/S 80P(2)(D) FOR THE FOLLOWING REASONS: 3 A) A CO-OPERATIVE BANK IS A COMMERCIAL BANK AND D OES NOT FALL UNDER THE PURVIEW OF A 'CO-OPERATIVE SOCIETY REFERRED TO IN SECTION 80P(2)(D). B) VIDE FINANCE ACT, 2006; DEDUCTION FROM INCOME O F CO-OPERATIVE BANKS U/S 80P HAS BEEN WITHDRAWN BY INSERTING SUB-S ECTION (4) IN SECTION 80P. C) THE SOCIETY HAD RECEIVED CORPUS FUNDS FROM NON- MEMBERS I.E. DEVELOPER WHICH IS AGAINST THE BYE-LAWS OF THE CO-O PERATIVE SOCIETY ACT. SIMILAR DISALLOWANCE WAS MADE IN AY 201 1-12. 6. UPON ASSESSEES APPEAL LEARNED CIT(A) NOTED AS U NDER : 6. AGGRIEVED BY AFORESAID ADDITIONS, THE ASSESSEE HAS F ILED THE PRESENT APPEAL UNDER CONSIDERATION. DURING THE COURSE OF APPELLATE P ROCEEDINGS, THE AR OF THE APPELLANT SUBMITTED THAT THE INTEREST ON RS. 11.50 CR ORES ACQUIRED AND BECAME DUE ONLY IN FY 20 13-14 RELEVANT TO AY 2014-1 5 AND HENCE THE SAME WAS OFFERED TO TAX IN AY 2014-15 IT WAS ALSO SUBMITTED THAT IN THE A.Y. 2011- 12, THE CLAIM OF THE APPELLANT HAS BEEN ALLOWED BY C IT(A) AND THE SAME HAS BEEN UPHELD BY THE HON'BLE TRIBUNAL VIDE ORDER DATE D 17/02/2017. 7 . ON THE ISSUE OF DEDUCTION U/S 80P(2)(D), THE APPELLA NT PLACED RELIANCE ON VARIOUS DECISIONS OF THE MUMBAI ITAT IN CASE OF LAND S END CHSL, SEA GREAN CHSL, MERWANJE CAMA PARK CHSL ETC. IT WAS ALSO SUBMITT ED THAT IN THE A.Y. 2011-12, THE CLAIM OF THE APPELLANT HAS BEEN ALLOWED BY CIT(A) AND THE SAME HAS BEEN UPHELD BY THE HON'BLE TRIBUNAL VIDE ORDER D ATED 17/02/2017. 7. THE LEARNED CIT(A) DECIDED THE ISSUE IN FAVOUR O F THE ASSESSEE BY HOLDING AS UNDER :- 8. I HAVE CAREFULLY PERUSED THE FACTS HIGHLIGHTED IN THE ASSESSMENT ORDER, THE WRITTEN SUBMISSION FILED BY THE APPELLANT DURING A PPELLATE PROCEEDINGS AND VARIOUS JUDICIAL PRONOUNCEMENTS AVAILABLE ON THE ISSUES UNDER APPEAL. MY OBSERVATIONS AND FINDINGS ARE AS UNDER: 9. IN AY 2011-12, THE ITAT MUMBAI IN ITA NO. 1099/MU M/2016 VIDE ORDER DATED 17.02.2017 HAS DISMISSED THE APPEAL OF T HE DEPARTMENT AND, CONFIRMED THE ORDER OF THE CIT(A) ON BOTH THE ISSUES. THE ITAT HAS HELD THAT RS. 11.60 CRORE AND INTEREST OF RS. 1.43 CRORE WAS N OT RECEIVED BY THE ASSESSEE AND HENCE WERE NOT TAXABLE FOR AY 2011-12. THE ITAT HAS ALSO HELD THAT THE FAA HAS RIGHTLY HELD THAT DEDUCTION CLAIMED BY TH E ASSESSEE UNDER SUB-SECTION (D) AND (C)(II) CANNOT BE DENIED TO THE AS SESSEE. 10. SO FAR THE ISSUE OF DEDUCTION U/S 80P(2)(D) IS CONCERNED, IT IS FOUND THAT IN THE FOLLOWING DECISIONS OF ITAT, MUMBAI, IT HAS BE EN HELD THAT THE CO- 4 OPERATIVE SOCIETY IS ENTITLED TO DEDUCTION U/S 80P(2)(D ) ON INTEREST AND DIVIDEND EARNED FROM ITS INVESTMENT WITH CO-OPERATIVE BANKS. A) KLIANDAS UDYOG BHAVAN PREMISES CO-OPERATIVE SOCI ETY LTD. VS. ITO (2018) 94 TAXMANN.COM 15 (MUMBAI- TRIB) B) LANDS END CO-OPERATIVE HOUSING SOCIETY LTD. VS. I TO (2017) 46 CCH 52 C) SEA GREAN CO-OPERATIVE HOUSING SOCIETY LTD. VS I TO 21(3)(2), MUMBAI (ITA NO. 1343/MUM/2017 DATED 31.03.2017. D) MERWANJEE CAMA PARK CO-OPERATIVE HOUSING SOCIETY LTD. VS. ITO (ITA NO. 6139/MUM/2014, DATED: 27.09.2017. IT HAS BEEN NOTED THAT THERE ARE CONFLICTING DECISIONS OF NON-JURISDICTIONAL HIGH COURTS. THE DECISION OF THE BOMBAY HIGH COURT I N CASE OF K. SUBRAMANIAN VS. SIEMENS INDIA LTD. [1983] 15 TAXMAN 594 [1985] 156 ITR 11 (BOM) WAS REFERRED TO BY THE TRIBUNAL IN THE CASE OF KALIANDAS UDYOG BHAVAN PREMISES CO-OPERATIVE SOCIETY LTD. SUPRA), WHE RE IT HAS BEEN HELD THAT IF THERE IS A CONFLICT BETWEEN DECISIONS OF NON-JU RISDICTIONAL HIGH COURTS, THEN A VIEW WHICH IS IN FAVOUR OF THE ASSESSEE IS TO BE PREFERRED AS AGAINST THAT TAKEN AGAINST HIM. IT HAS BEEN ALSO HELD IN THE AFOR ESAID DECISIONS OF THE TRIBUNAL THAT THE ADJUDICATION OF THE SUPREME COURT IN CA SE OF TOTGARS CO- OPERATIVE SALE SOCIETY LTD. WAS IN CONTEXT OF SEC, 80 P(2)(A)(I) AND NOT ON ENTITLEMENT OF A CO-OPERATIVE SOCIETY TOWARDS DEDUCTION UNDER SECTION 80P(2)(D) ON INVESTMENTS PARKED WITH A CO-OPERATIVE B ANK. 11. CONSIDERING THE AFORESAID JUDICIAL PRONOUN CEMENTS AND THE ORDER OF THE ITAT IN ITS OWN CASE FOR AY 2011-12, I AM OF THE VIEW THAT THE APPELLANT CO-OPERATIVE SOCIETY IS ELIGIBLE FOR DEDUCTION U/S 8 0P(2)(D) ON INTEREST DERIVED FROM ITS INVESTMENT WITH CO-OPERATIVE BANKS SINCE CO- OPERATIVE BANKS ARE COVERED UNDER CO-OPERATIVE SOCIETIES REFERRED IN SEC TION 80P(2)(D). 12. TO CONCLUDE, RESPECTFULLY FOLLOWING THE ORDER OF MY PREDECESSOR CIT(A) FOR AY 2011-12 AND THE ORDER OF THE ITAT FOR AY 2011-12, IT IS HELD THAT THE AO WAS NOT JUSTIFIED IN ADDING INTEREST INCOME OF RS. 1,4 3,75,000/- ON ACCRUAL BASIS IN AY 2012-13 AND HENCE THE SAME IS DELETED. I T IS ALSO HELD THAT THE AO WAS NOT JUSTIFIED IN DENYING DEDUCTION OF RS. 63. 95.051/- U/S 80P(2)(D) IN AY 2012-13. HENCE, THE DEDUCTION OF RS. 63,95,051/- IS HEREBY ALLOWED. IT IS ALSO HELD THAT THE APPELLANT IS ELIGIBLE FOR DEDUCTION OF RS. 50,000/- U/S 80P(2)(C)(II) AS THE SAME IS A STATUTORY DEDUCTION. SO FAR CALCULATION OF INTEREST U/S 234C IS CONCERNED, IT IS HELD THAT THE SA ME IS TO BE CALCULATED ON RETURN INCOME AND NOT ON THE ASSESSED INCOME. IN TH E RESULT, ALL THE GROUNDS OF THE APPELLANT ARE ALLOWED. 8. AGAINST THE ABOVE ORDER REVENUE IS IN APPEAL BEF ORE US. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. 5 9. UPON CAREFUL CONSIDERATION WE NOTE THAT AS REGAR DS THE FIRST ISSUE OF ADDITION OF INTEREST RECEIPT, THE LEARNED CIT(A) HA S FOUND THAT NO INTEREST WAS DUE DURING THE IMPUGNED FINANCIAL YEAR. THIS IS DUL Y SUPPORTED BY ITAT ORDER IN ASSESSEES OWN CASE REFERRED BY LEARNED CIT(A). HENCE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LEARNED CIT(A) IN THIS IS SUE. 10. AS REGARDS THE ISSUE OF DENIAL OF 80P(2)(D) DED UCTION, WE NOTE THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE . LEARNED COUNSEL OF THE ASSESSEE HAS SUBMITTED AS UNDER :- 1. THE CAPTIONED APPEALS PREFERRED BY THE DEPARTMEN T WERE HEARD BEFORE YOUR HONOURS ON JUNE 2, 2021. ONE OF THE GROUNDS OF APPEAL RAISED BY THE DEPARTMENT IN ALL THREE APPEALS IS REGARDING ALLOWABI LITY OF DEDUCTION U/S. 80P CLAIMED BY THE RESPONDENT ASSESSEE. DURING THE COURSE OF THE HEARING, OUR LEARNED AUTHORIZED REPRESENTATIVE MR. YOGESH THAR HAD ARGUED THAT INSOFAR AS CLAIM OF DEDUCTION U/S. 80P OF THE ACT IS CONCERNED, THE SAME IS COVERED IN ASSESSEE'S FAVOUR BY THE DECISION OF THE HON JURISDICTIONAL MUMBAI TRIBUNAL IN ASSESSEE'S OWN CASE FOR AY 2011- 12 (ITA NO. 896/M/2016, ORDER DATED FEBRUARY 17, 2017 (COPY HAS BEEN ALREADY FILED IN THE FACTUAL PAPERBOOK ON 21.05.2021). 2. DURING THE COURSE OF THE HEARING, IT FELL FROM T HE HON BENCH THAT THERE IS A RECENT FULL BENCH DECISION OF THE HON SUPREME COURT WHEREIN THE HON SUPREME COURT HAS ELABORATELY DEALT WITH THE ISSUE OF ALLOWABILITY OF S. 80P DEDUCTION IN THE CONTEXT OF DIFFERENT TYPES OF CO-OPE RATIVE SOCIETIES THAT ARE ENTITLED TO CLAIM THE SAID DEDUCTION. ACCORDINGLY, THE HON'BLE BENCH DESIRED THAT THE ASSESSEE MAY FURNISH A NOTE IN THE MATTER AND THE MATTER WAS TREATED AS HEARD. 3. IN DEFERENCE TO THE AFORESAID, WE ARE FILING THI S NOTE TOGETHER WITH A COPY OF THE SAID DECISION OF THE HON SUPREME COURT IN THE CA SE OF THE MAVILAYI SERVICE COOPERATIVE BANK LTD. & ORS. VS. CIT, CALICU T & ORS. (CIVIL APPEAL NOS. 7343-7350 OF 2019 DATED 12.1.2021)(COPY ATTACHED AT ANNEXURE 1 TO THIS NOTE). THE CRUX OF THE SAID DECISION IS THAT PROVISIONS OF S. S. (4) TO S. 80P CANNOT COME IN THE WAY WHILE ALLOWING DEDUCTION U/S. 80P OF THE ACT TO AN ASSESSEE BEING A CO-OPERATIVE SOCIETY, AS LONG AS TH E SAID ASSESSEE IS NOT A CO-OPERATIVE BANK. 4. FOLLOWING THE SAID DECISION, THE HON JURISDICTI ONAL MUMBAI TRIBUNAL HAS ALLOWED IDENTICAL CLAIM OF DEDUCTION U/S. 80P(2)(D) AND 80P(2)(C) OF THE ACT IN THE CASE OF NEW IDEAL COOPERATIVE HOUSING SOCIETY LTD . V. ITO (ITA NO. 2681/M/19, ORDER DATED 03.02.2021) (COPY ATTACHED AT A NNEXURE 2 WITH THIS NOTE). 5. THE APPELLANT SUBMITS THAT SINCE IT IS A COOPERATIVE HOUSING SOCIETY AND NOT A COOPERATIVE BANK, S. 80P(4) HAS NO ROLE TO PLAY AND THEREFORE DEDUCTION CLAIMED U/S. 80P(2)(D) AND 80P(2)(C) DESERVES TO BE ALLOWED IN ENTIRETY. 6 6. SIMILAR IS THE RATIO OF THE DECISIONS OF THE HON JURISDICTIONAL MUMBAI TRIBUNAL IN FOLLOWING CASES: 6.1. LAND END COOPERATIVE HOUSING SOCIETY LTD. V . ITO (46 CCH 52) (MUM); 6.2. SEA GREEN COOPERATIVE HOUSING SOCIETY LTD. V. ITO (ITA NO. 1343/M/17, ORDER DATED 31.03.2017) (MUM); 6.3. MERWANJEE CAMA PARK COOPERATIVE HOUSING SOCI ETY LTD. V. ITO (ITA NO. 6139/M/14, ORDER DATED 27.09.2017) (MUM); 6.4. ITO V. ASHOKA APT. C.H.S. LTD. (ITA NO. 284 5/M/10) (MUM); 6.5. ITO V. SAGAR SANJOG C.H.S. LTD. (ITA NO. 19 72-74/M/2005)(MUM); 6.6. ITO V. PANCHARATNA CO. OP. HSG. SOC. LTD. (ITA 2858/MUM/2010) (MUM) 7. IN VIEW OF THE FOREGOING AS ALSO THE DECISION IN APPELLANT'S OWN CASE FOR AY 2011-12, THE RESPONDENT ASSESSEE MOST HUMBLY SUBMI TS THAT THE CLAIM OF DEDUCTION U/S. 80P(2)(D) AND 80P(2)(C) BE ALLOWED AND APPEALS OF THE DEPARTMENT BE DISMISSED ON THAT GROUND. HENCE WE FIND THAT THE MAIN REASON FOR DISALLOWING THE CLAIM HERE IS BY HIS MISTAKEN INVOCATION OF SECTION 80P(4) OF THE ACT. T HIS HAS BEEN DULY SETTLED BY HON'BLE SUPREME COURT THAT IN THE CASE OF COOPER ATIVE SOCIETIES THIS SECTION CANNOT BE INVOKED AS THEY CANNOT BE HELD TO BE COOPERATIVE BANK. WHEN THEY HAVE A LEASE FROM RBI TO THIS EFFECT. 11. EXAMINING THE LEARNED CIT(A)S ORDER ON THE CON SPECTUS OF AFORESAID DECISIONS, WE DO NOT FIND ANY INFIRMITY IN THE ORDE R OF LEARNED CIT(A). HENCE, WE UPHOLD THE SAME. 12. GROUNDS OF APPEAL FOR A.Y. 2013-14 READ AS UNDE R :- 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD.CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS.1,43,75,000/- BEING INTEREST @12.50% PA ON PART AMOUNT RECEIVABLE AS CORPUS FROM DEVELOPERS ON THE ALLEGED GROUND THAT THE INTEREST U/S 12.50% IS DUE AND SINCE THE ASSESSEE IS FOLLOWING MERCANTILE SYSTEM O F ACCOUNTING, THE SAID INTEREST IS CHARGEABLE TO TAX? 2. 'WHETHER IN CIRCUMSTANCES OF THE CASE AND IN LAW THE L D. CIT (A) WAS JUSTIFIED IN HOLDING THAT THE REGISTRAR OF CO-OPERATIVE HOUSING SOCIETY HAD 7 NOT CANCELLED THE REGISTRATION OF THE HOUSING SOCIETY ON THE ALLEGED VIOLATION OF PRINCIPLE OF MUTUALITY OR BYE LAW, WIT HOUT APPRECIATING THE FACTS THAT CO-OPERATIVE BANK IS A COMMERCIAL BANK AND DOES NOT FALL UNDER THE PURVIEW OF A 'CO-OPERATIVE SOCIETY' REFERRED IN S ECTION 80P(2)(D) OF THE INCOME TAX ACT, 1961'. 13. SINCE THE ISSUES ARE IDENTICAL TO A.Y. 2012-13, OUR ADJUDICATION FOR A.Y. 2012-13 APPLIES MUTATIS MUTANDIS FOR THIS YEAR A.Y. 2013-14 ALSO. 14. GROUNDS OF APPEAL FOR A.Y. 2015-16 READ AS UNDE R : 1. 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) WAS JUSTIFIED IN HOLDING THAT THE DISALLOWANC E OF DEDUCTION U/S 80P(2)(D) OF THE INCOME TAX ACT, 1961 MADE BY THE CP C BANGALORE IS BEYOND THE SCOPE OF PROVISIONS OF SECTION 143(1) OF THE ACT WITHOUT APPRECIATING THE FACT THAT AS PER SECTION 143(1)(A)(II) OF THE ACT AN INCORRECT CLAIM CAN BE DISALLOWED IF SUCH INCORRECT C LAIM IS APPARENT FROM ANY INFORMATION IN THE RETURN.' 2. 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) WAS JUSTIFIED IN HOLDING THAT THE DISALLOWANC E OF DEDUCTION U/S 80P(2)(C) OF THE INCOME TAX ACT, 1961 MADE BY THE CPC BANGALORE IS BEYOND THE SCOPE OF PROVISIONS OF SECTION 143(1) OF THE ACT WITHOUT APPRECIATING THE FACT THAT AS PER SECTION 143(L)(A)(II) OF THE ACT AN INCORRECT CLAIM CAN BE DISALLOWED IF SUCH INCORRECT CLAIM IS APPARENT FROM ANY INFORMATION IN THE RETURN.' 15. BRIEF FACTS THE DCIT, CPC BANGLORE HAS PASSED I NTIMATION U/S. 143(1) OF THE ACT ON 02/02/2017. AS PER THE SAID INTIMATION, DUE DATE OF FILING RETURN HAS BEEN MENTIONED AS 07/09/2015. DATE OF FILING RE TURN WAS 27/10/2015. THE A.O. HAS NOT ALLOWED THE DEDUCTION US. 80P OF R S. 2,15,31,450/- AND HAS LEVIED INTEREST U/S. 234A, 234B & 234C. 16. UPON ASSESSEES APPEAL LEARNED CIT(A) NOTED AS UNDER : AGGRIEVED BY THE SAID ORDER, THE ASSESSEE HAS FILED THE PRESENT APPEAL UNDER CONSIDERATION. DURING THE COURSE OF APPELLATE PROCEED INGS, THE AR OF THE APPELLANT HAS SUBMITTED THAT BEING A CO-OPERATIVE HOUSI NG SOCIETY, IT IS REQUIRED TO GET ITS ACCOUNTS AUDITED UNDER THE CO-OPERA TIVE SOCIETIES ACT, 1912. HENCE, ORIGINAL DUE DATE FOR FILING RETURN WA S 30.09.2015. CBDT VIDE CIRCULAR F.NO. 225/207/2015 ITA.II DATED 1.10.2015 EXTENDED DUE DATE OF FILING RETURN UPTO 31.10.2015 FROM 30.09.2015. HENCE THE RETURN IS FILED U/S 139(1) WITHIN DUE DATE. THE APPELLANT HAS ALSO MADE E LABORATE SUBMISSION ON DEDUCTION U/S 80P(2)(D) INCLUDING VARIOUS CASE LA WS. 8 17. CONSIDERING THE ABOVE LEARNED CIT(A) HELD AS UN DER : 24 I HAVE CAREFULLY PERUSED THE FACTS HIGHLIGHTED IN THE INTIMATION AND THE WRITTEN SUBMISSION FILED BY THE APPELLANT DURING APPE LLATE PROCEEDINGS. I HAVE ALSO PERUSED THE RETURN OF INCOME FILED BY THE ASSESSEE ON 27/10/2015 CLAIMING DEDUCTION OF RS. 2,15,31,450/- UNDER CHAPT ER VIA. IN SCHEDULE B-TI (COMPUTATION OF TOTAL INCOME], TOTAL INCOME OF NIL HAS BEEN SHOWN AFTER CLAIMING DEDUCTION OF RS. 2,15,31,450/-UNDER CHAPTE R VIA. IN SCHEDULE VIA [DEDUCTION UNDER CHAPTER VI-A], DEDUCTION OF RS. 2,15 ,31,150/- HAS BEEN CLAIMED UNDER SECTION 80P. IN THE INTIMATION AT COLUMN 12,THE DCIT, CPC HAS ALSO ACKNOWLEDGED THE TOTAL DEDUCTION OF RS. 2,15, 31,450/- WAS PROVIDED BY THE TAXPAYER IN RETURN OF INCOME. THEREFORE, NEITHE R ANY ARITHMETICAL ERROR IN THE RETURN NOR ANY INCORRECT CLAIM APPARENT FROM A NY INFORMATION IN THE RETURN IS FOUND IN THIS CASE. THE SPECIFIC CIRCUMSTAN CES FOR MAKING DISALLOWANCE MENTIONED U/S 143(1) ARE ALSO NOT APPLIC ABLE IN THIS CASE. THEREFORE, IT IS HELD THAT MAKING ADJUSTMENT BY DISAL LOWING DEDUCTION OF RS. 2,15,31,450/- U/S 80P IS NOT JUSTIFIED AS THE SAME AR E BEYOND THE SCOPE OF PROVISIONS OF SECTION 143(1) AND HENCE, THE AO IS DI RECTED TO ALLOW DEDUCTION OF RS. 2,15,450/- TO THE APPELLANT U/S 80P. 25. THE CBDT VIDE ORDER DATED 1.10.2015 HAS EXTENDE D THE DUE DATE OF FILING RETURN OF INCOME DUE ON 30.09.2015 TO 31.03.2015. AS THE ACCOUNTS OF THE APPELLANT WAS REQUIRED TO BE AUDITED UNDER THE CO-OPER ATIVE ACT AND ITS ORIGINAL DUE DATE WAS 30.09.2015, THE BENEFIT OF EXT ENSION WAS AVAILABLE TO THE APPELLANT. HENCE, IT IS HELD THAT THE RETURN FILED O N 27/10/2015 WAS A RETURN WITHIN DUE DATE AS PER SECTION 139(1). THEREFO RE, THE INTEREST LEVIED U/S 234A IS HEREBY DELETED. IT IS ALSO HELD THAT THE IN TEREST U/S 234C IS TO BE LEVIED ON RETURNED INCOME AND NOT ON ASSESSED INCOME . SO FAR, CHARGING OF INTEREST U/S 234B IS CONCERNED, THE SAME IS MANDATORY AND CONSEQUENTIAL. THUS, THE GROUNDS OF THE APPEAL ARE ALLOWED. 18. UPON CAREFUL CONSIDERATION, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LEARNED CIT(A). WE NOTE THAT CLAIM WAS DUE AND PROP ER. THERE WAS NO REASON THAT CPC WOULD DISALLOW THE SAME. THE DATE OF FILIN G OF RETURN BEING EXTENDED BY CBDT, NO ADVERSE INFERENCE CAN BE DRAWN THAT THE ASSESSEE COULD NOT BE ELIGIBLE FOR DEDUCTION AND CLAIM WHICH ARE ALLOWABL E IF RETURN ARE FILED WITHIN DUE DATE. THE EXTENSION OF DUE DATE MAKES THE ASSES SEE ELIGIBLE FOR ALL THE CLAIMS, WHICH ARE ALLOWABLE WHEN THE RETURN IS FILE D WITHIN DUE DATE. MOREOVER, AS RIGHTLY NOTED BY LEARNED CIT(A) IN ANY CASE THIS WAS NOT SOMETHING WHICH COULD BE DENIED UNDER SECTION 143(1) OF THE ACT. HE NCE, WE UPHOLD THE SAME. 9 19. IN THE RESULT, THESE APPEALS FILED BY THE REVEN UE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 9.8.2021 SD/- SD/- (AMARJIT SINGH) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 09/08/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI