SHALAKA SANGH CO-OP HOUSING SOC. LTD, MUMBAI V. ITO 17(3)(3), MUMBAI

ITA 743/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4515 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 11-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Assessee Lawyers: VIREN SHAH
• Keywords: Revised return
• Section: 201

Judgement Text

1 ITA 743/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) I.T.A. NO. 743 /MUM/2019 (ASSESSMENT YEAR : 20 14 - 1 5 ) SALAKHA SANGH CO - OP. HSG SOC. LTD PLOT NO.9, M.K. ROAD, QUEENS BARRACKS AREA, MUMBAI - 400 021 PAN : AAAAS6099Q VS ITO - 17(3)(3), MUMBAI APPELLANT RESPONDENT APPELLANT BY SHRI VIREN SHAH , AR RESPONDENT BY S MT . SMITA VERMA, DR DATE OF HEARING 18 - 0 3 - 2021 DATE OF PRONOUNCEMENT 2 1 - 0 5 - 2021 O R D E R THIS IS AN APPEAL BY THE ASSESSEE A GAINST ORDER DATED 1 2 - 12 - 201 8 OF L EARNED COMMISSIONER OF INCOME T AX (APPEALS) - 28 , MUMBAI FOR THE ASSESSMENT YEAR 20 14 - 1 5 . 2. GROUND S 4 AND 5 BEING GENERAL GROUND S , DO NOT REQUIRE ADJUDICATION. 3. G ROUND 3 IS NOT PRESSED; HENCE, DISMISSED. 4. THE ONLY ISSUE RAISED IN GROUNDS 1 & 2 RELATES TO DISALLOWANCE OF DEDUCTION CLAIMED U NDER SECTION 80P(2)(D) OF THE INCOME T AX ACT, 1961 FOR AN AMOUNT OF RS.20,79,677/ - . 5. BRIEFLY THE FACTS ARE, THE ASSESSEE IS A CO - OPERATIVE HOUSING SOCIETY. FOR THE ASSESSMENT YEAR UND ER DISPUTE, ASSESSEE FILED ITS RETURN OF INCOME ON 29 - 11 - 2014 DECLARING N IL INCOME. IN COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE FILED A 2 ITA 743/MUM/2019 REVISED COMPUTATION OF INCOME CLAIMING DEDUCTION U NDER SECTION 80P(2)(D) OF THE ACT IN RESPECT OF INTEREST INCOME O F R S.20,79,677/ - EARNED ON DEPOSITS MADE WITH SOME CO - OPERATIVE BANKS. THE ASSESSING OFFICER DISALLOWED AS S ESSEES CLAIM PRIMARILY ON TWO REASONING . FIRSTLY, SUCH CLAIM WAS NOT MADE EITHER IN THE ORIGINAL RETURN OF INCOME OR THROUGH A REVISED RETURN OF INCOM E . SECONDLY , REFERRING TO SECTION 80P(2)(D) OF THE ACT, THE ASSESSING OFFICER HELD THAT ONLY INTEREST/DIVIDEND INCOME RECEIVED FROM CO - OPERATIVE SOCIETIES WOULD BE ELIGIBLE FOR DEDUCTION. ACCORDINGLY, HE DISALLOWED ASSESSEES CLAIM AND ADDED BACK AN AMOUNT OF RS.20,79,677/ - . ASSESSEE CONTESTED THE A FORE SAID ADDITION BEFORE L EARNED COMMISSIONER OF INCOME T AX (APPEALS). AGREEING WITH THE VIEW OF THE ASSESSING OFFICER THAT ASSESSEES CLAIM OF DEDUCTION U NDER SECTION 80P(2)(D) CANNOT BE ALLOWED , AS , SUCH CLAIM WAS NOT MADE EITHER IN THE ORIGINAL RETURN OF INCOME OR IN A REVISED RETURN OF INCOME, L EARNED COMMISSIONER OF INCOME T AX (APPEALS) UPHELD THE DISALLOWANCE. CONSEQUENTLY, HE DID NOT DECIDE THE MERITS OF THE ISSUE. 6. THE LEARNED COUNSEL FOR THE ASSE SSEE SUBMITTED, NOW IT IS WELL SETTLED PRINCIPLE OF LAW THAT THE ASSESSEE CAN MAKE A FRESH CLAIM IN COURSE OF ASSESSMENT PROCEEDINGS AND EVEN BEFORE THE APPELLATE AUTHORITY. THEREFORE, THE DEDUCTION CLAIMED BY THE ASSESSEE IS ADMISSIBLE. 7. ON MERIT S , THE LEARNED COUNSEL SUBMITTED, SINCE CO - OPERATIVE BANKS ARE PRIMARILY CO - OPERATIVE SOCIETIES, THE INCOME EARNED FROM DEPOSITS WITH CO - OPERATIVE BANKS WOULD BE ELIGIBLE FOR DEDUCTION U NDER SECTION 80P(2)(D) OF THE ACT. IN SUPPORT OF SUCH CONTENTION, HE RELIED UPON THE FOLLOWING DECISIONS: - 1. PCIT VS TOTAGARS CO - OPERATIVE SALE SOCIETY (2017) 78 TAXMANN.COM 169 (KAR) 2. SOLITAIRE CHS LTD VS PCIT (ITA NO.3155/MUM/2019 ) 3 ITA 743/MUM/2019 3. LANDS END CO - OPERATIVE HOUSING SOCIETY LTD VS ITO(ITA NO.3566/MUM/2014) 4 . SEA GREEN CO - OPERATIVE HOUSING SOCIETY LTD VS ITO (ITA NO.1343/MUM/2017 5. KALIANDAS UDYOG BHAVAN PREMISES CO - OPERATIVE SOCIETY LTD ITO (2018) 94 TAXMANN.COM 15 (MUM TRIB) 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE OBSERVATIONS OF THE AS SESSING OFFICER AND L EARNED COMMISSIONER OF INCOME T AX (APPEALS). 9. I HAVE CONSIDERED RIVAL SUBMISSIONS AN D PERUSED MATERIALS ON RECORD. AS REGARDS THE ISSUE, WHETHER THE REVISED CLAIM MADE BY THE ASSESSEE IN COURSE OF ASSESSMENT PROCEEDINGS IS ACCEPTABLE OR NOT, IN MY VIEW, THE ISSUE IS NO MORE RES INTEGRA . NOW IT IS FAIRLY WELL SETTLED THAT ASSESSEE C AN MAKE A FRESH/REVISED CLAIM NOT ONLY BEFORE THE ASSESSING OFFICER, BUT EVEN BEFORE THE APPELLATE AUTHORIT IES . IN FACT, IN THE DECISION OF THE HONBLE APE X COURT RELIED UPON BY THE ASSESSING OFFICER AND L EARNED COMMISSIONER OF INCOME T AX (APPEALS), IT HAS BEEN MADE CLEAR THAT THERE IS NO FETTER ON THE APPELLATE AUTHORITY TO CONSIDER A REVISED/FRESH CLAIM OF THE ASSESSEE. IN CASE OF CIT VS PRITHVI BROKERS & SHAREHOLDERS (2012) 23 TAXMANN.COM 23, THE HONBLE JURISDICTIONAL HIGH COURT HAS HELD THAT THE ASSESSEE CAN MAKE A REVISED/FRESH CLAIM IN COURSE OF PROCEEDINGS BEFORE THE ASSESSING OFFICER AND APPELLATE AUTHORITIES. 10. AS REGARDS THE MERIT S OF THE ISSUE , IT IS EVIDENT, ONLY REASON FOR DENIAL OF ASSESSEES CLAIM OF DEDUCTION U NDER SECTION 80P(2)(D) IS, INTEREST WAS EARNED FROM A CO - OPERATIVE BANK. HOWEVER, IN MY VIEW, THE AFORESAID REASONING OF THE ASSESSING OFFICER WOULD NOT HOLD WATER AS IN VARIOUS CASE LAWS CITED BEFORE ME BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE TRIBUNAL HAS TAKEN A CONSISTENT VIEW THAT CO - OPERATIVE BANKS ARE P RIMARILY CO - OPERATIVE SOCIETIES; HENCE, ANY 4 ITA 743/MUM/2019 INTEREST/DIVIDEND EARNED FROM SUCH CO - OPERATIVE BANKS WOULD BE ELIGIBLE FOR DED UCTION U NDER SECTION 80P(2)(D) OF THE ACT. 11. IN VIEW OF THE AFORESAID, I ALLOW ASSESSEES CLAIM OF DEDUCTION. THE ADDITION MADE IS DELETED. THESE GROUNDS ARE ALLOWED. 12. IN THE RESULT, APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED ON 2 1 /0 5 /2021. S D / - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DT : 2 1 / 0 5 /2021 PAVANAN COPY TO : 1. APPELLANT 2. RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) 5. THE DR, ITAT, MUMBAI 6. GUARD FILE /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI