DHRUVA TARA CO OPERATIVE HOUSING SOCIETY LTD,MUMBAI vs. INCOME TAX OFFICER WARD - 42 (1)(2), MUMBAI

Per Justice (Retd.) C V Bhadang : These three appeals by the assessee pertaining to assessment years 2012- 13, 2013-14 and 2015-16 involve connected questions of law and fact. As such they are being disposed of by this common order.

6. It is submitted by the learned counsel for the appellant that the learned CIT(A) is in error in dismissing the appeals on the ground that the original return of income was not filed within the stipulated period. It is pointed out that the accounts of the assessee are subject to compulsory audit and, therefore, the last date for filing of return was 30th September, which in respect of assessment years 2013-14 and 2015-16 was extended to 31st October. It is pointed out that the return of income has been filed much before the due date. It is further submitted that the requirement of filing of return within time, in order to enable the assessee to claim deduction u/s. 80P(2) was introduced w.e.f. assessment year 2018-19 vide section 80AC of the said Act, which also the learned CIT(A) has failed to notice.

returns were actually filed by the appellant are not in dispute, apart from being matters of record. A perusal of the record, clearly brings out, that while in the rectification application, the CPC has refused to grant exemption on the ground that it was an income from interest received from a co-operative bank, the learned CIT(A) has dismissed the appeals on entirely different ground viz. of return of income not being allegedly filed within time. It is necessary to emphasize that the learned CIT(A) has not gone into the question, whether the interest income received from a co-operative bank was eligible for such exemption, although that was the specific ground raised before the CIT(A).

8. Before us the only ground raised by the assessee, is of the finding by the CIT(A) being erroneous on facts both about introduction of requirement to file the return of income within time in order to claim benefit of section 80P(2), which was first introduced from assessment year 2018-19 vide section 80AC and, secondly the return being indeed filed within time. We find that both these grounds are clearly borne out record. Therefore, we find that on this ground alone the appeal has to succeed.

9. However, as noticed earlier, the learned CIT(A) has not dealt with the ground whether such income from interest received from co-operative Bank is exempt u/s. 80P(2). Incidentally, this ground is also not taken in the grounds of appeal before us. Therefore, in our opinion, only course open is to restore the appeal back to the file of the learned CIT(A)for the limited purpose of deciding as to whether interest income received from the co-operative bank is eligible for exemption u/s. 80P(2) of the said Act. In that view of the mater, the appeals are partly allowed. The impugned orders passed by the learned CIT(A) are , 2969 & 2972/Mum/2023 Dhruva Tara Co-operative Housing Society Ltd.

hereby set aside. The appeals are restored to the file of the CIT(A) for disposal, according to law and for limited purpose of deciding as to whether the interest income received from the co-operative bank is eligible for deduction u/s. 80P(2) of the Act. Needless to mention that the appellant shall give necessary assistance to the learned CIT(A) to buttress its grounds based on section 80P(2) of the Act.

Order pronounced in the open court on 12th December, 2023.