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Income Tax Appellate Tribunal, COCHIN “SMC” BENCH, COCHIN
Before: Shri George George K
These two appeals at the instance of the assessee are directed against two orders of the CIT(A), Kottayam, both dated 30.09.2019, passed u/s. 154 r.w.s. 250 of the I.T.Act. The relevant assessment years are 2012-13 and 2013-2014.
The brief facts of the case are as follow: The assessee is a co-operative society registered under the Kerala Co-operative Societies Act, 1969. For the assessment years 2013-14 and 2013-14, the returns of income were filed after claiming deduction u/s 80P of the I.T.Act. The Assessing Officer passed orders u/s 143(3) of the I.T.Act, disallowing the claim of deduction u/s 80P of the I.T.Act. The reasoning of the Assessing Officer to disallow the claim of deduction u/s 80P(2) of the I.T.Act was that the 2 M/s.Cherthala South SCB Ltd. assessee was doing the business of banking, and therefore, in view of insertion of section 80P(4) of the I.T.Act with effect from 01.04.2007, the assessee will not be entitled to the deduction u/s 80P(2) of the I.T.Act. The Assessing Officer also disallowed the claim of deduction with regard to interest income received by the assessee on investments made with District Co-operative Banks.
Aggrieved by the orders of assessment denying the claim of deduction u/s 80P(2) of the I.T.Act, the assessee preferred appeals to the first appellate authority. The CIT(A) allowed the appeals by holding that the assessee was eligible for deduction u/s 80P of the I.T.Act. The interest income received from other banks and treasury also was allowed as deduction u/s 80P(2)(a)(i) of the I.T.Act. In allowing the appeals of the assessee, the CIT(A) followed the judgment of the Hon’ble jurisdictional High Court in the case of Chirakkal Service Co- operative Co-operative Bank Ltd. v. CIT [(2016) 384 ITR 490 (Ker.).
4. Subsequently, the CIT(A) issued notices u/s 154 of the I.T.Act proposing to rectify his orders passed, in view of the subsequent judgment of the Full Bench of the Hon’ble jurisdictional High Court in the case of The Mavilayi Service Co-operative Bank Ltd. v. CIT [ITA No.97/2016 order dated 19th March, 2019]. The assessee objected to the issuance of notices. However, the CIT(A) rejected the objections raised by the assessee and passed orders u/s 154 of the I.T.Act, disallowing the claim of the assessee u/s 80P(2) of the I.T.Act.
5. Aggrieved by the orders of the CIT(A), the assessee has filed these appeals before the Tribunal raising following identical grounds except for variation in figures. The grounds raised for the assessment year 2012-13 read as follows:
The order of the CIT (A) is without justification i.e., contrary to the law, facts and circumstances of the case and at any rate opposed to principles of equity, natural justice and fair play.
2. The learned CIT (A) erred in disallowing deduction claimed of Rs 1,34,616/-u/s 80P of the Income Tax Act on the ground that, the appellant does not fall under the category of Primary Agricultural Credit Society, as defined by Part-V of Banking Regulation Act, 1949.
3. The learned CIT (A) erred in holding that the appellant is a Co-operative Society registered under the Co- operative Societies Act and a Primary Agricultural Credit Society (under Rule 15 (1) (A) (3) (a) of the Kerala Co- operative Societies Act) as recognized by the Assistant Registrar (General) of Co-operative Societies, Cherthala on one hand and holding that the appellant is not a Co- operative Society eligible for deduction, u/s. 80P for the purpose of Income Tax Act, 1961 on the other hand. The learned CIT (A) having found that the appellant was involved in lending to agricultural sector, there was no justification to reject the claim of deduction u/s 80P of the Income Tax in toto.
The learned CIT (A) disregarded the status of the appellant Society. The Competent authority to decide the status of the appellant society has categorized Society as Primary Agricultural Credit Society. The CIT(A) proceeded with the Appellate order without properly adverting to the classification of the appellant by the statutory authority. Therefore the appellate order made by the CIT(A) is without application of mind and
The learned CTT(A) erred in applying the provisions of 80P, Sub-section (4) of 80P restricts the exclusion to any cooperative bank. Further, the restriction would not apply to Primary Agricultural Credit Society (PACS) or Primary Co-operative Agricultural and Rural Development Bank (PCARD). Explanation to Sub-section (4) of Section 80P reads as follows:-
a) Explanation (a) below sub-section (4) provides that 'co-operative bank' and 'Primary Agricultural Credit Society' shall have the meanings respectively assigned to them in Part V of the Banking Regulation Act, 1949. b) Explanation (b) below sub-section (4) of section 80P of the Act defines 'Primary Co-operative Agricultural and Rural Development Bank' as a Society having its area of operation confined to a Taluk and the principal objective of which is to provide long term credit for Agricultural and Rural Development activity. Thus, it may be noted that:
(a) The deduction is negated only to a co- operative bank carrying on banking and finance. The deduction would be denied to the co-operative bank even in respect of any non- banking activity, which may be permissible under the applicable provisions of law.
(b) PACS and PCARD will continue to enjoy the deduction. The restriction does not apply to them.
(c) Any other society, not being a Co-operative Bank, will continue to enjoy the deduction, if any, available to it in respect of providing credit or finance to the members or otherwise.
5 M/s.Cherthala South SCB Ltd. Since your appellant is not a Co-operative Bank as defined in the Banking Regulation Act, restriction does not apply to the appellant. Your appellant already possesses a certificate from the competent authority regarding its status as Primary Agricultural Credit Society (PACS). Hence the benefit of Section 8OP is available to your appellant. Even though the CIT (A) disregarded the claim of your appellant as a PACS, he ought to have appreciated that the Society is not a Co- operative bank as defined in Banking Regulation Act. Your appellant trust that, even if the status of PACS is rejected, deduction under 80P is to be allowed considering it as a Co-operative Society, not being a Co- operative Bank, providing credit or finance to the members or otherwise.
6. The learned CIT(A) ought to have noted that the income of the appellant included income that was exempt not only u/s 80P(2)(a)(i) of the Income Tax Act, but also income that were, exempt u/s 80P(2)d) of the Income Tax Act, which fact has been overlooked by the CIT (A).
7. The learned CIT(A) erred in adding Rs.70,696/- to the Total Income by applying 36(1) (vii) of the Income Tax Act. Your appellant had already added back net debit of Reserve for Bad Debt Rs.99,799 in Trading, Profit and Loss Account while computing the Total Income. Hence, there is a duplication of income computation from the part of learned CIT(A).
8. Your appellant prays for permission to present alternate and additional grounds at the time of personal hearing. Your appellant therefore prays that the income assessed may be deleted and allow deduction u/s 80P.
The learned AR relied on the grounds raised. Ground No. 7 in Rs.70,696/- by applying section 36(1)(viia) of the I.T. The issue raised in Ground No. 7 does not arise out of the order of the CIT(A). Hence Ground No.7 in is dismissed. The learned Departmental Representative, on the other hand, strongly supported the orders of the Income-tax authorities.
I have heard the rival submissions and perused the material on record. The Hon’ble Kerala High Court in the case of Kil Kotagiri Tea & Coffee Estates Co. Ltd. v. ITAT reported in 174 ITR 579 had held that when an authority has decided on the basis of a decision of the High Court which is subsequently reversed, there would be a rectifiable mistake coming within the section 154 of the Income-tax Act. The Larger Bench of the Hon’ble Kerala High Court has reversed the dictum laid down by the judgment of the Hon’ble Kerala High Court in the case of Chirakkal Service Co-operative Bank Ltd. (supra) by holding that the activities of the assessee has to be examined to determine whether the assessee is Co-operative society or cooperative bank. In the light of the Larger Bench judgment of the Hon’ble Kerala High Court, the earlier CIT(A) order’s granting deduction u/s. 80P(2) of the I.T. Act have been rightly recalled by the CIT(A). Therefore the grounds raised by the assessee that the CIT(A) has erred in passing orders u/s. 154 of the I.T. Act are dismissed.
7.1 The Hon’ble jurisdictional High Court in the case of Chirakkal Service Co-operative Co-operative Bank Ltd. v. CIT
7 M/s.Cherthala South SCB Ltd. [(2016) 384 ITR 490 (Ker.)] had held that when a certificate has been issued to an assessee by the Registrar of Co- operative Societies characterizing it as primary agricultural credit society, necessarily, the deduction u/s 80P(2) of the I.T.Act has to be granted to the assessee. However, the Full Bench of the Hon’ble Kerala High Court in the case of The Mavilayi Service Co-operative Bank Ltd. v. CIT (supra) had reversed the above findings of the Hon’ble Kerala High Court in the case of Chirakkal Service Co-operative Co-operative Bank Ltd. v. CIT (supra). The Larger Bench of the Hon’ble Kerala High Court in the case of The Mavilayi Service Co- operative Bank Ltd. v. CIT (supra) held that the Assessing Officer has to conduct an inquiry into the factual situation as to the activities of the assessee society to determine the eligibility of deduction u/s 80P of the I.T.Act. It was held by the Hon’ble High Court that the Assessing Officer is not bound by the registration certificate issued by the Registrar of Kerala Co-operative Society classifying the assessee-society as a co-operative society. The Hon’ble High Court held that each assessment year is separate and eligibility shall be verified by the Assessing Officer for each of the assessment years. The finding of the Larger Bench of the Hon’ble High Court reads as follows:-
“33. In view of the law laid down by the Apex Court in Citizen Co-operative Society [397 ITR 1] it cannot be contended that, while considering the claim made by an assessee society for deduction under Section 80P of the IT Act, after the introduction of sub-section (4) thereof, the Assessing Officer has to extend the benefits available, merely looking at the class of the society as per the certificate of registration issued under the Central or State Co-operative Societies Act and the Rules made thereunder.
On such a claim for deduction under Section 80P of the IT Act, the Assessing Officer has to conduct an enquiry into the factual situation as to the activities of the assessee society and arrive at a conclusion whether benefits can be extended or not in the light of the provisions under sub-section (4) of Section 80P.
In Chirakkal [384 ITR 490] the Division Bench held that the appellant societies having been classified as Primary Agricultural Credit Societies by the competent authority under the KCS Act, it has necessarily to be held that the principal object of such societies is to undertake agricultural credit activities and to provide loans and advances for agricultural purposes, the rate of interest on such loans and advances to be at the rate to be fixed by the Registrar of Co-operative Societies under the KCS Act and having its area of operation confined to a Village, Panchayat or a Municipality and as such, they are entitled for the benefit of sub-section (4) of Section 80P of the IT Act to ease themselves out from the coverage of Section 80P and that, the authorities under the IT Act cannot probe into any issues or such matters relating to such societies and that, Primary Agricultural Credit Societies registered as such under the KCS Act and classified so, under the Act, including the appellants are entitled to such exemption.
In Chirakkal [384 ITR 490] the Division Bench expressed a divergent opinion, without noticing the law laid down in Antony Pattukulangara [2012 (3) KHC 726] and Perinthalmanna [363 ITR 268]. Moreover, the law laid down by the Division Bench in Chirakkal [384 ITR 490] is not good law, since, in view of the law laid down by the Apex Court in Citizen Co-operative Society [397 ITR 1], on a claim for deduction under Section 80P of the Income Tax Act, by reason of sub-section (4) thereof, the Assessing Officer has to conduct an enquiry into the factual situation as to the activities of the assessee society and arrive at a conclusion whether benefits can be extended or not in the light of the provisions under sub-section (4) of Section 80P of the IT Act. In view of the law laid down by the Apex Court in Citizen Co- operative Society [397 ITR 1] the law laid down by the Division Bench Perinthalmanna [363 ITR 268] has to be affirmed and we do so.
In view of the law laid down by the Apex Court in Ace Multi Axes Systems’ case (supra), since each assessment year is a separate unit, the intention of the legislature is in no manner defeated by not allowing deduction under Section 80P of the IT Act, by reason of sub-section (4) thereof, if the assessee society ceases to be the specified class of societies 7.2 The CIT(A) had initially allowed the appeals of the assessee and granted deduction u/s 80P(2) of the I.T.Act. Subsequently, the CIT(A) passed orders u/s 154 of the I.T.Act, wherein the claim of deduction u/s 80P of the I.T.Act was denied, by relying on the judgment of the Larger Bench of the Hon’ble jurisdictional High Court in the case of The Mavilayi Service Co-operative Bank Ltd. v. CIT (supra). The CIT(A) ought not to have rejected the claim of deduction u/s 80P(2) of the I.T.Act without examining the activities of the assessee- society. The Full Bench of the Hon’ble jurisdictional High Court in the case of The Mavilayi Service Co-operative Bank Ltd. V. CIT (supra) had held that the A.O. has to conduct an inquiry into the factual situation as to the activities of the assessee society to determine the eligibility of deduction u/s 80P of the I.T.Act. In view of the dictum laid down by the Full Bench of the Hon’ble jurisdictional High Court (supra), I restore the issue of deduction u/s 80P(2) to the files of the Assessing Officer. The Assessing Officer shall examine the activities of the assessee and determine whether the activities are in compliance with the activities of a co-operative society functioning under the Kerala Co-operative Societies Act, 1969 and accordingly grant deduction u/s 80P(2) of the I.T.Act.
7.3 As regards the interest on the investments with Co- operative Banks and other Banks, the co-ordinate Bench order of the Tribunal in the case of Kizhathadiyoor Service Co- operative Bank Limited in (order dated
10 M/s.Cherthala South SCB Ltd. 20.07.2016), had held that interest income earned from investments with treasuries and banks is part of banking activity of the assessee, and therefore, the said interest income was eligible to be assessed as `income from business’ instead of `income from other sources’. However, as regards the grant of deduction u/s 80P of the I.T.Act on such interest income, the Assessing Officer shall follow the law laid down by the Larger Bench of the Hon’ble jurisdictional High Court in the case of The Mavilayi Service Co-operative Bank Ltd. V. CIT (supra) and examine the activities of the assessee-society before granting deduction u/s 80P of the I.T.Act on such interest income. The assessee for both AY’s has also claimed that it is entitled for deduction u/s. 80P(2)(d) of the I.T. Act, stating that interest income is received from investment made with other co-operative societies (Refer Ground No.6). This plea of the assessee shall also be examined by the Assessing Officer. It is ordered accordingly.
In the result, the appeals filed by the assessee are partly allowed for statistical purposes.
Order pronounced on this 6th day of February, 2020.