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Income Tax Appellate Tribunal, COCHIN BENCH, COCHIN
Per CHANDRA POOJARI, AM:
These appeals filed by the Revenue in ITA No. 143/Coch/2018 for the
assessment year 2011-12, ITA Nos. 128/Coch/2019 and 151/Coch/2019 for the
assessment years 2014-15 and 2015-16 are directed against the different orders of
I.T.A. Nos.151/Coch/2018 & 128 &143 /Coch/2019 & 80/Coch/2018 the CIT(A), Trivandrum. The appeal filed by the assessee in ITA No. 80/Coch/2018
for the assessment year 2014-15 is directed against the order of the CIT(A),
Trivandrum dated 19/02/2018.
The Revenue has raised the following common grounds of appeals:
1) The Learned Commissioner of Income tax (Appeals), Trivandrum erred in concluding that "the appellant, being a Primary Agricultural Credit Co-operative Society registered under the Kerala Co-operative Societies Act is entitled for exemption of its entire income under section. 80P(2)(a)(i) of the Act as originally claimed and they cannot be treated as Primary Co-operative Bank so as to invoke the provisions of section 80P(4) of the Act”.
2) It is respectfully submitted that the respondent is essentially, a Cooperative bank and not merely a primary agricultural credit society and hence the allowance of deduction u/s 80P to the respondent assessee while computing the total income was irregular in nature and also against law.
3) The present appeal involves substantial question of law:
(i) The Ld. CIT(A) ought to have seen that the Hon’ble Supreme Court in the case of in the case of Sabargantha Zilla Kharid Vechar Sangh Ltd. vs. CIT 203 ITR 1027 (SC) has held that eligible deduction u/s. 81(1)(d) (substituted by section 80P by finance Act (No. 2) Act, 1967 w.e.f. 01/04/1968) of the Income Tax Act, 1961 in respect of co-operative societies/banks doing both agricultural and non agricultural activities should not be 100% of the gross profits and gains of business of such societies etc. but would be limited to the profits generated from agricultural activities alone performed by such assessee”.
(ii) The Ld. CIT(A) ought to have seen that the above decision of the Apex Court is in sharp contrast to the decision of the Kerala High Court in the case of M/s. Chirakkal Service Co-operative Bank& Ors. in ITA No.212 of 2013, wherein it was held that the authorities under the Income Tax Act cannot probe ito question whether the assessee co-operative society is a ‘primary agricultural credit society’ by the competent authorities under the provisions of the Kerala Co-operative Societies Act, 1969.
iii) The Ld. CIT(A) ought to have brought his attention to the decision of Hon’ble High Court of Kerala in the case of Perinthalmanna Service Co- 2
I.T.A. Nos.151/Coch/2018 & 128 &143 /Coch/2019 & 80/Coch/2018 operative Bank Ltd. reported in (2014) 363 ITR 68 wherein it was held that “with introduction of section 80P(4) necessarily, an enquiry has to be conducted into factual situation whether co-operative bank is conducting business as a primary agricultural and rural development Bank and depending upon transactions, AO has to extend benefits available, and he would not merely look at the registration certificate issued under the Co- operative Societies Act or at nomenclature of co-operative bank.
iv) The appeal involving similar question is pending before the Hon’ble Supreme Court of India in the case of Karakulam Service Co-operative Bank Ltd. (Civil Appeal No. 11288 of 2016 dated 25/11/2016) and the Ld. CIT(A) should have awaited decision of Hon’ble Supreme Court.
v) Among others, the following judicial ratios also indicate that carte blanche deductions u/s. 80P are not available to the assesses merely on the basis of professed agricultural credits.
(a) Rodier Mill Employees Co-operative Stores Ltd. vs. CIT 135 ITR 355(Mad)
(b) CIT vs. Kerala State Co-operative Marketing Federation Ltd. (1998) 234 ITR 301 (Ker)
(c) Kerala State Co-operative Agricultural Rural Development Bank Ltd. vs. ACIT (ITA No..506/Coch/2010 & S.P. No.67/Coch/2010).
For these and other grounds that may be advanced at the time of hearing the order of the learned Commissioner of Income-tax(Appeals), Trivandrum on the above points may be set aside and that of the Assessing Officer restored.
The facts of the case for the AY 2014-15 are that the assessee is a Primary
Agricultural Co-operative Society engaged in the business of providing credit
facilities to its members apart from accepting loan from members as well as non
members. They claimed to have given loans and advances for both agricultural and
non agricultural purposes. The major source of income was interest income earned
from loans and advances given both for agricultural and non agricultural purposes.
I.T.A. Nos.151/Coch/2018 & 128 &143 /Coch/2019 & 80/Coch/2018 The Assessing Officer denied the claim of deduction u/s. 80P(2)(a)(i) holding that
the assessee had been doing banking business rather than getting involved in
advancing loan for agricultural activities.
On appeal, the CIT(A) held that the issue of eligibility of Primary Agricultural
Credit Society to claim deduction u/s. 80P was covered in favour of the assessee by
the judgment of the High Court of Kerala in the case of Chirakkal Service Co-
operative Bank Ltd. vs. CIT reported in 384 ITR 490 wherein it was held that the
assessee being a Primary Agricultural Credit Co-operative Society registered under
the Kerala Co-operative Societies Act is entitled for deduction u/s. 80P(2)(a)(i) as
originally claimed and accordingly, they cannot be treated as Primary Co-operative
Bank so as to invoke the provisions of section 80P(4) of the Act.
Against this, the Revenue is in appeal before us.
5.1 The first issue raised by the Revenue is as follows:
“2) It is respectfully submitted that the respondent is essentially a Co- operative bank and not merely a primary agricultural credit society and hence, the allowance of deduction u/s. 80P to the respondent assessee while computing the total income was irregular in nature and also against law.”
The Ld. AR submitted that the assessee is a primary agricultural credit co-
operative society and providing credit facilities to its members who are primarily
agriculturists. It was submitted that the assessee had obtained a certificate dt.
13/03/2014 from Assistant Registrar of Co-operative Societies (General), 4
I.T.A. Nos.151/Coch/2018 & 128 &143 /Coch/2019 & 80/Coch/2018 Nedumangad claiming to be only a Primary Agricultural Credit Co-operative Society
registered under the Kerala Co-operative Societies Act, 1969 and not engaged in
banking business as defined in Banking Regulation Act. The Ld. AR further relied on
the decision of the Jurisdictional High Court in the case of Chirackal Service Co-
operative Bank Ltd. vs. CIT (384 ITR 490) wherein it was held that Primary
Agricultural Credit Societies registered as such under the Kerala Co-operative
Societies Act and classified so under the Act are entitled for deduction u/s. 80P(2) of
the Act.
We have heard the rival submissions and perused the record. In our opinion,
the issue was considered by the Jurisdictional High Court in the case of Mavilayi
Service Co-operative Bank Ltd. vs. CIT reported in ITA No.97/2018 dated
19.03.2019 wherein it was held that the Assessing Officer is not obliged to grant
deduction by merely looking at the certificate of registration issued by the
competent authority under the Co-operative Societies Act. Instead, he has to
conduct an enquiry into the factual situation as to the activities of the assessee and
arrive at a conclusion whether the benefits of section 80P can be extended or not.
Thus, the Full Bench overruled the earlier judgment of the Jurisdictional High Court
in the case of Chirakkal Service Co-operative Bank Ltd. vs. CIT (384 ITR 490). The
Full Bench had followed the judgment of the Supreme Court in the case of Citizen
Co-operative Society Ltd. vs. ACIT reported in 397 ITR 1 (SC). In view of the latest
judgment of the Jurisdictional High Court cited supra, this issue is remitted to the
I.T.A. Nos.151/Coch/2018 & 128 &143 /Coch/2019 & 80/Coch/2018 file of the Assessing Officer with the direction to examine the actual activities carried
on by the assessee so as to grant deduction u/s. 80P of the Act. Accordingly, the
issue in dispute is remitted to the file of the Assessing Officer for fresh consideration
in accordance with the above direction. This ground of appeals of the Revenue is
partly allowed for statistical purposes.
The next issue is with regard to deduction u/s. 80P(2)(a)(i) of the Act. This
issue was allowed by the CIT(A) in the light of the order of the Tribunal in the case
of Kizhathadiyoor Co-operative Bank Limited for AY 2009-10 in ITA No.
525/Coch/2014, order dated 20.07.2016 wherein it was held that the interest
income earned from the investment in Treasury and Banks is part of the banking
activity and therefore, the said income is eligible for deduction under section
80P(2)(a)(i) of the Act.
Against this, the Revenue is in appeal before us. The Ld. DR relied on the order
of the Assessing Officer.
We have heard the rival submissions and perused the record. With regard to
the interest income earned by the assessee from other Banks and Treasury on
which deduction u/s. 80P(2)(i)(a) of the Act is to be granted, there is no dispute
that the assessee has made investments in the course of banking activities and such
interest income was received on investments made with cooperative banks and
other scheduled banks. The co-ordinate bench of the Tribunal in the case of 6
I.T.A. Nos.151/Coch/2018 & 128 &143 /Coch/2019 & 80/Coch/2018 Kizhathadiyoor Co-operative Bank Limited cited supra had held that such interest
income received by the assessee should be assessed as “income from business”
instead of “income from other sources”. In view of the order of the co-ordinate
bench, we hold that the CIT(A) is justified in holding that interest income received
by the assessee should be assessed as “income from business”.
10.1 As regards grant of deduction u/s. 80P(2)(i)(a) of the Act, the Assessing
Officer shall follow the law laid down by the Larger Bench of the Jurisdictional High
Court in the case of Mavilayi Service Co-operative Bank Ltd. vs. CIT cited supra and
examine the actual activities of the assessee so as to grant deduction u/s.
80P(2)(i)(a) of the Act. Accordingly, we remit this issue to the file of the Assessing
Officer for fresh consideration in accordance with the above direction. Thus, this
ground of appeals of the Revenue is partly allowed for statistical purposes.
10.2 In the result, the appeals of the Revenue are partly allowed for statistical
purposes.
Next we shall take up the assessee’s appeal in ITA No. 80/Coch/2018 for the
assessment year 2014-15.
11.1 Though the assessee has raised numerous grounds, the assessee has pressed
only the following grounds:
I.T.A. Nos.151/Coch/2018 & 128 &143 /Coch/2019 & 80/Coch/2018 i) Addition made on deposits received from members and treating the same as unexplained cash credits u/s. 68 of the Act.
ii) Disallowance of deduction u/s. 80P(2) of the Act on such income.
11.2 All other grounds raised by the assessee in its grounds of appeal are in support of the order of the CIT(A) which do not require any adjudication in view of our findings in the Revenue appeals.
The first ground is with regard to addition made on unexplained cash credits
u/s. 68 of the Act.
12.1 The facts of the case are that on verifying the financial statement audited by
the Co-operative Department, the Assessing Officer found that there was an
increase in fixed deposits received by the assessee in cash during year under
consideration to the tune of Rs.4,17,39,766/-. The assessee was requested to
furnish the details of such deposits received in cash to examine the correctness of
the claim of interest paid. Instead of filing the requisite details, the assessee
preferred to file a letter stating that the income is exempted from tax since they are
a society registered under the Kerala Co-operative Societies Act as Primary
Agricultural Credit Society and are eligible for the deduction u/s. 80P as per the
judgment of the Jurisdictional High Court in WP© 188/2014 dated 15/02/2016 and
other connected cases. However, in the absence of satisfactory explanation and
details filed by the assessee, the Assessing Officer relying on the decisions of the
Supreme Court in the case of A.Govindarajalu Mudaliar vs. CIT and Kale Khan
I.T.A. Nos.151/Coch/2018 & 128 &143 /Coch/2019 & 80/Coch/2018 Mohammed Hanif vs. CIT brought to tax the above amount u/s. 68 of the Act as
unexplained credits.
12.2 On appeal, the CIT(A) observed that section 68 of the Act provides that
where the as offers no explanation about the nature and source of the credits in the
books of account, all the amounts so credited or where the explanation offered by
the assessee is not satisfactory in relation to it then such credits may be charged
to tax as income of the assessee. The conditions that are required to be established
by the assessee are the identity of the creditors, genuineness of the transactions
and the creditworthiness of the creditors and once the these three essential
requirements are proved by the assessee, the onus would shift to the Department.
According to the CIT(A), opportunities were given to the assessee to establish the
identity of the creditors, genuineness of the transactions and the credit worthiness
of the creditors on 28.10.2016, 18.11.2016, 01.12.2016, 16.12.2016 and
22.12.2016. Instead of establishing the above mentioned conditions, the assessee
stated that the addition would result in income which in turn is to be exempted from
tax u/s 80P(2)(a)(i) of the Act. The CIT(A) rejected the argument of the assessee
that its books of account were audited as per Kerala Cooperative Societies Act as
the assessee was directed to explain source for the cash deposits made during the
year under consideration under the extant provisions of the Income Tax Act, the
responsibility of which was not at all discharged by the assessee. The CIT(A)
observed that without establishing the identity of the creditors, genuineness of the
I.T.A. Nos.151/Coch/2018 & 128 &143 /Coch/2019 & 80/Coch/2018 transactions and the credit worthiness of the creditors, the assessee cannot claim
that the cash deposits cannot be brought to tax. Hence, the income which was
brought to tax u/s 68 of the Act is justified. Similarly, the CIT(A) was of the view
that the decisions of this Tribunal relied on by the assessee are not applicable to its
case as the income which was brought to tax was not earned from the regular
business activities carried out by the assessee i.e advancing loan to members and
earning interest therefrom. Once the income is not brought to tax as earned from
regular business activities then, the said income is not entitled to the benefit of
deduction u/s 80P(2)(a)(i) of the Act. According to the CIT(A) cash deposits
received by the assessee during the year under consideration had nothing to do
with the business income which alone can be considered for the exemption to be
claimed u/s 80P(2)(a)(i) of the Act. It was observed that the unexplained cash
credits which was brought to tax u/s 68 should necessarily be treated as income to
be taxed but not as business income to be exempted u/s 80P(2)(a)(i). In view of all
the above, the CIT(A) confirmed the decision of the Assessing Officer to bring to
tax a sum of Rs.4,17,39,766/- as unexplained cash credit u/s 68 of the Act in the
absence of assessee’s explanation about the nature and source of the cash deposits
received during the year under consideration. The CIT(A) placed reliance on the
latest decision of the High Court of Kerala in the case of CIT vs Universal Empire
Educational Society (393 1TR 502) wherein the income which was brought to tax
u/s 68 of the Ac- in the absence of establishing the identity of the creditors,
I.T.A. Nos.151/Coch/2018 & 128 &143 /Coch/2019 & 80/Coch/2018 genuineness of the transactions and the credit worthiness of the creditors was
confirmed.
12.3. Against this, the assessee is in appeal before us.
12.4. The Ld. AR submitted that the assessee being a co-operative society, was
carrying on the business of providing credit facilities and accepts different kinds of
deposits for lending or investment purposes and therefore, the Assessing Officer
was not justified in considering these deposits as unexplained cash credit. It was
submitted that the Assessing Officer did not make proper enquiries before making
the addition u/s. 68 of the Act. He relied on the judgment of Gauhati High Court in
the case of Khandelwal Constructions vs. CIT (227 ITR 900) wherein it was held
that the assessee being a co-operative society, was keeping proper books of
account which were subjected to audit as per Kerala Co-operative Societies Act,
1969 and therefore, there was no undisclosed transaction. The Ld. AR relied on the
decision of the ITAT, Hyderabad in the case of Citizen Co-operative Society Ltd. vs.
Department of income-tax dated 03/05/2012 wherein it was held that deposits
received by the co-operative societies shall not be considered as unexplained cash
credits for the failure to provide the details of depositors. The Ld. AR also relied on
the decision of the ITAT, Delhi in the case of New Rising Star Co-operative Society vs. Department of Income-tax (order dated 17th October, 2014). He also relied on
the decision of the ITAT, Pune and Nagpur in the case of Buldana and Karad
I.T.A. Nos.151/Coch/2018 & 128 &143 /Coch/2019 & 80/Coch/2018 Merchant Co-operative Society wherein it was held that the disallowance u/s. 68
should be treated as business income and is eligible for deduction u/s. 80P(4) of the
Act. The Ld. AR also relied on the decisions of the ITAT, Cochin Bench in the case
of Ettumanoor Service Co-operative Bank Ltd. and Kadakkarapilly Service Co-
operative Bank Ltd and various co-operative banks have got benefit from these
orders. societies. It was submitted that in all these decisions, the addition u/s. 68
resulted in increase in income which is to be treated as business income for
deduction u/s. 80P of the Act and covered by the decision of The ld. AR relied on
the CBDT Circular No. 37/2016 wherein it was stated that disallowance which will
increase the total income of the assessee is eligible for deduction under various
provisions of Chapter VI-A does not affect taxable income. Therefore, addition u/s.
68 of the Act only increases the total income which is allowable for deduction u/s.
80P of the Act.
12.5. The Ld. DR relied on the order of the authorities below.
12.6 We have heard the rival submissions and perused the record. A similar issue
was considered by the CIT(A) for the assessment years 2011-12 and 2015-16
wherein he has remitted the issue to the file of the Assessing Officer by observing
as follows:
“The assessee has also raised the ground that the additions made under section 68 of the Act are eligible for deduction u/s. 80P of the Act. The claim of the Appellant is on the basis that the income assessed under section 68 of the Act is to be treated as business income and accordingly, deduction under section 80P to be allowed. However, the Hon'ble High Court of Kerala in the
I.T.A. Nos.151/Coch/2018 & 128 &143 /Coch/2019 & 80/Coch/2018 case of Kerala Sponge Iron Ltd., 79 taxmann.com 350, has considered the issue of treatment of income under section 68 of the Act held as under:
"4. We heard the Senior Counsel for the Revenue and also the learned counsel appearing for the assessee.
As we have already noticed in paragraph 7.3 of its order, the Tribunal has confirmed the order passed by the Assessing Officer treating the commodity profit shown by the assessee as unexplained cash credit on the basis that the transactions showing generation of commodity trading profit were sham and bogus transactions without any element of genuineness. The Tribunal also upheld addition of the commodity treating profit as unexplained cash credit under Section 68 of the Act. The question is whether having confirmed the addition of the alleged commodity trading profit as unexplained cash credit under Section 68 of the Act, whether the Tribunal was justified in allowing set off.
In our view, answer to this question should be in the negative. This is evident from the judgment of the Gujarat High Court in Fakir Mohammed Haji Hasan (supra) distinguished by the Tribunal itself where it has been held that when income cannot be classified under any one of the heads of income under Section 14, it follows that the question of giving any deductions under the provisions which correspond to such heads of income will not arise. Insofar as this case is concerned, admittedly the income has been treated as unexplained cash credit under Section 68 of the Act. Once it is so done for the purpose of set off or any other purpose, the said unexplained income cannot be treated as business income under any one of the head provided under Section 14 in which case the question of set off does not arise.
Insofar as the Supreme Court judgment in Lakhmichand Baijnath v. CIT (1959) 35 ITR 416 relying on which the Calcutta High Court has rendered its judgment in Daulatram Rawat Mull case (supra) is concerned, reading of the judgment itself show that the disputed income therein was assessed by the Assessing Officer as concealed profits of the business. This finding of the Assessing Officer was confirmed by the First Appellate Authority, Tribunal, High Court and the Supreme Court. Therefore, the decision rendered on the basis of such a conclusion could not have been of any assistance to arrive at the conclusion of the Tribunal. entitled to set off the unexplained income under Section 68 of the Act in accordance with the provisions of the Act relating to set off.
We, therefore, set aside the order passed by the Tribunal, to the extent it has set aside the order of the Commissioner of Income Tax (Appeals)
I.T.A. Nos.151/Coch/2018 & 128 &143 /Coch/2019 & 80/Coch/2018 directing the Assessing Officer to allow the set off of current year business loss as well as brought forward business loss/unabsorbed depreciation against income assessed under Section 68 of the Act. Therefore, answering the question of law raised in favour of the Revenue, this appeal is disposed of." [Emphasis Supplied]
12.7 However, the CIT(A) has taken a different view for this assessment year
2014-15 which is not proper. Judicial discipline requires consistency in its
proceedings. Being so, we are inclined to remit this issue to the file of the AO for
this assessment year in conformity with the order of the CIT(A) with a direction to
the assessee to provide details of the depositors along with the proof of identity to
the Assessing Officer. The Assessing Officer is directed to verify the identity of the
depositors and if the assessee proves the identity of the parties, then the addition is
to be deleted in view of the order of the Tribunal in the case of This ground of
appeal of the assessee is partly allowed for statistical purposes.
With regard to non granting of deduction u/s. 80P(2) of the Act, treating the
unexplained credits as ‘income from other sources’, this issue was considered by the
Jurisdictional High Court in the case of Kerala Sponge Iron Ltd., 79
taxmann.com/379 ITR 330 wherein “the income had been treated as unexplained
cash credit under section 68. Once it was so done for the purpose of set off or any
other purpose, the unexplained income could not be treated as business income
under any one of the heads provided under section 14 in which case the question of
set off did not arise. Therefore, the order of the Tribunal to the extent it had set
aside the order of the Commissioner (Appeals) directing the Assessing Officer to 14
I.T.A. Nos.151/Coch/2018 & 128 &143 /Coch/2019 & 80/Coch/2018 allow the set off of the current year’s business loss as well as brought forward
business loss and unabsorbed depreciation against income assessed under section
68 was to be set aside.” In view of this, we are of the opinion that deduction
under section 80P(2) of the Act cannot be allowed for the unexplained income
assessed as under section 68 of the Act and the said income cannot be treated as
business income. With this observation, we remit this issue to the file of the
Assessing Officer with reference to the addition made u/s. 68 of the Act. This
ground of appeal of the assessee is partly allowed for statistical purposes.
In the result, the appeals filed by the Revenue as well as the appeal filed by
the assessee are partly allowed for statistical purposes. Order pronounced on this day of 23rd May, 2019.
sd/- sd/- (GEORGE GEORGE K.) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER Place: Kochi Dated: 23rd May, 2019 GJ Copy to: 1. M/s. Mundela Service Co-operative Bank Ltd., No.2433, Mundela Post, Vellanad, Trivandrum-695 543. 2. The Income Tax Officer, Ward-2(3), Range-2, Trivandrum. 3. The Commissioner of Income-tax(Appeals),Trivandrum. 4. The Pr. Commissioner of Income-tax, Trivandrum. 5. D.R., I.T.A.T., Cochin Bench, Cochin. 6. Guard File. By Order
(ASSISTANT REGISTRAR) I.T.A.T., Cochin
I.T.A. Nos.151/Coch/2018 & 128 &143 /Coch/2019 & 80/Coch/2018