INFINITY TOWERS CO OP HSG SOC LTD ,MUMBAI vs. ITO 22(1)(1), MUMBAI

The Ld.AR further stated that the Ld. CIT(A) without condoning the delay and without considering the merit the appellate order was passed on ground of limitation which is gross valuation of national justice. She further argued that the assessee claimed interest earned from investment in co-operative bank Shamrao Vithal Cooperative Bank Limited amount to Rs. 11,60,974/- and from Saraswat Cooperative Bank Limited Rs. 8,70,170/- but both the interest are claimed deduction u/s 80P of the Act. The Ld.AR stated that the computation is annexed in APB pages 82 to 88 and interest certificate from bank is also enclosed in APB 12 and 13. The Ld.AR argued and placed that the issue is well settled related to deduction of interest earned from co-operative banks is a permissible deduction under section 80P(2)(d) of the Act. The Ld.AR stated that the assessee claimed the deduction of interest which is only related the co-operative bank.

The Ld.DR argued and filed a written submission. The relevant part of the DR’s submission reproduced as below:- “The argument that the exclusionary proposition of Sub-section 80P(4) would be applicable only when the entity claiming deduction itself is a co-operative bank and not when paver bank is a cooperative bank 3556 and 3557/Mum/2025 Infinity Towers Co-operative Housing Society Limited 22. This dispute has been settled by Hon'ble Mumbai Bench of ITAT in case of Janpriya Shakari PatsansthaMaryadit vs ACIT in of 2024, vide order dined 28-02-2025, and a detailed discussion on the same is in subsequent part of this submission. In the course of the bearing an argument wasthat the exclusionary provisions of sab-section 80P(4) are applicable only if the entity claiming the deduction itself is a co-operative bank and the same cannot be invoked when the entity paying the interest income under section 80P(2)(d) is a co-operative bank in other words, the case where the party that is claiming the deduction itself is a co- operative bank would be different from the case where the party claiming the deduction is co- operative society only but the interest is being received from deposits made with a co-operative bank, in cases it has been argued that while 80P(4) would disallow the deduction in first case but not in second case.

In this respect the attention is invited to sub-section 80P(2)(d) and the same is reproduced below- "(d) in respect of any income by way of interest or dividends derived by the co-operative society from its investments with any other co-operative society, the whole of such income:"

It may be noted that the expression "co-operative society” has been used twice in above clause (the first and second expression have been underlined) and there is nothing in the language of the statute to suggest that when section 80P(4) excludes specific types of cooperative societies from all the provisions of the Section 80P, such an exclusion is only in respect of the first expression herein above and not in respect of the second expression herein above. There is nothing in the language of the provision to suggest that the expression "Co operative Society used in sub-section 80P(2)(d) has different meanings at different places i.e. it excluded co-operative banks in 1st use and doesn't exclude co-operative banks in 2nd use.

Further, the apparent objective of section 80P is promotion of the co-operative movement and the manners & ways in which and the extent to which Legislature intended such promotion is apparent from the provision itself. The fact thut section 80OP(2)(d) mandates that the deposits have to be with co-operative societies only, indicates that legislature intended that even the surplus that is lying with co-operative societies be used for further promotion of the co operative movement. Accordingly, a correct interpretation can be arrived at only be seeing that even this surplus that is there with co-operative societies goes to the intended beneficiaries of the Section. It is obvious that such beneficiaries are co-operative societies and it has already been brought out in judgments of Hon'ble Supreme Court (cited above) by reference to speech of Finance Minister that co-operative banks are not the intended beneficiaries of section 80P. Accordingly if it is held that legislature is excluding the co operative banks from beneficial 3556 and 3557/Mum/2025 Infinity Towers Co-operative Housing Society Limited provisions of section 80P then it has to be assumed that legislature is excluding them from the benefit of receiving the deposits also.

Further if it is held that the condition of excluding co-operative banks would apply only to the society claiming the deduction, and not on the society that is paying the interest of riving the deposit then it would make no sense to mandate that the deposit must be with co-operative societies. Further it is also generally accepted that if the deposits were with regular commercial hanks, then the interest on such deposits will not be eligible for deduction 80P (2)(d). In light of this fact since it has already been brought in judgments cited above, that relying on the speech of Finance Minister's speech Hon'ble Court has already held that co-operative banks are to be treated at par with regular commercial hanks. Hence the interests received from co-operative banks are also to be treated at par with interests received from regular commercial banks and not be allowed as deduction 80P(2)(d). Accordingly, if the Legislature did not intend the co- operative banks to be the target chon, then an interpretation that treats co-operative banks at par with other co-operative societies cannot be the correct interpretation. Accordingly, it is humbly submitted before Hon’ble Bench that the claim that interest received from co-operative banks is eligible for deduction u/s 80P(2)(d) may be rejected 27. It is also important to point out here that the interpretation of that sub-section 80P(4) is applicable only when the assessee itself is a co-operative bank and not when the society with whom the deposit has been made is a co-operative bank, does not flow from the Judgment Hon'ble Karnataka High Court in Totagar case (supra). Further, once it is established that the adage that all co-operative banks by virtue of being co-operative societies first will be covered by the expression "co operative societies” as used in section 80P(2)(d) is not correct the judgment in Totagar case (supra) is no longer applicable. Accordingly, it is humbly prayed before Hon’ble bench that the appeal of the assessee may be dismissed.

Further, in BSNL case (supra), Hohle bench also referred to the judgment in case of Pr.CIT vs Annasaheb Patil Kamgar Sahakari Pathpedi Ltd. reported in (2023) 150 taxmann.com 173 (SC). In this respect the question of law considered by Hon'ble Supreme Court in the in reproduced below- "Whether on the facts and in the circumstances of the case and in the Tribunal justified as claimed by the assessee on the ground that the assessee, a co-operative credit society and is not a bank for the purpose of Section 80P(4) of the Act?”

Thus, it is apparent that therein Hon'ble Court was concerned about deciding whether the assessee itself is a co-operative bank or not and accordingly excluded by application of section 80P(4). In the present case before Hon'ble Tribunal, it is not in dispute that the deposits have 3556 and 3557/Mum/2025 Infinity Towers Co-operative Housing Society Limited been made with co-operative banks only. Accordingly, the judgment in the Annasaheb Patil Kamgar Sahakari Pathpedi Ltd (supra) is not applicable. Reliance on the judgment of Hon'ble Mumbai Bench of ITAT in case of Janpriya Shakari Patsansthan Maryadit vs ACIT in of 2024, vide order dated 28-02-2025- 30. Accordingly, it is pointed out that since the above judgments of Hon'ble Karnataka High Court and Hon'ble Gujarat High Court, multiple judgments by Hon'ble Supreme Court in respect of the dispute are out and the same are listed below- • Citizen Co-operative Society Lid Vs Assistant Commissioner of Income Tax Circle -9(1), Hyderabad, reported in Civil Appeal No. 10245 of 2017 dated 08/08/2017 • Kerala State Co-Operative Agricultural & Rural Development Bank Ltd v. Assessing Officer reported in [2023] 154 taxmann.com 305 • The Mavilayi Service Cooperative Bank Ltd. & Ors. vs. Commissioner of Income Tax, Calicut in Civil Appeal No. 7343 of 2019 dated 12-2-2021 31.

Further, Hon'ble Mumbai Bench of ITAT in case of Janpriya Shakari Patsansthan Maryadit vs ACIT in of 2024, vide order dated 28-02-2025, relying on the judgments of Hon'ble Supreme Court as above, hold the following in para 5.1.2- "5.1.2. It is noted from the submissions of the assessee that, it has invested its fund in commercial bank earned interest thereon. Section 80P(2)(d) describes that if the assessee has received interest from the co-operative society, then the assessee is eligible for claim of deduction on such interest received. In the judgment of Hon'ble Supreme Court in case of Kerala State Co-Operative Agricultural & Rural Development Bank Ltd. v. Assessing Officer reported in [2023] 154 taxmann.com 305 has discussed in detail the definition of co-operative banks and cooperative society. Hon'ble Court held that, if the payer bank falls under the definition of bank then the assessee is not eligible to get deduction us. 80P(2)(4) on such interest income received from co-operative banks. In addition, the judgment of Apex Court in the case of Kerala State Co-operative Agricultural and Rural Development Bank Lid. KSCARDB (supra) in which it has been discussed in detail the definition of co-operative banks and cooperative society. Hon'ble Court observed that all co-operatives are not co-operative societies"

In para 5.1.3. Hon'ble Bench sent the case back to AO for verification- "5.13. The section 80P(2)(4) describes that if the assessee received interest dividend is a co- operative society, then the assessee is eligible for claim of deduction on such interest dividend. The assessee in present facts received interest from co-operative bank, but it is not 3556 and 3557/Mum/2025 Infinity Towers Co-operative Housing Society Limited clear whether the interest payer co-operative bank is a bank and registered with Reserve Bank of India and holding licence from RBI for carrying out banking business as per RBI Act. If the payer bank falls under the definition of a bank in the light of the decision of Hon'ble Supreme Court then the assessee is not eligible to get deduction 80P(2)(d) on such interest income received from co operative banks. Therefore, this issue is remitted back to Ld.AO for verification of interest received from co-operative bank in above terms. The Ld. AO is directed to verify if payer Bank being a cooperative Bank falls into the category of co-operative society and to allow the claim if found so."

Thus, even Hon'ble Mumbai Bench (supra), when applying the principles brought out by Hon'ble Supreme Court, has agreed that if the payer bank is a co-operative bank, by application of sub-section (4) of section 80P, the assessee is not eligible for deduction u/s 80P(2)(d) of the Act. Accordingly, it is humbly prayed before Hon'ble Bench that even on merits assessee's appeal may be dismissed.”

We further note that the deduction under section 80P(2)(d) of the Act is no more res integra related to the interest earned from cooperative bank by the assessee amount to Rs.20,31,144/-. Respectfully relied on the order of Hon’ble Gujrat High Court in PCIT v. Ashwinkumar Arban Co Operative Society Ltd [2024] 168 taxmann.com 314 (Gujarat) wherein the high court has allowed the deduction claimed by the appellant u/s 80P(2)(d) taking into consideration the judgement passed by Hon'ble Apex Court in the case of Kerala State Cooperative Agricultural and Rural Development Bank Ltd v. Assessing Officer [2023] 154 taxmann.com 305/295 Taxman 675/458 ITR 384 (SC). The relevant extract is as follows- "28. Having heard learned advocates for the respective parties and considering the controversy arising in these tax appeals, we are of the opinion that the controversy sought to be canvassed with regard to deduction under section 80P(2)(d) of the Act is no more res integra in view of the decision of this Court in case of Katlary Kariyana Merchant Sahkari SarofiMandali Ltd. (supra) as well as in case of State Bank of India (supra) wherein it was held that the deduction of under section 80P(2)(d) of the Act is available to the cooperative societies on the 3556 and 3557/Mum/2025 Infinity Towers Co-operative Housing Society Limited income earned as interest on the investment made with the cooperative bank which in turn, is a cooperative society itself”.

Further we respectfully relied on the order of the Hon'ble Supreme Court in PCIT Vs Annasaheb Patil Mathadi Kamgar SahakariPathpedi Limited, reported in (2023) 150 taxmann.com 173 (SC) dated 20/04/2023 it is held that, "…………Even otherwise, on merits also and taking into consideration the CBDT Circulars and even the definition of Bank under the Banking Regulation Act, the respondent/Assessee cannot be said to be Co-operative Bank/Bank and, therefore, Section 80(P)(4) shall not be applicable and that the respondent/Assessee shall be entitled to exemption/benefit under Section 80(P)(2) of the Income Tax Act."

In our considered view the assessee filed the return of income under section 139(1) of the Act, which was subsequently processed under section 143(1). The Ld. AO disallowed the deduction claimed under section 80P of the Act 3556 and 3557/Mum/2025 Infinity Towers Co-operative Housing Society Limited in respect of interest earned from investments made in co-operative banks, resulting in a demand of Rs.8,19,400/–. The assessee did not notice the intimation issued under section 143(1). It was only upon receipt of a recovery notice dated 06.02.2025 that the assessee became aware of the demand. Consequently, the assessee filed appeals before the Ld. CIT(A) with delays of 1021 days for A.Y. 2020-21, 851 days for A.Y. 2021-22, and 573 days for A.Y. 2022-23. A petition for condonation of delay, accompanied by a duly executed affidavit dated 15.03.2025, was filed. The assessee explained that both office bearers responsible for taxation matters were senior citizens above 80 years of age and inadvertently missed the electronic intimations issued by the CPC, leading to the delay in filing the appeals. The Ld. AR submitted that the Ld. CIT(A), without condoning the delay and without adjudicating the matter on merits, dismissed the appeals on the ground of limitation, which is contrary to the principles of natural justice. On merits, it was submitted that the assessee earned interest from Shamrao Vithal Co-operative Bank Ltd amount to Rs.11,60,974/- and Saraswat Co-operative Bank Ltd Rs.8,70,170/-, aggregating to Rs.20,31,144, and claimed deduction under section 80P(2)(d). The relevant computation and interest certificates were placed in the APB. We have also considered the detailed written submission filed by the Ld. DR. However, the legal position regarding deduction under section 80P(2)(d) on interest income earned from investments with co-operative banks now stands settled. The Ld. Dr respectfully relied on the order of Janpriya Shakari Patsanstha Maryadit (supra) which is functionally distinguishable. The Hon’ble Gujarat High Court in Ashwinkumar Arban Co-operative Society Ltd. (supra), after considering the judgment of the Hon’ble Supreme Court in Kerala 3556 and 3557/Mum/2025 Infinity Towers Co-operative Housing Society Limited State Co-operative Agricultural & Rural Development Bank Ltd. (supra), held that interest earned from investments made with a co-operative bank is eligible for deduction under section 80P(2)(d). Similar views have been expressed in Shree Madhi Vighag Khand Udyog Sahakari Mandli Ltd. (supra). The Hon’ble Supreme Court in Annasaheb Patil Mathadi Kamgar Sahakari Pathpedi Ltd. (supra) further clarified that a co-operative bank is a co-operative society for the purposes of section 80P, and section 80P(4) is attracted only when the assessee itself is a co-operative bank. Thus, interest earned from a co- operative bank by a co-operative society continues to qualify for deduction under section 80P(2)(d).We also note that multiple coordinate benches of the ITAT have consistently taken the same view in favour of the assessee. In light of the above authoritative judicial pronouncements, we hold that the assessee is entitled to deduction under section 80P(2)(d) of the Act in respect of interest income of Rs.20,31,144 earned from investments with co-operative banks. Accordingly, in view of the foregoing discussion, we remit the matter to the file of the Ld. AO for the limited purpose of verifying the interest income earned by the assessee from co-operative banks. Needless to say, the Ld. AO shall afford the assessee a reasonable opportunity of being heard, in consonance with the principles of natural justice and fair play. So, the assessee’s appeal is allowed for statistical purpose.

In the result, the appeal of the assessee bearing to 3557/Mum/2025 are allowed statistical purpose. Order pronounced in the open court on 25th November 2025