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Income Tax Appellate Tribunal, SMC BENCH, MUMBAI
Per Rahul Chaudhary, Judicial Member:
By way of the present appeal the Appellant/Assessee has challenged the order, dated 01.06.2021, passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [hereinafter referred to as „the CIT(A)‟], under Section 250 of the Income Tax Act, 1961 [hereinafter referred to as „the Act‟] in appeal [CIT(A), Mumbai - 34/10347/2016-17] for the Assessment Year 2014-15, whereby the CIT(A) had partly allowed the appeal filed by the Assessee against the assessment order, dated 12.12.2016, passed under Section 143(3) of the Act.
Brief facts of the case are that the Appellant is a Co-operative Housing Society registered under Maharashtra Co-operative Societies Act 1960. During the relevant previous year, the Appellant earned interest income of INR 3,80,214/- consisting of (a) interest on fixed deposit with Mumbai District Central Co-operative Bank (MDCC) amounting to INR 2,53,915/-, (b) interest on fixed deposit with Sarswati Co-operative Bank Ltd. (SCB) amounting to INR 84,853/- and (c) interest on savings account of INR 41,446/-. Appellant filed its Income-Tax return on 25.09.2014 claiming deduction under Section 80P(2)(d) of the Act.
During the assessment proceedings, the AO noticed that saving bank interest of INR 41,446/- was credited to the P & L account whereas interest received from cooperative banks amounting to INR 3,38,768/-. Therefore, the Assessee was asked to show cause why the aforesaid interest should not be added back to the total income of the Assessee and deduction claimed under Section 80P(2)(d) be disallowed. In response to the said show cause notice the Appellant filed submissions explaining that interest income of INR 3,38,763/-, consisting of interest of INR 2,53,915/-, received from MDCC and INR 84,853/- received from SCB, is eligible for deduction under Section 80P(2)(d) of the Act as the same has been received from cooperative banks. However, the Assessing Officer added interest income of INR 3,38,768/- received from cooperative banks as well as saving bank interest of INR 41,446/- to the total income and made an addition of INR 3,80,214/- to the return income. The AO denied the claim for deduction under Section 80P(2)(d) of the Act as the AO concluded that by virtue of insertion of section 80P(4) vide Finance Act, 2006, the Appellant was not eligible to claim deduction under Section 80P(2)(d) of the Act for the interest received/earned from investment of funds with cooperative banks. Further, Interest income was not „profits and gains for business‟ but „income from other sources‟ and therefore, deduction under Section 80P(2)(d) of the Act was not allowable.
Assessment Year: 2014-15 4. In appeal, the CIT(A) concurred with the AO as regards disallowance of deduction under Section 80P(2)(d) of the Act and confirmed the addition of INR 3,80,214/- made by the AO.
Being aggrieved, the Assessee has filed present appeal before us raising following grounds of appeal:
“1. Disallowing deduction of INR 3,80,214 u/s 80P(2)(d). 1.1. On the facts and circumstances of the case and in law, the Income Tax officer 22(2)(3) („learned AO‟) erred in disallowing the deduction of Rs. 3,80,214 claimed by the Appellant under section 80P(2)(d) of the Act. The Learned CIT(A) further erred in confirming the action of the learned AO. 1.2. On the facts and circumstance of the case and in law, the learned AO / CIT(A) erred in disallowing the deduction on the grounds that: i) 80P(2)(d) is applicable on the receipt of interest from any cooperative society and the Appellant has received such interest from a cooperative bank and not from a cooperative society. i) Section 80P(4) of the Act provides that the Section is not applicable to income earned by the Appellant from a cooperative bank.
2. Penalty proceedings are bad in law 2.1 On the facts and in the circumstances of the case, the Ld. AO erred in initiating penalty proceedings under section 271(1)(c) of the Act.“ 6. The learned Authorized Representative (hereinafter referred to as „the Ld. AR‟) advancing arguments on behalf of the Appellant submitted that interest income of INR 3,80,214/- derived by the Appellant, which a co-operative society, from a co-operative bank, which is also a co- operative society. Therefore, the aforesaid interest is eligible for Assessment Year: 2014-15 deduction under Section 80P(2)(d) of the Act. He placed reliance on the decision of the Hon‟ble Kerala High Court in the case of Peroorkada Service Co-operative Bank Ltd. (ITA No. 323 of 2019) as well as decisions of the Mumbai Bench of the Tribunal in the case of Kaliandas Udyog Bhavan Premises Co-operative Society Ltd. (ITA No. 6574/Mum/2017) and Land‟s End Co-operative Housing Society Limited (ITA No. 3566/Mum/2014).
Per contra, Ld. Departmental Representative relied upon the order passed by the Assessing Officer (AO) and CIT(A) to contend that the judgment of Hon‟ble Supreme Court in the case of Totagar‟s Cooperative Sale Society Ltd. vs. ITO (2010) 322 ITR 283 (S.C.) is applicable in the facts of the present case and the AO was correct in denying the deduction claimed by the Appellant under Section 80P of the Act.
We have heard the rival submissions, perused the material on record and examined the legal position.
9. The Hon‟ble Supreme Court had, while interpreting the provisions of Section 80P(2)(a)(i) of the Act in the case of Totgars Cooperative Sale Society Ltd. vs. ITO (2010) 322 ITR 283 (SC), took note of the fact the expression „profits and gains of business‟ has been used in Section 80P(2)(a)(i) of the Act and observed as under:
“10. At the outset, an important circumstance needs to be highlighted. In the present case, the interest held not eligible for deduction under section 80P(2)(a)(i) of the Act is not the interest received from the members for providing credit facilities to them. What is sought to be taxed under section 56 of the Act is the interest income arising on the surplus invested in short-term deposits and securities which surplus was not required for business purposes. Assessee(s) markets the produce of its members whose sale proceeds at times were Assessment Year: 2014-15 retained by it. In this case, we are concerned with the tax treatment of such amount. Since the fund created by such retention was not required immediately for business purposes, it was invested in specified securities. The question, before us, is - whether interest on such deposits/securities, which strictly speaking accrues to the members' account, could be taxed as business income under section 28 of the Act? In our view, such interest income would come in the category of "Income from other sources", hence, such interest income would be taxable under section 56 of the Act, as rightly held by the Assessing Officer. In this connection, we may analyze section 80P of the Act. This section comes in Chapter VI-A, which, in turn, deals with "Deductions in respect of certain incomes". The headnote to section 80P indicates that the said section deals with deductions in respect of income of co-operative Societies. Section 80P(1), inter alia, states that where the gross total income of a co-operative Society includes any income from one or more specified activities, then such income shall be deducted from the gross total income in computing the total taxable income of the assessee-Society. An income, which is attributable to any of the specified activities in section 80P(2) of the Act, would be eligible for deduction. The word "income" has been defined under section 2(24)( i) of the Act to include profits and gains. This sub-section is an inclusive provision. The Parliament has included specifically "business profits" into the definition of the word "income". Therefore, we are required to give a precise meaning to the words "profits and gains of business" mentioned in section 80P(2) of the Act. In the present case, as stated above, assessee-society regularly invests funds not immediately required for business purposes. Interest on such investments, therefore, cannot fall within the meaning of the expression "profits and gains of business". Such interest income cannot be said also to be attributable to the activities of the society, namely, carrying on the business of providing credit facilities to its members or marketing of the agricultural produce of its members. When the assessee-Society provides credit facilities to its members, it earns interest income. As stated above, in this case, interest held as ineligible for Assessment Year: 2014-15 deduction under section 80P(2)(a) is not in respect of interest received from members. In this case, we are only concerned with interest which accrues on funds not required immediately by the assessee(s) for its business purposes and which have been only invested in specified securities as "investment". Further, as stated above, assessee(s) markets the agricultural produce of its members. It retains the sale proceeds in many cases. It is this "retained amount" which was payable to its members, from whom produce was bought, which was invested in short-term deposits/securities. Such an amount, which was retained by the assessee-Society, was a liability and it was shown in the balance-sheet on the liability-side. Therefore, to that extent, such interest income cannot be said to be attributable either to the activity mentioned in section 80P(2)(a)( i) of the Act or in section 80P(2)(a)( iii) of the Act. Therefore, looking to the facts and circumstances of this case, we are of the view that the Assessing Officer was right in taxing the interest income, indicated above, under section 56 of the Act.
An alternative submission was advanced by the assessee(s) stating that, if interest income in question is held to be covered by section 56 of the Act, even then, the assessee- society is entitled to the benefit of section 80P(2)(a)(i) of the Act in respect of such interest income. We find no merit in this submission…….” (emphasis supplied)
The Hon‟ble Supreme Court, thus, held that the benefit of Section 80P(2)(a)(i) would not be available in respect of interest income as the same is not in the nature of „profits and gains of business‟. However, unlike Section 80P(2)(a) of the Act wherein expression “profits and gains of business” has been used, Section 80P(2)(d) of the Act uses the expression “any income by way of interest or dividend” for the purpose of granting benefit of deduction under Section 80P(2)(d) of the Act what is relevant is that the income should be by way of interest/dividend, and that the same should have been derived by a co-operative society from investment in another co-operative society.
Assessment Year: 2014-15 The fact that such interest income is in the nature of „profits and gains‟ or „income from other sources‟ is not relevant for the purpose of granting benefit of deduction under Section 80P(2)(d) of the Act.
11. The Hon‟ble Gujarat High Court has in the case of State Bank Of India Vs. CIT (2016) 389 ITR 578 (Guj) held as under:
“14. Thus, in the light of the principles enunciated by the Supreme Court in Totgars Co-operative Sale Society (supra), in case of a society engaged in providing credit facilities to its members, income from investments made in banks does not fall within any of the categories mentioned in section 80P(2)(a) of the Act. However, section 80P(2)(d) of the Act specifically exempts interest earned from funds invested in co-operative societies. Therefore, to the extent of the interest earned from investments made by it with any co-operative society, a co- operative society is entitled to deduction of the whole of such income under section 80P(2)(d) of the Act. However, interest earned from investments made in any bank, not being a co- operative society, is not deductible under section 80P(2)(d) of the Act.”
Similar view was taken by the Hon‟ble Karnataka High Court in the case of Pr. CIT Vs. Totagars co-operative Sale Society [2017] 392 ITR 74 (Karnataka) wherein it was held as under:
“10. Admittedly, the interest which the assessee respondent had earned was from a Co-operative Society Bank. Therefore, according to Sec. 80P(2)(d) of the I.T. Act, the said amount of interest earned from a Co-operative Society Bank would be deductible from the gross income of the Co-operative Society in order to assess its total income. Therefore, the Assessing Officer was not justified in denying the said deduction to the assessee respondent.
11. The learned counsel has relied on the case of Totgars Co- operative Sale Society Ltd. v. ITO [2010] 322 ITR 283/188
Assessment Year: 2014-15 Taxman 282 (SC). However, the said case dealt with the interpretation, and the deduction, which would be applicable under Section 80P(2)(a)(i) of the I.T. Act. For, in the present case the interpretation that is required is of Section 80P(2)(d) of the I.T. Act and not Section 80P(2)(a)(i) of the I.T. Act. Therefore, the said judgment is inapplicable to the present case. Thus, neither of the two substantial questions of law canvassed by the learned counsel for the Revenue even arise in the present case.”
Mumbai Bench of the Tribunal in the case of Lands End Co-operative Housing Society Ltd. Vs. ITO : 3566/Mum/2014, vide order dated 15.01.2016 has held that:
“8.3. We have heard…………. xx xx
From the close perusal of the provisions of …………………………Now will evaluate the assessee's case in the light of the decision of the Hon'ble Supreme court. The Honble Supreme Court in the case of Totagar's Co-operative Sale Society Ltd.(Supra) held that a society has surplus funds which are invested in short term deposits where the society is engaged in the business of banking or providing credit facilities to its members in that case the said income from short term deposits shall be treated and assessed as income from other sources and deduction u/s 80(P)(2)(a)(i) would not be available meaning thereby that deduction u/s 80(P)(2)(a)(i) is available only in respect of income which is assessable as business income and not as income from other sources. Whereas in distinction to this, the provisions of section 80(P)(2)(d) of the Act provides for deduction in respect of income of a coop society by way of interest or dividend from its investments with other coop society if such income is included in the gross total income of such coop society. In view these facts and circumstances we are of the considered view that the assessee is entitled to the deduction of Rs. 14,88,107/- in respect of interest received/derived by it on deposits with coop. banks 8
Assessment Year: 2014-15 and therefore the appeal of the assessee is allowed by reversing the order of the CIT(A). The AO is directed accordingly.” (Emphasis supplied)
After examining the abovesaid judgments and taking into account the insertion of 80P(4) vide the Finance Act, 2006, the Mumbai Bench of the Tribunal in the case of Kaliandas Udyog Bhavan Premises vs. ITO: dated 24.04.2018, while deciding the issue in favour of the assessee, has held under:
“7. We have deliberated at length on the issue under consideration and are unable to persuade ourselves to be in agreement with the view taken by the lower authorities. Before proceeding further we may herein reproduce the relevant extract of the said statutory provision, viz Sec. 80P(2)(d), as the same would have a strong bearing on the adjudication of the issue before us.
“80P(2)(d)
(1) Where in the case of an assessee being a co- operative society, the gross total income includes any income referred to in sub-section (2), there shall be deducted, in accordance with and subject to the provisions of this section, the sums specified in sub-section (2), in computing the total income of the assessee.
(2) The sums referred to in sub-section (1) shall be the following namely:- (a)……………………………………………………………….
(b)……………………………………………………………….
(c)………………………………………………………………
(d) in respect of any income by way of interest or dividends derived by the co-operative society from Assessment Year: 2014-15 its investments with any other co-operative society, the whole of such income”
Thus, from a perusal of the aforesaid Sec. 80P(2)(d) it can safely be gathered that income by way of interest income derived by an assessee cooperative society from its investments held with any other cooperative society, shall be deducted in computing the total income of the assessee. We may herein observe, that what is relevant for claim of deduction under Sec. 80P(2)(d) is that the interest income should have been derived from the investments made by the assessee co- operative society with any other cooperative society. We though are in agreement with the observations of the lower authorities that with the insertion of Sub-section (4) of Sec. 80P, vide the Finance Act, 2006, with effect from 01.04.2007, the provisions of Sec. 80P would no more be applicable in relation to any co-operative bank, other than a primary agricultural credit society or a primary co-operative agricultural and rural development bank, but however, are unable to subscribe to their view that the same shall also jeopardise the claim of deduction of a co-operative society under Sec. 80P(2)(d) in respect of the interest income on their investments parked with a co-operative bank. We have given a thoughtful consideration to the issue before us and are of the considered view that as long as it is proved that the interest income is being derived by a co-operative society from its investments made with any other co-operative society, the claim of deduction under the aforesaid statutory provision, viz. Sec. 80P(2)(d) would be duly available. We may herein observe that the term “co-operative society‟ had been defined under Sec. 2(19) of the Act, as under:
“(19) “Co-operative society” means a cooperative society registered under the Co-operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any state for the registration of cooperative societies;”
We are of the considered view, that though the co-operative bank pursuant to the insertion of Sub-section (4) of Sec. 80P would no more be entitled for claim of deduction under Sec. 10
Assessment Year: 2014-15 80P of the Act, but however, as a co-operative bank continues to be a co-operative society registered under the Co-operative Societies Act, 1912 (2 of 1912), or under any other law for the time being enforced in any state for the registration of cooperative societies, therefore, the interest income derived by a co-operative society from its investments held with a co- operative bank, would be entitled for claim of deduction under Sec.80P(2)(d) of the Act.
8. We shall now advert to the judicial pronouncements that had been relied upon by the authorized representatives for both the parties and the lower authorities. We find that the issue that a co-operative society would be entitled for claim of deduction under Sec. 80P(2)(d) for the interest income derived from its investments held with a cooperative bank is covered in favour of the assessee in the following cases:
(i) Land and Cooperative Housing Society Ltd. Vs. ITO (2017) 46 CCH 32 (Mum)
(ii) M/s C. Green Cooperative Housing and Society Ltd. Vs. ITO21(3)(2), Mumbai (ITA No. 1343/Mum/2017, dated 31.03.2017
(iii) Marvwanjee Cama Park Cooperative Housing Society Ltd. Vs. ITORange-20(2)(2), Mumbai (ITA No. 6139/Mum/2014, dated 27.09.2017.
We further find that the Hon'ble High Court of Karnataka in the case of Pr. Commissioner of Income Tax and Anr. Vs. Totagars Cooperative Sale Society (2017) 392 ITR 74 (Karn) and Hon‟ble High Court of Gujarat in the case of State Bank Of India Vs. CIT (2016) 389 ITR 578 (Guj), had also held that the interest income earned by the assessee on its investments held with a co- operative bank would be eligible for claim of deduction under Sec. 80P(2)(d) of the Act. Still further, we find that the CBDT Circular No. 14, dated 28.12.2006, as had been relied upon by the ld. A.R, also makes it clear beyond any scope of doubt, that the purpose behind enactment of sub-section (4) of Sec. 80P
Assessment Year: 2014-15 was to provide that the cooperative banks which are functioning at par with other banks would no more be entitled for claim of deduction under Sec. 80P(4) of the Act. We are of the considered view that the reliance placed by the CIT(A) on the judgment of the Hon‟ble Supreme Court in the case of Totgars Cooperative Sale Society Ltd. vs. ITO (2010) 322 ITR 283(S.C.) being distinguishable on facts, thus, had wrongly been relied upon by him. The adjudication by the Hon‟ble Apex Court in the aforesaid case was in context of Sec. 80P(2)(a)(i), and not on the entitlement of a co-operative society towards deduction under Sec. 80P(2)(d) on the interest income on the investments parked with a co-operative bank. We further find that the reliance place by the ld. D.R on the order of the ITAT “F” bench, Mumbai in the case of M/s Vaibhav Cooperative Credit Society Vs. ITO-15(3)(4) (ITA No. 5819/Mum/2014, dated 17.03.2017 is also distinguishable on facts. We find that the said order was passed by the Tribunal in context of adjudication of the entitlement of the assessee co-operative bank towards claim of deduction under Sec.80P(2)(a)(i) of the Act. We find that it was in the backdrop of the aforesaid facts that the Tribunal after carrying out a conjoint reading of Sec, 80P(2)(a)(i) r.w. Sec. 80P(4) had adjudicated the issue before them. We are afraid that the reliance placed by the ld. D.R on the aforesaid order of the Tribunal being distinguishable on facts, thus, would be of no assistance for adjudication of the issue before us. Still further, the reliance placed by the Ld. D.R on the order of the ITAT „SMC‟ Bench, Mumbai in the case of Shri Sai Datta Co-operative Credit Society Ltd. Vs. ITO (ITA No. 2379/Mum/2015, dated 15.01.2016, would also not be of any assistance, for the reason that in the said matter the Tribunal had set aside the issue to the file of the assessing officer for fresh examination, That as regards the reliance placed by the ld. D.R on the judgment of the Hon'ble High Court of Karnataka in the case of Pr. CIT Vs. Totagars co-operative Sale Society (2017) 395 ITR 611 (Karn), the High Court had concluded that a co-operative society would not be entitled to claim of deduction under Section 80P(2)(d). We however find that as held by the Hon'ble High Court of Bombay in the case of K. Subramanian and Anr. Vs. Siemens India Ltd. and Anr (1985) 156 ITR 11 (Bom), where there is a conflict between the decisions of non- 12
Assessment Year: 2014-15 jurisdictional High Court‟s, then a view which is in favour of the assessee is to be preferred as against that taken against him. Thus, taking support from the aforesaid judicial pronouncement of the Hon‟ble High Court of jurisdiction, we respectfully follow the view taken by the Hon'ble High Court of Karnataka in the case of Pr. Commissioner of Income Tax and Anr. Vs. Totagars Cooperative Sale Society (2017) 392 ITR 74 (Karn) and Hon‟ble High Court of Gujarat in the case of State Bank Of India Vs. CIT (2016) 389 ITR 578 (Guj), wherein it was observed that the interest income earned by a co-operative society on its investments held with a co operative bank would be eligible for claim of deduction under Sec.80P(2)(d) of the Act.
We thus in the backdrop of our aforesaid observations are unable to persuade ourselves to be in agreement with the view taken by the lower authorities that the assessee would not be entitled for claim of deduction under Sec. 80P(2)(d), in respect of the interest income on the investments made with the co-operative bank. We thus set aside the order of the lower authorities and conclude that the interest income of Rs.27,48,553/- earned by the assessee on the investments held with the co-operative bank would be entitled for claim of deduction under Sec. 80P(2)(d).” (Emphasis supplied)
In conclusion, we hold that the judgment of the Hon‟ble Supreme Court in the case of Totgars Cooperative Sale Society Ltd. vs. ITO (2010) 322 ITR 283 (SC), rendered in the context of Section 80P(2)(a) of the Act (wherein expression „profits and gains of business‟ has been used), is distinguishable on facts. The aforesaid judgment is not applicable to the facts of the present case as deduction has been claimed under Section 80P(2)(d) of the Act (wherein expression „any income‟ has been used). Impact of insertion of Section 80P(4) of the Act is that a co-operative bank would no more be entitled for claim of deduction under Sec. 80P of the Act, however, the interest income derived by a co-operative society from a co-operative bank would continue to be eligible for deduction under Sec.80P(2)(d) of the Act irrespective of the fact that such interest income is in the nature of Assessment Year: 2014-15 „profits and gains of business‟ or „income from other sources‟ as Section 80P(2)(d) uses the expression „any income‟ and not „profits & gains of business).
Accordingly, the Appellant is entitled to claim deduction under Section 80P(2)(d) of the Act in respect of interest received from co-operative banks amounting to INR 3,38,768/- derived from a co-operative bank. However, benefit of Section 80P(2)(d) would not be available in respect of saving bank interest of INR 41,446/-. Accordingly, Ground No.1 is partly allowed and addition of INR 3,38,768/- made by the AO stand deleted.
Ground No. 2 pertains to initiation of penalty proceedings. Since the penalty proceedings are separate and distinct from assessment proceedings, Ground No.2 is dismissed.
In the result, appeal is partly allowed. Order pronounced on 30.03.2022.