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Income Tax Appellate Tribunal, SMC BENCH, MUMBAI
Per Rahul Chaudhary, Judicial Member:
By way of the present appeal the Appellant/Department has challenged the order, dated 25.05.2021, passed by the Commissioner of Income Tax (Appeals), [hereinafter referred to as „the CIT(A)‟], National Faceless Appeal Centre (NFAC) under Section 250 of the Income Tax Act, 1961 [hereinafter referred to as „the Act‟] in appeal [CIT(A) 30, Mumbai/11145/2019-20] for the assessment year 2017-18, whereby the CIT(A) had dismissed the appeal filed by the Assessee against the assessment order, dated 20.12.2019, passed under section 143(3) of the Act.
Assessee has raised the following grounds of appeal:
“1. In the facts and circumstances of the case and in law the learned CIT(A) erred in concurring with of the A.O‟s action of disallowing deduction u/s. 80P(2)(d) of the Income Tax Act, 1961, being interest income earned by the assessee from the co-operative bank.
2. The reason given by the learned CIT(A) in concurring with of the A.O.‟s action of disallowing deduction u/s. 80P(2)(d) of the Income Tax Act, 1961 being interest income earned by the assessee from the co-operative bank, are wrong, insufficient and contrary to the facts and evidence on record.”
Brief facts of the case are that the Assessee is a Co-operative Housing Society registered under the Maharashtra Co-operative Society‟s Act 1960. The Assessee filed its return of income on 15.10.2017 declaring income at INR 42,000/-. The Assessee had claimed deduction for INR 19,54,427/- under Section 80P(2)(d) of the Act in respect of interest income received from Co-operative Bank.
The Assessing Officer (hereinafter referred to as „the AO‟) disallowed the aforesaid deduction by relying upon the judgment of Hon‟ble Supreme Court in the case of Totagars Sales Society 322 ITR 283 and holding that the interest income earned from a Co-operative Bank is not eligible for deduction under Section 80P of the Act as a Co-operative Bank does not fall within the purview of the term „co-operative Society‟ referred to in Section 80P(2)(d) of the Act.
In appeal before the CIT(A), the Assessee submitted that the judgment of the Hon‟ble Supreme Court in the case of Totagar Co-operative Sales Society Ltd. 322 ITR 283 is not applicable to the facts of the assessee‟s case as the said judgment deal with deduction claimed by under Section 80P(2)(a)(i)/(iii) of the Act and not under Section 80P(2)(d) of the Act, and relied upon the following judgments wherein the Mumbai Bench of the Tribunal had taken a consistent view that co-operative bank continues to be a co-operative society registered under the Co- operative Society‟s Act or any other law for the time being in force in state of registration of co-operative society and therefore, interest income derived by a co-operative society from investments held in co- operative bank would be eligible for deduction under Section 80P(2)(d) of the Act.
(i) Land and Cooperative Housing Society Ltd. Vs. ITO (2017) 46 CCH 32 (Mum) (ii) M/s Seagreen Cooperative Housing and Society Ltd. Vs. ITO 21(3)(2), Mumbai (ITA No. 1343/Mum/2017, dated 31.03.2017 (iii) Marwanjee Kamapark Cooperative Housing Society Ltd. Vs. ITO Range-20(2)(2), Mumbai (ITA No. 6139/Mum/2014, dated 27.09.2017 (iv) Kalidas Udyog Bhavan Premises Co-operative Society Ltd. v. ITO 21 (2)(1) Mumbai dated 25.04.2018.
However, the Ld.CIT(A) dismissed the appeal of the Assessee confirming the disallowance of INR 19,54,427/-made by the AO by relying upon the judgment of Hon‟ble Karnataka High Court in the case of Pr. CIT Vs. Totagars co-operative Sale Society [2017] 392 ITR 74 (Karnataka) vide order, dated 25.05.2021 impugned in the present appeal.
Before us, the Ld. Authorized Representative of the Assessee reiterated the submission made before the AO and CIT(A) and relied upon the submissions and the judgments placed on record vide paper book, dated 21.02.2022, while the Ld. Departmental Representative relied upon the order passed by the AO and CIT(A) to support the disallowance of deduction under Section 80P(2)(d) of the Act.
We have heard the rival submissions, perused the material on record and considered the legal position.
8. 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 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 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.
11. 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, under which deduction is being claimed by the Appellant in the present case, uses the expression „any income by way of interest or dividend‟.
9. The Hon‟ble High Court of Telagana and Andhra Pradesh in Vavveru Cooperative Rural Bank Ltd. v. Chief Commissioner of Income Tax : (2017) 396 ITR 371 (T & AP) after examining provisions of Section 80P(2)(a) to 80P(2)(f) of the Act had observed that to be eligible for deduction under Section 80P(2)(a) of the Act, the claim should relate to the „profits and gains of business‟ attributable to any one or more activities listed in Section 80P(2)(a) of the Act, whereas to be eligible for deduction under Section 80P(2)(d) of the Act „income‟ should be derived from investment with another cooperative society. Therefore, 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. 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.
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 and therefore the appeal of the assessee is allowed by reversing the order of the CIT(A). The AO is directed accordingly.” (Emphasis supplied)
11. On perusal of the bare provisions and examining the same in the light of the ratio of aforesaid decisions, it becomes clear that the interest derived by a co-operative society form another co-operative society is eligible for deduction.
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.” (Emphasis supplied)
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 8
Assessing Officer was not justified in denying the said deduction to the assessee respondent.
The learned counsel has relied on the case of Totgars Co- operative Sale Society Ltd. v. ITO [2010] 322 ITR 283/188 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.”
However, subsequently, another division bench of the Karnataka High Court in the case of Pr. CIT Vs. Totagars co-operative Sale Society (2017) 395 ITR 611 (Karn), held that as far as applicability of Section 80P(2) of the Act is concerned, the applicability of the Supreme Court's decision in the case of Totgars Co-operative Sale Society Ltd. (supra) cannot be restricted to income covered by Section 80P(2)(a) of the Act and would extend even to the income falling under Section 80P(2)(d) of the Act. It is this judgment that has been heavily relied upon by the Revenue.
After examining the abovesaid judgments (including both the judgments of the Hon‟ble Karnataka High Court), 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 Co-operative Society Ltd. 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 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. 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.
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 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-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)
Similar view was taken by the Mumbai Bench of the Tribunal in the case of Lady Ratan Tower Co-operative Housing Society Ltd. vs. ITO-21(2)(2): dated 09.08.2018, wherein after considering the decision of the Tribunal in the case of Kaliandas Udyog Bhavan Premises Co-operative Society Ltd. (supra), the Tribunal decided identical issue in the favour of the Assessee.
In view of the above, we are unable to persuade ourselves to take a view contrary to the one adopted by the Tribunal in the cases discussed hereinabove. Accordingly, we hold the interest income derived by a co- operative society from a co-operative bank would be eligible for deduction under Sec.80P(2)(d) of the Act as a co-operative bank continues to be a co-operative society. Accordingly, Ground No. 1 and 2 are decided in favour of the Appellant. Addition of INR 19,54,427/- is deleted and the Appeal is allowed.
In the result, appeal is allowed.
Order pronounced on 29.03.2022.