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Income Tax Appellate Tribunal, “SMC – C” BENCH : BANGALORE
Before: SHRI CHANDRA POOJARI
Date of hearing : 05.04.2021 Date of Pronouncement : 05.04.2021 O R D E R This appeal by the assessee is against the order dated 12.12.2019 of the CIT(Appeals), Hubballi, relating to assessment year 2013-14.
The concise grounds of appeal raised by the assessee are as follows:-
“1. The Ld. Commissioner of Income Tax (Appeals) erred in law as well as on facts in rejecting the genuine claim of the appellant in respect of deduction u/s 80P(2)(a)(i) to the extent of Rs.46,97,003.00 as claimed by the appellant. The appellant prays for grant of the deduction as claimed. 2. The Ld. Commissioner of Income Tax (Appeals) erred in law as well as on facts in applying the Judgment of Hon. Supreme Court of India in the case of Citizen Co-operative Society, Hyderabad. As the facts of Citizen society & the assessee society is totally different.
The Ld. Commissioner of Income Tax (Appeals) erred in law and on facts in not following the judgment of Hon'ble High Court of Karnataka, Dharwad Bench in the case of Tumkur Merchants Souharda Credit Co-operative Ltd V/s ITO and Guttugedarara Credit Co-operative Society Ltd. Vs. ITO.
4. The learned CIT Appeal erred in law and on facts in confirming the disallowance of Pigmy Commission paid to Pigmy Agents U/S 40(a)(ia) of the Act of Rs. 2,23,397.00. Sir in this connection we would like to bring to your kind consideration that the CBDT has issued a letter to CIT, Belgaum dtd. 01.12.2011 to consider the pigmy agents commission will be treated as salary and subject to TDS U/S 192 of the Income Tax Act, 1961. Here in our society, none of the agents commission is in excess of basic exemption limit. Therefore the disallowance confirmed by the learned CIT Appeal may be deleted.
5. The learned CIT Appeal erred in law and on facts in confirming the twice disallowance of Audit Fees of Rs. 70,000.00 paid to Statutory Auditor U/S 40(a)(ia) of the Act. Sir in this connection we would like to bring to your kind consideration that the amount of audit fees is already disallowed at the time of filing of return of income. But the learned AO erred in once again adding the audit fees at the time of assessment. Copy of the statement of income is enclosed to this submission. Hence twice addition may be deleted on the ground of double addition.
6. The Ld. Commissioner of Income Tax (Appeals) erred in law and on facts in not following Section 194A(3)(v) of the Income Tax Act, 1961. As the section itself says that if the interest on deposits is paid by the co — operative society to its members, there is no need to make the TDS on such interest. Where as the Ld. Commissioner of Income Tax (Appeals) went on to direct the Ln AO to verify the TDS made on Interest on deposits paid to associate members in excess of Rs. 10,000.00. As the law is very clear for non making of TDS, but the Ld CIT Appeal went one step ahead of Income Tax Act, which is not acceptable & against the law.
7. Each of the above grounds is without prejudice to one another and the appellant craves leave to add, delete, amend or otherwise modify or withdraw one or more of the above grounds either before or at the time of hearing of this appeal.” 3. The assessee is a Co-operative society registered under Karnataka Co-operative Societies Act. The ld. AR submitted that the assessee in its return of income for the AY 2013-14 declared total income as Nil after claiming deduction u/s. 80P(2)(a)(i) of Rs.28,26,387.00. The AO denied the deduction on the ground that income of a co-op. society, including the profits and gains of banking or providing credit facility carried on by such co-op. society is not eligible for deduction if it is a co-op. bank within the meaning of section 80P(4) of the Act.
The CIT(Appeals) agreed with the contention of the assessee that it is a co-op. society and not a co-op. bank and therefore income earned from its business of providing credit facilities to its regular members is eligible for deduction. He relied on the judgment of Hon’ble High Court of Karnataka in CIT v. Bangalore Commercial Transport Credit Co-op. Society in ITA 351/2011. The CIT(A) directed the AO to verify and allow the deduction as per law. However, the CIT(A) observed that the Hon’ble Supreme Court in The Citizen Co-op. Society Ltd. v. ACIT in Appeal No.10245 of 2017 dated 8.8.2017 and M/s. Totgars Co-op. Sale Society Ltd. v. ITO in Appeal No.1622 of 2010 restricted the society’s right to claim deduction on income u/s. 80P(2)(a)(i) of the Act to income earned from its regular members who have full voting and equal dividend rights on the principle of mutuality. The CIT(A) observed that the Hon’ble Supreme Court judgment dated 30.7.2018 in Civil Appeal No.3327 of 2007 in Commissioner of Customs v. Dilip Kumar & Co. & Ors. (SC)(Constitution Bench) while overruling the 3 member Bench of Apex Court in the case of Sun Exports Corporation held that burden of proving applicability would be on the assessee to show that his case comes within the parameters of exemption clause or notification.
When there is ambiguity, it must be interpreted in favour of revenue. He therefore held that income earned from persons other than its regular members would not be eligible for deduction u/s. 80P(2)(a) of the Act would be taxable as income and allowed as business expenditure relying on the judgment of Hon'ble Supreme Court of India in the case of Citizen Co-Op. Credit Society Ltd., Vs ACIT (supra). Therefore the AO was directed accordingly.
After hearing both the parties, we are of the opinion that similar issue came up for consideration before this Tribunal in the case of
6. The CIT(A) observe that the disallowance of expenditure under the head pigmy commission and audit fee was not contested and no evidence was provided to the contrary and therefore confirmed the order of AO.
7. Regarding TDS on payments to associate members above Rs.10,000/- each, the CIT(A) upheld the action of the AO in the absence of any details furnished on such payments.
Against this, the assessee is in appeal before us.
After hearing both the parties, we find that similar issue came up for consideration before this Tribunal in the case of M/s The Karnataka Alpsankyatar Pattin Sahakari Sangh Niyamit in (Bang) 2019 for AY 2013–14 and vide order dated 26.3.209, it was held as under:-
“4. I have considered the rival submissions and gone through the orders of the lower authorities. I find that the learned CIT (A) is not justified in holding that the assessee is not eligible for deduction u/s 80P in respect of interest earned from associate members because as per Karnataka Co Operative Societies Act, associate members are also members and restriction on no. of associate members up to 15% of total members is by way of a subsequent amendment which is not applicable in the present year. Hence, on this issue, the order of CIT (A) is set aside and I hold that for allowing deduction u/s 80P in respect of interest from members, regular members and associate members are to be considered at par in the present year which is before amendment in Karnataka Co Operative Societies Act, In respect of interest from regular members, learned CIT (A) has directed the AO to allow deduction u/s 80P. I modify this direction and direct the AO to allow deduction u/s 80P as per law in respect of interest income from regular members as well as associate members.
5. Regarding, the second aspect of the assessee’s claim for deduction u/s 80P in respect of Bank Interest, I find that the claim of the assessee for deduction u/s 80P in respect of bank interest income was disallowed by AO and CIT (A) by following the judgment of Hon’ble Apex Court rendered in the case of Totgars Co – Operative Sale Society Limited vs. ITO (Supra). I reproduce the relevant Para 10 of this judgment and the same is 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 s. 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 s. 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 s. 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 s. 56 of the Act, as rightly held by the AO. In this connection, we may analyze s. 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 s. 80P indicates that the said section deals with deductions in respect of income of co-operative societies. Sec. 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 s. 80P (2) of the Act, would be eligible for deduction. The word "income" has been defined under s. 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 s. 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 s. 80P(2)(a)(i) 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 s. 80P(2)(a)(i) of the Act or in s. 80P(2)(a)(iii) of the Act. Therefore, looking to the facts and circumstances of this case, we are of the view that the AO was right in taxing the interest income, indicated above, under s. 56 of the Act.”
There is one judgment of Hon’ble Karnataka High Court rendered in the case of Tumkur Merchants Souhadra Credit Cooperative Ltd. Vs. ITO (Supra) in which this judgment of Hon’ble apex court rendered in the case of Totgars Co – Operative Sale Society Limited vs. ITO (Supra) was considered but still, the issue was decided in favour of the assessee because in that case, money used to earn bank interest was out of own funds and not of out of liability. To examine the applicability of these two judgments, the facts are to be examined as to whether in the present case, the money advanced to earn interest income from various banks is out of liability or own funds of the assessee because if such advances are out of liability, then this judgment of Hon’ble apex court rendered in the case of Totgars Co- Operative Sale Society Limited vs. ITO (Supra) will be applicable and the assessee will not be entitled to deduction u/s 80P with regard to interest from banks but if such advances are not out of liability but are out of own funds of the assessee than the judgment of Hon’ble Karnataka High Court rendered in the case of Tumkur Merchants Souhadra Credit Cooperative Ltd. Vs. ITO (Supra) will be applicable.
Hence, I set aside the order of CIT (A) on this issue and restore this aspect of the matter back to his file for fresh decision with the direction that he should examine the facts of the present case in the light of these two judgments of Hon’ble apex court rendered in the case of Totgars Co – Operative Sale Society Limited vs. ITO (Supra) and of Hon’ble Karnataka High Court rendered in the case of Tumkur Merchants Souhadra Credit Cooperative Ltd. Vs. ITO (Supra) to find out which judgment is applicable in the facts of the present case. If it is found that the judgment of Hon’ble apex court rendered in the case of Totgars Co-Operative Sale Society Limited vs. ITO (Supra) is applicable in the facts of the present case then it should be held that the assessee is not entitled to deduction u/s 80P in respect of interest from bank but if it is found that the judgment of Hon’ble Karnataka High Court rendered in the case of Tumkur Merchants Souhadra Credit Cooperative Ltd. Vs. ITO (Supra) is applicable then it should be held that the assessee is entitled to deduction u/s 80P in respect of interest from bank.”
Respectfully following the above order, I remit the issue to the file of Assessing Officer with similar directions. This issue is partly allowed for statistical purposes.
With regard to disallowance of pigmy commission paid to pigmy agents u/s. 40(a)(ia) of the Act, before the lower authorities the assessee has not furnished details of payment and whether it is liable for TDS. Hence this issue is remitted to the AO for fresh consideration with a direction to the assessee to furnish the details of TDS.
In the result, the assessee’s appeal is partly allowed for statistical purposes.
Pronounced in the open court on this 5th day of April, 2021.