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Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI
Before: SHRI VIKAS AWASTHY & SHRI S.RIFAUR RAHMAN
आदेश/ ORDER
PER VIKAS AWASTHY, JM: This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-38 Mumbai [in short ‘the CIT(A)] dated 31/01/2019 for the assessment year 2013-14.
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This appeal is time barred by nine days. The assessee has filed an application supported by an affidavit seeking condonation of delay in filing of the appeal. After examining the contents of application we are satisfied that the delay in filing of the appeal is not deliberate. The delay has occurred for the reasons stated in the application, which appears to be bona-fide. Therefore, the delay of nine days in filing of appeal is condoned and the appeal is admitted to be heard and disposed of on merits.
Shri Priyesh S. Khirad appearing on behalf of the assessee submitted that the assessee is a Co-operative Credit Society. During the period relevant to the assessment year under appeal the assessee inter-alia earned interest income of Rs.2,82,923/- from Co-operative Banks and claimed the same as deduction under section 80P(2)(d) of the Income Tax Act, 1961 (in short ‘the Act’). Admittedly, the assessee in its return of income had not disclosed the aforesaid amount of interest income. However, the said income was duly reflected in the accounts of assessee. The assessee filed revised computation of income claiming deduction u/s. 80P(2)(d) of the Act. The Assessing Officer in assessment proceedings denied the benefit of Section 80P(2)(d) of the Act and added back interest received from Co-operative Banks. Aggrieved by the assessment order dated 29/02/2016 the assessee filed appeal before the CIT(A). The CIT(A) without appreciating the facts on record rejected the contentions of the assessee and confirmed the addition, hence, the present appeal by the assessee.
The ld. Authorized Representative of the assessee submitted that the assessee had invested surplus funds with Maharashtra District Credit co- operative Bank and Jan Kalyan Sahakari Bank Ltd. The assessee earned interest
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income of Rs.79,475/- and Rs.68,373/- from the aforesaid banks, respectively. Further the assessee has earned interest of Rs.75,182/- on sinking fund. The ld. Authorized Representative of the assessee submitted that the interest income earned from Co-operative banks and the sinking fund is eligible for deduction under section 80P (2)(d) of the Act.
3.1. The ld. Authorised Representative of assessee to support his contention that the assessee’s claim of deduction u/s.80P(2)(d) of the Act should be entertained on the bases of revised computation of income placed reliance on various decisions including: i. CIT vs. Bharat Aluminium co. Ltd., 303 ITR 256 (Del.); ii. CIT vs. Ramco International, 332 ITR 306 (P&H); iii. CIT vs. Pruthvi Brokers & Shareholders Pvt. Ltd., 349 ITR 336 (Bom.).
Per contra, Shri Sanjay J. Sethi representing the Department vehemently defended the impugned order and prayed for dismissing the appeal of the assessee. The ld. Departmental Representative submitted that in the first instance the assessee has not shown interest income from Co-operative Banks in the return of income. In any case assessee’s claim of deduction under section 80P(2)(d) is not allowable after insertion of sub-section (4) by the Finance Act 2006 w.e.f. 01/04/2007.
We have heard the submissions made by rival sides and have examined the orders of authorities below. The assessee has earned interest income of Rs.1,47848/- from Co-operative Banks and Rs.75,182/- on sinking fund. Undisputedly, the assessee while filing return of income has not reflected interest income from Co-operative banks/sinking fund. Subsequently, the
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assessee furnished revised computation and claimed deduction u/s. 80P(2)(d) of the Act. The two questions that arise in the present appeal are: i. Whether the assessee is eligible for the benefit of deduction u/s. 80P(2)(d) of the Act on interest income from Co-operative Banks? ii. Whether the deduction claimed by way of revised computation of income would make the assessee eligible for the benefit of section 80P(2) of the Act?
The issue whether interest income derived by a co-operative society from deposits with cooperative banks is eligible for deduction under section 80P(2)(d) of the Act or not has not crystallised so far. There are several decisions in favour of allowing the benefit of deduction u/s. 80P(2)(d) of the Act. The coordinate Bench of the Tribunal in the case of Kaliandas Udyog Bhavan Premises Co-op Society Ltd. Vs. ITO, 94 taxmann.com 15 (Mumbai) after considering various decisions by Hon’ble High Courts and the Tribunal and the provisions of the Act, has held that interest income derived by a co- operative society from investments with a co-operative bank, would be entitled for deduction under section 80P(2)(d) of the Act. The relevant extract of the order reads as 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 :—
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(a) to (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 co-operative 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 co-operative societies;'
We are of the considered view, that though the cooperative bank pursuant to the insertion of Subsection (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 cooperative 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 co-operative 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.” [Emphasised by us]
The Pune Bench of Tribunal in the case of Majalgaon Sahakari Sakhar Karkhana Ltd. vs. ACIT [2019] 105 taxmann.com 100 (Pune - Trib.) has taken a similar view in respect of interest and dividend income derived from
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investment with cooperative bank. The relevant extract of the findings of the Tribunal are as under: - “24. In some of the appeals the issue of deduction under section 80P of the Act on interest and dividend income is also involved. The assessee claimed deduction u/s.80P(2)(d) of the Act on interest and dividend received from Co-operative Society on Savings Bank accounts. The AO did not allow such deduction. The ld. CIT(A) overturned the assessment order on this point and granted deduction. The Revenue is aggrieved by such allowing of deduction.
We have heard both the sides and gone through the relevant material on record. Relevant part of section 80P reads as under : - 80P. (1) Where, in the case of an assessee being a cooperative 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) to (c) (d) in respect of any income by way of interest or dividends derived by the cooperative society from its investments with any other co-operative society, the whole of such income;
A cursory look of the above provision deciphers that any amount of interest or dividend derived by a Co-operative Society from its investments with any other Co- operative Society, is deductible under clause (d) of section 80P(2) of the Act. The ld. CIT(A) has given a categorical finding that assessee is a Co-operative Society and the Co-operative Bank from which the above-mentioned income was earned, is also a Co- operative Society duly registered under Maharashtra Cooperative Societies Act. This contention has not been controverted by the ld. DR with any cogent material or evidence. Thus, it is seen that the case of the assessee is fully covered u/s.80P(2)(d) of the Act. Reliance of the AO on the provisions of sub-section (4) of section 80P is misplaced. Such provision states that: 'The provisions of this section shall not apply in relation to any co-operative bank other than a primary agricultural credit society or a primary cooperative agricultural and rural development bank.' As the assessee under consideration is not a Co-operative Bank, the mandate of sub-section (4) does not extend to it. We, therefore, approve the view taken by the ld. CIT(A) in granting deduction u/s.80P(2)(d) of the Act in respect of interest and dividend income earned by the assessee on such facts.” [Emphasised by us.]
The Hon'ble Karnataka High court in the case of PCIT vs. Totagars, Co- operative Sale Society 392 ITR 74 has held that for the purpose of section
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80P(2)(d) of the Act, co-operative bank should be considered as cooperative society. Similar view has been taken by the Hon'ble Gujarat High court in the case of Surat Vankar Sahakari Sangh Ltd. vs. ACIT, 421 ITR 134.
However, on the same issue Hon'ble Karnataka High court in the case of PCIT vs. Totagars, Co-operative Sale Society 395 ITR 611 (Karnataka) has taken a contrary view holding that interest income earned from deposit with the cooperative bank does not qualify for deduction under section 80P(2)(d) of the Act. It would be relevant to mention here that the Hon'ble High Court while rendering the later judgement has not considered the earlier decision rendered in the case of Totagars, Co-operative Sale Society (supra).
No judgement by the Hon’ble Jurisdictional High Court on this issue was brought to our notice. The Hon'ble Bombay High Court in the case of K. Subramanian vs. Siemens India Ltd. 156 ITR 11 has held that when two conflicting decisions of non-jurisdictional High Courts are available, the view that favours the assessee is to be preferred. Accordingly, following the decision of Hon'ble Karnataka High Court in the case of Totagars Co-operative Sale Society (supra) and the decision in the case of Hon'ble Gujarat High Court in the case of Vankar Sahakari Sangh (supra), we answer the first question in affirmative. Thus, we hold that the assessee is eligible to claim deduction under section 80P(2)(d) of the Act in respect interest income on fixed deposits with the cooperative banks.
The second question is whether the assesses’ claim of deduction u/s. 80P(2)(d) of the Act can be accepted on the bases of revised computation of income. The First Appellate Authority has rejected the claim of assessee by invoking the provisions of section 80A(5) of the Act. To answer this question it
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would be relevant to take a cue from the decision in the case of CIT vs. Ramco International (supra). In the said case the assessee failed to make claim of deduction u/s. 80IB in the return of income. However, the assessee had furnished Form 10 CCB and other requisite documents. Subsequently, the assessee made its claim u/s. 80IB by filing a letter. The CIT(A) accepted the claim of assesse holding that as per Form No. 10CCB filed during the assessment proceedings, the claim made by the assessee was admissible and the same remained to be allowed. In appeal before the Tribunal and the Hon’ble High Court, the Department remained unsuccessful. The Hon’ble High Court upheld the findings of Tribunal that the assessee was not making any fresh claim and had duly furnished the documents and submitted Form for claim under section 80-IB, there was no requirement for filing any revised return.
In the present case, the assessee had reflected interest income in the Balance Sheet. Drawing analogy from the aforesaid decision, we hold that the assessee’s claim of deduction u/s. 80P(2)(d) was not a fresh claim, the details were already available on record. It is pertinent to mention here that no separate form or certificate is required to be filed for claiming deduction u/s.80P. By filing revised computation of income, the assessee merely regularised its claim of deduction. Thus, in peculiar facts of the case, we answer second question in favour of the assessee. However, we restrict the assessee’s claim of deduction u/s.80P(2)(d) of the Act to the extent of interest income from Cooperative Banks i.e. Rs.1,47,848/- only. Consequently, appeal of the assessee is partly allowed in the terms aforesaid.
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In the result, appeal of the assessee is partly allowed.
Order pronounced in the open court on Friday, the 09th day of April, 2021.
Sd./- Sd./- (S.RIFAUR RAHMAN ) (VIKAS AWASTHY) लेखा सद�य/ACCOUNTANT MEMBER �या�यक सद�य/JUDICIAL MEMBER
मुंबई/Mumbai, �दनांक/Dated: 09/04/2021 Vm, Sr. PS(O/S) ��त�ल�प अ�े�षतCopy of the Order forwarded to : 1. अपीलाथ�/The Appellant , 2. ��तवाद�/ The Respondent. 3. आयकर आयु�त(अ)/ The CIT(A)- 4. आयकर आयु�त CIT 5. �वभागीय ��त�न�ध, आय.अपी.अ�ध., मुबंई/DR, ITAT, Mumbai 6. गाड� फाइल/Guard file.
BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai