ITO-21(1)(4), MUMBAI vs. M/S HORIZON CO-OP HOUSING SOC. LTD , MUMBAI

O R D E R

PER AMARJIT SINGH, JM:

I Whether on facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in directing the Assessing Officer to delete addition of Rs.1,67,21,794/- on account of deduction claimed u/s 80P(2)(d) of the Income-tax Act, 1961 without appreciating the fact that the Scheduled Co- operative banks are at par with commercial banks and therefore interest earned there from is not covered by the concept of mutuality and it not allowable for deduction u/s 80P(2)(d) of the Act. A.Y. 2015-16

2. The appellant prays that the order of the CIT(A) on the above grounds be set aside and that of the AO be restored.

3. The appellant craves leave to amend or alter any ground or to submit additional new ground, which may be necessary.”

3. The brief facts of the case are that the assessee filed its return of income on 23.09.2015 declaring total income to the tune of Rs.7,850/-. Thereafter, the case was selected for scrutiny. Notices u/s 143(2) & 142(1) of the Act were issued and served upon the assessee. The assessee is a Co- Operative Housing Society deriving income from interest from Saving Bank Account and interest on fixed deposits. During the year under assessment, the assessee declared gross total income to the tune of Rs.1,67,29,647/- and has claimed deduction u/s 80P(2)(d) of Rs.1,67,21,795/- being interest received from co-operative bank and claimed 100% exempt. The assessee earned the interest income in sum of Rs.1,67,21,795/- from its investments from F.D. etc. and claimed exempt u/s 80P of the I. T. Act, 1961. The said claim was declined and the interest income in sum of Rs.1,67,21,795/- was added to the income of the assessee and the total income of the assessee was assessed to the tune of Rs.1,67,29,647/-. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who allowed the claim of the assessee, therefore, the revenue has filed the present appeal before us.

ISSUE NOs.1 & 2 4. Both the issues are in connection with the allowance of the claim of the assessee in sum of Rs.1,67,21,794/- u/s 80P(2)(d) of the Act. The Ld. Representative of the revenue has argued that the claim of the interest income of the assessee has wrongly been allowed in view of the provisions u/s 80P(2)(d) of the Act, therefore, the finding of the CIT(A) is not A.Y. 2015-16 justifiable and is liable to be set aside. However, on the other hand, the Ld. Representative of the assessee has strongly relied upon the order passed by the CIT(A) in question. Before going further, we deem it necessary to advert the finding of the CIT(A) on record.:-

“6. I have carefully perused the facts highlighted in the assessment order, the written submission filed by the appellant during appellate proceedings and various judicial pronouncements available on the issues under appeal. My observations and findings are as under: 6.1 The relevant provisions of Section 80P is as under- "Deduction in respect of Income of Co-operative societies 80P. (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 sum referred to in sub-section (1) shall be the following, namely:- (a) In the case of a co-operative society engaged in - (i) carrying on the business of banking or providing credit facilities to its members …………. (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; (4) 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 co-operative agricultural and rural development bank." I A.Y. 2015-16 6.2 In view of aforesaid provisions of sec. 80P(2)(d), it is abundantly clear that in order to claim deduction u/s 80P(2)(d). the assessee co-operative society must receive interest income from the investments made with any other co-operative society. 6.3 The term 'co-operative society has been defined u/s 2(19) of the Act, as under.- "(19) to-operative society" means a co-operative society registered under the Cooperative 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, 6.4 To decide the issue, decisions in the following case laws are found relevant: a) Totqars Co-operative Sale Society Ltd. vs. ITO f20101 322 ITR 283 (SC)/120101 188 Taxmann 282 (SC): The assessee was a co-operative credit society and its business was to provide credit facilities to its members and to market their agricultural produce. The issue before the Hon'ble Supreme Court was whether Interest income on surplus fund not requited immediately for business purpose and hence invested in short-term deposits with Banks and Government securities would qualify for deduction as business income under section 80P(2)(a)(i). The Apex Court held that such interest income would come in the category of " income from other sources' and not within the meaning of the expression " profits and gains of business" because such interest income cannot be said to be attributable to the activities of the society. Hence sum interest income will be taxable under section and would not qualify for deduction as business income under section 80P(2)(a)(i). b) PCIT vs. Totagars Co-operative Sale Society [2017] 392 ITR 74 (Karnataka) / J20171 78 taxmann.com 169 The assessee was a co-operative credit society and its business was to provide credit facilities to its members and to market their agricultural produce. Interest income was earned by the assessee from deposits in the Co-operative Banks. The issue before the Court was whether for the purpose of Section 80P(2)(d), a co-operative Bank is to be considered as a co- A.Y. 2015-16 operative society. The Court held that the co-operative bank is merely a variety of the co-operative society and hence included in the same and therefore interest earned from co-operative bank would be deductable u/s 80P(2)(d). c) PCIT vs. Totagars Co-operative Sale Society 120171 395 ITR 611 (Karnataka) / (2017) 83 taxmann.com 140 (Karnataka) The assessee was a co-operative credit society and its business was to provide credit facilities to its members and to market their agricultural produce. Interest income was earned by the assessee from deposits in the Co-operative Banks. The issue before the Court was whether interest earned from co- operative bank would be deductable u/s 80P(2)(d). The Court held that the words 'co-operative Banks' are missing in clause (d) of sub-section (2) of Section 80P. The exclusion of cooperative bank by Section 80P(4) even without any amendment in Section 80P(2)(d) is sufficient to deny claim under section 80P(2)(d). The amendment of Section 194A(3)(v) excluding co-operative banks from definition of co-operative society by Finance Act, 2015 also makes the legislative intent clear that the Co-operative Banks are not the specie of genus co-operative society. d) State Bank of India vs. CIT [20161 389 ITR 578 (Gujarat)/ [20161 72 taxmann.com 64 (Gujarati) The assessee was a co- operative society accepting deposits from employees of SBI aid providing credit facilities to them. It earned interest on deposits made with SBI. The assessee had claimed deduction u/s 80P(2)(a)(i). The Court held that interest derived by depositing surplus funds with the SBI not being attributable to the business carried on by the assessee, cannot be deducted u/s 80P(2)(a)(d). It was also held that if the appellant wants to avail of the benefit of deduction of such interest income, it is open for it to deposit the surplus funds with cooperative bank and avail of deduction under section 80P(2)(d). e) Kaliandas Udyog Bhavan Premises Co-operative Society Ltd. vs ITO (2018) 94 Taxmann.com 15 (Mumbai- Trib) f) Lands End Co-operative Housing Society Ltd. Vs. ITO (2017) 46 CCH 52 (Mum). A.Y. 2015-16 g) Sea Grean Co-operative Housing Society Ltd. Vs ITO 21(3)(2). Mumbai (ITA No. 13431Mum/2017, dated: 31.03.2017. h) MerwanieeCama Park Co-operativa Housing Society Ltd. Vs. ITO (ITA No. 6139/Mum/2014, dated: 27.09.2017. In the aforesaid four decisions of the Mumbai Tribunal from (e) to (h), it has been held that the assessee is entitled to deduction under section 80P(2)(d) in respect of interest income on investments made with the co-operative banks. It has been noted that there are conflicting decisions of non-jurisdictional High Courts. The decision of the Bombay High Court in case of K. Subramanian Vs. Siemens India Ltd. [1983] 15 Taxman 594/ [1985] 156 ITR 11 (Bom) was referred to by the Tribunal in the case of Kaliandas Udyog Bhavan Premises Co-operative Society Ltd.(supra), where it has been held that if there is a conflict between decisions of non- jurisdictional High Courts, then a view which is in favour of the assessee is to be preferred as against that taken against him. It has been also held in the aforesaid decisions e the Tribunal that the adjudication of the Supreme Court in case of Tatgars Co-operative Sale Society Ltd. was in context of Sec. 80P(2)(a)(i) and not on entitlement of a co-operative society towards deduction under section 80P(2)(d) on investments parked with a co-operative bank.

7. We have heard the rival submissions and perused the relevant material on record. The issued raised in this appeal is summarized here. The assessee claims that co-operative banks in Maharashtra are registered as co-operative societies under Bombay/Maharashtra Co- operative Societies Act and hence Saraswat Co-operative Bank Ltd. is a co-operative society as defined u/s 2(19) of the Act. On the contrary, it is the contention of the AO that co-operative bank like Saraswat Co- operative Bank Ltd. is commercial bank and does not fall under purview of a ‘co-operative society’ referred in section 80P(2)(d) of the Act. 7.1 We are of the considered view that the primary objects of any society are prescribed in the bye laws. In order to become a bank, the principal business of the co-operative society should be transaction of banking business. A perusal of the audited accounts would indicate the same. The first and foremost requirement in India to do business of banking is to obtain a licence from the Reserve Bank of India (RBI). Without a valid licence from RBI, nobody can do business of banking. Also Urban Co-operative Bank is known as Primary Co-operative Bank. It is a bigger entity and fall under the ‘Banking Regulation Act’. It is also A.Y. 2015-16 regulated by State Government and RBI. Primary Cooperative Banks, popularly called Urban Co-operative Banks, whose net worth is Rs.1,00,000/- and above, who are recognized as banks, are members of payment system and also enjoy deposit insurance. Also some Urban Cooperative Banks are conferred with ‘Scheduled’ status by the RBI. 7.2 We find that the above factual aspects have not been examined either by the AO or the Ld. CIT(A). Therefore, we deem it proper to set aside the order of the Ld. CIT(A) and restore the matter to the file of the AO to make a fresh assessment after examining the facts mentioned at para 7.1 here-in-above. Needless to say, the AO would give a reasonable opportunity of being heard to the assessee before finalizing the assessment order. The assessee is directed to file the required details before the AO. As we have restored the matter to the file of the AO to make a fresh assessment, we are not adverting to the case laws relied on by both the sides.

ISSUE NO.3

7. Issue no.3 is pre-mature in nature which is not required to be adjudicated, hence, this issue is hereby dismissed.