GRAIN MERCHANTS CO-OP.HSG. LTD,MUMBAI vs. PR.CIT-28, MUMBAI

Assessee by: Shri. M. Subramanian Revenue by : Shri. Abhijit Patankar,CIT-DR सुनवाई की तारीख /Date of Hearing : 25-07-2018 घोषणा की तारीख /Date of Pronouncement : 25-07-2018 आदेश / O R D E R

PER RAMIT KOCHAR, Accountant Member

3. The assessee is a co-operative housing society . The assessee is stated to have earned income from its members as well earned interest on deposits with Cooperative Banks as well interest on saving bank from nationalised banks to the tune of Rs. 13,78,620/- which was claimed by the assessee as deduction u/s. 80P(2)(c) and (d) of the 1961 Act in the return of income filed with the Revenue which was allowed by the AO to the tune of Rs. 13,78,340/- in an assessment framed u/s 143(3) vide orders dated 30- 12-2015. The copy of aforesaid assessment order is placed on record. It is a matter of fact based on perusal of the assessment order dated 30-12-2015 passed by the AO u/s 143(3) that there is no comment/observation of the AO about making any enquiries or undertaking any verification before allowing this claim of deductions to the tune of Rs. 13,78,620/- u/s 80P(2)(c) and (d) of the 1961 Act in an assessment framed u/s 143(3) of the 1961 Act . The assessee during the course of appellate proceedings before the tribunal has filed paper book containing 24 pages but there is no document/evidence brought on record by the assessee which could substantiate that the AO made any enquiry or verification exercise before allowing the claim of the assessee for deduction to the tune of Rs.13,78,620/- u/s 80P(2)(c) and (d) of the 1961 Act while framing an assessment order dated 30.12.2015 passed u/s 143(3) of the 1961 Act. The Ld. Pr. CIT after perusal of records issued notice u/s. 263 as to why the order passed by the AO u/s. 143(3) dated 30.12.2015 should not be treated as erroneous so far as is prejudicial to the interest of revenue to be brought within ambit of revisionary powers of learned Pr. CIT within provisions of Section 263 of the 1961 Act as in the opinion of learned Pr. CIT , the AO erred in allowing claim of deduction u/s. 80P(2)(d) of the 1961 Act to the assessee to the tune of Rs. 13,78,340/- without verification and the assessee has wrongly claimed the said deduction as the investment/deposits were made with the Cooperative Banks and not Cooperative Societies as is envisaged by provisions of Section 80P(2)(d) of the 1961 Act. The learned Pr. CIT was of the view that surplus funds invested in bank deposits and government securities is income from other sources chargeable to tax under head „Income from other sources‟ to be assessed u/s 56 of the 1961 Act not eligible for deduction u/s 80P as it is not related to earning income by way of contribution from mutuality and investment. The learned Pr. CIT was of the view that keeping in view provisions of Section 80P(4) of the 1961 Act no deduction shall be allowable to the assessee u/s 80P of the 1961 Act which the AO ought to have disallowed and omission to do so has resulted in under assessment of income. The assessee in reply to the notice dated 28.11.2017 issued by learned Pr. CIT u/s 263 of the 1961 Act , submitted that society's main sources of income is contribution made by members to meet the society's establishment expenses, property taxes, water charges etc. . It was submitted that the assessee earned income from deposits with Co-operative bank to the tune of Rs. 13,77,919/- while income from saving bank account with nationalised banks stood at Rs. 701/-. It was submitted that the assessee does not have any business activity or running club etc. for non-members. The assessee relied upon decision of ITAT-Mumbai in the case of Lands End Co-operative Housing Society Limited v. ITO in dated 15.01.2016. The assessee submitted that for invocation of revisionary powers by learned Pr. CIT u/s 263, the assessment order should be erroneous as well prejudicial to the interest of Revenue. The assessee relied upon decision of Hon‟ble Supreme Court in the case of Malabar Industrial Company Limited v. CIT reported in (2000) 243 ITR 83(SC) . The assessee also relied upon following decisions to support its contentions : a) Bismillah Trading Co. v. Intelligence Officer (2001) 248 ITR 292(Ker.) b) Venkatakrishna Rice Co. v. CIT (1987) 163 ITR 129(Mad.) c) Smt Tara Devi Aggarwal v. CIT (1973) 88 ITR 323(SC) d) Thalibai F. Jain v. ITO (1975) 101 ITR 1(Kar.) e) CIT v. Pushpa Devi (1987) 164 ITR 639(Pat.) The learned Pr. CIT rejected the contentions of the assessee by holding as under:- “ 6. The submission of the assessee is duly considered and found not tenable. The assessee has earned interest income of Rs. 13,78,340/- form interest from FDR with Co-Op Bank. A Co-Op Bank does not fall under the purview of a "Co-Op Society" referred in section '80P(2)(d)' of the Income-tax Act, 1961. The amended provisions of section 80(P)(4) r.w. sub clause (viia) of clause (24) of section 2 of the I T Act, 1961, that the deduction claimed shall not apply in relation to any co-operative bank other than a primary agricultural credit society or a primary co-operative agricultural society or a primary co-operative agricultural and rural development bank. Further, it is provided that the profits and gains of any business of banking (including providing credit 3 facilities) carried on by co-operative society with its members shall be included in the definition of income. During the assessment proceedings, the AO has not examined the aforesaid issues at all and allowed the claims made without verification, resulting in excess claims being allowed. Hence, the assessee's claim of deduction u/s 80P cannot be allowed. The A.O. ought to have disallowed the deduction u/s 80P of Rs. 13,78,340/- 7. Therefore, it is held that the order dated 30.12.2015 u/s. 143(3) of the Income-tax Act, 1961 is erroneous in so far as it is prejudicial to the interests of the revenue within the meaning of Sec. 263 of the Income- tax Act, 1961 and, as the Assessing Officer failed to conduct proper inquiries, investigation and examination, the assessment order is set aside to the Assessing Officer with the direction to disallow the deduction u/s 80P of Rs. 13,78,340/- pass a fresh assessment order in accordance with law after affording an opportunity of being heard to the assessee. The order shall be passed under the supervision and guidance of the Jt.CIT-28(l), Mumbai.”

4. The assessee has now come in an appeal before the tribunal. The Ld. Counsel for the assessee strenuously argued that Ld. Pr. CIT has erred in invoking provision of Section 263 of the 1961 Act and assessee is a Cooperative Housing Society and is governed by principles of mutuality . It was submitted that the assessee has deposited surplus money with co- operative banks which are in itself cooperative societies and as per the provision of Section 80P(2)(d) , the deduction cannot be disallowed to the assessee u/s 80P(2)(d) of the 1961 Act. It was submitted that although no enquiries were made by the AO during the assessment proceedings conducted u/s 143(3) r.w.s. 143(2) of the 1961 Act but post assessment the AO made some enquiries as to the assessee claim for deduction u/s 80P(2)(d) w.r.t. interest on deposits with co-operative banks , to which replies were given by the assessee vide written submissions dated 11-09-2017 which are placed in paper book at page no. 12 to 14 , which written submissions are reproduced here under:- “S. V. PAREKH & CO. CHARTERED ACCOUNTANTS S. V. Parekh; B.Com, F.C.A. 8/10/12, Narayan Dhuru Street, Sana Apartment, Opp. Beg. Mohd. School, Mumbai- 400003. To The Income Tax Officer Wd 28(1 )(5) Room no 325 3ED floor VASHI NAVI MUMBAI 400607. Dt 11/09/2017 Dear sir, Re; GRAIN MERCHANT CO-OP HSG SOC LTD PAN NO AAAAG3973H A.Y.2013=2014 EXPLANATION of deduction u/s 80p(2)(d).

With reference to the above named our client GRAIN MERCHANT CO-OP HSG SOC LTD has received a message from you office to clarify deduction claimed u/s 80P(2)(d) in the return of income, and was in details submitted, explained to ITO. However we would like to submit you as under.

Society's main sources of income is contribution made by members to meet the society's establishment expenses, property taxes, water charges etc Enclosed with this letter statement of different heads contribution made by them. Surplus remain or if any specific contribution made ie Sinking Fund, Major BIdg Repair Fund etc invested in Co-Op Bank.

Details of FD INT & SB from CO-OP BANK & NATIONALISED BANK.

Co-op Bank income deduct bale u/s 80P(2) RS 1327950 + 49969 =1377919 OTHER INCOME FROM NATINALISEDE BANK deduct bale u/s 80P(2)©.UP TO Rs 50000/- However such income is of Rs 421+280=701 Further society do not have any business activity or run club house etc for non members.

Detail note on S 80P(2)(d) is attached with this letter.

We in the matter would like to invite your kind attention that ITAT NO 3566 in the matter of Lands End Coop Hsg Soc ltd Mumbai has in depth discussed and allowed Deductions u/s 80P2(d) and concept of mutuality which it squarely apply.

Enclosed please find a copy of ITAT order for you kind perusal and record. We request you kindly accept above submission and close objection. Thanking your in the matter, Yours faithfully, FOR S V PAREKH & CO.

S V PAREKH sd/- ------------------------------------------------------------------------------------ Note on Deduction

U/s 80P(2)(a) of the Income Tax Act 1961 Section 80P deals with deductions available to co-operative societies. It lays down as under :- 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 sum specified in sub-section (2), in computing the total income of the assessee. Sub section (d) of sub-section (2) refers to "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". It would mean that any co-operative society which derives income by way of interest on savings accounts, time-deposits with any other co-operative society as well as dividends distributed by cooperative society would not attract any tax liability.

A co-operative society is a wider term and includes a co-operative bank. In the case of the cooperative Housing Society namely Grain merchants Co-operative Housing society Ltd. the following items of income for F.Y. 2012-13 relevant to A.Y. 2013-14 would not be taxable.

1) Interest of fixed deposits with co-operative banks 13,27,950/- 2) Interest on savings bank account with co-operative banks 49,969/-

Total 13,77,919 Further sub-section (C) of sub section (2) allows a deduction of Rs. 50,000. Thus the society is eligible for the following deductions:-

1) Interest on savings A/C & Fixed deposits with any co-operative society or bank, 2) Dividend received from the above entities, 3) Basic deduction of Rs. 50,000.

The decision of the Mumbai I.T.A.T in the matter of Lands End co-op Hsg.scy Ltd. (3566/MUM/2014) for A.Y. 2009-10 is squarely applicable.

FOR S V PAREKH & CO.