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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI THURSDAY, THE 29TH DAY OF SEPTEMBER 2022 / 7TH ASWINA, 1944 ITA NO. 164 OF 2019 AGAINST THE ORDER ITA 508/2016 OF I.T.A.TRIBUNAL,COCHIN BENCH APPELLANT/S:
THE PRINCIPAL COMMISSIONER OF INCOME TAX KOTTAYAM
BY ADVS. NAVNEETH N NATH SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX
RESPONDENT/S:
THE KIDANGOOR SERVICE CO-OPERATIVE BANK LTD. KIDANGOOR P.O, KOTTAYAM-686 573
BY ADV SRI.O.D.SIVADAS THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 29.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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J U D G M E N T S.V. Bhatti, J. Heard Adv Navneeth N Nath, holding for learned Senior Counsel Mr P K R Menon, and learned Counsel Mr O.D. Sivadas for parties.
The Principal Commissioner of Income Tax/Revenue is the appellant. M/s. Kidangoor Service Co-operative Bank Ltd/assessee is the respondent. The appeal, at the instance of the Revenue, is directed against the order dated 20.04.2018 of the Income Tax Appellate Tribunal (for short ‘Tribunal’) Cochin Bench in ITA No.508/Coch/2016. The subject matter of appeal relates to the return filed by the assessee for the Assessment Year 2013-14. 3. The controversy between the Revenue and the
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assessee is substantially centering around Section 80P of the Income Tax Act, 1961 (for short ‘the Act’). The Counsel appearing for the parties invited the attention of the Court to the judgment in Mavilayi Service Co-operative Bank Ltd v. Commissioner of Income Tax1, that the issue is no more res integra. The circumstances relevant for disposing of the appeal are stated in sufficient detail in the orders under appeal. Hence, are not reiterated. But a singular circumstance relevant for decision is noted viz. the assessee is a Primary Agricultural Credit Society, a Society registered under the Kerala Societies Registration Act. Therefore, deduction eligible under Section 80P(2) is the issue for consideration.
4 In the above background, the following substantial questions are considered: 1. Whether on the facts and in the circumstances of the case
1 (2021) 431 ITR 1 (SC)
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and in law, assessee is entitled to the benefit of section 80P of the Income tax Act? 2. The Tribunal is right in law in interfering with Assessment order on the issue of section 80P? 3. Whether the interest earned on fixed deposit is assessable under the head "business income"? 4. Or under the head "other sources" and is not the order of the Tribunal against decision reported in (2014) 50 Taxman 278? 5. The learned counsel appearing for the Revenue argues that the order of assessment mainly concentrated on the entitlement of deduction under Section 80P(2) of the Act and has not considered the consequential examination i.e., assuming that the assessee is a Co-operative Society and entitled to the deduction of Section 80P(2)(a) of the Act. But the deduction is restricted to the language of Section 80P(2) of the Act. In ITA No.22/2017, Revenue’s appeal, this Court has considered similar substantial questions of law in detail and the reasoning in ITA No.22/2017 squarely covers the question of law formulated in
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the instant appeal too. By applying the principle laid down by the Apex Court in Mavilayi Service Co-operative Bank Ltd and this Court in Principal Commissioner of Income Tax v. Peroorkada Service Co-operative Bank Ltd2, the substantial questions raised in the appeal are answered thus: 6. Question nos. (1) and (2): 1. Whether on the facts and in the circumstances of the case and in law, assessee is entitled to the benefit of section 80P of the Income tax Act? 2. The Tribunal is right in law in interfering with Assessment order on the issue of section 80P?
6.1 The above questions are covered by the principle laid down in Mavilayi Service Co-operative Bank Ltd, both on the extent of entitlement of benefit under Section 80P(2) of the Act and also the obligation to independently consider whether the deduction is limited to such of the income which falls within the purview of in Mavilayi Service Co-operative Bank Ltd and Peroorkada Service Co-operative Bank Ltd. Hence, the questions are
2 (2022) 442 ITR 141 (Ker)
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answered in favour of the Revenue for statistical purposes and the matter is remitted to the Assessing Officer for making fresh assessment order by keeping in view the judgments referred to above. 7. Question no.(3) and (4): 3. Whether the interest earned on fixed deposit is assessable under the head "business income"? 4. Or under the head "other sources" and is not the order of the Tribunal against decision reported in (2014) 50 Taxman 278?
7.1 In Peroorkada Service Co-operative Bank Ltd we have kept in our perspective the principle laid down by the Supreme Court in Mavilayi Service Co-operative Bank Ltd, the consequential consideration that would arise thereafter, and in the said background, held what all are the deductions permissible under Section 80P(2) of the Act, what constitutes business income, and what is to be classified as income from other sources. By following the ratio laid down in Peroorkada Service Co-operative Bank Ltd the questions are answered in favour of the Revenue for statistical purposes and for determination of the actual income assessable to tax under these head, the matter is remitted to the Assessing Officer.
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Resultant to the above discussion, the Tribunal order, Appeal order and Assessment Order are set aside. The matter is remitted to Assessing Officer for disposal afresh.
The Income Tax Appeal is allowed as indicated above.
Sd/- S.V.BHATTI JUDGE
Sd/- BASANT BALAJI JUDGE jjj
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APPENDIX OF ITA 164/2019
PETITIONER ANNEXURES ANNEXURE A ASSESSMENT ORDER U/S. 143(3) DATED 10/3/2016. ANNEXURE B CIT(A)'S ORDER NO. ITA NO. K-13/CIT(A) KTM/16-17 DATED 18.10.2016. ANNEXURE C ITAT'S ORDER IN ITA 508/COCH/2016 AND CO. NO. 4/COCH/2017 DATED 20.4.2018.