WOODEN BOXES MANUFACTURERS CO OP INDL ESTATE LTD,MUMBAI vs. ASSISTANT COMMISSIONER OF INCOME TAX 21(3), MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL “G”, BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI AMARJIT SINGH, JM (Assessment Year :2014-15) M/s.Wooden Boxes Manufacturers Vs. Assistant Commissioner of Co-op Industrial Estate Limited Income Tax 21(3) C/o. Jayesh Sangharajka & Co. Mumbai LLP Chartered Accountants Unit No.405, Hind Rajasthan Centre, D.S. Phalke Road Dadar (E) Mumbai – 400 014 PAN/GIR No.AAAAW0647G Appellant) .. Respondent) Assessee by Shri Harshvardhan Butar Revenue by Shri V. Vidhyadhar Date of Hearing 22/06/2018 Date of Pronouncement 27/06/2018 आदेश / O R D E R PER R.C.SHARMA (A.M):

This is an appeal filed by the assessee against the order of CIT(A)- 33, Mumbai dated 18/09/2017 for the A.Y.2013-14 in the matter of order passed u/s.143(3) of IT Act. 2. Grievance of assessee relates to decline of claim of deduction u/s.80P of the Income tax Act, 1961, in respect of interest income received from co-operative society. 3. Following grounds have been taken by the assessee:-

M/s.Wooden Boxes Manufacturers Co-op Industrial Estate 1. On the given facts, circumstance and judicial pronouncements; learned CIT Appeals erred in denying the deduction u/s 8OP of the Income Tax Act, 1961 in spite of the fact that interest is received from a co-operative society and such denial of deduction is bad in law and liable to be allowed.

4. The appellant craves leave to add, amend, alter or delete all or any of the previously mentioned grounds of appeal.

5. In this appeal, assessee is basically aggrieved for decline of claim of deduction u/s.80P in respect of interest received from Co-operative society. It was argued by learned AR that issue is covered by the order of the Tribunal in assessee’s own case for the A.Y.2009-10 vide order dated 26/08/2014 and the decision in assessee's own case should not have been ignored by the lower authorities especially when earlier decision is not challenged in High Court and in subsequent period other than the year under appeal deduction under 80P has been allowed. 6. It was further submitted by learned AR that in the case relied by CIT(A), the assessee was in the business of banking and money lending M/s.Wooden Boxes Manufacturers Co-op Industrial Estate whereas assessee is co-operative society of residential and commercial units and not engaged in business of banking and hence, provisions of 80P(4) are not applicable to the assessee and hence, reliance by the CIT(A) on the case of Vaibhav Coop Society is misplaced. 7. We have carefully gone through the orders of the authorities below and found from record that issue under consideration is squarely covered by the decision of Co-ordinate Bench in case of M/s. Sea Green Co- operative Housing Society Ltd., in vide order dated 31/03/2017. Precise observation of Tribunal was as under:-

2. The sums 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. The whole of the amount of profits and gains of business attributable to any one or more of much attributes. (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." From the close perusal of the provisions of u/s 80P(2)(a)(i) and 80P(2)(d) it is clear that the former deals with deduction in respect of profits and gain of business in case of the co-operative society carrying on business of banking or providing credit facilities to its members if the said income is assessable as income from business whereas latter provides for deduction in respect of income by way interest and dividend derived by assessee from its investments with other cooperative society. Thus it is amply clear that a cooperative society can only avail deduction u/s 80P(2)(d)(i) in respect of its income assessable as business income and not as income from other sources if it carries on M/s.Wooden Boxes Manufacturers Co-op Industrial Estate business of the banking or providing credit facilities to its members and has income assessable under the head business whereas for claiming u/s 80P(2)(d) it must have income of interest and dividend on investments with other Co-operative society may or may not be engaged in the banking for providing credit facilities to its members and the head under which the income is assessable is not material for the claim of deduction under this section. Now will evaluate the assessee's case in the light of the decision of the Hon'ble Supreme court. The Honble Supreme Court in the case of Totagar's Co-operative Sale Society Ltd.(Supra) held that a society has surplus funds which are invested in short term deposits where the society is engaged in the business of banking or providing credit facilities to its members in that case the said income (AY. 2013-14) from short term deposits shall be treated and assessed as income from other sources and deduction u/s 80(P)(2)(a)(i) would not be available meaning thereby that deduction u/s 80(P)(2)(a)(i) is available only in respect of income which is assessable as business income and not as income from other sources. Whereas in distinction to this , the provisions of section 80(P)(2)(d) of the Act provides for deduction in respect of income of a coop society by way of interest or dividend from its investments with other coop society if such income is included in the gross total income of the such coop society. In view these facts and circumstances we are of the considered view that the assessee is entitled to the deduction of Rs. 14,88,107/- in respect of interest received/derived by it on deposits with coop. banks and therefore the appeal of the assessee is allowed by reversing the order of the CIT(A). The AO is directed accordingly. 5.1 It is clear that the Tribunal in the case of Lands End Co- operative Housing Society Ltd. (supra) has considered a similar situation and allowed the claim of the assessee. We find that the CIT(A) has placed reliance on the decision of the Ahmedabad Bench of the Tribunal in the case of State Bank of India Employees Co-operative Credit Society Ltd 57 taxman.com 367. It is further noted by the CIT(A) that the said decision of the Ahmedabad Bench of the Tribunal has been referred to by the SMC Bench of Mumbai Tribunal in the case of Shri Saidatta Cooperative Credit Society Ltd. (supra). In our view, the reliance placed by the CIT(A) on the judgment of the Ahmedabad Bench of the Tribunal is quite untenable, inasmuch as, in the said case the interest income in question was earned from deposits kept with State Bank of India. Obviously, State Bank of India is not a Co-operative society so as to justify the claim that such interest M/s.Wooden Boxes Manufacturers Co-op Industrial Estate earnings fall within the scope of section 80P(2)(d) of the Act. Further, the reliance placed by the CIT(A) on the decision of the SMC Bench of Mumbai Tribunal in the case of Shri Saidatta Cooperative Credit Society Ltd.(supra) is also of no avail, inasmuch as, the Bench merely set-aside the matter to the file of the Assessing Officer for examination afresh, whereas in the case of Lands End Co-operative Housing Society Ltd(supra), the claim of exemption under section 80P(2)(d) of the Act (AY. 2013-14) with respect to the interest earned from a Co-operative bank has been upheld. Therefore, in view of the said precedent, the claim of the assessee deserves to be allowed. We hold so.

M/s.Wooden Boxes Manufacturers Co-op Industrial Estate