PALMERA CO OP HOUSING SOCIETY LIMITED,N D ROAD, MUMBAI vs. CIRCLE 19(1), MUMBAI, PIRAMAL CHAMBER, MUMBAI
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Before: SHRI SANDEEP SINGH KARHAIL & SMT. RENU JAUHRI
IN THE INCOME-TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER & SMT. RENU JAUHRI, ACCOUNTANT MEMBER ITA No. 2900/MUM/2024 (A.Y. 2012-13) & ITA No. 2899/MUM/2024 (A.Y. 2013-14)
Palmera Co-op Housing v/s. DCIT Circle 19(1), Society, Ltd. बनाम Piramal Chamber, Mumbai- Pleasant Place, Ground 400012 Floor, 16, N D Road, Mumbai-400006 स्थायी लेखा सं./जीआइआर सं./PAN/GIR NO: AAAAP1848E Appellant/अपीलार्थी .. Respondent/प्रतिवादी
Appellant by : Shri Rajesh Shah Respondent by : Shri R. R. Makwana Date of Hearing 06.08.2024 Date of Pronouncement 30.08.2024 आदेश / O R D E R PER RENU JAUHRI [A.M.] :- These appeals are filed by the assessee against the order of the Learned Additional/Joint Commissioner of Income-tax (Appeals), Chandigarh-1 /National Faceless Appeal Centre, Delhi [hereinafter referred to as “Addl. CIT(A)”] dated 28.03.2024 passed u/s. 250 of the Income-tax Act, 1961
ITA No. 2900 & 2899/Mum/2024 A.Y. 2012-13 & 2013-14 Palmera Co. Op. Housing Society Ltd.
[hereinafter referred to as “Act”] for Assessment Years [A.Y.] 2012-13 & 2013- 14.
The assessee has raised following grounds of appeal for AY 2012-13: “1 On the facts and the circumstances of the case and in law, the learning Addl/JCIT (A) erred in not condoning the delay in filing an appeal though there was reasonable cause due to which the appellant was prevented from filing the appeal in time. 2 On the facts and the circumstances of the case and in law, the learning Addl/JCIT (A) erred in not condoning the delay in filing an appeal and dismissing the appeal in limine and not considering the merits of the case. 3 The CIT(A) erred in not considering that the interest received of Rs. 7,07,397 from Co-operative Banks is allowable under section 80P(2)(d) of the Act. The CIT(A) erred in not considering that CPC has wrongly made adjustment which is not envisaged u/s.143(1) of the Act and that too without giving any opportunity to the appellant. 4 The CIT(A) erred in not considering that the interest received of Rs. 7,07,397 from Co-operative Banks is allowable under section 80P(2)(d) of the Act.”
Grounds of appeal have been raised by the assessee for AY 2013-14 are as under: “1 On the facts and the circumstances of the case and in law, the learning Addl/JCIT (A) erred in not condoning the delay in filing an appeal though there was reasonable cause due to which the appellant was prevented from filing the appeal in time. 2 On the facts and the circumstances of the case and in law, the learning Addl/JCIT (A) erred in not condoning the delay in filing an appeal and dismissing the appeal in limine and not considering the merits of the case. 3 The CIT(A) erred in not considering that the interest received of Rs. 13,83,484 from Co- operative Banks is allowable under section 80P(2)(d) of the Act. The CIT(A) erred in not considering that CPC has wrongly made adjustment which is not envisaged u/s.143(1) of the Act and that too without giving any opportunity to the appellant.
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ITA No. 2900 & 2899/Mum/2024 A.Y. 2012-13 & 2013-14 Palmera Co. Op. Housing Society Ltd.
4 The CIT(A) erred in not considering that the interest received of Rs. 13,83,484 from Co- operative Banks is allowable under section 80P(2)(d) of the Act.” 4. Brief facts of the case for A.Y. 2012-13, being taken up as lead case, are that the return declaring income of Rs. 26,47,270/- was filed on 14.09.2012. An intimation u/s 143(1) of the Act issued by Central Processing Centre, Bengaluru (CPC) on 27.02.2013, after disallowing the claim of deduction u/s 80P(2)(d) to the tune of Rs. 7,07,397/-. The disallowance was made on account of the fact that the return was not filed on time. An application u/s 154 was filed by the assessee on 30.12.2014 which remained pending. Thereafter, an appeal was filed before the Ld. Addl. CIT(A) on 04.04.2023 with a delay of 3685 days. Inordinate delay of 3685 days was not condoned by the Ld. Addl. CIT(A) and the appeal was dismissed in limine vide order dated 28.03.2024. 5. We have heard the rival submissions. Ld. AR has explained that there was no delay in filing of return, as the due date for the assessee was 30.09.2014, in view of the fact that accounts were required to be audited as per the provisions of Maharashtra Co-operative Societies’ Act, 1960. As such there was no delay in filing of return by the assessee as wrongly presumed by the CPC. Moreover, no adjustment on debatable issue, such as claim of deduction u/s 80P(2)(d) is permissible while processing the return u/s 143(1) of the Act. Further, the delay in filing of appeal was due to the bonafide belief that the intimation u/s 143(1) would be rectified u/s 154 by the AO. However, due to delay in disposal of
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ITA No. 2900 & 2899/Mum/2024 A.Y. 2012-13 & 2013-14 Palmera Co. Op. Housing Society Ltd.
assessee’s rectification application, an appeal was also filed by way of abundant caution. The delay in filing of appeal was duly explained through an affidavit filed before the Addl. CIT(A). The Ld. AR has also placed reliance on the following decisions of the co-ordinate benches: a. ITA No. 682/Mum/2024 Vishva Villa Co-operative Housing Society Ltd. b. ITA No. 884/Mum/2024 Shri Brijkutir Co-operative Housing Society Ltd. 6. We find that the facts of this case are similar as in the case of Vishva Villa Co-operative Housing Society Ltd. (supra). The relevant portion of the order is reproduced below: “7. We heard both the parties and also peruse the relevant material based on record. First of all the assessee has explained the reason for delat in filing of the first appeal before CIT(A) that earlier CA of the assessee had filed rectification application u/ 154 before the AO/CPC, then assessee was under bonafide belief that the adjustment would get rectified and even CA also did not advice the society to file an appeal when application was disposed of for certain period. It is later on when demand notice was issued then assessee was advised to file an appeal. Thus, looking to the fact that assessee is cooperative housing society and it was under a bonafide belief that it has filed a rectification which was not disposed of till date, therefore delay in filing of first appeal cannot be held to latches on part of the assessee. Thus, delay in filing appeal before the first appellate authority is condoned. 8. On merits in both the years, adjustment has been made by the CPC u/s. 143(1) treating the interest received from the Co- operative Bank as income from other sources by disallowing the claim of section 80P(2)(d). 9. First of all prior to assessment year 2021-22 there was no such provision for disallowing the claim of deduction within the scope of section 143(1)(a). Prima adjustment was permissible only with regard to claim of deduction u/s. 10AA, 80 IA, 801AB, 801B, 80IC, 801D or section Page 4 of 6
ITA No. 2900 & 2899/Mum/2024 A.Y. 2012-13 & 2013-14 Palmera Co. Op. Housing Society Ltd.
80-IE. It was from the Finance act 2021 with effect from A.Y. 2021-22, disallowance of claim of deduction under chapter VIA can be made, if the return has been furnished beyond the due date of return of income filed u/s. 139(1). Here in this case the CPC has treated the due date of return of income as on 31/08/2012 for A.Y. 2012-13 and 05/08/2013 for A.Y. 2014-15, whereas the return has been filed by the assessee on 02/09/2012 and 20/09/2013 respectively. 10. Admittedly assessee is a Co-operative Housing Society registered under Maharashtra Society act 1960 and as per the said act of the Co- operative Housing Societies have to get their accounts audited ones there is requirement to furnish and audit before from Charted Accountant, and therefore the due date was 31/10/2012 and 31/10/2014 for the A.Y 2012- 23 and 2014 15 respectively and thus assessee had filed the return of income within the due date of under section 139(1). Thus even under amended provision no prima facie adjustment have been made no prima facie adjustment on account of deduction u/s.80P could have been made. In the early provision of adjustment u/s. 143(1)(a) no such disallowance could have been made. Accordingly, we hold that disallowance made by the CPC u/s. 143(1)(a) on the claim of deduction u/s. 80P is beyond the scope of adjustment u/s. 143(1) accordingly the adjustment is deleted.”
Respectfully following the orders of the co-ordinate benches, we hereby allow the appeal of the assessee. The AO is directed to delete the disallowance of claim of deduction u/s 80P(2)(d) of the Act.
ITA No. 2899/MUM/2024 (A.Y. 2013-14) 8. The facts of this year are exactly similar to the facts of AY 2012-13. Hence, order for A.Y. 2012-13 will apply mutatis mutandis to this year also. Accordingly, the appeal of the assessee is allowed and the AO is directed to deleted the disallowance of claim u/s. 80P(2)(d) of the Act.
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ITA No. 2900 & 2899/Mum/2024 A.Y. 2012-13 & 2013-14 Palmera Co. Op. Housing Society Ltd.
In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 30.08.2024.
Sd/- Sd/- SANDEEP SINGH KARHAIL RENU JAUHRI (न्यातयक सदस्य/JUDICIAL MEMBER) (लेखाकार सदस्य/ACCOUNTANT MEMBER)
Place: म ुंबई/Mumbai दिनाुंक /Date 30.08.2024 अननकेत स ुंह राजपूत/ स्टेनो आदेश की प्रतितलति अग्रेतिि/Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आयुक्त / CIT 4. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT, Mumbai 5. गार्ड फाईल / Guard file.
सत्यावपि प्रवि //True Copy// आदेशानुसार/ BY ORDER,
उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीलीय अतिकरण/ ITAT, Bench, Mumbai.
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