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Income Tax Appellate Tribunal, “D”, BENCH KOLKATA
Before: SHRI S.S.VISWANETHRA RAVI, JM & DR. A.L.SAINI, AM
O R D E R
Per Dr. Arjun Lal Saini, AM:
The captioned appeal filed by the Revenue, pertaining to the assessment year 2013-2014, is directed against the order passed by the ld. Commissioner of Income Tax (Appeals)-6, Kolkata, in Appeal No.436/CIT(A)-6/Kol/15-16, dated 08.08.2016, which in turn arises out of an order passed by the AO u/s.143(3) of the Income Tax Act 1961, (hereinafter referred to as the ‘Act’), dated 24.11.2015.
Brief facts of the case qua the assessee are that the assessee has submitted his return of income for the assessment year 2013-2014 on 28.03.2014, disclosing total income of Rs.96,710/-. The assessee’s case was selected for scrutiny u/s143(3) of the Act and the AO completed the assessment by making addition u/s.80P(a)(i) of the Act.
Not being satisfied with the order passed by the AO, the assessee filed an appeal before the ld.CIT(A), who has deleted the addition so made by the AO observing the followings :-
I have considered the facts of the case and the appellant's submissions. As mentioned by the appellant, the issue is covered in favour of the appellant by the decision of ITAT, Kolkata Bench "C", Kolkata in for the AY 2005-06 in the appellant's own case wherein the Hon'ble Tribunal held that the facts of the case were identical to those in the decision of the ITAT in the case of Rupnarayanpur Samabay Krishiunnayan Samity Ltd. (Supra). In that case, the facts were distinguished by the tribunal from the case decided by the Hon 'ble Apex Court in Totagra's Co- operative Society (Supra). While in the case of Totagar's Cooperative the interest income was held be in the nature of income from other sources on the facts that the assessee society was retaining sales proceeds of members whose produce was marketed by it as such funds were not required immediately for business purposes and investing the same in specified securities to earn interest income, the asessee in the case of Rupnarayanpur Samabay(Supra) had not retained any such funds. The facts in the appellant's case decided by the ITAT for A.Y. 2005-06 were considered similar and the interest income was considered eligible for deduction u/ s. 80P(2)(a)(i) of the Act. In the assessment year under appeal also there is no finding that the appellant had retained any sales proceeds of the members and earned interest on investments made out of such sales proceeds. There are other decision in which such disputes have been decided in favour of the assessee by the Hon'ble Tribunal. In the case of ITO v The Baksara Co-operative Credit Society Ltd. (ITA No. 1890/Kol/2012), the Hon'ble ITAT 'A' Bench, Kolkata in its order dated 18.11.2015 set aside the order of the Id. CIT(A) and restored the matter to the AO's file for ascertaining whether the investment yielding interest was made out of its surplus funds or amounts payable to its members, which represent its liability. In it order dated 18.03.2016 in the case of ITO v. SBI Staff Association Co-operative Society Ltd. in ITA No. 1164-1165/Kol/2012, the Hon'ble ITAT, Kolkata, Bench "B", Kolkata following the order dated 30.10.2014 of Hon'ble ITAT, Kolkata in ITA No. 11693/Kol/2012(Wherein it had relied upon the judgement rendered by the Hon'ble Calcutta High Court in GA No. 1838 of 2010 dated 22.07.2010 in the case of CIT vs. South Eastern Railway Employees Co-operative Credit Society) in the case of S.E.C & E Co. Railways Employees' Co-operative Credit Society Ltd. vs. ACIT, held that the interest income of the appellant was eligible for deduction u/s 80P(2)(a)(i) as the appellant had not retained any amount due to its members and invested, the same to earn interest. The facts of the present case are similar. It is not the case of the AO that the appellant has retained any amount due to Boinchipota Samabay Krishi Unnayan Samity Ltd. the members and, invested the same in fixed deposits. The facts of the appellant's case are different from the case of Totagar's Co- operative Society(Supra) relied upon by the AO. Hence, respectfully following the judgement and decisions of the Hon'ble Calcutta High Court and Hon'ble ITAT, Kolkata including that in the appellant's own case, I hold that the interest income earned by the appellant is attributable to the business activities of the appellant and is eligible for deduction u/s. 80P(2)(a)(i). Hence, the additions of Rs.45,28,778/ - and Rs. 3,36,765/ - are deleted.
4. Not being satisfied with the order of ld. CIT(A), the Revenue is in appeal before us and has taken the following grounds of appeal :-
1) Whether Ld. ClT(A), Kolkata erred in deleting the addition on the ground that the interest income earned by the assessee is attributable to the business activities of the assessee and is eligible for deduction u/s. 80P(a) (i) of the Act without considering facts and circumstances of the case and in law. 2) The appellant craves leave to add, alter or amend any or all grounds of appeal on or before the date of hearing.
5. At the outset, ld. AR for the assessee has submitted before us that assessee`s case under consideration is squarely covered by the Tribunal Judgment in assessee’s own case in dated 11-5- 2016 A.Y.2005-06, wherein the Hob`ble Tribunal held as under:
“5. At the time of hearing Ld. AR for the assessee filed a copy of order rendered by this Tribunal in the case of Rupnarayanpur Samabay Krishiunnayan Samity Ltd. Vs ACIT in dated 09.12.2015. In the aforesaid case the identical question as to whether interest income had to be regarded as income from "business" or "income from other sources" had come up for consideration. The assessee in the aforesaid decision accepted loans and deposits from its members and utilized the same towards providing loans and credit facilities to its members. However, excess funds were utilized in making deposits in banks and investments. The Tribunal relying upon the decision rendered by the Hon'ble jurisdictional High Court in the case of CIT vs South Eastern railway Employees Co-operative Credit Society in G.A.No.1838 of 2010 dated 22.07.2010 came to the conclusion that interest income has to be regarded as income from business of banking and is entitled for deduction u/s 80P(2)(a)(i) of the Act. The Tribunal had also distinguished the decision rendered by the Hon'ble Supreme Court in the case of Totgar's Co-operative Sale
Society Ltd vs ITO 188 taxmann. 282 (SC). The following observations of the Hon'ble Tribunal read as under :-
"7.1.We further find that the issue involved is covered in favour of the assesee by catena of decisions of the Tribunal in assessee's own case. These decisions are also affirmed by the Hon'ble Jurisdictional High Court in its order for A.Yr.2005-06. In this order the Hon'ble Jurisdictional High Court has considered all the relevant orders and has decided the issue in favour of the assessee. We may gainfully reproduce the operative order of the Jurisdictional High Court which is as under :-
"We have gone through the impugned judgment and order of the Learned Tribunal. It appears that the point involved .is whether interest earned out of the investment earned by the assessee cooperative can be treated to be the income arising out of business activity or from other sources in order to apply the provision of Section 80P(2)(a)(i) of the I.T. Act. It is an undisputed factual position that similar issue arose before the Commissioner of Income Tax (Appeal) in relation to the assessment year 1998-99 to 2002-2003 as also for the assessment year 1995-96 and 1996-97. Then again in relation to the assessment years 2003-04 and 2004-05 a similar point arose. The Learned Tribunal in relation to the assessment years 1998-99 to 2002-2003 by order dated 10.11.2006 in to 844/Kol/2006 and again by order dated 29.12.2006 in relation to assessment years 2003-04 and 2004-05 has deleted the disallowance made in those assessment years and it was held that the interest earned by the assessee cooperative society from its short term and fixed deposits with the bans and other institutions were disallowed on the ground that this income was not business profit of the assessee society but was income from other sources. The Ld. Tribunal has also held that income from investment in banks and other financial institutions is the business income of the assessee society and it is eligible to get deduction under Section 80P(2)(a)(i). The Tribunal has overruled the decisions rendered against the assessee in relation to assessment years 1995-96 and 1996-97 on the same issue in relation to subsequent years.
It was found by the Tribunal while affirming the order of the Commissioner of Income Tax (Appeal) that there is no change in the facts and circumstances of this case and it was held that the assessee was eligible for deduction under Section 80P(2)(a)(i) on interest on investment amounting to Rs.1,18,07,645/- in this assessment year also. Since the Tribunal found that this decision of the Tribunal was followed by CIT(A) there is no reason to take a different view.
Under these circumstances, we feel that when the Commissioner of Income Tax (A) as well as the Tribunal has followed the earlier unchallenged decision no question of law is involved in this matter. Nothing has been produced before us to show subsequent decision of the Tribunal in relation to the assessment years 1998-99 to 2002-03 and 2003-04 have been challenged by any of the parties before this Court.
It is submitted by Mr.Bhowmick that there has been challenge of the decision in relation to assessment years 1995-96, 1996-97 and the same is pending before this Court we think that challenge of the assessee has now become redundant as the earlier view taken in both the assessment years have been reversed by the Tribunal by its subsequent decision. Hence, the pendency of that earlier matter is of no consequence in this matter. Had there been a challenge of the decision of the Tribunal in relation to the assessment years 1998-99 to 2002- 03 and also 2003-04 to 2004-05 the matter would have been different. The revenue did not take any step whatsoever. Therefore, we presume the revenue has accepted the subsequent view of the Tribunal and the same now hold the field right now."
7.2. Considering the above we find that this issue is squarely covered in favour of the assessee by the decision of the Hon'ble Jurisdictional High Court in assessee's own case. In this regard we would like to place reliance upon the decision of the Hon'ble Apex Court in the case of CIT vs Excel Industries 358 ITR 295 wherein the principle of consistency has been reiterated. Hence when the issue has been decided by the Jurisdictional High Court no convincing reason has been pointed to take a different view, any deviation is not permitted.
7.3. Now we come to the case laws relied upon by the ld. CIT(A). As regards the decision of the Hon'ble Apex Court in the case of Totgars Co-operative Sale Society Ltd. (supra) we find that the said decision is not applicable in the facts of the case. We find that the Hon'ble Apex Court in the said decision in para 11 has itself mentioned that "We are confining the judgment to the facts of the present case". The facts of the case were that assessee's business was to provide credit facilities to its members and to market their agricultural produce. In many cases assessee retained sale proceeds of members whose produce was marketed by it and since funds created by such retention were not required immediately for business purposes, it invested same in specified securities and earned interest income. In these circumstances the Hon'ble Apex Court had held that interest earned would come in category of 'Income from other sources' taxable u/s 56 of the Act and would not qualify for deduction as business income u/s 80P(2)(a)(i). From the above it is amply evident in the present case the assessee
Boinchipota Samabay Krishi Unnayan Samity Ltd. has not retained any amount due to its members and instead of paying the same had invested the same and earned interest. Thus this case law is not applicable on the facts of the present case. 7.4. As regards the decision of Hon'ble Patna High Court in the case of Bihar Rajya Sahkari Bhoomi Bikash Co-op.Bank Ltd. (supra) the same is also not applicable to the facts of the present case. In that case the question was the treatment of interest earned on provident fund and rental income as attributable to banking business and this qualifying for deduction u/s 80P(2)(a)(i) of the Act. 7.5. In the background of the aforesaid discussion and precedent we hold that the issue is squarely covered in favour of the assessee by the decision of the Tribunal and the Jurisdictional High Court in assessee's own case. The decision relied upon by the ld. CIT(A) are not applicable in the facts of the case. The principle of consistency as conveyed by the Hon'ble Apex Court mandates that the Revenue does not take a different stand. Accordingly we set aside the orders of the authorities below and decide the issue in faovur of the assessee." Respectfully following the above decision of Hon'ble Supreme Court in the case of Totgars Co-op Sale Society Ltd. (supra) and taking down the fact that interest income in the present case is identical to the interest income received by the assessee in the decision referred to above. We hold that the assessee is entitled to deduction u/s 80P(2)(a)(i) of the Act in respect of the interest income. In this view of the matter, we reverse the order of Ld. CIT(A) and the common grounds of assessee are allowed.”
Therefore, the ld AR for the assesee has submitted before us that the issue raised by the Revenue in respect of interest income, is fully covered by Hon,ble Tribunal Judgment (supra) in favour of assessee hence, the ground raised in this appeal by the Revenue may be dismissed.
Ld. DR for the Revenue has primarily relied on the findings of the AO, which we have already noted in our earlier para and is not being repeated for the sake of brevity.
Having heard the rival submissions, perused the material available on records, we are of the view that there is merit in the submissions of the assesse, as the propositions canvassed by the ld AR for the assesse are Boinchipota Samabay Krishi Unnayan Samity Ltd. supported by the judgment cited by him in assessee`s own case in ITA No.1702/Kol/2010 (supra). We have gone through the order passed by the Tribunal in assessee`s own case and find that it is squarely covered in favour of assessee. Therefore, respectfully following the decision of the Tribunal in assessee’s own case (supra), we do not see any reason to interfere in the order of the ld CIT(A). Accordingly, we dismiss the appeal filed by the Revenue.
In the result, the appeal filed by the Revenue, is dismissed.
Order pronounced in the open court on this 22/03/2017.