M/S HEALTH AMENITIES MULTI PURPOSE DISTRICT CO-OP SOCIETY LTD,CALICUT vs. ITO WARD 1(1), KOZHIKODE

At the outset, the Ld.AR also submitted that, there was a delay of 64 days before the Ld.CIT(A) that was not condoned. It is submitted that the assessee did not receive the notices said to have been sent to the email and therefore could not represent the case before the Ld.CIT(A). The Ld.AR also submitted that the Ld.CIT(A) dismissed the appeal for non-prosecution by following the decision of Hon'ble Delhi Tribunal in case of CIT vs. Multiplan India Pvt. Ltd. reported in 38 ITD 320 (Delhi). He prayed for the delay to be condoned before the Ld.CIT(A) and the appeal may be decided on merits.

The Ld.AR submitted that, the only issue raised in the present appeal is regarding disallowance of deduction claimed u/s. 80P(2) of the act. He submitted that, the Ld.AO disallowed the claim of assessee by observing that assessee do not satisfy the test of principle of mutuality, for the reason that, the assessee provided credit facility to its members that include associate as well as nominal members. The Ld.AR submitted that, the Ld.AO placed reliance on the decision of Citizen Co-operative Society Ltd. vs. ACIT reported in (2017) 84 taxmann.com 114 to disallow the claim of assessee, without considering the decision of Hon'ble Supreme Court in case of Mavilayi Service Co- operative Bank Ltd. v. CIT reported in 431 ITR 1, that has approved the decision of Full Bench Kerala High Court.

On the contrary, the Ld.DR relied on the orders passed by authorities below.

We have perused the submissions advanced by both sides in the light of records placed before us.

Admittedly, the Ld.AO did not consider the issue of Hon'ble Supreme Court in case of Mavilayi Service Co- operative Bank Ltd. v. CIT (supra).

I also note that the Ld.CIT(A) followed the decision in case of CIT vs. Multiplan India Pvt. Ltd. (supra) to dismiss the appeal for non-prosecution that is held to be no more a good law by Hon’ble Delhi High Court. I find reasonable cause on behalf of the assessee in not filing the appeal before the Ld.CIT(A) and the same is condoned. However, no purpose will be served to remit this issue to the Ld.CIT(A) and necessary verification is to be carried out in the light of the decision by Hon’ble Supreme Court in case of Mavilayi Service Co- operative Bank Ltd. v. CIT (supra) and also various such decisions of Hon’ble Kerala High Court on similar issue.

In the interest of justice, we remit this issue back to the Ld.AO to consider the claim of assessee in the light of ratio laid down by Hon'ble Supreme Court in case of Mavilayi Service Co- operative Bank Ltd. v. CIT (supra). Accordingly, the grounds raised by assessee stands allowed for statistical purposes.