VIVEKANAND AKRUSHAK SAHAKARI PAT SANSTHA MARYADIT,BHANDRA vs. INCOME TAX OFFICER WARD-2, BHANDRA

./2024 (Assessment Year : 2018–19) Vivekanand Akrushak Sahakari Pat Sanastha Maryadit P.O. Barwah Sachivalaya ……………. Appellant Grampanchayat Arwha, Tq. Lakhandur Dist. Bhandara 441 805 PAN – AAAAV2404Q v/s Income Tax Officer, Ward–2, Bhandara ……………. Respondent ITA no.413/Nag./2024 (Assessment Year : 2022–23) Vivekanand Akrushak Sahakari Pat Sanastha Maryadit P.O. Barwah Sachivalaya ……………. Appellant Grampanchayat Arwha, Tq. Lakhandur Dist. Bhandara 441 805 PAN – AAAAV2404Q v/s ……………. Respondent Income Tax Officer, Ward–2, Bhandara ITA no.415/Nag./2024 (Assessment Year : 2013–14) Vivekanand Akrushak Sahakari Pat Sanastha Maryadit P.O. Barwah Sachivalaya ……………. Appellant Grampanchayat Arwha, Tq. Lakhandur Dist. Bhandara 441 805 PAN – AAAAV2404Q v/s Income Tax Officer, Ward–2, Bhandara ……………. Respondent Assessee by : Shri K.K. Thakkar Revenue by : Shri Abhay Y. Marathe Date of Hearing – 07/11/2024 Date of Order – 18/11/2024

2 Vivekanand Akrushak Sahakari Pat Sanastha Maryadit O R D E R

These appeals have been filed by the assessee challenging the impugned orders of even date 24/05/2024, passed by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, [“learned CIT(A)”], for the assessment year 2013–14, 2018–19 and 2022–23.

./2024 Assessee’s Appeal – A.Y. 2022–23

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01. Orders passed by learned Commissioner of Income Tax (Appeals) (referred to as " CIT(A) " hereinafter) and Assessment Unit, Income Tax Department (referred to as "AU" hereinafter) are bad in law and on facts.

2. Learned CIT(A) erred in treating the interest income from deposits with banks other than co-operative banks as income from other sources thereby disallowing deduction u/s 80P(2)(a)(i) thereon (tax effect Rs. 12,76,041/-).

3. Learned CIT(A) as well as the Assessment Unit, Income Tax Department (hereinafter referred to as "AU") erred in treating the commission income from Maharashtra State Electricity Distribution Company Limited as income from other sources thereby disallowing deduction u/s 80P(2)(a)(i) thereon (tax effect Rs.2,60,528/-).

4. Learned CIT(A) as well as learned AU erred in not appreciating that the investment of funds with banks is very much incidental to and hence attributable to the business of the assessee and hence interest earned 3 Vivekanand Akrushak Sahakari Pat Sanastha Maryadit on such deposits is in the nature of Income from Business only and not Income from Other Sources.

5. Learned CIT(A) erred in not applying the ratio passed in judgments quoted by the assessee before CIT(A) to the case of the assessee whereas these judgments are recent and directly relevant for and applicable to the facts of the case of the assessee.”

6. Appellant prays for leave to add, amend, delete or substitute any grounds of appeal till and at the time of hearing.”

by the Revenue in the case of MSEB Engineers Co-Op. Credit Society Ltd., wherein the ITAT, Nagpur Bench, vide order dated 05/05/2016 held as under : “Upon hearing both the counsel and perusing the records, we find that the above issue is covered in favour of the assessee by the decision of this ITA, referred by the Ld. CIT(A) in his appellate order. The distinction mentioned in the grounds of appeal is not at all sustainable. We further find that this Tribunal again in the case of Chattisgarh Urban Sahakari Sanstha Maryadit Vs. ITO in vide order dated 27.05.2015 has adjudicated similar issue as under:- “11. Upon careful consideration, we not that identical issue was the subject matter of consideration by ITAT, Ahmedabad Bench decision in the case of Dhanlaxmi Credit Cooperative Society Ltd (supra), in which one of us, learned Judicial Member, was a party. The concluding portion of the Tribunal‟s decision is as under: “4. With this brief background, we have heard both the sides. It was explained that the Co-operative Society is maintaining “operations funds” and to meet any eventuality towards repayment of deposit, the Co-operative society is maintaining some liquidated funds as a short term deposit with the banks. This issue was thoroughly discussed by the ITAT “B” Bench Ahmedabad in the case of The Income Tax Officer vs. M/s.Jafari Momin Vikas Co-op Credit Society Ltd., bearing (for A.Y. 2009-10) and CO No. 138/Ahd/2012 (by Assessee) order dated 31/10/2012. The relevant portion is reproduced below :- “19. The issue dealt with by the Hon‟ble Supreme Court in the case of Totgars (supra) is extracted, for appreciation of facts as under : What is sought to be taxed under section 56 of the Act is interest income arising on the surplus invested in short term deposits and securities, which surplus was not required for business purposes? The assesse(s) markets the produce of its members whose sale proceeds at times were retained by it. In this case, we are concerned with the tax treatment of such amount. Since the fund created by such retention was not required immediately for business purposes, it was invested in specified securities. The question before us, is whether interest on such deposits/securities, which strictly speaking accrues to the members‟ account, could be taxed as business income under section 28 of the Act? In our view, such interest income would come in the category of „income from other sources‟ hence, such 5. Vivekanand Akrushak Sahakari Pat Sanastha Maryadit interest income would be taxable under section 56 of the Act, as rightly held by the assessing officer…..” 19.1 However, in the present case, on verification of the balance sheet of the assessee as on 31.3.2009, it was observed that the fixed deposits made were to maintain liquidity and that there was no surplus funds with the assessee as attributed by the Revenue. However, in regard to the case before the Hon‟ble Supreme Court – “(on page 286) 7 …….. Before the assessing officer, it was argued by the assesse(s) that it had invested the funds on short term basis as the funds were not required immediately for business purposes and consequently, such act of investment constituted a business activity by a prudent businessman; therefore, such interest income was liable to be taxed under section 28 and not under section 56 of the Act and, consequently, the assessee(s) was entitled to deduction under section 80P(2)(a)(i) of the Act. The argument was rejected by the assessing officer as also by the Tribunal and the High Court, hence these civil appeals have been filed by the assessee(s). 19.2 From the above, it emerges that (a) that assessee (issue before the Supreme Court) had admitted before the AO that it had invested surplus funds, which were not immediately required for the purpose of its business, in short term deposits; (b) that the surplus funds arose out of the amount retained from marketing the agricultural produce of the members; (c) that assessee carried on two activities, namely, (i) acceptance of deposit and lending by way of deposits to the members; and (ii)marketing the agricultural produce; and (d) that the surplus had arisen emphatically from marketing of agricultural produces. 19.3 In the present case under consideration, the entire funds were utilized for the purposes of business and there were no surplus funds. 19.4 While comparing the state of affairs of the present assessee with that assessee (before the Supreme Court), the following clinching dissimilarities emerge, namely: (1) in the case of assessee, the entire funds were utilized for the purposes of business and that there were no surplus funds:- - in the case of Totgars, it had surplus funds, as admitted before the AO, out of retained amounts on marketing of agricultural produce of its members; (2) in the case of present assessee, it had not carry out any activity except in providing credit facilities to its members and that the funds were of operational funds. The only fund available with the assessee was deposits from its members and, thus, there was no surplus funds as such;

6. Vivekanand Akrushak Sahakari Pat Sanastha Maryadit - in the case of Totgars, the Hon‟ble Supreme Court had not spelt out anything with regard to operational funds; 19.5 Considering the above facts, we find that there is force in the argument of the assessee that the assessee not a co- operative bank, but its nature of business was coupled with banking with its members, as it accepts deposits from and lends the same to its members. To meet any eventuality, the assessee was required to maintain some liquid funds. That was why, it was submitted by the assessee that it had invested in short-term deposits. Furthermore, the assessee had maintained overdraft facility with Dena Bank and the balance as at 31.3.2009 was Rs.13,69,955/- [source : Balance Sheet of the assessee available on record]. 19.6 In overall consideration of all the aspects, we are of the considered view that the ratio laid down by the Hon‟ble Supreme Court in the case of Totgars Co-op Sale Society Ltd (supra) cannot in any way come to the rescue of either the Ld. CIT (A) or the Revenue. In view of the above facts, we are of the firm view that the learned CIT (A) was not justified in coming to a conclusion that the sum of Rs.9,40,639/- was to be taxed u/s 56 of the Act. It is ordered accordingly.”

5. Respectfully following the above decision of the Co-ordinate Bench, we hereby hold that the benefit of deduction u/s 80P(2)(a)(i) was rightly granted by ld. CIT(A), however, he has wrongly held that the interest income is taxable u/s 56 of the Act so do not fall under the category of exempted income u/s 80P of the Act. The adverse portion of the view, which is against the assessee, of ld. CIT(A) is hereby reversed following the decision of the Tribunal cited supra, resultantly ground is allowed.

8. We find that the ratio of above case also applies to the present case. As observed in the above case law, in this case also the submissions of the assessee‟s counsel is that the assessee society is maintaining operational funds and to meet any eventuality towards repayment of deposit the cooperative society is maintaining some liquidated funds as short term deposits with banks. Hence adhering to the doctrine stair desises, we hold that the assessee should be granted benefit of deduction under section 80P(2)(a)(i). Accordingly, the interest on deposits would qualify for deduction under the said section. Accordingly, we set aside the order of authorities below and decide the issue in favour of assessee. “ 4. We further find that batch of similar appeals decided by the ITAT in favour of the assessee has also been considered by the Jurisdictional High Court. The Hon‟ble Jurisdictional High Court has duly affirmed of this Tribunal. Accordingly, in the background aforesaid discussion, we do not find infirmity in the order of Ld. CIT(A).”

11. In the background of aforesaid discussion and decisions, we find that CIT (A) has erred in upholding the assessment order. The Appellant Co-operative society is entitled for deduction u/s 80P as claimed in the return.”

7 Vivekanand Akrushak Sahakari Pat Sanastha Maryadit Society Ltd. (supra) and held that the facts of this case is distinguishable and not applicable to the facts of the present case. The interest income of ` 41,39,702, earned by the assessee on deposits in Commercial Bank, Co– operative Bank and other financial institutions and has also earned commission income of ` 8,45,200, which have been claimed as deduction under section 80P(2)(a)(i) of the Act and the income so derived by it from its business activities which is assessable under the head “Income From Business” and not under the head ”Income From Other Sources”. We, therefore, respectfully following the decision of the Co–ordinate Bench in The Ismailia Urban Co–operative Society v/s ITO, ITA no.122/Nag./2023, order dated 18/06/2024, set aside the impugned order passed by the learned CIT(A) holding that the assessee is eligible to claim deduction under section 80P(2)(a)(i) of the Act on account of interest income of ` 41,39,702, earned by the assessee on deposits in Commercial Bank, Co–operative Bank and other financial institutions and also earned commission income of ` 8,45,200, which have been claimed as deduction under section 80P(2)(a)(i) of the Act. Accordingly, all the grounds raised by the assessee for the assessment year 2022–23 are allowed.

./2024 Assessee’s Appeal – A.Y. 2018–19 ITA no.415/Nag./2024 Assessee’s Appeal – A.Y. 2013–14