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Income Tax Appellate Tribunal, “B” BENCH, PUNE
Before: MS. ASTHA CHANDRA & SHREE G.D. PADMAHSHALI
The appeal filed by the Revenue is directed against the order dated 18.04.2024 of the Ld. Commissioner of Income Tax (Appeals)/NFAC, Delhi [“CIT(A)”] pertaining to Assessment Year (“AY”) 2020-21.
The Revenue has raised the following grounds of appeal :- “i. On the facts and in the circumstances of the case and in loss, the Ld. CIT(Appeal) erred in allowing the deduction of Rs.1,93,04,098/- u/s 80P(2)(d) of the Act as the assessee claimed deduction u/s 80P(2)(d) in respect of the interest income from investment, which is not the operational income. ii. On the facts and in the circumstances of the case and in law, the Ld. CITIA, erred in allowing the deduction u/s 80P(2)(d) of the Income Tax Act without considering the decision of Hon'ble High Court of Karnataka in the case of Principal Commissioner of Income-tax, Hubballi Vs. Totagars Co-operative Sale Society [ 395 ITR 611] dated 16/06/2017. iii. On the facts and in the circumstances of the case and in law, the Id CIT/Appeals erred in allowing the deduction u/s 80P(2)(d) of the Act, without proper verification of the facts as to how the investments made by the assessee with other cooperative banks generated the operational income of the assessee, considering the facts that the business operations of the assessee is to provide credit facilities to its members and accepts deposits from them. iv. The appellant craves leave to add, alter, amend and modify any of the above or all grounds raised at time of proceedings before the Hon'ble Tribunal which may please be granted.”
3. Briefly stated, the facts of the case are that the assessee is a Co- operative Credit Society registered under Maharashtra Co-operative Societies Act, 1960 and also under Multi State Co-operative Credit Societies Act, 2002. The assessee society is engaged in the business of accepting deposits from its members and lending money to its members. For AY 2020-21, the assessee filed its return of income declaring total income at Rs. Nil and claiming a deduction of Rs.1,93,04,098/- u/s 80P of the Income Tax Act, 1961 (the “Act”). The case of the assessee was selected for complete scrutiny for the reasons “High liabilities as compared to low income/receipts” and “Deduction from total income (Chapter VI-A) (Business ITR). Statutory notice(s) u/s 143(2) and 142(1) of the Act were issued seeking details related to the scrutiny selection, in response to which the assessee furnished required details. During the assessment proceedings on perusing the submission/details uploaded by the assessee, the Ld. Assessing Officer (“AO”) found that the assessee earned interest income from Co-operative Banks and Commercial Banks totaling to Rs.2,81,99,003/- during the relevant AY. While computing the total income, the assessee debited all the interest expenses in the profit and loss account and arrived at the surplus of Rs.1,51,98,196/- and after adding all the disallowable amount and reducing the allowable amount, the gross total income was arrived at Rs.1,93,04,098/- and the same had been claimed as deduction u/s 80P of the Act. According to the Ld. AO, the assessee made the deposits/investments with various co-operative banks which is not eligible for deduction u/s 80P(2)(d) of the Act in the light of the decision of the Hon’ble Karnataka High Court in the case of Principal Commissioner of Income-tax, Hubballi Vs Totagars Co-operative Sale Society [395 ITR 611 (Kar.)]. He, therefore, disallowed the deduction of interest income claimed by the assessee u/s 80P(2)(d) of the Act and completed the assessment on 23.09.2021 u/s 143 r.w.s. 144B of the Act by making an addition of Rs.1,93,04,098/- under the head ‘income from other sources’ to the Nil income returned by the assessee.
4. Aggrieved, the assessee carried the matter before the Ld. CIT(A)/NFAC challenging the addition of Rs.1,93,04,098/- made by the Ld. AO. The Ld. CIT(A) partly allowed the appeal of the assessee by placing reliance on the decision of the Hon’ble Kerala High Court in the case of PCIT Vs. Peroorkada Service Co-operative Bank Ltd., Hon’ble Madras High Court in the case of Thorapadi Urban Co-op. Credit Society Ltd. Vs. Income Tax Officer and decision of the jurisdictional Mumbai, ITAT in the case of Reserve Bank Staff and Officers Vs. ITO in order dated 22.01.2024 wherein the impugned issue has been decided in favour of the assessee.
4.1 The Ld. CIT(A) further observed that the claim of deduction u/s 80P(2)(d) of the Act in respect of interest income from Co-operative Banks was allowed by the First Appellate Authority (NFAC) in assessee’s own case for AY 2018-19. Hence following the rule of consistency, the said claim of the assessee is allowable for the present AY 2020-21 under consideration. Based on the above legal position, the Ld. CIT(A) concluded that the impugned interest received from investments held with Co-operative Banks are to be allowed as deduction u/s 80P(2)(d) of the Act. He further clarified that the deduction u/s 80P(2)(d) of the Act shall be restricted to the extent of net interest income earned from investments with Co-operative Banks and other interest income from commercial banks and other institutions shall not be allowed as deduction u/s 80P(2)(d) of the Act which shall be assessed under the head ‘income from other sources’.
5. Dissatisfied, the Revenue is in appeal before the Tribunal challenging the allowance by the Ld. CIT(A) of deduction of Rs.1,93,04,098/- u/s 80P(2)(d) claimed by the assessee and all the grounds of appeal relate thereto.
6. The matter was called on 01.10.2024. None appeared on behalf of the assessee. However, the Ld. DR was present. The Ld. DR fairly conceded that the issue is covered against the Revenue by the various decisions of the Tribunal. We, therefore, proceeded to decide the matter after hearing the Ld. DR.
7. We have heard the Ld. DR and perused the material on record. We find that the impugned issue is no more res-integra by virtue of catena of decisions passed by the Co-ordinate Benches of the Tribunal as also the decision(s) of the Hon’ble High Courts (supra) cited by the Ld. CIT(A)/NFAC. There is no dispute on facts. The assessee is a Co-operative Credit Society registered under Maharashtra Co-operative Societies Act, 1960 and also under Multi State Co-operative Credit Societies Act, 2002. We find that the assessee society has received interest from investments made in 20 Co-operative banks and Co-operative societies amounting to Rs.2,81,99,003/- (Para 3.5 of the assessment order/para 4.1 of the appellate order refers). Out of the said interest income the assessee has claimed deduction of Rs.1,93,04,098/- u/s 80P(2)(d) of the Act during the relevant AY 2020-21 being investments made in various Co-operative banks and Co-operative Societies. The issue whether a Co-operative Societies like the assessee in the instant case is entitled for claim of deduction u/s 80P(2)(d) of the Act in respect of the interest income derived from its investments held with Co-operative Banks/Co-operative Societies has been considered in various cases by the Co-ordinate Benches of the Tribunal including the jurisdictional Bench of the Mumbai, ITAT wherein the said issue has been decided in favour of the assessee.
8. The Co-ordinate Bench of the Pune Tribunal in the case of ITO Vs. Goreshwar Gramin Bigar Sheti Sahakari Pat Sanstha Maryadit in dated 04.06.2024 decided the impugned issue in favour of the assessee by holding as under : “4. Suffice to say, the Revenue’s sole substantive grievance canvassed in the instant appeal is only for reviving the learned Assessing Officer’s action disallowing the assessee’s sec.80P deduction claim representing interest income from co-operative society(ies)/bank(s)/nationalized bank(s) involving varying sums; as the case may be. It is in this factual backdrop that we first of all note that the tribunal in The Rena Sahakari Sakhar Karkhana Ltd. vs. PCIT’s case has already rejected the Revenue’s stand regarding interest income derived from co-operative bank(s)/institution(s) in ITA.No.1249/PUN./2018 dated 07.01.2022 reading as under : “3. After culmination of the assessment proceedings, the Pr. CIT called for the assessment records of the assessee. It was observed by the Pr. CIT that the assessee had during the year shown interest income from FDs with Cooperative Banks amounting to Rs.75,38,534/-, against which it had claimed deduction under Sec.80P(2)(d) of the Act. It was observed by the Pr. CIT, that the A.O while framing the assessment had allowed the aforesaid claim of deduction raised by the assessee. Observing, that as cooperative banks were commercial banks and not a cooperative society, therefore, the Pr.CIT was of the view that the assessee was not eligible for claim of deduction under Sec.80P(2)(d). In the backdrop of his aforesaid conviction, the Pr. CIT was of the view that the assessment order passed by the A.O under Sec.143(3), dated 07.03.2016, therein allowing the assesses claim for deduction under Sec. 80P(2)(d), had therein rendered his order as erroneous, insofar it was prejudicial to the interest of the revenue. Accordingly, the Pr.CIT not finding favour with the reply of the assessee, wherein the latter had tried to impress upon him that it was duly eligible for claim of deduction under Sec.80P(2)(d) of the Act, therein “set aside” the order of the A.O with a direction to redecide the issue afresh and reframe the assessment.
The assessee being aggrieved with the order of the Pr.CIT has carried the matter in appeal before us. As the present appeal involved a delay of 52 days, therefore, the ld. A.R took us through the reasons leading to the same. It was submitted by the ld. A.R that as the then counsel of the assessee society who was looking after its tax matters, viz. Shr. Ravikiran Pandurang Todkar, Chartered Accountant was taken unwell due to kidney failure and had undergone kidney transplant, therefore, due to his unavailability the appeal could not be filed within the stipulated time period. Our attention was drawn towards the „affidavit‟ of the assessee society wherein the aforesaid facts were deposed. On the basis of the aforesaid facts, it was submitted by the ld. A.R that the delay involved in filing of the present appeal in all fairness may be condoned. Per contra, the ld. D.R did not object to the seeking of condonation of the delay in filing of the appeal by the assessee society. After giving a thoughtful consideration, we are of the considered view, that as there were justifiable reasons leading to delay on the part of the assessee in filing of the present appeal before us, therefore, the same merits to be condoned.
5. On merits, it was submitted by the ld. A.R, that as the A.O while framing the assessment had after making necessary verifications taken a plausible view, therefore, the Pr. CIT had exceeded his jurisdiction by seeking to review the order passed by him in the garb of the revisional powers vested with him under Sec.263 of the Act. It was submitted by the ld. A.R, that the issue as regards the eligibility of the assessee for claim of deduction under Sec.80P(2)(d) on interest income derived from investments/deposits lying with co-operative banks was squarely covered by the various orders of the coordinate benches of the Tribunal viz., (i). M/s Solitaire CHS Ltd. vs. Pr. CIT, dated 29.11.2019 ( ITAT “G” Bench, Mumbai); Kaliandas Udyog Bhavan Premises Co-op Society Ltd. Vs. ITO- 21(2)(1), Mumbai, (ITAT Mumbai); and (iii). Majalgaon Sahakari Sakhar Karkhana Ltd. Vs. ACIT, Circle-3, Aurangabad, ITA No, 308/Pun/2018 (ITAT Pune). On the basis of his aforesaid contentions, it was averred by the ld. A.R that as the Pr. CIT had exceeded his jurisdiction and had not only sought to review the plausible view that was taken by the A.O after necessary deliberations which was in conformity with the order of the jurisdictional bench of the Tribunal, therefore, his order may be vacated and that of the A.O be restored.
Per contra, the ld. Departmental Representative (for short “D.R”) relied on the order passed by the Pr. CIT under Sec.263 of the Act. It was submitted by the ld. D.R, that as the assessee was not eligible for claim of deduction under Sec.80P on the interest income received on the investments/deposits lying with the co-operative banks, therefore, the Pr. CIT finding the assessment order passed by the A.O under Sec.143(3), dated 07.03.2016 as erroneous, insofar it was prejudicial to the interest of the revenue, had rightly „set aside‟ his assessment with a direction to re-adjudicate the issue therein involved. Our attention was also drawn by the ld. D.R to his written submissions and certain judicial pronouncements in support of his aforesaid contention.
We have heard the ld. authorised representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as the judicial pronouncements relied upon by them. Our indulgence in the present appeal has been sought, for adjudicating, as to whether or not the claim of the assessee for deduction under section 80P(2)(d) in respect of interest income earned from the investments/deposits made with the co-operative banks is in order. In our considered view, the issue involved in the present appeal hinges around the adjudication of the scope and gamut of sub-section (4) of Sec. 80P as had been made available on the statute, vide the Finance Act 2006, with effect from 01.04.2007. On a perusal of the order passed by the Pr. CIT under Sec. 263 of the Act, we find, that he was of the view that pursuant to insertion of sub-section (4) of Sec. 80P, the assessee would no more be entitled for claim of deduction under Sec. 80P(2)(d) in respect of the interest income that was earned on the amounts which were parked as investments/deposits with the co-operative bank, other than a Primary Agricultural Credit Society or a Primary Co-operative Agricultural and Rural Development Bank. Observing, that the co-operative banks from where the assessee was in receipt of interest income were not cooperative societies, the Pr. CIT was of the view that the interest income earned on such investments/deposits would not be eligible for deduction under Sec. 80P(2)(d) of the Act.
After necessary deliberations, we are unable to persuade ourselves to concur with the view taken by the Pr. CIT. Before proceeding any further, we may herein cull out the relevant extract of the aforesaid statutory provision, viz. Sec. 80P(2)(d), as the same would have a strong bearing on the adjudication of the issue before us. Where in the case of an assessee being a cooperative society, the gross total income includes any income referred to in sub-section (2), there shall be deducted, in accordance with and subject to the provisions of this section, the sums specified in subsection (2), in computing the total income of the assessee. (2). The sums referred to in sub-section (1) shall be the following, namely:- (a)................................................................................. (b)................................................................................. (c).................................................................................. (d) in respect of any income by way of interest or dividends derived by the cooperative society from its investments with any other co- operative society, the whole of such income;” On a perusal of Sec. 80P(2)(d), it can safely be gathered that interest income derived by an assessee co-operative society from its investments held with any other co-operative society shall be deducted in computing its total income. We may herein observe, that what is relevant for claim of deduction under Sec. 80P(2)(d) is that the interest income should have been derived from the investments made by the assessee co-operative society with any other cooperative society. We are in agreement with the view taken by the Pr. CIT, that with the insertion of subsection (4) to Sec. 80P of the Act, vide the Finance Act, 2006 with effect from 01.04.2007, the provisions of Sec. 80P would no more be applicable in relation to any co-operative bank, other than a primary agricultural credit society or a primary co- operative agricultural and rural development bank. However, at the same time, we are unable to subscribe to his view that the aforesaid amendment would jeopardize the claim of deduction of a co-operative society under Sec. 80P(2)(d) in respect of its interest income on investments/deposits parked with a co-operative bank. In our considered view, as long as it is proved that the interest income is being derived by a cooperative society from its investments made with any other co-operative society, the claim of deduction under the aforesaid statutory provision, viz. Sec. 80P(2)(d) would be duly available. We find that the term „co-operative society‟ had been defined under Sec. 2(19) of the Act, as under:- “(19) “Co-operative society” means a cooperative society registered under the Co-operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any state for the registration of co-operative societies;” We are of the considered view, that though the cooperative banks pursuant to the insertion of subsection (4) to Sec. 80P would no more be entitled for claim of deduction under Sec. 80P of the Act, but as a cooperative bank continues to be a co-operative society registered under the Co-operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any State for the registration of co-operative societies, therefore, the interest income derived by a co- operative society from its investments held with a co-operative bank would be entitled for claim of deduction under Sec.80P(2)(d) of the Act.
In so far the judicial pronouncements that have been relied upon by the ld. A.R are concerned, we find that the issue that a co-operative society would be entitled for claim of deduction under Sec. 80P(2)(d) on the interest income derived from its investments held with a cooperative bank is covered in favour of the assessee in the following cases: (i). M/s Solitaire CHS Ltd. vs. Pr. CIT, dated 29.11.2019 ( ITAT “G” Bench, Mumbai); (ii). Majalgaon Sahakari Sakhar Karkhana Ltd. Vs. ACIT, Circle-3, Aurangabad, ITA No, 308/Pun/2018 (ITAT Pune) (iiii). Kaliandas Udyog Bhavan Pemises Co-op. Society Ltd. Vs. ITO, 21(2)(1), Mumbai We further find that the Hon'ble High Court of Karnataka in the case of Pr. Commissioner of Income Tax and Anr. Vs. Totagars Cooperative Sale Society (2017) 392 ITR 74 (Karn) and Hon’ble High Court of Gujarat in the case of State Bank Of India Vs. CIT (2016) 389 ITR 578 (Guj), had held, that the interest income earned by the assessee on its investments with a co-operative bank would be eligible for claim of deduction under Sec. 80P(2)(d) of the Act. Still further, we find that the CBDT Circular No. 14, dated 28.12.2006 also makes it clear beyond any scope of doubt that the purpose behind enactment of subsection (4) of Sec. 80P was that the co-operative banks which were functioning at par with other banks would no more be entitled for claim of deduction under Sec. 80P(4) of the Act. Although, in all fairness, we may herein observe that the Hon'ble High Court of Karnataka in the case of Pr. CIT Vs. Totagars co-operative Sale Society (2017) 395 ITR 611 (Karn), as had been relied upon by the ld. D.R before us, had held, that a co-operative society would not be entitled to claim deduction under Sec. 80P(2)(d); but then, the Hon'ble High Court in the case of Pr. Commissioner of Income Tax and Anr. Vs. Totagars Cooperative Sale Society (2017) 392 ITR 74 (Karn) and Hon’ble High Court of Gujarat in the case of State Bank Of India Vs. CIT (2016) 389 ITR 578 (Guj), had observed, that the interest income earned by a co-operative society on its investments held with a co- operative bank would be eligible for claim of deduction under Sec.80P(2)(d) of the Act. Backed by the aforesaid conflicting judicial pronouncements, we may herein observe, that as held by the Hon'ble High Court of Bombay in the case of K. Subramanian and Anr. Vs. Siemens India Ltd. and Anr (1985) 156 ITR 11 (Bom), where there is a conflict between the decisions of non-jurisdictional High Court‟s, then a view which is in favour of the assessee is to be preferred as against that taken against him. Accordingly, taking support from the aforesaid judicial pronouncement of the Hon‟ble High Court of jurisdiction, we respectfully follow the view taken by the Hon'ble High Court of Karnataka in the case of Pr. Commissioner of Income Tax and Anr. Vs. Totagars Cooperative Sale Society (2017) 392 ITR 74 (Karn) and that of the Hon’ble High Court of Gujarat in the case of State Bank Of India Vs. CIT (2016) 389 ITR 578 (Guj), wherein it was observed that the interest income earned by a co-operative society on its investments held with a co-operative bank would be eligible for claim of deduction under Sec.80P(2)(d) of the Act.
10. Be that as it may, in our considered view, as the A.O while framing the assessment had taken a possible view, and allowed the assessee’s claim for deduction under Sec. 80P(2)(d) on the interest income earned on its investments/deposits with co-operative banks, therefore, the Pr. CIT was in error in exercising his revisional jurisdiction u/s 263 of the Act for dislodging the same. Accordingly, finding no justification on the part of the Pr. CIT, who in exercise of his powers under Sec. 263 of the Act, had dislodged the view that was taken by the A.O as regards the eligibility of the assessee towards claim of deduction under Sec. 80P(2)(d), we set-aside his order and restore the order passed by the A.O under Sec. 143(3), dated 07.03.2016.”
So far as the assessee’s interest income from nationalized bank(s) and “treasury” is concerned, it goes without saying that the learned NFAC has already directed exclusion thereof which has nowhere been disputed in the instant appeal. We hardly need to adopt the same in the Revenue’s instant appeal in very terms. Ordered accordingly.
6. This Revenue’s appeal is dismissed in above terms.”
9. So far as the exclusion of interest received by the assessee from commercial banks and other institutions as directed by the Ld. CIT(A)/NFAC is concerned, the facts on record reveals that the assessee in the relevant AY 2020-21 has earned interest income from investments in other Co-operative Banks and Co-operative Societies and not from commercial bank(s)/other institutions. Nothing has been brought on record by the Revenue to controvert the findings of Ld. CIT(A)/NFAC in this regard.
In the light of the factual and legal position set out above, we hereby dismiss the ground Nos. 1 to 4 raised by the Revenue and direct the Ld. AO to allow the deduction of interest income of Rs.1,93,04,098/- claimed by the assessee u/s 80P(2)(d) of the Act as per fact and law. We order accordingly.
In the result, the appeal of the Revenue is dismissed.
Order pronounced in the open court on 17th October, 2024.