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Income Tax Appellate Tribunal, PANAJI BENCH :: PANAJI
Before: SHRI R.S. SYAL, HON.VICE- & SHRI PARTHA SARATHI CHAUDHURY, HON.
IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH :: PANAJI BEFORE SHRI R.S. SYAL, HON.VICE-PRESIDENT & SHRI PARTHA SARATHI CHAUDHURY, HON.JUDICIAL MEMBER (Through web-based video conferencing platform) ITA No.80/PAN/2020 (A.Y. 2015-16) The Parshwanath Co-op. Vs Pr.CIT, Hubballi. Credit Society Ltd., 535, 536, 1st Floor, Padmavati Chambers, Kulkarni Galli, Belgaum. PAN: AAAAT 4145 L Appellant Respondent ITA No.204/PAN/2019 (A.Y. 2015-16) Candolim Urban Co-op. Credit Vs ITO, Ward-2(1), Society Ltd., St.Joseph Panaji, Goa. Apartment, Near Football Ground, Candolim, Bardez. PAN: AABAC 2053 P Appellant Respondent ITA No.248 /PAN/2019 (A.Y. 2014-15) M/s. The Quepem Urban Co- vs ACIT, Circle-1, op. Credit Society Ltd., Margoa, Panaji. Ground Floor, Cindio Apartments, Quepem, Goa PAN: AABAT 3439 L Appellant Respondent ITA No.267 & 268/PAN/2019 (A.Y. 2014-15 & 2015-16) The Bardez Bazzar vs ACIT, Circle-2(1), Consumers Co-op. Society Panaji, Goa. Ltd., Morod, Mapusa, Goa. PAN: AAAAT 3613 K Appellant Respondent
ITA No.80/PAN/2020 ITA Nos. 204,248,267,268 & 295/PAN/2019 The Parshwanath Co-op Credit Society Ltd. & Ors. ITA No.295/PAN/2019 (A.Y. 2015-16) The Shiroda Progressive vs ITO, Ward-2(3), Urban Co-op. Credit Society Panaji. Ltd., Shop No.4, Opp. Police Station, Bhati, Shiroda PAN : AABAT 7206 P Appellant Respondent
Assessee by : Shri Pramod Vaidhya, Adv. (ITA No.80/PAN/2020) Shri R.K. Pikale, AR (ITA No.204/PAN/2019) Shri Tata Krishna, AR (ITA No.248/PAN/2019) Shri Gaurang Panandiker, AR (ITA No.267 & 268/PAN/2019) Shri Sham Kamat, AR (ITA No.295/PAN/2019) Revenue by : Shri Prabhakar Anand DJ, DR (ITA No.80 /PAN/2020) Shri N. Shrikanth, DR (In all other appeals except ITA No.80/PAN/2020) Date of hearing : 04/07/2023 Date of pronouncement : 05/07/2023 O R D E R Per Bench: ITA No.80/PAN/2020 preferred by the assessee emanates from the order of Principal Commissioner of Income Tax, Hubballi, dated 16/03/2020 for A.Y. 2015-16; ITA No. 204/PAN/2019 preferred by the assessee emanates from the order of Commissioner of Income Tax (Appeals)-1, Panaji, dated 11/04/2019 for A.Y. 2015-16; ITA No.248
ITA No.80/PAN/2020 ITA Nos. 204,248,267,268 & 295/PAN/2019 The Parshwanath Co-op Credit Society Ltd. & Ors. /PAN/2019 preferred by the assessee emanates from the order of Commissioner of Income Tax (Appeals)-1, Panaji, dated 25/06/2019 for A.Y.2014-15; ITA Nos. 267 & 268/PAN/2019 preferred by the assessee emanates from the separate orders of Commissioner of Income Tax (Appeals)-1, Panaji, each dated 10/01/2019 for A.Ys. 2014-15 & 2015-16; and ITA No. 295/PAN/2019 preferred by the assessee emanates from the order of Commissioner of Income Tax (Appeals)-1, Panaji, dated 06/03/2019 for A.Y. 2015-16.
In ITA No.204/PAN/2019 for A.Y. 2015-16, the assessee had preferred multiple grounds, but at the time of hearing submitted that the only effective grounds are ground Nos.2 & 5. Having heard his submissions except for ground Nos. 2 & 5, all other grounds are dismissed as not pressed.
2.1 Ground No.2 pertains to deduction u/sec. 80P(2)(d) of the Act regarding interest income, which would be dealt with separately. Ground No.5, the assessee had claimed deduction u/sec. 80P(2)(c), however, we observe that this particular ground is not arising from the assessment order. Even ld.AR could not demonstrate that how this ground has been taken before this Tribunal since it is not appearing from the assessment order and also there is no discussion on the issue by the ld. CIT(A) in his order. Ld.DR also submitted that this ground does not emerge from the assessment order. Having heard the submissions and considering the facts and circumstances, since this
ITA No.80/PAN/2020 ITA Nos. 204,248,267,268 & 295/PAN/2019 The Parshwanath Co-op Credit Society Ltd. & Ors. ground is not emanating from the assessment order, the same is dismissed.
In ITA No.295/PAN/2019 for A.Y. 2015-16, there are two issues involved u/sec. 80P(2)(a)(i) and 80P(2)(d) of the Act. Regarding the first issue, the ld.AR for the assessee submitted that though the ld.CIT(A) accepts that assessee would be eligible for deduction u/sec. 80P(2)(a)(i), still he remanded the matter to the AO for verification, which is not permissible u/sec. 251 of the Act. The Bench therefore put a question to the ld.AR that if he objects for verification by the AO, then the matter would be verified by the ld. CIT(A) and in doing so, he has to call for remand report again from the AO and as such, whether at all there lies any difference in effect with the direction of the ld.CIT(A)? To this, ld.AR agreed that there is no difference and he conceded to the direction given by the ld. CIT(A) in the appellate order. Therefore, we uphold the finding of the ld. CIT(A) on the issue of deduction u/sec. 80P(2)(a)(i) and dismiss this ground of appeal raised by the assessee. The second issue on deduction u/sec. 80P(2)(d) of the Act shall be dealt with separately in this order.
That in ITA Nos. 267 & 268/PAN/2019, though the issue is only for deduction u/sec. 80P(2)(d) regarding the interest income, however, there is a delay of 150 days in filing appeals for both the years. We have perused the condonation petition as well as the affidavit filed by the assessee in this regard and find that the delay
ITA No.80/PAN/2020 ITA Nos. 204,248,267,268 & 295/PAN/2019 The Parshwanath Co-op Credit Society Ltd. & Ors. occurred due to circumstances beyond the control of the assessee and was neither deliberate nor intentional. That, ld.DR also did not had any objection, if this delay was condoned. Considering the entire facts and circumstances, this delay of 150 days is condoned and both the appeals were heard on merits.
That now the only issue remains for adjudication in all these appeals is with regard to claim of deduction u/sec. 80P(2)(d) regarding interest income. At the outset, learned counsel for the assessees submitted that these matters are covered by the earlier decision on the same identical issue of the Pune Tribunal in the case of Lokmangal Nagri Sahakari Path Sanstha Maryadit v. PCIT in ITA No.231/PUN/2022 for A.Y. 2017-18, order dated 29.11.2022, wherein also it was the order passed u/sec.263 read with issue of deduction u/s 80P(2)(a)(i) or 80P(2)(d) of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’).
The learned DR(s) conceded that the facts are absolutely identical and similar.
We observe that the Pune Tribunal in ITA No.231/PUN/2022 (supra) on examination of the facts held as follows: “3 …. The appellant is a cooperative society formed under the Maharashtra Co-operative Societies Act, 1960. It is engaged in the business of accepting deposits from members and providing credit facilities to its members. The original Return of Income for the assessment year 2017-18 was filed on 18.10.2017 disclosing total income of Rs.3,11,740/-. Subsequently, the assessee revised the return of income declaring Rs.Nil income after claiming deduction of Rs.6,32,86,382/- under the provisions of section 80P of the Income
ITA No.80/PAN/2020 ITA Nos. 204,248,267,268 & 295/PAN/2019 The Parshwanath Co-op Credit Society Ltd. & Ors.
Tax Act, 1961 („the Act‟). Against the said return of income, the assessment was completed by the Assessing Officer accepting the returned income vide order dated 19.11.2019 passed u/s 143(3) of the Act. 4. Subsequently, on examination of the assessment order, the ld. PCIT formed an opinion that failure the Assessing Officer to examine the taxability of interest earned on the investments made with the cooperative banks, as the same constitutes business income, rendered the assessment order erroneous. Accordingly, the ld. PCIT issued a show cause notice dated 08.03.2022 u/s 263 calling upon the appellant society to explain as to why the assessment order dated 19.11.2019 should not be treated as erroneous and prejudicial to the interests of the revenue. In response to the show cause notice, the appellant filed a detailed submission stating that the interest income earned by the cooperative bank on the investments made with the other cooperative bank is eligible for deduction under the provisions of section 80P(2)(a)(i) as well as under the provisions of section 80P(2)(d) placing reliance on the following decisions : (i) Gurumauli Nagari Sahkari Pat Sanstha vs. PCIT order dated 13.01.2022 (Pune – Trib.). (ii) Tumkur Merchants Souharda Credit Cooperative Ltd. vs. ITO 230 Taxman 309 (Kar – HC). (iii) Sureshdada Jain Nagari Sahakari Patsanstha Maryadit (ITA No.713/PUN/2016). (iv) Nasik Road Nagri Sahakari Patsanstha (ITA No.1700/PUN/2017 order dated 27.12.2021). (v) ITO vs. Shri Laxmi Narayan Nagari Sahakari Pathsanstha (ITA No.2827/PUN/2016 order dated 19.09.2018). (vi) Sant Motiram Maharaj Patsanstha Ltd. vs. ITO, 120 taxmann.com 10. 5. It is further submitted that the Assessing Officer had allowed the claim of exemption after due application of mind on the issue in appeal and, therefore, the Explanation 2 to section 263 cannot be invoked. However, the ld. PCIT on due consideration of explanation filed by the appellant held that the failure of the Assessing Officer to examine the issue rendered the assessment erroneous and prejudicial to the interests of the revenue. Accordingly, ld. PCIT set aside the assessment order with a direction to examine the assessee‟s claim of deduction u/s 80P(2)(a)(i) as well as interest of Rs.19,88,77,712/- u/s 80P(2)(d) after affording reasonable opportunity of being heard to the appellant. 6. Being aggrieved, the appellant is in appeal before us in the present appeal. 7. The ld. AR submits that the issue of eligibility of income earned on the investment made with the cooperative bank was examined by the Co-ordinate Bench of this Tribunal in the case of M/s. Jan Kalyan Nagri Sahakari Pat. Limited Sanstha in ITA No.825/PUN/2019 for A.Y. 2014- 15 order dated 26.08.2022. The ld. AR submits that the issue is
ITA No.80/PAN/2020 ITA Nos. 204,248,267,268 & 295/PAN/2019 The Parshwanath Co-op Credit Society Ltd. & Ors.
covered in favour of the appellant. In support of this proposition, ld. AR relied on the following judicial precedents :- (i) Nashik Road Nagari Sahkari Patsanstha Limited vs. ITO (ITA No.1700/PUN/2017 dated 27.12.2021). (ii) Rena Sahakari Sakhar Karkhana Ltd. vs. Pr.CIT (ITA No.1249/PUN/2018 dated 07.01.2022). (iii) Shri Chandraprabhu Urban Co-operative Credit Society Ltd. vs. ITO (ITA No.61 & 62/PAN/2018 dated 10.05.2022). 8. Thus, it was contended that when the issue was stands covered and decided in favour of the assessee, then it cannot be said that the assessment order is erroneous as well as prejudicial to the interests of the revenue. 9. On the other hand, ld. CIT-DR placing reliance on the order of the ld. PCIT submits that failure of the Assessing Officer to examine the taxable income earned on the investments from cooperative bank rendered assessment order erroneous and prejudicial to the interests of the revenue. Therefore, he submits that the ld. PCIT was justified in exercising the power of revision u/s 263 of the Act. 10. We heard the rival submissions and perused the material on record. The issue in the present appeal relates to the validity of assumption of jurisdiction u/s 263 by the ld. PCIT. The Parliament had conferred the power of revision on the Commissioner of Income Tax u/s 263 of the Act in case the assessment order passed is erroneous and prejudicial to the interests of revenue. In order to invoke the power of revision, the above two conditions are required to be satisfied cumulatively. References in this regard can be made to the decision of the Hon‟ble Supreme Court in the case of Malabar Industrial Co. Ltd. vs. CIT, 243 ITR 83 (SC) and in the case of CIT vs. Max India Ltd., 295 ITR 282 (SC). The error in the assessment order should be one that it is not debatable or plausible view. In a case where the Assessing Officer examined the claim, took one of the plausible views, the assessment order cannot be termed as an “erroneous”. In the present case, we find that admittedly the interest income was earned from the cooperative banks, the cooperative bank is also a specie of cooperative society, therefore, the interest income earned by the cooperative society from the cooperative banks qualifies for deduction u/s 80(P)(2)(d) of the Act. Such interest also qualifies for exemption u/s 80P(2)(a)(i) as held by the Co-ordinate Bench of Pune Tribunal in the case of Nashik Road Nagari Sahkari Patsanstha Limited (supra) wherein the Tribunal held as under:- “9. We heard the rival submissions and perused the material on record. Admittedly, the appellant is a Cooperative society formed under the provisions of Maharashtra Cooperative Societies Act,1960 with the objective of accepting deposits and lending money to its members. The money which is not immediately required for the purpose of lending to the members is deposited with Bank of Baroda in the form of Fixed Deposit. The question is whether the interest so earned qualifies for exemption u/s.
ITA No.80/PAN/2020 ITA Nos. 204,248,267,268 & 295/PAN/2019 The Parshwanath Co-op Credit Society Ltd. & Ors. 80P(2)(a)(i) of the Act. The AO as well as the CIT(A) were of the opinion that the interest earned from third parties or nonmembers does not quality for exemption u/s.80P. It is an admitted position that the interest so earned should be taxed as „income from other sources‟ There is a cleavage of judicial opinion among several High Courts on the issue of eligibility of this kind of income for exemption u/s. 80P(2)(a)(i) of the Act. The Hon‟ble Punjab & Haryana High Court in the case of CIT vs. Punjab State Cooperative Federation of Housing Building Societies Ltd. 11 taxmann.com 448, the Hon‟ble Gujarat High Court in the case of State Bank of India Vs. CIT 389 ITR 578 (Guj.), the Hon‟ble Delhi High Court in the case of Mantola Cooperative Thrift & Credit Society Ltd. Vs. CIT 50 taxmann.com 278, the Hon‟ble Punjab & Haryana High Court in the case of CIT Vs. Punjab State Cooperative Agricultural Development Bank Ltd. 389 ITR 68 and the Hon‟ble Kolkata High Court in the case of CIT Vs. Southern Eastern Employees Cooperative Credit Society Ltd. 390 ITR 524 took a view that the income arising on the surplus invested in short term deposits and securities cannot be attributed to the activities of the society and, therefore, not eligible for exemption u/s.80P(2)(a)(i) of the Act. However, the Hon‟ble Karnataka High Court in the case of Tumkur Merchants Souharda Credit Cooperative Ltd. Vs. ITO (2015) 230 taxmann 309 (Kar.) and the Hon‟ble Telangana and Hon‟ble Andhra Pradesh High Court in the case of Vaveru Co-operative Rural Bank Ltd. v CIT [(2017) 396 ITR took a view that such interest income is attributable to the activities of the society and, therefore, eligible for exemption u/s.80P(2)(a)(i) of the Act. The Coordinate Bench of Pune Benches in the case of M/s. Ratnatray Gramin Bigar Sheti Sah. Pat Sanstha Maryadit Vs. ITO (ITA Nos.559/560/PUN/2018, dated 11-12- 2018) has taken view in favour of the assessee following the judgment of Hon‟ble Karnataka High Court in the case of Tumkur Merchants Souharda Credit Cooperative Ltd. (supra). Respectfully following the decision of the Coordinate Bench, we hold that the interest income earned on the investment of surplus money with banks is also eligible for exemption u/s.80P(2)(a)(i) of the Act. Thus, the grounds of appeal No. 1 & 2 stands allowed.” 11. Thus, we find that the issue which is subject matter of revision is covered in favour of the assessee by judicial precedents. Therefore, it cannot be said that the assessment order is erroneous or prejudicial to the interests of the revenue. Therefore, we are of the considered opinion that the order of revision passed by the ld. PCIT u/s 263 of the Act cannot be sustained in the eyes of law. Hence, the grounds of appeal raised by the assessee stand allowed.”
Respectfully following the above cited decision, we find that the issue(s) which is subject matter of revision u/sec. 263 and/or
ITA No.80/PAN/2020 ITA Nos. 204,248,267,268 & 295/PAN/2019 The Parshwanath Co-op Credit Society Ltd. & Ors. deduction u/sec. 80P(2)(a)(i) / 80P(2)(d), is covered in favour of the assessee(s) by judicial precedents. Therefore, we are of the considered view that the impugned orders passed by the ld.PCIT/ CIT(A) cannot be sustained in the eyes of law. Hence, the grounds of appeals raised by the assessee(s) on deduction u/sec. 80P(2)(a)(i) / 80P(2)(d) of the Act stands allowed.
In the combined result, ITA Nos. 204 & 295/PAN/2019 filed by the assessees are partly allowed, and rest of the appeals in ITA Nos. 80/PAN/2020 and ITA Nos.248, 267 & 268/PAN/2019 filed by the assessees are allowed. Order pronounced in open Court on 05th July, 2023.
Sd/- Sd/- (R.S. SYAL) (PARTHA SARATHI CHAUDHURY) VICE-PRESIDENT JUDICIAL MEMBER Dated : 05th July, 2023
vr/- Copy to : 1. The Appellant. 2. The Respondent. 3. The Pr. CIT concerned. 5. The DR, ITAT, Panaji Bench, Panaji. 6. Guard File. By Order
// TRUE COPY// Senior Private Secretary ITAT, Pune.