Income Tax Appellate Tribunal - Bangalore
Assistant Commissioner Of Income Tax, ... vs M/S. The Totgars Co-Operative Sale ... on 21 December, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL,
BANGALORE BENCH 'C'
BEFORE SHRI N.V VASUDEVAN, VICE PRESIDENT
AND
SHRI JASON P BOAZ, ACCOUNTANT MEMBER
ITA No.1629/Bang/2017
Assessment year : 2014-15
The Asst. Commissioner of Vs. M/s The Totgar's Co-
Income-tax, operative Sale Society Ltd.,
Circle - 1(1), TSS Building, APMC Yard,
Hubballi. Sirsi.
PAN - AACAT 0251 D.
APPLICANT RESPONDENT
Appellant by : Dr. P.V Pradeep Kumar, Addl. CIT
Respondent by : Shri S.V Ravishankar, Advocate
Date of hearing : 10.12.2018
Date of Pronouncement : 21.12.2018
ORDER
PER SHRI N.V VASUDEVAN, VICE PRESIDENT :
This appeal is filed by the Revenue against the order dated 5/5/2017 of CIT(A), Hubballi relating to asst. year 2014-15.ITA No.1629/B/17 2
2. The assesee is a cooperative society engaged in the business of processing and marketing of agricultural produce grown by the members. The assessee also provides the credit facility to its members besides running a kirana Store and earning interest on deposits. The assessee claimed deduction u/s 80P(2)(d) of the Act. The assessee claimed deduction on a sum of Rs.4,45,49,828/- which was interest and dividend received from cooperative societies. The AO denied the benefit of deduction on the ground the interest received by the assessee from cooperative societies which are engaged in business of banking and, therefore, regarded as Cooperative banks. Since as per sec. 80P(4) of the Act to provision of sec. 80P(2)(d) are not applicable to co-operative banks, hence the AO denied the benefit of deduction u/s 80P(2)(d) of the Act.
3. On appeal by the assessee the CIT(A) deleted the addition made by the AO by observing as under:-
"Net addition of Rs. 2,79,68,8241- (Interest and Dividend from Cooperative Banks Rs.4,45,49,8281- less Rs. 1,65,81,004/- being cost of funds) :- This addition is towards denial of deduction u/s. 80P(2)(d) on the interest and dividend received by your appellant from co-op banks. During the assessment proceedings your appellant had pleaded that, since the Tribunal has rendered decision in favour of the appellant in A. Y. 2007-08 to 2012-13 on this issue, the addition is uncalled for. However the learned AO under the pretext that the revenue has preferred appeal before Hon'ble High Court Dharwad Bench against the order of the ITAT for these years denied the deduction, However, since even the Hon'ble High Court Dharwad Bench has upheld the decision of the ITAT in your appellants own case, we request your honour to delete ITA No.1629/B/17 3 this addition also. The copy of the said decision is enclosed for your honours kind reference. In the circumstances stated above and in view of Hon'ble High Court decision, we request your honour to delete the additions and oblige."
9. As regards the denial of deduction u/s. 80P(2)(d), the details furnished to me are that, the assessee has received a total sum of Rs.4,45.49,8281- as interest and dividend income from various co-operative banks, as detailed below:
Details of Interest received from Co-op Bank Details of Dividend received from the Shares of Co-op Institutions are as under :-
10. While demanding for allowing deduction u/s. 80P(2)(d), the assessee has placed reliance on the decision of the ITAT Bangalore in assessees own case for the AY 2007-08 to 2012-
13. I find from the above details that, the whole of interest ITA No.1629/B/17 4 income of Rs.4,41,39,028/- has arisen on deposits from co-op banks only and so also the dividend income of Rs.4,10,800/-.
11. According to the provisions of sec. 80P(2)(d), any income by way of Interest or dividend from deposit/investment with any other cooperative society, the whole of such income is eligible for deduction.
12. The Hon'ble ITAT Bangalore for the AY 2007-08 to 2012- 13 has, on identical issue in assessee's own case, have held that. The assessee's claim for deduction u/s. 80P(2)(d) of the Act. on income from co-op banks by way of interest on deposits and dividend on investments cannot be denied. The Hon ble High Court of Karnataka, Dharwad bench in assessee own case for the A.Y. No. 100069/2016) has held that, interest earned from co-op society bank would be eligible for deduction u/s. 80P(2)(d). The following is the observation of the Hon'ble High Court "Admittedly. the interest which the assessee respondent had earned was from a co-operative society bank. Therefore, according to section 80P(2)(d) of the IT Act, the said amount of interest earned from a co-operative society bank would be deductable from the gross income of the co-operative society in order to assess its total income, therefore, the assessing officer was not justified in denying the said deduction to the assessee respondent".
13. In view of this. I hold that, the deduction claimed of Rs.4,45,49,828/- u/s. 80P(2)(d) cannot be denied Relief in full is granted to the assessee."
4. Aggrieved by the order of the CIT(A), the revenue preferred present appeal before the Tribunal raising the following grounds:
"i) On the facts and circumstances of the case and in law, the CIT(A) erred in allowing deduction u/s. 80P(2)(d) in respect of interests and dividend received from co-operative banks ITA No.1629/B/17 5 without appreciating that the co-operative banks are not co-
operative societies as envisaged in the provisions of sec. 80P(2)(d)."
ii) On the facts and circumstances of the case and in law, the CIT(A) erred in allowing deduction u/s. 80P(2)(d) in respect of interests and dividend received from co-operative banks without appreciating that the Department has not accepted the decision of the hon. HC of Karnataka and has proposed an SLP on the issue.
5. The assessee had also made a claim for deduction of a sum of Rs.76,78,075/- which was claimed to be income of the assessee from the business of providing credit facilities to its members and deduction was claimed by the assesee u/s 80P(2)(a)(i) of the Act. The AO held that the assessee was a cooperative bank and, therefore, the deduction claimed cannot be allowed.
6. On appeal by the assessee, the CIT(A) directed the AO to allow the claim of the assessee observed as follows:-
"14. Coming to the other issue where the Assessing Officer has disallowed Rs.76,78.0751- of deduction claimed u/s. 80P(2)(a), I find from the written submission that Rs.36.01.227/- and Rs.14.07.972/- have been received by the assessee from its branch offices located in Siddapur and Yellapur respectively. According to the assessee. the profit has remained unchanged, because the account is debited also to the extent of the same amount making NIL effect. I also find from a perusal of the details furnished for interest receipts and payments that, contra entries are made which makes nil effect in accounts. I agree with the assessees argument that, nobody can earn interest from himself, accordingly, the addition made of Rs. 36,01,227/- and Rs.14,07,972/are hereby deleted ITA No.1629/B/17 6
15. As regards the denial of deduction u/s. 80P(2) on the interest income received of Rs.14,70,748/- from members on loan for children education of Rs.9,65890/- and Rs.1,98,088/- from staff members on advances and hand loan of Rs.30,768/- on interest income on miscellaneous advances to members and Rs.3,382/- of interest earned from manual laborers on advances, the argument of the assessee is that, these interest income have been received from persons who are all members of the assessee society. A detailed list of such interest income is furnished. In support of the claim, the assessee has derived strength from the decision of the ITAT Nagpur Bench in the case of ITO W-6(1) Nagpur Vs. Vidarbha Premier Co-op Housing Society Nagpur, in which case, the said society had claimed deduction u/s 80P(2)(a) on interest income received from staff members on advances. The Assessing Officer disallowed it. When, the matter reacted ITAT, the Honble ITAT Nagpur bench ruled that, interest income received from members on housing loan, festival advance etc.. are eligible for deduction u/s 80P(2)(a). The following is the relevant pad of the decision in the said case:-
"It is submitted that, income of Rs. 1,44,2211/- interest on loans and ITA No.2321Nag12012. Advances to staff are very much part of the activities of the appellant society. An organization cannot carry on its business efficiently without the aid of its employees. The appellant society provided housing loans, vehicle loans, grain advances, and festival advances to its employees. Interest was duly charged on the loans given. Moreover, the employees are themselves share holder of the appellant society and are also contributors to its funds in the form of term deposits. Hence, interest on credit facilities provided to the employees is eligible for deduction u/s. 80P(2)(a)(i)".
16. The facts in the case on hand are slightly different from the facts in the case of the said Vidarbha Premier Co-op Housing Society Nagpur. The assessee on hand has, apart from providing credit facility to members, has also derived income from other activities such as running of Kirana shop, plying carriage ITA No.1629/B/17 7 vehicles, running hospital, rice mill and hotel and income from such activities to the extent of Rs.57,83,110/- has been admitted for tax purpose. I find, the employees are common for both eligible and non- eligible activities. It can reasonably therefore, be presumed that. the advances are given out of funds which belong to both the activities. I therefore, take a view to hold that, justice would be done if the Assessing Officer is directed to allow the deduction u/s. 80P(2)(a) on such income in proportion to the profit earned from income which is attributable to the activity of providing credit facility to members. The grounds are therefore, partly allowed."
7. Aggrieved by the order of the CIT(A) Revenue has preferred ground No.3 before the Tribunal which reads a follows:-
"iii) On the facts and circumstances of the case and in law, the ClT(4) erred in allowing deduction u/s. 80P(2)(a) in respect of interests received from staff members on housing and educational loans and advances to labourers without appreciating that this income has not been earned from providing credit facility to its members.'''
8. We have heard the rival submissions. The AO denied the benefit of deduction claimed by the Assessee because of the provisions of Sec.80P(4) of the Act which lays down that deduction u/s.80P(2) of the Act will not be available to a co-operative Bank. The Hon'ble Supreme Court in the case of Citizens Co-operative Society Ltd. Vs. ACIT 397 ITR 1 (SC), has held that for doing business of banking one has to obtain license from Reserve Bank of India(RBI) and since the Assessee in that case which was a co- operative society did not have such license and further that Assessee also produced a certificate from RBI that it was not carrying on the ITA No.1629/B/17 8 business of banking, the Hon'ble Supreme Court held that it cannot be said to be a co-operative Bank. The other grievance of the revenue that the income earned is not from providing credit facilities to its members as membership is open to any member of the public. Such grievance would be addressed by setting aside the issue of deduction u/s.80P(2)(a)(i) of the Act to the AO for consideration afresh, with a direction to the Assessee to produce a certificate from RBI that it does not possess license from it for doing banking business and further that the business carried on by the Assessee is not akin to business of a co- operative bank. Further the first part of Sec.80P(2)(a)(i) allows deduction in respect of income derived by a co-operative society from the business of banking. Even the claim of the Assessee for deduction requires to be examined under the first part of Sec.80P(2)(a)(i) of the Act. Further the Hon'ble Supreme Court in the case of Citizens Co- operative Society Ltd. (supra) has also held it is also important to ascertain as to what is the nature of income which is claimed as exempt and as to how the principle of mutuality is not violated in respect of such income. An examination of (i)the memorandum of association, the articles of association, (ii) the byelaws and other documents explaining the rules and regulations of the society is necessary, so as to clearly understand the purpose and the nature of business done by it. An examination of the different categories of members of a society and what are the conditions attached to their being admitted as members and their rights as contributors of funds to the society and participants in surplus and the byelaws of the society ITA No.1629/B/17 9 is necessary. On this aspect of deduction u/s.80P(2)(a)(i) of the Act, the learned counsel for the Assessee's submission was that the AO in the order of assessment did not make out a case that income from dealing with nominal members would not be eligible for deduction u/s.80P(2)(a)(i) of the Act and by directing the AO to make an investigation into membership of the society and applying the principle of mutuality the Tribunal would permit the department to make out a new case for denying deduction u/s.80P(2)(a)(i) of the Act. We are however not persuaded by this argument for the reason that the law declared by the Hon'ble Supreme Court is deemed to be the law at all point of time and an examination of the claim for deduction in the light of the law as it always existed cannot put the Assessee in any disadvantageous position. Moreover the deduction u/s.80P2(a)(i) is allowed only in respect of income arising out of the transactions with the members and therefore to examine who are members would be necessary before a claim for deduction can be allowed. The relevant law governing co-operative societies of the concerned State providing status of different categories of members in so far as the affairs of the co-operative society are concerned, is also required to be examined. It is only income which arises from dealing with members and which is either in the nature of banking or providing credit facilities to members that would be allowed as deduction. All these aspects also require examination. We hold and direct accordingly. The AO will allow opportunity of being heard to the Assessee and filing appropriate evidence, if desired, by the ITA No.1629/B/17 10 Assessee to substantiate its case, before deciding the issue. The Assessee will also be at liberty to show that income earned is income from business of banking and some part of the income was earned by making investment in statutory reserves in fulfillment of law regarding maintenance of statutory reserves. We hold and direct accordingly.
9. In the result, appeal by the Revenue is treated as allowed for statistical purpose.
Order pronounced in the open court on 21st December, 2018.
Sd/- Sd/-
(JASON P BOAZ) (N.V VASUDEVAN)
ACCOUNTANT MEMBER VICE PRESIDENT
Bangalore
Dated : 21/12/2018
Vms
Copy to :1. The Assessee
2. The Revenue
3.The CIT concerned.
4.The CIT(A) concerned.
5.DR
6.GF By order
Asst. Registrar, ITAT, Bangalore
ITA No.1629/B/17
11
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