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Income Tax Appellate Tribunal - Bangalore

M/S Sri M Vishweshwaraiah C-Op Society ... vs Income Tax Officer Ward-1 , Shivamogga on 4 May, 2018

               IN THE INCOME TAX APPELLATE TRIBUNAL
                     "SMC-C" BENCH : BANGALORE

     BEFORESHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER

                              ITA No.2517/Bang/2017
                             Assessment Year :2011-12

          M/s. Sir M. Vishweshwaraiah
          Co-operative Society Ltd.,
          Sir M. Vishweshwaraiah                 The Income Tax Officer,
          Complex,                           Vs. Ward - 1,
          Tilak Nagar, Main Road,                Shivamogga.
          Shivamogga - 577 201.
          PAN: AAAJS1122K
                   APPELLANT                            RESPONDENT

            Appellant by        :   Shri Ravishankar, Advocate
            Respondent by       :   Shri Abdul Hakeem .M, JCIT (DR)

                    Date of hearing                :   24.04.2018
                    Date of Pronouncement          :   04.05.2018

                                   ORDER
Per Shri A.K. Garodia, Accountant Member

This is an assessee's appeal directed against the order of ld. CIT (A), Davangere dated 01.05.2017 for Assessment Year 2011-12.

2. The grounds raised by the assessee are as under.

"1. The orders of the authorities below in so far as they are against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case.

2. The learned CIT [A] is not justified in upholding the denial of the deduction claimed by the appellant u/s.80P [2] [a] [i] of the I.T.Act, in respect of a sum of Rs.20,72,352/- being the interest earned on investments made by the appellant holding that the same has to be assessed under the head "Other Sources" under the facts and in the circumstances of the appellant's case.

3. Without prejudice to the above, the learned CIT [A] ought to have appreciated that the gross interest earned by the appellant cannot be regarded as income without allowing proportionate expenses incurred by the appellant under the facts and in the circumstances of the appellant's case.

4. Without prejudice to the right to seek waiver with the Hon'ble ITA No.2517/Bang/2017 Page 2 of 3 CCIT/DG, the appellant denies itself liable to be charged to interest u/s. 234B of the Act, which under the facts and in the circumstances of the appellant's case deserves to be cancelled.

5. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs."

3. It is submitted by ld. AR of assessee that ld. CIT(A) has followed the judgement of Hon'ble Karnataka High Court rendered in the case of PCIT and Another Vs. Totagars Co-operative Sale Society as reported in395 ITR 611 (Karn) but in the present case, this judgement is not applicable and another judgement of Hon'ble Karnataka High Court rendered in the case of Tumkur Merchants Souharda Credit Cooperative Ltd. Vs. ITO as reported in 230 Taxman 309 is applicable and therefore, the issue should be decided in favour of the assessee by following this judgement of Hon'ble Karnataka High Court rendered in the case of Tumkur Merchants Souharda Credit Cooperative Ltd. Vs. ITO (supra). At this juncture, the bench pointed out that both these judgements of Hon'ble Karnataka High Court are on same line but ultimate conclusion is different because the facts are different. The bench pointed out that in the case of PCIT and Another Vs. Totagars Co-operative Sale Society(supra), it was found that the investment made in the bank was out of liability of the assessee and not out of assessee's own funds and therefore, the issue was decided against the assessee but in the case of Tumkur Merchants Souharda Credit Cooperative Ltd. Vs. ITO (supra), the investment made in the bank was assessee's own funds and not out of liability of assessee and therefore, the issue was decided in favour of the assessee. The bench wanted to know regarding this factual aspect in the present case. In reply, it was submitted by ld. AR of assessee that the same are not readily available and therefore, the matter may be restored back to the file of AO/CIT (A) for fresh decision after examining the facts of the present case in the light of these two judgements. The ld. DR of revenue supported the order of CIT(A).

4. I have considered the rival submissions and in the facts of the present case, I restore the matter back to the file of CIT (A) for fresh decision in the light of above discussion after providing adequate opportunity of being heard to both sides. The CIT(A) should examine the facts of the present case and if it is found that the facts of the present case are in line with the facts in the case of PCIT and Another Vs. Totagars Co-operative Sale Society(supra), then the issue should be decided against the assessee and if the facts of the present case are in line with the facts in the case of Tumkur Merchants Souharda Credit Cooperative Ltd. Vs. ITO (supra), then the issue should be decided in favour of the assessee.

5. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on the date mentioned on the caption page.

Sd/-

(ARUN KUMAR GARODIA) Accountant Member Bangalore, Dated, the 04th May, 2018.

/MS/ Copy to:

1. Appellant 4. CIT(A)

2. Respondent 5. DR, ITAT, Bangalore

3. CIT 6. Guard file By order Senior Private Secretary, Income Tax Appellate Tribunal, Bangalore.