TMI Blog2021 (4) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... - ITA No.2418/MUM/2019 - - - Dated:- 5-3-2021 - Shri Rajesh Kumar (Accountant Member) And Shri Ravish Sood (Judicial Member) For the Assessee : Shri Bhupendra Shah, A.R For the Revenue : Ms. Smita Verma, D.R ORDER PER RAVISH SOOD, J.M: The present appeal filed by the assessee is directed against the order passed by the CIT(A-18, Mumbai, dated 14.03.2019, which in turn arises from the assessment order passed by the A.O under Sec. 143(3) of the Income Tax Act, 1961 (for short Act ), dated 11.12.2017 for A.Y. 2015-16. The assessee has assailed the impugned order on the following grounds of appeal before us: 1. In the facts and circumstances of the case and in law, the learned A.O. erred in not granting deduction u/s 80P(2)(d) amounting to ₹ 19,36,997/- by way of income from other sources in respect of interest earned on fixed deposit with Co-operative banks. 2. In the facts and circumstances of the case and in law, the learned Commissioner of Income Tax(A) erred in confirming the same by rejecting written submissions and several judgments cited before him. 3. The A.O has wrongly charged interest u/s 234A, B C and wrongly initiated pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Officer 24(1)(4) Vs. M/s Citiscape Co Op Housing Society Ltd., Mumbai ITAT (iii) M/s Parsik Janata Sahakari Bank Ltd. Vs. Income Tax Officer, Mumbai ITAT, 50 ITD 318 Mum. (iv) M/s Jafari Momin Vikas Co Op Credit Society Ltd. Vs. Income Tax Officer, Ahmedabad (v) Income Tax Officer Vs. M/s Divyajyothi Credit Co-operative Society Ltd., Bangalore (vi) M/s Kaliandas Udyog Bhavan Premises Co-op Society Ltd. Vs. Income Tax Officer, Mumbai (vii) M/s Lady Ratan Tower Cooperative Housing Society Ltd. Vs. Income Tax Officer, Mumbai (viii) Principal Commissioner of Income Tax an Another Vs. Totagars Co-Operative Sale Society, Karnataka High Court. It was the claim of the ld. A.R that as a co-operative bank fell within the realm of the definition of co-operative society as contemplated in Sec. 2(19) of the Act thus, no adverse inferences as regards its entitlement for deduction under Sec.80P(2)(d) of its interest income on the investments held with the co-operative bank was liable to be drawn. 6. Per contra, the ld. Departmental Representative (for short D.R ) relied on the order of the lower authorities. 7. We have heard the authorized representatives for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agricultural Credit Society nor a Primary Co-operative Agricultural and Rural Development Bank, therefore, the interest income earned on such investments would not be entitled for claim of deduction under Sec. 80P(2)(d) of the Act. 7. We have deliberated at length on the issue under consideration and are unable to persuade ourselves to be in agreement with the view taken by the lower authorities. Before proceeding further, we may herein reproduce the relevant extract of the said statutory provision, viz. Sec. 80P(2)(d), as the same would have a strong bearing on the adjudication of the issue before us. 80P(2)(d) (1). Where in the case of an assessee being a co-operative 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 sub-section (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).............................................................. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, but however, as a co-operative 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 enforced 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. 8. We shall now advert to the judicial pronouncements that had been relied upon by the authorized representatives for both the parties and the lower authorities. We find that the issue that a co-operative society would be entitled for claim of deduction under Sec. 80P(2)(d) for the interest income derived from its investments held with a cooperative bank is covered in favour of the assessee in the following cases: (i) Land and Cooperative Housing Society Ltd. Vs. ITO (2017) 46 CCH 52 (Mum) (ii) M/s C. Green Cooperative Housing and Society Ltd. Vs. ITO-21(3)(2), Mumbai (ITA No. 1343/Mum/2017, dated 31.03.2017 (iii) Marvwanjee Cama Park Cooperative Housing Society Ltd. Vs. ITO-Range-20(2)(2), Mumbai (ITA No. 6139/Mum/2014, dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Ltd. Vs. ITO (ITA No. 2379/Mum/2015, dated 15.01.2016, would also not be of any assistance, for the reason that in the said matter the Tribunal had set aside the issue to the file of the assessing officer for fresh examination. That as regards the reliance placed by the ld. D.R on the judgment of the Hon'ble High Court of Karnataka in the case of Pr. CIT Vs. Totagars co-operative Sale Society (2017) 395 ITR 611 (Karn), the High Court had concluded that a co-operative society would not be entitled to claim of deduction under Sec. 80P(2)(d). We however find 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. Thus, 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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