2018 (2) TMI 2117 - HC - Income Tax

Cooperative society denied Section 80P exemption as primary activity was commercial construction not serving fixed members

Adarsh Sahkari Grih Nirman Swawlambi Samiti Ltd., Versus Commissioner of Income Tax, Jamshedpur, Deputy Commissioner of Income Tax, Circle-1, Jamshedpur.

Adarsh Sahkari Grih Nirman Swawlambi Samiti Ltd., Versus Commissioner of Income Tax, Jamshedpur, Deputy Commissioner of Income Tax, Circle-1, Jamshedpur. ... Issues Involved:1. Applicability of Section 80P (2) (a) (i) of the Income-tax Act for exemption on transfer fees and interest receipts.2. Nature of the appellant's business and its eligibility for tax deductions.3. Calculation of profit rate under Section 44AD of the Income-tax Act.4. Imposition of costs and directions for payment towards the Juvenile Justice Fund.Issue-wise Detailed Analysis:1. Applicability of Section 80P (2) (a) (i) of the Income-tax Act for exemption on transfer fees and interest receipts:The appellant claimed exemption under Section 80P (2) (a) (i) of the Income-tax Act, arguing that as a Cooperative Society, it is exempt from income tax on transfer fees received from members. The court noted that the main activity of the appellant is the construction and sale of dwelling units to the public, and not providing credit facilities to its members. The court held that the transfer fee is part and parcel of the sale price and is not exempt. The interest receipts were also not exempt as they did not arise from providing credit facilities to members but were incidental to the business of selling flats. Hence, the provisions of Section 80P (2) (a) (i) were not applicable.2. Nature of the appellant's business and its eligibility for tax deductions:The court observed that the appellant's primary business is constructing and selling residential flats, and the members are not fixed or definite. The transfer fee received from new members joining the society is considered part of the sale price. The court emphasized that the appellant's business is commercial in nature, and the interest receipts are incidental, thus not qualifying for deductions under Section 80P (2) (a) (i). The court cited the Supreme Court judgments in Tatgars' Cooperative Sale Society vs. Income Tax Officer and Citizen Cooperative Society Limited vs. Assistant Commissioner of Income Tax, which supported the view that interest income on surplus funds not required for business purposes falls under 'Income from other sources' and is taxable.3. Calculation of profit rate under Section 44AD of the Income-tax Act:The court noted that the Assessing Officer had shown leniency by calculating the profit at a rate of 5% instead of the prescribed 8% under Section 44AD of the Income-tax Act. The court emphasized that the authorities cannot be more charitable than the law and the correct rate should have been applied.4. Imposition of costs and directions for payment towards the Juvenile Justice Fund:The court dismissed the Tax Appeal, stating that no substantial question of law was involved. The appellant was ordered to pay costs of Rs. 5000/- to be deposited with the Secretary, Department of Women and Child Development & Social Welfare, Government of Jharkhand, towards the Juvenile Justice Fund. The amount is to be utilized for the welfare of juveniles as per the duties assigned by the State in the Juvenile Justice Act. The court also directed that a copy of the order be sent to the relevant authorities.Conclusion:The court upheld the decisions of the Assessing Officer, the Commissioner of Income Tax (Appeals), and the Income Tax Appellate Tribunal, dismissing the appeal and imposing costs on the appellant. The court found no merit in the appellant's claims for exemption under Section 80P (2) (a) (i) and emphasized the commercial nature of the appellant's business, which disqualified it from the claimed tax deductions.