TaxTMI 
TaxTMI 
2021 (9) TMI 453
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....r that specific facts and judicial finding referred by the assessee has been considered by the ITAT while adjudicating impugned issue. The relevant finding on this issue of the ITAT is reproduced as under:- "8. We have heard both the sides and perused the material on record. During the course of appellate proceedings before us, the ld. counsel has placed reliance upon the decision of Hon'ble High Court of Gujarat in the case of CIT-II Vs. Sabarkantha District Co-operative Milk Producers Union Ltd. Vide Tax Appeal No. 473 of 2014. We have perused the above referred decision of the Hon'ble High Court of Gujarat where the order of the ITAT vide ITA No. 2613/Ahd/2012 dated 27-09-2013 of upholding the order of the CIT(A) in deleting the disallowance of Rs. 1,42,19,515/- under section 80P(2)(d) was sustained. We have perused the order of ITAT Ahmedabad vide ITA no. 2613/Ahd/2012 for assessment year 2009-10 against which the Revenue has preferred appeal before the Hon'ble High Court of Gujarat with substantial question of law "whether the Appellate Tribunal has substantially erred in upholding the order of CIT(A) in deleting the disallowance of Rs. 1,42,19,515/- u/s. ....
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.... way of interest earned by deposit of idle fund does not change its character irrespective of the fact whether such income of interest is earned from a schedule bank or a co- operative bank. The identical issue on the similar facts has been adjudicated by the Co-ordinate Bench of the ITAT after considering the decision of Hon'ble High Court of Karnatka in the case of Pr. CIT s. Tatagars Co-operative Sale Society (2017) 83 taxman.com 140 (Karnataka) dated 16th June, 2017. On the same proposition the Co-ordinate Bench of the ITAT vide ITA Nos. 1992/Ahd/2017, 1313/Ahd/2018, 1314/Ahd/2018, 1295/Ahd/2018 & 1296/ahd/2018 dated 29/08/2018 in the cases of The Narsanda Mercantile Co. Op. Credit Society Ltd., The Sant Taluka Teachers Co-op. Credit Society Lt d. , The Satyaprak ash Co-op. Credit Society Ltd., Shri Friends Co-op. Credit Society Ltd. and Shri Shramjivi Nagrik Sahakari Mandli Ltd. has adjudicated the identical issue on similar fact and held that earning of interest income either from nationalized or co-operative bank is not entitled for deduction u/s. 80P(2)(d) of the act. The relevant part of decision of Co-ordinate Bench is reproduced as under:- "7. We have heard ....
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....ociety also accepts deposits from its members and provides credit facility to its members, runs Mahalaxmi Credit Co-op. Society Ltd. vs. ITO Kirana Stores, rice mills, live stocks, van section, medical shops, lodging, plying and hiring of goods carriage, etc. [Para 10] The assessment years involved in the instant appeals are assessment years 2007-08 to 2011-12. The bone of contention is that the deduction under section 80P(2) is now claimed by the assessee under section 80P(2)(d) and not under section 80P(2)(a) of the Act. The reason is that now the investments and deposits after the Supreme Court's decision against the assessee in Totgar's Co-operative Sale Society Ltd. v. ITO [2010] 322 ITR 283/188 Taxman 282 (SC), the assessee herein has shifted the deposits and investments from Schedule Banks to Co- operative Bank and such Co-operative Bank is essentially a Co-operative Society also and clause (d) allows deduction of income by way of interest or dividends derived by the assessee co-operative Society from its investments with any other co-operative Society. [Para 11] The sheet anchor of the contention of the assessee misses two essential points required for claiming the ....
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....y the assessee, a cooperative society from a Co-operative Bank. This exclusion by section 80P(4) even though without any amendment in section 80P(2)(d) is sufficient to deny the claim of the assessee for deduction under section 80P(2)(d). The only exception is that of a primary agricultural credit society. The depository Kanara District Central Bank Limited in the present case is admittedly not such a primary agricultural credit society. [Para 14] The amendment of section 194A(3)(v) excluding the Co-operative Banks from the definition of 'Co-operative Society' by Finance Act, 2015 and requiring them to deduct tax at source under section 194A also makes the legislative intent clear that the co-operative banks are not that specie of genus co-operative society, which would be entitled to exemption or deduction under the special provisions of chapter VIA in the form of section 80P of the Act. [Para 15] Mahalaxmi Credit Co-op. Society Ltd. vs. ITO If the legislative intent is so clear, then it cannot be contended that the omission to amend clause (d) of section 80P(2) of the Act at the same time is fatal to the contention raised by the revenue before this Court and sub silentio,....
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.... deposit or investment of idle or surplus does not change its character irrespective of the fact whether such income of interest is earned from a schedule bank or a co-operative bank and thus clause (d) of section 80P(2) of the act would not apply in the facts and the circumstances of the present case. The assessee has earned interest income on surplus funds deposited with nationalized bank and the cooperative Bank and the same is not attributable to business operation of the assessee co-operative society as interest earned on the fund invested with the commercial bank is not operational income from providing credit facilities to its members. We consider that earning of such interest income either from nationalized or cooperative bank will not change nature and character of the income. On perusal of the provision of section we observe such deduction is pertinent to the operational income earned by the co-operative society from the activities in which it is engaged and not the other income which accrues to the society in the form of interest from investment of surplus funds with the cooperative bank. After considering the facts and legal finding, we do not find any merit in the appe....
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....arts from 1st Feb, 2020 to 31st July, 2020. However, the Miscellaneous Application has been filed by the assessee on 1st Sep, 2020 in spite of the fact that as per record the order of the ITAT dated 30th Jan, 2020 was received by the assessee on 19th Feb, 2020. Therefore, the Miscellaneous Petition has not been filed within the time limit prescribed under the provision of section 254(2) of the Act. It is further noticed that the appeal of the assessee was not adjudicated ex-parte vide order dated 30th January, 2020 of the ITAT, therefore, there is no breach of rule 24 of the ITAT. In this regard, we also placed reliance on the decision of ITAT Pune vide M.A. 38/Pun/2017 (Arising out of ITA No. 923/Pun/2011) A.Y. 2003-04. The relevant part of the findings of the ITAT is reproduced as under:- "4. We have heard the submissions made by representatives of rival sides. This Miscellaneous Application has been filed by the assessee u/s. 254(2) of the Act seeking rectification in the order of Tribunal dated 29-07-2016. The provisions of section 254(2) have been amended by the Finance Act, 2016 w.e.f. 01-06-2016. The amended provisions of Sub- section (2) of Section 254 reads as ....