TaxTMI 
TaxTMI 
TaxTMI 
2022 (1) TMI 351
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....o employees under various heads, holding it as not eligible for deductible u/s 80P(2)(a)(i) of IT Act, ignoring the finding of the ld. CIT(A) in assessee's own case in A.Y. 2010-11 and A.Y. 2012-13 being final finding against which ld. AO did not prefer second appeal before this Hon'ble ITAT. 2. Ld. CIT(A) was not justified in not agreeing to the Exp.5 to Section 32 of IT Act and thereby rejecting the alternate claim of the assessee in not allowing depreciation @ 10% amounting to Rs. 4,58,960/- on addition of Rs. 45,89,604/- to building-put in use by the assessee co-operative bank in its day to day work." 2. Ground No. 1 of the appeal is regarding disallowance of deduction U/s 80P(2)(a)(i) of the Income Tax Act, 1961 (in short, the Act) ....
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....the A.Y. 2010-11 and 2012-13 and submitted that the department has not challenged the orders of the ld. CIT(A) for those assessment years and therefore, the same has attained finality. Thus, the ld. AR has submitted that the issue is covered by the orders of the ld. CIT(A) for the A.Y. 2010-11 and 2012-13. He has also relied upon the decision of the Hon'ble Supreme Court in the case of Citizen Co-operative Society Ltd. Vs ACIT (2017) 397 ITR 1 (SC) and submitted that Section 80P of the Act is benevolent provisions which was enacted in order to encourage and promote the growth of the cooperative sector. Once the assessee is entitled to avail the deduction, the entire amount of profit and gains of business that are attributable to any one or ....
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.... Supreme Court. He has filed details of the reported decision of the Hon'ble Supreme Court whereas the SLP has been admitted against the order of the Hon'ble High Court. 5. I have considered the rival submissions as well as the relevant material on record. There is no dispute that the assessee has earned interest income in question on the loans and advances given to the employees of the assessee cooperative society. So far as the eligibility of assessee to claim deduction U/s 80P of the Act is concerned, there is no dispute that on this issue, as the A.O. has disallowed only one part of the assessee's income which is not earned from the business activity of the assessee with the Members of the assessee society but the said income was earne....
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....) (321 ITR 533) (Raj), wherein the Hon'ble High Court, on identical facts, has held as under:- "25. In our view, an advancement of loan to the employee was not in the capacity of the banker, but was in the capacity of it being an employer to its employees, in the form of loan against PF deposits, and for the loan for house building. Admittedly, interest in question has been received from the employees who are not its members. 26. We may at this place also refer one of the judgment of the Tribunal as well of Jaipur Bench being dated 30-6-1986, reported in Rajasthan Rajya Sahakari Bhoomi Vikas Bank Ltd. v. ITO [1986] 19 ITD 674 , wherein para 10, it has been held by the Tribunal, in respect of interest on advances to its staff, and sa....
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.... the Act. The action of AO does not call for any interference. Accordingly, the total addition of Rs. 5,66,036/- made by the AO on this account is confirmed. This ground of appeal is dismissed." Thus, it is clear that the ld. CIT(A) has relied upon the decision of Hon'ble Jurisdictional High Court in the case of CIT Vs S.B.V. Bank Ltd. (supra) which is a binding precedent. Though the Hon'ble Supreme Court had admitted the SLP filed by the assessee in the said case, however, no stay was granted by the Hon'ble Supreme Court against the decision of the Hon'ble High Court, therefore, so long the decision of the Hon'ble High Court is in operation and holds the field, the same is binding on this Tribunal. Hence, I do not find any error or illega....
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....s bound to allow the depreciation irrespective of the claim made by the assessee in the return of income. The ld. AR has referred to the balance sheet of the assessee as part of audit report and submitted that once the assessee has shown the asset under the head of building then the depreciation is an allowable claim. 8. On the other hand, the ld. DR has submitted that the assessee has not claimed any depreciation in the return of income nor during the assessment proceedings but this is a fresh claim made by the assessee before the ld. CIT(A) as well as before this Tribunal. The A.O. has disallowed the claim of provision made for building fund which is not challenged by the assessee but the assessee has made a new claim of depreciation. Sh....