Rajendran R., CA (Written Submission) for the Petitioner. Sajjive (Sr.AR) for the Respondent.

This appeal at the instance of the assessee is directed against the order of the CIT(A), dated 10.12.2019 passed u/s. 154 (of Income Tax Act, 1961) r.w.s. 250 (of Income Tax Act, 1961). The relevant assessment year is 2014-2015.

2. The brief facts of the case are as follow:

The assessee is a co-operative society registered under the Kerala Co-operative Societies Act, 1969. For the assessment years under consideration, the returns of income were filed after claiming deduction u/s 80P (of Income Tax Act, 1961). The Assessing Officer passed order, disallowing the claim of deduction u/s 80P (of Income Tax Act, 1961). The reasoning of the Assessing Officer to disallow the claim of deduction u/s 80P(2) (of Income Tax Act, 1961) was that the assessee was doing the business of banking, and therefore, in view of insertion of section 80P(4) (of Income Tax Act, 1961) with effect from 01.04.2007, the assessee will not be entitled to the deduction u/s 80P(2) (of Income Tax Act, 1961).

3. Aggrieved by the order of assessment denying the claim of deduction u/s 80P(2) (of Income Tax Act, 1961), the assessee preferred appeal to the first appellate authority. The CIT(A) allowed the appeal by holding that the assessee was eligible for deduction u/s 80P (of Income Tax Act, 1961). In allowing the appeal of the assessee, the CIT(A) followed the judgment of the Hon’ble jurisdictional High Court in the case of Chirakkal Service Co-operative Co- operative Bank Ltd. v. CIT [(2016) 384 ITR 490 (Ker.).

4. Subsequently, the CIT(A) issued notice u/s 154 (of Income Tax Act, 1961) proposing to rectify his order passed, in view of the subsequent judgment of the Full Bench of the Hon’ble jurisdictional High Court in the case of The Mavilayi Service Co-operative Bank Ltd. v. CIT [ITA No.97/2016 order dated 19th March, 2019]. The assessee objected to the issuance of notice. However, the CIT(A) rejected the objections raised by the assessee and passed order u/s 154 (of Income Tax Act, 1961), disallowing the claim of the assessee u/s 80P(2) (of Income Tax Act, 1961).

5. Aggrieved by the order of the CIT(A), the assessee has filed this appeal before the Tribunal, raising the following grounds:-

“1) The order of the Commissioner of Income-tax (Appeals), Thrissur in rectifying is earlier order u/s 154 (of Income Tax Act, 1961) read with section 250 (of Income Tax Act, 1961) in so far as it is, is prejudicial to the appellant and is opposed to law and circumstances of the case.

2. The Poonjar Service Co-operative Bank Limited, The Vazhappilly Service Co-operative Bank Limited, The Kidangur Service Co-operative Bank Limited, The Kodiyeri Service Co- operative Bank Limited and The Mavilayi Service Co-operative Bank have preferred an appeal before the Honourable Supreme Court of India against the judgment of the Honourable High Court of Kerala in the case of The Mavilayi Service Co-operative Bank Limited v. CIT Calicut (ITA No.97 of 2016 and in 17 other cases) dated 19th March, 2019 and the same has been admitted. Hence, relying on the said decisions in rectifying the order is not in accordance with the law as the matter is still sub-judice.

3. The matter is sub-judice, since the appeal has been admitted by the Honourable Supreme Court of India. Hence, the matter is still debatable and is not a mistake apparent on records that warrants rectification. Hence, the rectification of the order is arbitrary and opposed to the facts of the case.

4. From the above grounds and such other grounds that may be adduced at the time of hearing the Honourable Tribunal may be pleased to intervene and render to the appellant by suitably modifying the impugned order in accordance with the law.”

6. None appeared on behalf of the assessee. However, a written submission has been filed on behalf of the assessee. Therefore, I proceed to dispose of this appeal on merits after hearing the learned Departmental Representative.

7. I have heard the learned Departmental Representative and perused the material on record and also the written submission filed on behalf of the assessee. The Hon’ble Kerala High Court in the case of Kil Kotagiri Tea & Coffee Estates Co. Ltd. v. ITAT reported in 174 ITR 579 had held that when an authority has decided on the basis of a decision of the High Court which is subsequently reversed, there would be a rectifiable mistake coming within the section 154 of the Income Tax Act, 1961. The Larger Bench of the Hon’ble Kerala High Court has reversed the dictum laid down by the judgment of the Hon’ble Kerala High Court in the case of Chirakkal Service Co-operative Bank Ltd. (supra) by holding that the activities of the assessee has to be examined to determine whether the assessee is Co-operative society or cooperative bank. In the light of the Larger Bench judgment of the Hon’ble Kerala High Court, the earlier CIT(A) order’s granting deduction u/s. 80P(2) (of Income Tax Act, 1961) have been rightly recalled by the CIT(A). Therefore, the grounds raised by the assessee that the CIT(A) has erred in passing order u/s. 154 (of Income Tax Act, 1961) are dismissed.

7.1 The Hon’ble jurisdictional High Court in the case of Chirakkal Service Co-operative Co-operative Bank Ltd. v. CIT [(2016) 384 ITR 490 (Ker.)] had held that when a certificate has been issued to an assessee by the Registrar of Co- operative Societies characterizing it as primary agricultural credit society, necessarily, the deduction u/s 80P(2) (of Income Tax Act, 1961) has to be granted to the assessee. However, the Full Bench of the Hon’ble Kerala High Court in the case of The Mavilayi Service Co-operative Bank Ltd. v. CIT (supra) had reversed the above findings of the Hon’ble Kerala High Court in the case of Chirakkal Service Co-operative Co-operative Bank Ltd. v. CIT (supra). The Larger Bench of the Hon’ble Kerala High Court in the case of The Mavilayi Service Co- operative Bank Ltd. v. CIT (supra) held that the Assessing Officer has to conduct an inquiry into the factual situation as to the activities of the assessee society to determine the eligibility of deduction u/s 80P (of Income Tax Act, 1961). It was held by the Hon’ble High Court that the Assessing Officer is not bound by the registration certificate issued by the Registrar of Kerala Co-operative Society classifying the assessee-society as a co-operative society. The Hon’ble High Court held that each assessment year is separate and eligibility shall be verified by the Assessing Officer for each of the assessment years. The finding of the Larger Bench of the Hon’ble High Court reads as follows:-

“33. In view of the law laid down by the Apex Court in Citizen Co-operative Society [397 ITR 1] it cannot be contended that, while considering the claim made by an assessee society for deduction under Section 80P (of Income Tax Act, 1961), after the introduction of sub-section (4) thereof, the Assessing Officer has to extend the benefits available, merely looking at the class of the society as per the certificate of registration issued under the Central or State Co-operative Societies Act and the Rules made thereunder. On such a claim for deduction under Section 80P (of Income Tax Act, 1961), the Assessing Officer has to conduct an enquiry into the factual situation as to the activities of the assessee society and arrive at a conclusion whether benefits can be extended or not in the light of the provisions under sub-section (4) of Section 80P (of Income Tax Act, 1961).

33. In Chirakkal [384 ITR 490] the Division Bench held that the appellant societies having been classified as Primary Agricultural Credit Societies by the competent authority under the KCS Act, it has necessarily to be held that the principal object of such societies is to undertake agricultural credit activities and to provide loans and advances for agricultural purposes, the rate of interest on such loans and advances to be at the rate to be fixed by the Registrar of Co-operative Societies under the KCS Act and having its area of operation confined to a Village, Panchayat or a Municipality and as such, they are entitled for the benefit of sub-section (4) of Section 80P (of Income Tax Act, 1961) to ease themselves out from the coverage of Section 80P (of Income Tax Act, 1961) and that, the authorities under the IT Act cannot probe into any issues or such matters relating to such societies and that, Primary Agricultural Credit Societies registered as such under the KCS Act and classified so, under the Act, including the appellants are entitled to such exemption.

34. In Chirakkal [384 ITR 490] the Division Bench expressed a divergent opinion, without noticing the law laid down in Antony Pattukulangara [2012 (3) KHC 726] and Perinthalmanna [363 ITR 268]. Moreover, the law laid down by the Division Bench in Chirakkal [384 ITR 490] is not good law, since, in view of the law laid down by the Apex Court in Citizen Co-operative Society [397 ITR 1], on a claim for deduction under Section 80P (of Income Tax Act, 1961), by reason of sub-section (4) thereof, the Assessing Officer has to conduct an enquiry into the factual situation as to the activities of the assessee society and arrive at a conclusion whether benefits can be extended or not in the light of the provisions under sub-section (4) of Section 80P (of Income Tax Act, 1961).

In view of the law laid down by the Apex Court in Citizen Co- operative Society [397 ITR 1] the law laid down by the Division Bench Perinthalmanna [363 ITR 268] has to be affirmed and we do so.

35. In view of the law laid down by the Apex Court in Ace Multi Axes Systems’ case (supra), since each assessment year is a separate unit, the intention of the legislature is in no manner defeated by not allowing deduction under Section 80P (of Income Tax Act, 1961), by reason of sub-section (4) thereof, if the assessee society ceases to be the specified class of societies for which the deduction is provided, even if it was eligible in the initial years.”

7.2 The CIT(A) had initially allowed the appeal of the assessee and granted deduction u/s 80P(2) (of Income Tax Act, 1961). Subsequently, the CIT(A) passed order u/s 154 (of Income Tax Act, 1961), wherein the claim of deduction u/s 80P (of Income Tax Act, 1961) was denied, by relying on the judgment of the Larger Bench of the Hon’ble jurisdictional High Court in the case of The Mavilayi Service Co-operative Bank Ltd. v. CIT (supra). The CIT(A) ought not to have rejected the claim of deduction u/s 80P(2) (of Income Tax Act, 1961) without examining the activities of the assessee- society. The Full Bench of the Hon’ble jurisdictional High Court in the case of The Mavilayi Service Co-operative Bank Ltd. V. CIT (supra) had held that the A.O. has to conduct an inquiry into the factual situation as to the activities of the assessee society to determine the eligibility of deduction u/s 80P (of Income Tax Act, 1961). In view of the dictum laid down by the Full Bench of the Hon’ble jurisdictional High Court (supra), I restore the issue of deduction u/s 80P(2) (of Income Tax Act, 1961) to the files of the Assessing Officer. In this case, the A.O. had concluded that out of the total loan disbursed by the assessee only 12.54% are for agricultural purpose / allied activities. I am of the view that the above finding of the A.O. is not conclusive unless each loan applications / loan ledger are verified and the A.O. after necessary verification has to conclude that the assessee is not engaged primarily for providing credit facilities for agricultural purpose / allied activities. Therefore, the Assessing Officer shall examine the activities of the assessee afresh and determine whether the activities are in compliance with the activities of a co-operative society functioning under the Kerala Co-operative Societies Act, 1969 and accordingly grant deduction u/s 80P(2) (of Income Tax Act, 1961).

8. In the result, the appeal filed by the assessee allowed for statistical purposes.

Order pronounced on this 05th day of June, 2020.

Sd/-

(GEORGE GEORGE K.)

JUDICIAL MEMBER

Cochin, dated 05th June, 2020