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TMI Blog2020 (3) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... hort-term deposits and government securities was held to be taxable under the head income from other sources u/s 56 of the Income Tax Act and the Apex Court affirmed the principle that it cannot be said to be attributable to the activities of the society and hence did not qualify for deduction u/s 80P(2)(a)(i) of the Act. The Apex Court affirmed the principle that income in respect of which deduction is sought, must constitute the operational income and not other income which accrues to the society. Accordingly, the arguments de hors facts that the decision of the Apex Court in the case of M/s Totgar Co-op Sale Society Ltd. is not applicable, we unambiguously hold is incorrect and of no relevance whatsoever. Its non-applicability to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been filed by the assessee wherein the correctness of the separate orders, dated 08.03.2017 and 11.09.2018, of CIT(A) Patiala pertaining to 2014-15 and 2015-16, assessment years was assailed on identical grounds. Accordingly, it was common stand of the parties before the Bench that the arguments advanced in ITA 1006/CHD/2017, would fully apply to the facts, circumstances and arguments in ITA 1598/CHD/2018. 2. The ld. AR submitted that in the facts of the present case, the assessee has been granted 80P deduction in the earlier years and only in these two years, the claim has been denied. The assessee, it was submitted, is Co-operative House Building Society wherein the only activity is the borrowings made from the members and the non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Totgar Co-operative Sale Society Ltd. v. ITO [2010] 188 Taxman 282/322 ITR 283. It was his submission that the said decision has been distinguished in many cases and has been held to be inapplicable. 4. Attention of the ld. AR was invited to the finding of the AO recorded in para 3 wherein he categorically observes that the assessee-society does not confirm to the scheme of Section 80P of the Income Tax Act. The specific reasons set out in the order were required to be addressed by the ld. AR. These are extracted hereunder for ready reference: (a) The Society has accepted deposits from non-members by opening savings bank account, FD Account and R.D. Account of non-members. (b) The Society has staked surplus funds in the lon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cifically put to notice by the Co-ordinate Bench on 29.04.2018, as per the order sheet. 7. The ld. AR referring to para 4 of the assessment order submitted that the assessee in its submissions has canvassed that no services are being provided to the non-members, the money was for the benefit of the members only. The ld. AR in this factual background was required to address referring to the by-laws of the society as to on what terms and conditions, the non-members were depositing money. The ld. AR submitted that in the Paper Books filed, copy of by-laws has not been provided, though one copy maybe available with him. The ld. AR's attention was invited to the order sheet entry, dated 29.04.2019, where he was specifically required to ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ITAT can be said to have been passed in defiance of the principle laid down by the Apex Court in the aforesaid case. All Courts and Tribunals are bound by the decisions of the Apex Court. However, where on facts, the decision has been misapplied by the AO basing his conclusions on incorrect appreciation of the principle on facts of certain cases, the Courts and the Tribunals would set right the mistake. Thus, the generalistic argument that the decision rendered by the Apex Court in the case of M/s Totgar Co-op Sale Society Ltd. is no longer good law has to be outrightly repelled. The principle laid down in the said decision has been followed in each and every case and cannot be ignored at the whims of the assessee. 11. In the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise has to be done by the assessee in terms of the by-laws of the assessee-society wherein the assessee has been required to explain its acts of collecting deposits from non-members on which interest is being paid and address its arguments on whether it is a banking co-operative society, licensed to do so which stand has not been clarified by the assessee-society since 29.04.2019, despite the fact that the appeal came up for hearing thereafter on 10.06.2019, 07.08.2019 and finally on 26.09.2019. In the circumstances, agreeing to the request of the parties, the matter is remanded back with the aforesaid directions. Said order was pronounced in the Open Court at the time of hearing itself. 12. In the result, appeals of the assessee are a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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