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TMI Blog2021 (2) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... due consideration of issue of deduction u/s 80P(2)(d). Whether the view taken by Ld. AO was in accordance with law or not ? - As it could be observed that there were two possible views on the issue at the time of framing of assessment. Dealing with similar conflicting position, Mumbai Tribunal in the case of Kaliandas Udyog Bhavan Premises Co-op Society Ltd. V/s ITO [ 2018 (4) TMI 1678 - ITAT MUMBAI ] relying upon the order of Hon'ble High Court of Bombay in the case of K. Subramanian V/s Siemens India Ltd. [ 1983 (4) TMI 3 - BOMBAY HIGH COURT ] held that where there are conflicting decisions of non-jurisdictional High Courts then a view which is in favor of the assessee is to be preferred as against that taken against him. Hence, the coordinate bench chose to took a view that interest income earned by a co-operative society on its investments held with a co-operative bank would be eligible for claim of deduction under Sec.80P(2)(d) of the Act. Similar favorable view has been taken in various subsequent decisions of this Tribunal which has already been tabulated by Ld. AR in the legal paper-book. In view of the fact that no decision of the jurisdictional High court holding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded are erroneous without a finding that the order is erroneous and how that is so. A mere setting aside to the Assessing Officer implies that the CIT has not decided whether the order is erroneous but has directed the Assessing Officer to decide the aspect which is not permissible. c) Principal CIT - 7 erred in not appreciating the reply filed in detailed along with evidences which were on record and also not considering the fact that the assessment taken up for scrutiny only to verify the deduction claimed. 4. On the facts and circumstances of the case and in law, the Principal CIT - 25 erred in setting aside the order though there is no error in the order as the AO has allowed deduction under section 80P(2)(d) after verification and considering the various judgments available before him and therefore order is not an erroneous order and hence the same cannot be subject to provisions of section 263. 5. Without prejudice to above the Principal CIT - 25 erred in not considering that the deduction is otherwise allowable under Section 80(2)(d) in respect of interest received from Cooperative Society. 3. We have carefully heard the rival submissions and perused relevant material on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO chose to accept the returned income filed by the assessee. 6. Upon perusal of above factual matrix, it is quite evident that a specific query was raised by Ld. AO during original assessment proceedings regarding deduction claimed u/s 80P(2)(d) which were duly responded to by the assessee. The decision of this Tribunal rendered in Lands End Co-operative Housing Society Ltd. (ITA No.3566/Mum/2014 dated 15/01/2016) was brought to the notice of Ld. AO in support of the deduction. Therefore, it could be concluded that Ld. AO was clinched with the issue of deduction u/s 80P(2)(d) and assessee s claim was allowed after due application of mind and a view was already taken in the matter. 7. Subsequently, Ld. Pr. CIT, upon perusal of case records, opined that the order would require revision u/s 263 since the deduction u/s 80P(2)(d) as granted by Ld. AO on account of interest received by assessee from cooperative bank was required to be denied. The failure to do so has resulted into under assessment of income. Accordingly, a show cause notice was issued to the assessee on 04/12/2019 proposing revision of the order. In the notice, it was pointed out that that cooperative bank are commercia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready taken in the matter. Therefore, the allegation of Ld. Pr. CIT that the deduction was allowed without verification and necessary inquires is bereft of any merits. We find that it not a case of no inquiry but it is a case wherein a plausible / possible view has been taken by Ld. AO after due consideration of issue of deduction u/s 80P(2)(d). 11. The only question that survive for consideration is that whether the view taken by Ld. AO was in accordance with law or not ? We find that the assessee had relied upon favorable decision of this Tribunal in Lands End Co-operative Housing Society Ltd. (ITA No.3566/Mum/2014 dated 15/01/2016) which was rendered after considering the decision of Hon ble Apex Court in Totgars Co-operative Sale Society Ltd. V/s ITO (2010 322 ITR 283). Further, at the time of framing of assessment on 08/11/2017, the favorable decision of Hon ble Karnataka High Court rendered in Pr. CIT V/s Totgars Co-operative Sale Society Ltd. (392 ITR 74 05/01/2017) holding the view that co-operative bank should be considered as co-operative societies, was also available. This decision has similarly distinguished the cited decision of Hon ble Apex Court. However, there was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Income-tax Officer is unsustainable in law. The said principal has been reiterated by Hon ble Court in its subsequent judgment titled as CIT V/s Max India Ltd. (295 ITR 282). Similar principal has been followed by jurisdictional High Court in Grasim Industries Ltd. V/s CIT (321 ITR 92). The Hon ble Delhi High Court, CIT V/s Vikas Polymers (194 Taxman 57 16/08/2010) observed that as regards the scope and ambit of the expression erroneous , Hon ble Bombay High Court in CIT vs. Gabriel India Ltd. [1993 203 ITR 108 (Bombay)] , held with reference to Black's Law Dictionary that an erroneous judgment means one rendered according to course and practice of Court, but contrary to law, upon mistaken view of law; or upon erroneous application of legal principles and thus it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an Income-tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written differently or more elaborately. The Section does not visualize the substitution of the judgment of the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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