Taxation of Co-operative Housing Societies & Income Tax Return

In general the perception is that income of Co–operative Societies is not chargeable to tax and therefore many societies do not bother to take PAN No. & file Income Tax returns. This is a  wrong perception since though certain types of income of CHS are exempt there are other incomes which are chargeable to Tax.

We now examine on a case by case basis the income which is normally earned by a Co – Operative Society’s:

a) Contribution from Members:

This are the most commonly credited accounts in profit &loss account of any CHS. They are credited under different heads namely Maintenance charges Municipal Taxes, Electricity Charges, Lift Maintenances Charges, Water Charges etc.

It may be emphasized that the society merely acts as an agent who collects this charges on behalf of members & spends the same to meet the various joint expenses of the society. Any surplus generated due to these types of income is not chargeable to tax as it is exempt based on the ‘concept of Mutuality’. The basic principle of Mutuality is a mutual association arises when persons forming a group; associate together for a common object and contribute money for achieving that object and divide the surplus amongst them in the character. The cardinal requirement in case of mutual association is that “All the contributors to the common fund must be entitled to participate in the surplus & all the participators to the surplus must be contributors to the common trade. In other words there should be complete identity between the contributors and the participators.

b) Interest Charged on member Outstanding:

Interest charged by society on outstanding dues of members again forms a part of contribution from members. Moreover it qualifies the test of mutuality since the contributors & participators are the same persons. Thus this is also exempt on concept of Mutuality.

c) Interest Income Earned on Investments:

Interest income earned can be further classified into interest earned from investments made in Co-operative Banks & interest from other Investments. Interest earned from any investment made in Co-operative Banks qualifies for deduction @ 100% under section 80P(d). However other interest income on investments is fully taxable.

d) Dividend:

Dividend income received from Indian Companies is fully exempt u/s 10 (34). Dividend received from Co-operative Banks qualifies for exemption under 80P(d) is therefore 100% deductible.

e) Rental Income from Advertisement Hoardings :

This is fully taxable under the head Business Income / Income from other sources. However expenses which can be directly attributable to earning of this income can be claimed against this income on a proportionate basis.

f) Rental from Mobile / Cable Towers etc :

Rental from mobile & Cable Towers is taxable under the head Income from House Property; considering the same it is eligible for standard deduction u/s 24 (a) @ 30 % of the rent. Also if society has borrowed capital to construct said building in which the tower has been erected than a proportionate deduction can be claimed for interest paid on borrowed capital.

g) Rentals from use of open Spaces / Terrace :

If the Rentals are received for use of open ground or terrace the point be noted is whatever it is received from Members or Non-members. If it is received from Members than it can be argued that it is not taxable on the grounds of “Mutuality”. If it is received from Non-members or outsiders it shall be fully taxable under the head Income from House Property & will qualify for deductions as mentioned earlier.

h) Non –Occupancy Charges :

Though non – occupancy charges are being collected from members in their periodic Bills the income tax departments view point has been that this amount is received from a members who has not been staying in the premises of the society. Therefore though he is a contributor he is not enjoying the amenities of the society is thus not a participator. Considering the same the mutuality concept is not satisfied & therefore this income is chargeable to tax.

However this view point is debatable and can always be argued in society’s favour as in some of the courts case’s the ruling given is that “While comparing the contributors and participators in concept mutuality they should be compared as a class an not isolated or individual contributors”.

i) Parking Charges : Again in this case the point to be seen is whether the collections are from members or Non – members. In case of collections from members they are covered by concept of Mutuality. However in case of Societies having shopping complexes parking charges collected from outsiders would be taxable.

We have covered most of the incomes likely to be earned by Co-operative Housing Society. However we have not touched upon Transfer fees as it is requires to be discussed at length & will be covered in a separate article. Moreover it may be hereby specified that all CHS earning business income qualify for a general deduction under section 80 P(2)(c) of Rs. 50000/-.This deduction can be claimed against business income and not against interest or any other income.

Also we may hereby emphasize that since most of the incomes of societies can fall in tax net it is compulsory to file Income tax return. Also if society is not having taxable income due to deduction available u/s 80 P(d) (i.e. interest from Co-operative Banks being exempt) it is imperative on the part of the society to prove the same and this can be done only if Income Tax return is filed. Thus it may me said in conclusion that it is compulsory on the part of CHS to filing Income Tax returns regularly.

Further the societies are taxed as per the following slab: _

Income upto   Rs 10000                                     10 %

Income upto   Rs 20000                                     20 %

Above 20000/-                                                      30 %

The income tax as arrived above has to be increased by 3 % of tax payable towards Education Cess and Higher education Cess. Wef A.y 2019-20 Health and Education Cess shall be levied at the rate 4% instead of 3 % of tax payable towards Education Cess and Higher education Cess.

We hereby list out few relevant recent Rulings:

1. Income from Toddy Tapping is eligible for deduction U/s. 80P

M/s. Kuthuparamba Range Kalluchethu Vyavasaya Thozhilali Sahakarana Sangham Ltd. Vs CIT (Kerala High Court)

When such extraction of toddy is carried on from the trees belonging to the members of the Society, it is definitely an agricultural produce grown by its members. Vending of such produce grown by its members even under a regulatory regime would be marketing of an agricultural produce.

2.  Deduction U/s. 80P(2)(d) eligible to Co-operative society on Interest from co-operative banks despite not providing credit facilities to members

ITO Vs Shree Keshorai Patan Sahakari Sugar Mill (ITAT Jaipur)

There is no condition for co-operative society to be engaged in the activity of providing credits to the members or banking business for availing of the deduction under section 80P(2)(d).

3.  Sec 80P Deduction available to Co-Bank for Interest on Investments with Sub-Treasuries during its Business

ITO Vs M/s. Perinthalmanna Service Co-operative Bank Limited (ITAT Cochin)

The Assessing Officer in the impugned orders had disallowed the claim stating that the assessee could not be treated as a primary agricultural credit society as it is engaged in the business of banking and in view of insertion of section 80P(4) with effect from 01.04.2007, the assessee was not entitled to deduction u/s 80P(2) of the I.T.Act.

4.  Principle of mutuality cannot be denied simply because there are two categories of members as per bye-laws of society

M/s. Sri Sai Datta Mutual Aided Co-operative Credit Society Vs Asst. (ITAT Hyderabad)

The AO and CIT(A) have considered the ordinary members and nominal members are different class of members. AO accepts that ordinary members are having mutuality but he denies the same with reference to nominal members. The principle of mutuality cannot be denied simply because there are two categories of members as per the bye-laws of the society.

5.  Deduction U/s. 80P(2)- Primary agricultural credit society?

ITO Vs Nannambra Service Cooperative Bank Ltd. (ITAT Cochin)

An institution registered as a Primary Agricultural Credit Society (PACS) was not entitled to obtain Banking License and, therefore, could not be considered as bank not entitled for deduction under section 80P(2).

6.  Allowability of deduction U/s. 80P(2)(a)(i) to Co-operative society engaged in providing credit facilities to members

Jodhpur Sahakari Bhoomi Vikas Bank Ltd. Vs ITO (ITAT Jodhpur)

These appeals preferred by the assessee emanates from the order of learned Commissioner (Appeals)-2, Jodhpur for assessment year 2008-09 vide order dated 19-11-2015; assessment year 2010-11 vide order dated 20-11-2015

7.  Section 80P: Interest on Surplus Fund invested in Short Term Deposits is Other Income

ITO Vs The New India Assurance Co. Ltd. Employees’ Co-op. Credit Society Ltd. (ITAT Kolkata)

Hon’ble Supreme Court in the case of M/s. Totagars Co-operative Sale Society Ltd. is binding on the revenue authority for the proposition that the interest income arising out of surplus fund invested in short term deposits and securities is the income from other sources

8. Deduction u/s 80P(2) on interest received on deposits with Sub-Treasuries.

The Padne Service Cooperative Bank Limited Vs. The Income Tax Officer Ward- 2 (ITAT Cochin)

In an assessee- favor ruling, the Cochin bench of ITAT said that the assessee, a primary agricultural credit society is entitled to the benefit of deduction under Section 80P (2) of the Income Tax Act, with regard to interest received on deposits made by the assessee with sub treasury

9.  Primary Agricultural Co-op Credit Society is eligible for Sec. 80P Deduction

ITO Vs M/s.Edanad- Kannur SCB Ltd. (ITAT Cochin)

ITO Vs M/s. Edanad- Kannur SCB Ltd. (ITAT Cochin) The undisputed facts are that the assessees in these cases are all primary agricultural credit society and they are registered as such under the Kerala Co­operative Societies Act. The Hon’ble jurisdictional High Court in the case of Chirakkal Service Co-operative Bank Limited & Ors

10.  Deduction u/s 80P eligible on ‘interest’ earned by assessee on deposits placed with SBI by SBI Officers Co-op. Credit Society

SBI Officers Coop. Credit Society Ltd Vs. ITO (ITAT Hyderabad)

SBI Officers Coop. Credit Society Ltd Vs. ITO (ITAT Hyderabad) This is assessee’s appeal for the A.Y 2012-13. In this appeal, the assessee is aggrieved by the order of the learned CIT (A)-10, Hyderabad, dated 2.11.2016 confirming the dis allowance of Rs. 77,44,295 claimed by the assessee as a deduction u/s 80P of the Act.

11.  Credit co-operative society providing credit facilities to members can claim deduction u/s 80P(2)(a)(i)

The Income-tax Officer Vs. The Somavamsha Sahasrajuna Kshatriya Credit Co-operative Society (ITAT Bangalore)

The Income Tax Appellate Tribunal Bangalore bench while dismissing revenues appeal recently ruled that Credit co-operative society engaged in providing credit facilities, etc., to its members is eligible for deduction under Section 80P of the Income Tax Act, 1961

12.  Co-Op Credit Society can claim Section 80P deduction on interest income from nationalized banks

Income-tax Officer Vs. The Electro Urban Co-op. Credit Society Ltd. (ITAT Kolkata)

Kolkata bench of Income Tax Appellate Tribunal (ITAT) has recently held that interest income earned from nationalized banks shall be treated as business income for which deduction under Section 80P of the Income Tax Act can be claimed.

13. Society allowing Loan to non-members cannot claim deduction U/s. 80P

The Income Tax Officer Vs. Shri Bapooji Pattin Souhard Sahakari Niyamit (ITAT Bangalore)

The only issue in the present appeal is whether the respondent- assessee co-operative society is entitled for deduction u/s. 80P of the Act. The respondent- assessee is registered under the Karnataka Co-operative Societies Act. According to the respondent- assessee, the primary activity of the assessee is only to provide credit facilities

14.  Deduction U/s. 80P(2) cannot be denied to registered Primary Agricultural Credit Society for doing banking business

ITO Vs. Edarikode Service Co-operative Bank Ltd. (ITAT Cochin)

ITAT held that as the assessee had produced a certificate showing that it was registered as Primary Agricultural Credit Society under the provision of Co-operative Societies Act, therefore, the assessee was entitled to the benefit of deduction under section 80P(2)

15.  80P Deduction eligible to Co-op Societies providing Credit facilities only to its Members

ITO Vs. Shri Shri Revanasiddeshwar Co-op. Credit Society Limited (ITAT Bangalore)

A co-operative society registered under the Karnataka Co-operative Societies Act, which is not having a banking license from the RBI to carry on the business of banking, cannot be deemed to be a co-operative bank coming within the ambit of section 80P(4) of the Act

16. Co-op credit society providing credit facility to non-members not eligible for deduction U/s. 80P

The Citizens Cooperative Society Ltd Vs ACIT (Supreme Court of India)

It is noticed by the Assessing Officer, after discussing in detail the activities of the appellant, is that the activities of the appellant are in violations of the provisions of the MACSA under which it is formed. It is pointed out by the Assessing Officer that the assessee is catering to two distinct categories of people. The first category is that of resident members or ordinary members. There may not be any difficulty as far as this category is concerned.

17.  Credit Society eligible for Sec. 80P deduction on Interest on idle fund

Primary Agriculture Credit Co-opeative Society Ltd Vs CIT (Appeals), (ITAT Bangalore)

When the amount which was deposited in the bank was not an amount due to members and it was not the liability of the society to the members then the interest earned from the deposits in the bank was held to be eligible for deduction under Section 80P (1) as well as 80P(2)(a)(i) of the Act

18.  Powers u/s. 263 cannot be invoked to substitute lawful view taken by AO with another view

M/s. The Erumely Service Co-operative Bank Ltd. Vs. Principal CIT (ITAT Cochin)

Principal Commissioner of Income Tax was trying to substitute a legally permissible view taken by the Id. AO with another view which was not a rational one. Hon’ble Apex Court in the case of Malabar Industrial Co. Ltd (supra) has clearly held that revisionary powers u/s.263 of the Act cannot be invoked for substituting a lawful view taken by the Id. Assessing Officer, with another view.

19. Interest on investments of Service Co-operative Banks eligible for deduction u/s 80P(2)(a)(1)

The Kizhathadiyoor Service Coop Bank ltd Vs. ITO (ITAT Cochin)

Interest income on investments of Service Co-operative Banks is business income eligible for deduction u/s 80P(2)(a)(1) and not income from other sources. SC decision in Totgar case not applicable in this case.

20.  Auditor’s opinion on Section 80P Interpretation, cannot be a Information for Reopening U/s 147

Jaipur Sahakari Kraya Vikraya Samiti Ltd. Vs ITO (ITAT Jaipur)

The case of assessee was reopened and the assessment under section 144 read with section 147 of the IT Act, 1961. While framing the assessment, the AO restricted the deduction claimed u/s 80P(2)(c)(i) of the Act and also confirmed the disallowance u/s 40(a)(ia) consequent to deposit

Also Read:  Section 80P Deduction – Co-operative Societies – Analysis & Case Laws

(Republished With Amendments)