Is Income Tax applicable for Society FDs?

A Residential Society* collects Funds from its Members and pays for Common Expenses from such Funds. The Society does not pay Income Tax for any Excess of this Income over Expenses.  This is allowed due to the Principle of Mutuality.

At the end of a Financial Year, any Excess Fund , typically termed as Reserve Fund, is invested in Fixed Deposits with a Bank, towards future exigencies.

Same is done with Corpus Fund, Sinking Fund, Repairs and Maintenance Fund etc.

The Bank pays annual Interest on these Fixed Deposits, like any other Fixed Deposits.

Question: Should Income Tax be applicable on the Interest paid by the Bank for Fixed Deposits by Residential Societies?

Answer: If you go by Supreme Court’s definition of “Principle of Mutuality” as clarified in below Case, the answer is YES.

FACT: In Mumbai almost every Society has Fixed Deposits with Saraswat Co-operative Bank or District Co-Operative banks. The core benefit being Interest on Fixed Deposits are exempted from TDS. However in Mumbai, the Co-operative Housing Society (CHS) is also mandated to become Member of  The District Central Co- operative Bank of the District. The understandable purpose of this membership is to bring the Bank and the Society under the Concept of Mutuality.

In other Indian cities, this is not a well known fact, nor is the Society registered in The District Central Co-operative Bank, so as to utilize such benefits. Residential Societies open Bank Accounts in any Bank per their preference, including Private Banks.

Should Interest on Society FDs be Taxable?

SUPREME COURT CLARIFIES PRINCIPLE OF MUTUALITY

A Landmark Judgement passed by Supreme Court on 14-January-2013, gives great clarity on “Principles of Mutuality”, under which the Tax Exemption of Societies is also justified.

The Case

M/s Bangalore Club vs. Commissioner of Income Tax (CIT)

The Bangalore Club (an Association of People, AOP) created Fixed Deposits with Banks which are also Members of the Club. It claimed that the Interest earned on these Fixed Deposits should be exempt from Income Tax, as the Income is subject to the Principle of Mutuality. Commissioner of Income Tax claimed to the contrary.

The Verdict

“In our opinion, unlike the surplus amount itself, which is exempt from tax under the doctrine of mutuality, the amount of interest earned by the assessee  (Bangalore Club) from the member banks will not fall within the ambit of the mutuality principle and will therefore, be exigible to Income-Tax in the hands of the assessee-club.

The surplus funds in the hands of the assessee (Bangalore Club) were placed at the disposal of the corporate members viz. the banks, with the sole motive to earn interest, which brings in the commerciality element and thus, the interest so earned by the assessee has to be treated as a revenue receipt, exigible to tax. It was pleaded that transaction between the assessee and the member banks concerned was in the nature of parking of funds by the assessee with a corporate member and was nothing but what could have been done by a customer of a bank and therefore, the principle that “no man could trade with himself” is not applicable.”  – D.K. JAIN AND JAGDISH SINGH KHEHAR, JJ

The Reasoning

THREE conditions must be satisfied, for an Income to be Exempt on the Principle of Mutuality

1) There must be a complete identity between the contributors and participators.

2) The actions of the participators and contributors must be in furtherance of the mandate of the association.

3) There must be no scope of profiteering by the contributors from a fund made by them which could only be expended or returned to themselves.

How this case violates all three Conditions

1) The arrangement lacks a complete identity between the contributors and participators. Till the stage of generation of surplus funds, the setup resembled that of a mutuality; the flow of money, to and fro, was maintained within the closed circuit formed by the banks and the club, and to that extent, nobody who was not privy to this mutuality, benefited from the arrangement. However, as soon as these funds were placed in fixed deposits with banks, the closed flow of funds between the banks and the club suffered from deflections due to exposure to commercial banking operations. During the course of their banking business, the member banks used such deposits to advance loans to their clients. Hence, in the present case, with the funds of the mutuality, member banks engaged in commercial operations with third parties outside of the mutuality, rupturing the ‘privity of mutuality’, and consequently, violating the one to one identity between the contributors and participators as mandated by the first condition. Thus, in the case before us the first condition for a claim of mutuality is not satisfied.

2)  Once parked as FD, the surplus funds were not used for any specific service, infrastructure, maintenance or for any other direct benefit for the member of the club. These were taken out of mutuality when the member banks placed the same at the disposal of third parties, thus, initiating an independent contract between the bank and the clients of the bank, a third party, not privy to the mutuality. This contract lacked the degree of proximity between the club and its member, which may in a distant and indirect way benefit the club, nonetheless, it cannot be categorized as an activity of the club in pursuit of its objectives. It needs little emphasis that the second condition postulates a direct step with direct benefits to the functioning of the club. For the sake of argument, one may draw remote connections with the most brazen commercial activities to a club’s functioning. However, such is not the design of the second condition. Therefore, it stands violated.

3)  The facts at hand also fail to satisfy the third condition of the mutuality principle i.e. the impossibility that contributors should derive profits from contributions made by themselves to a fund which could only be expended or returned to themselves. This principle requires that the funds must be returned to the contributors as well as expended solely on the contributors. True, that in the present case, the funds do return to the club. However, before that, they are expended on non- members i.e. the clients of the bank. Banks generate revenue by paying a lower rate of interest to club-assessee, that makes deposits with them, and then loan out the deposited amounts at a higher rate of interest to third parties. This loaning out of funds of the club by banks to outsiders for commercial reasons, in our opinion, snaps the link of mutuality and thus, breaches the third condition.

This was a Case with a Club – an Association of Persons.

Will the Verdict be different for an Apartment Owners Association, or a Co-operative Housing Society?

* – A Cooperative Housing Society (CHS) or an Apartment Owners Association (AOA), Home Owners Association (HOA), Residents Welfare Association (RWA)  or any such Associations registered under the Societies Act or any subsidiary Act of Societies Act.

Full Case: Read the full Case. This article has direct excerpts from this document.

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About the Author: San Banerjee

4 Comments

  1. My deep regret is that the very purpose of my drawing the SC ruling to besides your attention, to the common attention of the concerned people at large has been, unwittingly or otherwise, defeated / thwarted/ shortcircuited.
    For, it is my firm conviction that, the SC ruling can not be rightly relied or invoked for application in any other case with distinct facts and circumstances.

    For an elucidation, reproduce below, my comment posted on the reported dec ision @itatonline:

    On the facts of the case, as undetrstood. the SC ruling ipso facto / on all fours, would apply, provided –
    (A) the assessee is a members’ club;
    (B) the source of income, the deposits with bank, which itself is a member (corporate member) of the assessee club; and
    (C) the interest income is that earned on ‘fixed deposits ‘ placed with the bank.

    The moot points which arise, but obviously left open, for an inconclusive debate and dispute, are these:
    Could the apex court ruling be straightaway applied to every other legal entity, not being a members’ club and is distinguishabe also on the other abovestated facts?
    For instance, to interest or other like income incidental to the existence and relatable to its activities in relation to its members, in a case such as, – a co-operative society or a company or an association constituted and formed by the co-owners of units i.e. flats or apartments in a residential or commercial building. In one’s view, relying on the presently obtaining judicial opinion, the answer can only be an emphatic “NO’.
    In a manner of speaking, the SC ruling can be regarded to have opened the ‘pandora’s box’ yet again; and it is for the CBDT to, with a view to avoiding / obviating a spate of fresh litigation, soon come out with favourable clarifications, for the benefit of the concerned people, in line with the present legal position, as enunciated in decided court cases.

    Among others, a comprehensive analytical study in an article published sometime ago by ICAI and available in public domain may be gone through for having one’own skewed ideas or thoughts on the subject controversy cleared and corrected.

  2. To dilate:

    1. Should closely and carefully be read, the expert viewpoints as canvassed in the ICAI published article may be found to provide enough clues as to why what holds good for member clubs do not necessarily hold good for other entities such as, an entity formed by co-owners of flats /apartments .

    2. Anyone having even a minimal legal background is expected to know that, by and large, the fundamentally accepted principle of interpretation , or common understanding of the legal concept of ‘precedent’, IS THIS- Any ruling in a court case (HC or SC) cannot just be blindly applied and followed in any other case, unless “the facts and circumstances” are, in comparison, ‘on all fours’,- meaning, exactly identical.

    3. A members’ club (as in the SC ruling) is a voluntarily formed body of a group of people having no legal relationship or a tie previously. In contrast, flats’ or apartments’ co-owners, are, having a legal relationship, AS REQUIRED BY THE SPECIAL LAW, obligated to form a legal entity, for owning, so also for purposes of managing and maintaining the property, as A WHOLE. In other words, it is because of a statutory compulsion that they are required to form a housing society or company or ‘owners’ association’ as the case may be. That makes all the difference; hence ‘co-relating’ in any manner the said two types of entities is a non-starter; especially for applying the principle of mutuality.

  3. I’m the President of an Apartment Association which is not registered as a Co-operative Hsg. Society but is an A.O.P. which has it’s own Constitution.

    All 160 flat owners have contributed a lump-sum amount as a Member’s Deposit at the time of purchasing the flats. This money is parked in fixed deposit with SBI.

    Recently, we applied to the I.T. Dept. for obtaining certificate approving deduction of TDS on Bank Interest at a “Lower Rate”. The Commissioner refused to issue certificate saying that Income from Bank F.D. Interest is chargeable under Section 56 (Income from other Sources) and under that section, deduction of only those expenses are available which are directly linked to the earning of the said income (i.e. FD Interest).

    My question now is :

    If our A.O.P. decides to pay interest to it’s members on their Member’s Deposit in it’s books and then through a Journal Entry take it back as Maintenance Contribution (which is not taxable on the Principle of Mutuality), then, would such a treatment save the A.O.P. from being liable to income tax on the Interest earned by it on it’s fixed deposits which are made out of the Member’s Deposits received ???

    Hoping to get a reply on this query a.s.a.p.

    Regards,
    Firdaus

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