NEW MIRAMAR CO OP HOUSING SOCIETY LTD, MUMBAI V. ITO 16(2)(3), MUMBAI

ITA 1001/MUM/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9572 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 13-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Source of fund; Revised return
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 1001 / MUM/ 20 14 ( / ASSESSMENT YEAR: 2009 - 10 ) M/S NEW MIRAMAR CO - OP. MSG SOC. LTD. 3 RD MIRAMAR APARTMENT, L ADY JAGMOHANDAS MARG. NEPEAN SEA ROAD, MUMBAI - 400036 MU MBAI PIN:400010 / VS. ITO 16(2)(3), MUMBAI ./ ./ PAN/GIR NO. : AAAAN 0363 Q ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 15 .06 .2017 / DATE OF PRONOUNCEMENT : 13. 0 9 . 2017 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE PRESENT AP PEAL AGAINST THE ORDER DATED 03.12 .201 3 , PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 2 8 MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO THE AY.2009 - 10 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1(1) ON THE FACTS AND IN THE C IRCUMSTANCES OF THE CASE, THE LEARNED CIT(A)ERRED IN UPHOLDING THE ADDITIONS OF RS.7.71,000 MADE BY THE A.O. OUT OF RS.8.46.000/ - RECEIVED BY THE APPELLANT REVENUE BY: S HRI SUMAN KUMAR ( DR ) ASSES SEE BY : SHRI A.K. LAL ITA NO. 1001/MUM/2014 A.Y. 2009 - 10 2 FROM INCOMING MEMBERS OF THE SOCIETY AND CREDITED TO 'REPAIRS AND RENOVATION FUND ON THE GROUND THAT THE RECEIPT WAS NOT COVERED BY THE PRINCIPLE OF MUTUALITY AND WAS, THEREFORE, CHARGABLE TO TAX. (II) THE LEARNED CIT (A) FURTHER ERRED I N NOT FOLLOWING THE DECISION OF THE HONBLE TRIBUNAL IN APPEL1ANS OWN CASE FOR A.Y. 2005 - 06 IN THE ORDER DT. 22 - 1 - 2010, COPY OF WHICH WAS GIVEN TO HIM. (III) THE ADDITION OF RS.7, 71, 000 MAY, THEREFORE, BE DIRECT_) TO BE DELETED. 2(I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A)ERRED IN UPHOLDING THE ADDITION OF PS.49.350/BEING NON - OCCUPANCY' CHA RGES RECEIVED BY THE APPELLANT FROM THE MEMBERS ON THE GROUND THAT THE RECEIPT IS NOT GOVERNED BY THE PRINCIPLE OF MUTUALITY, DISREGARDING THE DECISION OF THE HONBLE TRIBUNAL IN APPELLANTS CASE FOR A.Y. 2005 - 06. (II) THE ADDITION MAY PLEASE BE DIRECTED T O BE DELETED. 3. THE 'APPELLANT RESERVES ITS RIGHT TO ADD TO CR ALTER ANY GROUND OF APPEAL. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED ITS RETURN OF INCOME ON 07.11.2009 DECLARING TOTAL INCOME TO THE TUNE OF RS. NIL. THEREAFTER, THE ASSE SSEE FILED THE REVISED RETURN ON 25.05.2010 DECLARING TOTAL INCOME TO THE TUNE OF RS.88,073/ - . THE ASSESSEE S SOURCES OF INCOME WAS FROM BUSINESS AND OTHER SOURCES. THE CASE WAS SELECTED FOR SCRUTINY , THEREAFTER, NOTICE U/S 143(2) AND NOTICE U/S 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE RECEIVED THE TRANSFER FEES FROM INCOMING MEMBERS WHICH HAS BEEN SHOWN UNDER THE HEAD REPAIR & RENOVATION CHARGES TO THE TUNE OF RS. 8,46,000/ - . SINCE THE SAID AMOUNT WAS CONSIDERED AS TRANSFER F EES OF THREE MEMBERS TO THE TUNE OF RS.25,000/ - EACH PER FLAT THEREFORE, AN AMOUNT OF RS. 75,000/ - WAS BROUGHT TO TAX. THE ASSESSEE RECEIVED THE AMOUNT TO THE TUNE OF RS.49,350/ - ON ACCOUNT OF NON OCCUPANCY CHARGES WHICH HAS BEEN SHOWN IN THE I & E ACCOUN T. THE RECEIPT WAS NOT OFFERED TO TAX ON ACCOUNT OF PRINCIPLE OF MUTUALITY BUT FINDING NO PLAUSIBLE EXPLANATION THE SAME WAS DISALLOWED AND ADDED TO THE INCOME OF ITA NO. 1001/MUM/2014 A.Y. 2009 - 10 3 THE ASSESSEE AND THE INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.9,08,420/ - . FEELIN G AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO AFFIRM THE ADDITION THEREFORE, THE ASSESSEE FILED THE PRESENT APPEAL BEFORE US. ISSUE NO. 1: - 4. WE HAVE HEARD TH E ARGUMENT ADVANCED BY THE LD. R EPRESENTATIVE OF THE PARTIES AND PERUSED THE R ECORD. THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE BOTH THE ISSUES ARE COVERED BY THE ORDER OF THE ASSESSEES OWN CASE FOR THE A.Y. 2005 - 06 PASSED BY THE HONBLE ITAT IN ITA. NO. 2844/MUM/2010 DATED 25.03.2011 THEREFORE, IN THE SAID CIRCUM STANCES, THE CLAIM OF THE ASSESSEE ON THE SAID ISSUES ARE LIABLE TO BE ALLOWED. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTIONS. COPY OF THE ORDER DATED 25.03.2011 IN ITA. NO. 2844/MUM/2010 IN THE ASSES SEES OWN CASE FOR THE A.Y. 2005 - 06 IS ON THE FILE AND WE NOTICED THAT THE CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE WHICH HAS BEEN CONFIRMED BY THE HONBLE ITAT IN THE SAID ORDER. THE ISSU ES IN THIS APPEAL AS WELL AS FINDING ARE AS UNDER: - 1. THE LD . CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF REPAIRS AND RENOVATION OF RS.9,73,250/ - FOLLOWING THE DECISION OF HONBLE HIGH COURT OF BOMBAY IN THE CASE OF M/S SHYAM CHS AND SUPRABHAT CHS WHEREIN IT HAS BEEN HELD THAT ALL AMOUNTS RECEIVED BY THE CH S ON THE GROUNDS OF TRANSFER CHARGES ARE EXEMPT UNDER THE PRINICIPLE OF MUTUALITY. THE DECISION HAS NOTBEEN ACCEPTED BY THE DEPARTMENT AND THE MATTER IS SUBJUDICE. 2. LD. CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF NON - OCCUPANCY CHARGES OF RS.2,4 7,961/ - FOLLOWING THE VARIOUS DECISIONS OF HONBLE MUMBAI ITAT WHEREIN IT HAS BEEN ITA NO. 1001/MUM/2014 A.Y. 2009 - 10 4 HELD THAT NON - OCCUPANCY CHARGES TAKEN FROM MEMBERS WHO HAVE LET OUT THEIR FLATS IS EXEMPT UNDER PRINCIPLE OF MUTUALITY. 2. WE HAVE HEARD MR. D. CHANDA, L. DEPARTMENTAL R EPRESENTATIVE AS WELL AS MR. A.K. LAL LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE LD. CIT(A) FOLLOWED THE JUDGMENT OF HONBLE BOMBAY HIGH COURT RENDERE D IN SHYAM CHS AND SUPRABHAT CHS, AND GRANTED RELIEF TO THE ASSESSEE ON THE GROUND THAT THE TRANSFER CHARGES RECEIVED FROM MEMBERS ARE EXEMPT ON THE PRINCIPLES OF MUTUALITY. SIMILARLY, ON THE ISSUE OF NON - OCCJUPANCY CHARGES RECEIVED FROM THE MEMBERS, THE L D. CIT(A) HAS FOLLOWED THE ORDER PASSED BY THE JURISDICTIONAL TRIBUNAL AND GRANTED RELIEF. IN THIS CASE ALSO, THE AMOUNT IS RECEIVED BY THE SOCIETY FROM THE MEMBERS ONLY. THUS, WE FIND NO INFIRMITY IN THE ORDER PASSED BY THE LD. CIT(A) AND DECLINE TO INTER FERE AS SUCH. 3. IN THE RESULT, REVENUE APPEAL STANDS DISMISSED. 5. ON APPRAISAL OF THE ABOVE MENTIONED ORDER, IT IS QUITE CLEAR THAT THE BOTH THE ISSUES HAS DULY BEEN COVERED BY THE ORDER OF THE HONBLE ITAT IN THE ASSESSEES OWN CASE IN ITA. NO. 284 4/MUM/2010 DATED 25.03.2011, THEREFORE, BY HONORING THE DECISION OF THE CO - ORDINATE BENCH IN WHICH BOTH THE ISSUES ARE DECIDED IN FAVOUR OF THE ASSESSEE, WE ALLOWED THE CLAIM OF THE ASSESSEES RAISED IN BOTH THE ISSUES. ACCORDINGLY, THE ISSUE NOS. 1 AND 2 ARE DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HERE BY ORDERED TO BE ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 13 .0 9 . 2017 . SD/ - SD/ - ( B.R. BASKARAN ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 13 . 09 .2017 ITA NO. 1001/MUM/2014 A.Y. 2009 - 10 5 V.P. SINGH / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDEN T. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI