ITO 16(1)(2), MUMBAI V. NEW GULISTAN CHS LTD, MUMBAI

ITA 1453/MUM/2011

• Counselvise Citation: 145319914 RSA 2011
• Duration Of Justice: 3 year(s) 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 18-11-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 18-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R N DSOUZA
• Assessee Lawyers: NISHTHA
• Keywords: Tax effect
• Section: 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G, MUMBAI , ,, , BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ITA NO. : 1453/MUM/2011 (ASSESSMENT YEAR: 2001-02) INCOME TAX OFFICER -16(1)(2), MATRU MANDIR, 2 ND FLOOR, MATRU MANDIR, TARDEO ROAD, MUMBAI -400 007 VS NEW GULLISTAN CHS LTD., 13 CARMICHAEL ROAD, MUMBAI -400 026 .: PAN: AAAAN 1756 F (APPELLANT) ! (RESPONDENT) APPELLANT BY : SHRI R N DSOUZA RESPONDENT BY : SHRI NISHTHA PANDYA '# $ %& /DATE OF HEARING : 18-11-2014 '() $ %& / DATE OF PRONOUNCEMENT : 02-01-2015 + , + , + , + , O R D E R - .## - .## - .## - .## #/ #/ #/ #/ , : :: : PER VIVEK VARMA, JM: THE APPEAL IS FILED BY THE DEPARTMENT AGAINST THE ORDER O F CIT(A)-27, MUMBAI, DATED 11.11.2010, WHEREIN THE FOLLOWING GROUNDS HAVE BEEN TAKEN: 1. THE LD. CIT(A) ERRED IN DELETING THE ADDITION O N ACCOUNT OF TRANSFER CHARGES OF RS. 5,00,000/- FOLLO WING THE DECISION OF HONBLE HIGH COURT OF BOMBAY IN THE CASE OF M/S SUPRABHAT CHS WHEREIN IT HAS BEEN HELD THAT ALL AMOUNTS RECEIVED BY THE CHS ON THE GROUNDS OF TRANS FER CHARGES ARE EXEMPT UNDER THE PRINCIPLE OF MUTUALITY . THE DECISION HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AN D THE ISSUE IS SUB-JUDICE. 2. THE LD. CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF NON-OCCUPANCY CHARGES OF RS. 1,40,900/- AND SHIFTING CHARGES OF RS. 51,000/- FOLLOWING THE DECI SIONS OF HONBLE HIGH COURT OF BOMBAY IN THE CASE OF MITT AL COURT CHS AND M/S SUPRABHAT CHS WHEREIN IT HAS BEEN HELD THAT NON-OCCUPANCY CHARGES TAKEN FROM MEMBERS WHO HAVE LET OUT THEIR FLATS IS EXEMPT UNDER PRINCI PLE OF MUTUALITY. NEW GULLISTAN CHS LTD. ITA 1453/M/2011 2 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD GROUND/S WHICH MAY BE NECESSARY. 2. AT THE TIME OF HEARING, THE AR SUBMITTED THAT THE GRO UNDS TAKEN ARE IDENTICAL TO THE GOA FILED BY THE DEPARTMENT IN ITA NO. 8152/MUM/2011, FOR ASSESSMENT YEAR 1999-2000 (WHERE O NE OF US WAS PARTY), WHICH ARE AS FOLLOWS: 1 THE LD. CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF TRANSFER FEES OF RS. 12,00,000/- FOLLOWING THE DECI SIONS OF HONBLE HIGH COURT OF BOMBAY IN THE CASE OF M/S SIN D CO-OP HSG. SOCIETY, M/S. SUPRABHAT CHS AND M/S. SHYAM CHS WHEREIN IT HAS BEEN HELD THAT ALL AMOUNTS RECEIVED BY THE CHS ON THE GROUND OF TRANSFER FEES ARE EXEMPT UNDER THE PRINCIPLE OF MUTUALITY. THE DECISION HAS NOT BEEN A CCEPTED BY THE DEPARTMENT AND THE ISSUE IS SUBJUDICE. 2 THE LD. CIT(A) IN DELETING THE ADDITION ON ACCOUN T OF SHIFTING CHARGES OF RS. 32,500/- FOLLOWING THE DECISION OF H ONBLE HIGH COURT IN THE CASE OF ATLANTA PREMISES CHS BY H OLDING THAT THE SAME IS EXEMPT UNDER THE PRINCIPLE OF MUTU ALITY. 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD GROUND/S WHICH MAY BE NECESSARY. 3. THE AR POINTED OUT THAT THE ITAT HAD SUSTAINED THE ORDER OF THE CIT(A) IN DELETING THE ADDITION MADE BY THE AO. THE A R ALSO SUBMITTED OTHER ORDERS OF THE ITAT IN ASSESSEES O WN CASE ON THE SIMILAR GOA. 4. ON GOING THROUGH THE VARIOUS ORDERS OF THE ITAT, WE FIND THAT THE GROUNDS RAISED ARE FULLY COVERED NOT ONLY BY THE ORDER OF THE ITAT BUT BY THE ORDER OF HONBLE BOMBAY HIGH COURT AS WELL IN THE ASSESSEES OWN CASE, WHEREIN ITA(L) NO. 1905 OF 201 0, THE APPEAL FILED BY THE DEPARTMENT U/S 260A HAD BEEN DISMISS ED AND THE ISSUE OF SHIFTING CHARGES ON THE CONCEPT OF MUTU ALITY IS ALSO FOUND COVERED BY THE DECISION OF ATLANTA PREMISES COO P. SOCIETY. 5. IN THESE UNCHANGED CIRCUMSTANCES, WE DO NOT FIND ANY REASON TO DISTURB THE ORDER OF THE CIT(A) AND DEVIATES FR OM OUR OWN ORDERS AS WELL. 6. WE, THEREFORE, REJECT THE GROUNDS TAKEN IN THE GOA. NEW GULLISTAN CHS LTD. ITA 1453/M/2011 3 7. AT THE TIME OF HEARING, THE AR ALSO POINTED OUT THA T THE APPEAL IS OTHERWISE NON MAINTAINABLE ON THE ISSUE OF LOW TAX EFFECT AS PER INSTRUCTION NO. 3/2011 (F.NO. 279/MISC.142/20 02 ITJ) DATED 09.02.2011 WHEREIN THE MINIMUM TAX EFFECT SHOULD HAVE BEEN RS. 3,00,000/-. 8. IN SUCH A CIRCUMSTANCE, THE APPEAL IS HELD TO BE NON MAINTAINABLE. 9. IN THE RESULT, THE APPEAL IS DISMISSED AS NON MAINTAINABLE. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND JANUARY, 2015. SD/- SD/- ( ) ( ) + + + + + + + + (R C SHARMA) ( VIVEK VARMA ) ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE: 2 ND JANUARY, 2015 %/ COPY TO:- 1) / THE APPELLANT. 2) ! / THE RESPONDENT. 3) THE CIT(A)-27, MUMBAI. 4) THE CIT- 16, MUMBAI. 5) .#23 %' , , / THE D.R. G BENCH, MUMBAI. 6) 34/ 5 COPY TO GUARD FILE. +,' / BY ORDER / / TRUE COPY / / 6 / 7 , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN, SR.PS