ITO 16(2)(4), MUMBAI V. SONMARG CO.OP HOUSING SOCIETY LTD., MUMBAI

ITA 1463/MUM/2011

• Counselvise Citation: 146319914 RSA 2011
• Duration Of Justice: 3 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 30-01-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 18-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PITAMBAR DAS
• Assessee Lawyers: PRAKASH

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, M UMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND B.R.BHASKARAN (AM ) . . , . . , ./I.T.A. NO.1463/MUM/2011 ( / ASSESSMENT YEAR : 2004-05) INCOME TAX OFFICER, 16(2)(4), MATRU MANDIR, TARDEO ROAD, MUMBAI-400007 / VS. SONMARG CO - OPERATIVE HOUSING SOCIETY LTD., 67-B, NEPEANSEA ROAD, MUMBAI-400006 ( % / APPELLANT) .. ( &% / RESPONDENT) ./ ./PAN/GIR NO. : AAAAS8163M % / APPELLANT BY : SHRI PITAMBAR DAS &% * /RESPONDENT BY : SHRI PRAKASH PANDIT * - / DATE OF HEARING : 24.2.2014 * - /DATE OF PRONOUNCEMENT : 26.2.2014 / O R D E R PER B.R.MITTAL, JM: THE DEPARTMENT HAS FILED THIS APPEAL FOR ASSESSME NT YEAR 2004-05 AGAINST THE ORDER OF LD. CIT(A) DATED 24.11.2010 FOR ASSESSMENT YEAR 2004-05 ON THE FOLLOWING GROUNDS: 1. THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.17,50,000/- MADE ON ACCOUNT OF TRANSFER FEES AND RS.99,300/- MADE ON A CCOUNT OF NON-OCCUPANCY CHARGES FOLLOWING THE DECISION OF THE HONBLE HIGH COURT IN THE CASE OF M/S MITTAL COURT PREMISES CO-OPERATIVE HOUSING SOCIE TY LTD, M/S SHYAM COOPERATIVE HOUSING SOCIETY LTD AND SUPRABHAT CO-O PERATIVE HOUSING SOCIETY LTD. WHEREIN IT HAS BEEN HELD THAT ALL AMOUNT RECEI VED BY THE CO-OPERATIVE HOUSING SOCIETY LTD. ON THE GROUNDS OF TRANSFER CHARGES ARE EXEMPT UNDER THE PRINCIPLE OF MUTUALITY. THE DECISION HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND THE ISSUE IS SUB-JUDICE 2. AT THE TIME OF HEARING, LD. DR RELIED ON THE ORD ER OF AO AND WHEREAS THE LD. AR RELIED ON THE ORDER OF LD.CIT(A). WE HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW AND OBSERVE THAT THE LD. CIT(A) HAS DECIDED THE ISSUE BY FOLLOWING THE DECISIONS OF HONBLE MUMBAI HIGH COURT IN THE CASE OF M/S MITTAL COURT PREMISES CO-OP. SOCIETY LTD V/S I.T.A. NO. 1463/MUM/2011 2 ITO (184 TAXMAN 292) AS WELL AS IN THE CASES OF OT HER SOCIETIES. WE CONSIDER RELEVANT TO STATE PARA 3 OF THE ORDER OF LD. CIT(A) WHICH RE ADS AS UNDER : OWING TO THE DECISIONS OF HONBLE MUMBAI HIGH CO URT IN THE CASES OF M/S MITTAL COURT PREMISES CO-OP. SOCIETY LTD V/S ITO (184 TAXMAN 292) AND M/S SUPRABHAT CO-OPERATIVE HOUSING SOCIETY LTD. IN ITA NO.172 OF 2009 FOR AY 2003-04 AND M/S SHYAM COOPERATIVE HOUSING SOCIETY LTD IN ITA NOS.92,93 AND 206 OF 2008 FOR AYS 1999-2000 TO AY 2001-02, THE NON OCCUPANCY CHARGES/TRANSFER FEE RECEIVED BY THE APPELLANT ARE COVERED BY THE PRINCIPLE OF MUTUALITY AND ACCORDINGLY THE SAID ITEMS DO NOT FO RM PART OF THE APPELLANTS TAXABLE INCOME. IN VIEW OF THE ABOVE, ADDITIONS MA DE BY AO FOR RS.17,50,000/- BEING TRANSFER FEE AND RS.99,300/- B EING NON-OCCUPANCY CHARGES RECEIVED BY THE APPELLANT ARE HEREBY DELETED. SINCE LD. DR DID NOT ABLE TO CONTROVERT THE FACTS AND THE DECISIONS CITED BY LD. CIT(A), WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD CI T(A). HENCE, WE CONFIRM HIS ORDER AND REJECT THE GROUNDS OF APPEAL TAKEN BY DEPARTMENT. 3. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS D ISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 26TH FEBRUARY, 2014. 1 2 26TH FEBRUARY, 2014 * SD SD ( . . / B.R. BASKARAN ) ( . . /B.R.MITTAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: ON THIS 26TH DAY OF FEBRARY,2014 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. % / THE APPELLANT 2. &% / THE RESPONDENT. 3. 8 ( ) / THE CIT(A)- CONCERNED 4. 8 / CIT CONCERNED 5. 9 &: , - : , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) - : , /ITAT, MUMBAI