The Poona Club Ltd., V. Deputy Commissioner of Income-tax,

ITA 1512/PUN/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9908 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 05-07-2018
• Assessment Year: 2010-2011
• Appeal Filed On: 08-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Assessee Lawyers: DR SUNIL PATHAK; NILESH KANDELWAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 1481 /P U N/201 6 / ASSESSMENT YEAR : 20 10 - 11 THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 4, PUNE . / APPELLANT VS. M/S. POONA CLUB LTD., 6, POONA CLUB, BUND GARDEN ROAD, PUNE 411001 . / RESPONDENT PAN: AABCP1272B . / ITA NO. 1512 /P U N/201 6 / ASSESSMENT YEAR : 20 10 - 11 M/S. POONA CLUB LTD., 6, POONA CLUB, BUND GARDEN ROAD, PUNE 411001 . / APPELLANT PAN: AABCP1272B VS. THE DY. COMMISSION ER OF INCOME TAX, CIRCLE - 4, PUNE . / RESPONDENT ASSESSEE BY : DR. SUNIL PATHAK AND SHRI NILESH KANDELWAL REVENUE BY : SHRI PANKAJ GARG / DATE OF HEARING : 19 . 0 9 .201 8 / DATE OF PRONOUNCEMENT: 26 . 0 9 .201 8 ITA NO. 1481 /P U N/20 1 6 ITA NO. 1512 /PUN/201 6 2 / ORDER PER SUSHMA CHOWLA, J M : THE CROSS APPEAL S FILED BY REVENUE AND ASSESSEE ARE AGAINST ORDER OF CIT (A) - 3 , PUNE , DATED 01.04.2016 RELATING TO ASSESSMENT YEAR 20 10 - 11 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. THE CROSS APPEALS FILED BY ASSESSEE AND REVENUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. THE REVENUE IN ITA NO. 1481 /PUN/201 6 HAS RAISED THE FOLLOWING GROU ND S OF APPEAL: - 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE RECEIPTS FROM THE GUEST OF THE MEMBERS ALSO FALLS UNDER THE PRINCIPLE OF MUTUALITY. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) H AS ERRED IN APPRECIATING THE FACT THAT THE DEFINITION OF GUESTS ACCEPTED IN THE ITAT IN ITS ORDER NO. 625/IT/98 FOR THE A.Y 1994 - 95 IN ASSESSEE'S OWN CASE, IS IN DIFFERENT CONTEXT AS THE ROLE OF CLUBS HAS CHANGED THE CHARACTER OVER THE PERIOD OF TIME. 3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN APPRECIATING THAT IF THE DEFINITION OF GUESTS IS APPLIED AS ACCEPTED BY ITAT IN ABOVE SAID ORDER, THAT EVEN ASSESSEE WAS NOT REQUIRED TO MAINTAIN TWO ACCOUNTS THAT IS MEMBER AND THEIR GUESTS. 4) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN APPRECIATING THAT MEANING OF THE TERM GUEST USED IN SOCIAL PURPOSE AND THAT USED IN BUSINESS OF HOSPITALITY AND ENTERTAINMENT IS DIFFERENT, AS IN THESE INDUSTRIES, CUSTOMER S / CONSUMERS ARE BEING ADDRESSED AS GUEST. 4. THE ASSESSEE IN ITA NO.1512/PUN/2016 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - ITA NO. 1481 /P U N/20 1 6 ITA NO. 1512 /PUN/201 6 3 1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS - 3){CIT - (A)} HAS ERRED IN CONFIRMING THE ASSESSMENT ON THE ISSUE OF INCOME FROM INTEREST OF RS. 86,20,216/ - BY INCORRECTLY APPLYING THE JUDGMENT OF BANGLORE CLUB VS COMMISSIONER OF INCOME TAX (350 ITR 509) (SC). 2) THE CIT (A) HAS ERRED IN NOT CONSIDERING A CLAIM ON THE POINT OF COMPUTATION OF INCOME FROM INTEREST AS PRAYED BY THE APPELLANT BEFORE AO AND IN SUPPRESSION OF IT DECLARED IN THE RETURN OF INCOME. 3) THE LEARNED CIT(A) HAS ERRED IN NOT APPRECIATING THAT THE APPELLANT HAD WITHDRAWN THEIR CONTENTION THAT INCOME FROM INTEREST IS NOT COVERED BY THE PRINCIPLE OF MUTUALITY BUT HAD CONTESTED THAT EXPENDITURE FOR THE PURPOSE OF EARNING RECEIPTS FROM INTEREST BE ALLOWED U/S 57(II) OF THE INCOME TAX ACT, 1961 (ITA) AS COMPUTED AFRESH IN THE ASSESSMENT HAVING REGARD TO THE FACTS, CIRCUMSTANCES AND JUDICIAL PRONOUNCEMENTS, EVEN - AFTER ITAT'S ORDER ON THIS ISSUE IN ITA NO 476/PN/99 FOR EARLIER YEARS. 4) WITHOUT PREJUDICE TO THE ABOVE THE LEARNED CIT (A) HAS ERRED IN NOT FOLLOWING ITAT, PUNE BENCH DECISION IN ITA NO 476/PN/99 RESTRICTING APPELLANTS CLAIM OF EXPENSES U/S 57(II) TO 7 .5 % OF INTEREST RECEIPTS, AS ALTERNATIVELY PRAYED BY THE APPELLANT. 5) THE LEARNED CIT (A) HAS ERRED IN REJECTING APPELLANTS CLAIM ON THE POINT OF INCOME FROM VENUE CHARGES RECEIVED FROM MEMBER'S GUEST AS MADE BY THE APPELLANT IN THE ASSESSMENT IN SUPPRES SION OF THE SUM DECLARED IN THE RETURN OF INCOME BY RELYING ON ITAT ORDER NO. 625/PN/98. 6) THE LEARNED CIT (A) HAS ERRED IN NOT ACCEPTING THE CLAIM THAT THE RECEIPTS ON VENUE FROM GUESTS WERE ASSESSABLE AS INCOME FROM BUSINESS MADE BY THE APPELLANT IN TH E ADDITIONAL GROUND OF APPEAL BEFORE HER. 7) THE LEARNED CIT (A) HAS ERRED IN REJECTING APPELLANTS CLAIM ON THE POINT OF INCOME FROM RECEIPTS FROM CRICKET GROUND BOOKING BY NON MEMBERS AS MADE BY APPELLANT IN THE ASSESSMENT IN SUPPRESSION OF THE SUM DECLA RED IN THE RETURN OF INCOME, BY RELYING ON ITAT ORDER NO. 625/PN/98. 8) THE LEARNED CIT (A) HAS ERRED IN NOT ACCEPTING THE CLAIM THAT THE RECEIPTS FROM CRICKET GROUND BOOKING BY NON MEMBERS AS INCOME FROM BUSINESS, MADE BY THE APPELLANT IN THE ADDITIONAL GROUND OF APPEAL BEFORE HER. 9) THE LEARNED CIT (A) HAS ERRED IN REJECTING APPELLANTS CLAIM ON THE POINT OF INCOME FROM DINNER RECEIPTS FROM MEMBER'S GUEST AS MADE BY THE APPELLANT IN THE ASSESSMENT IN SUPPRESSION OF THE SUM DECLARED IN THE RETURN OF INCO ME BY RELYING ON ITAT ORDER NO.625/PN/98. 10) THE LEARNED CIT (A) HAS ERRED IN NOT ACCEPTING THE CLAIM THAT THE DINNER RECEIPTS FROM MEMBERS GUESTS WERE ASSESSABLE AS INCOME FROM BUSINESS, MADE BY THE APPELLANT IN THE ADDITIONAL GROUND OF APPEAL BEFORE HE R. 11) THE APPELLANT PRAYS THAT THE INCOME FROM INTEREST, INCOME FROM VENUE CHARGES RECEIVED FROM GUESTS, INCOME FROM CRICKET GROUND BOOKING BY NON MEMBERS AND INCOME FROM DINNER RECEIPTS FROM MEMBERS GUESTS BE DIRECTED TO BE COMPUTED AS CLAIMED IN THE AS SESSMENT. THE APPELLANT CRAVES THAT THE ORDER OF LEARNED CIT (A) BE SET ASIDE AND AO BE DIRECTED TO FOLLOW AS PRAYED. ITA NO. 1481 /P U N/20 1 6 ITA NO. 1512 /PUN/201 6 4 5. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT THE ISSUES RAISED IN CROSS APPEALS ARE SQUARELY COVERED BY THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE IN EARLIER YEARS. 6. FIRST, WE TAKE UP THE APPEAL OF ASSESSEE, WHEREIN THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS ONLY PRESSED GROUNDS OF APPEAL NO.1 TO 4. 7. BRIEF FACTS RELATING TO THE ISSUE ARE THAT THE ASSESSEE HAD RECEIVED INTEREST INCOME OF 86,20,216/ - ON DEPOSITS WITH BANKS. THE ASSESSEE CLAIMED THAT THE SAID INTEREST WAS NOT TAXABLE IN ITS HANDS ON THE PRINCIPLE OF MUTUALITY. ALTERNATIVELY, THE ASSESSEE CLAIMED DEDUCTION OF 7.5% AS EXPENDITURE OUT OF INTEREST EARNED. THE ASSESSING OFFI CER RELYING ON DECISION OF APEX COURT IN THE CASE OF BANGALORE CLUB REPORTED IN 350 ITR 509 (SC) HELD THAT INTEREST IS TAXABLE IN THE HANDS OF ASSESSEE AND ALSO NO DEDUCTION WAS ALLOWED OUT OF SAID INTEREST INCOME. 8. THE CIT(A) UPHELD THE TAXABILITY OF I NTEREST INCOME IN THE HANDS OF ASSESSEE AND FURTHER HELD THAT ONLY RELEVANT EXPENDITURE WHICH IS DIRECTLY EXPENDED TO EARN THE SAID INCOME WAS ALLOWABLE UNDER SECTION 57(III) OF THE ACT. 9. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A) ON BOTH THE COUNTS. 10. THE FIRST ISSUE RAISED BY THE ASSESSEE I.E. TAXABILITY OF INTEREST INCOME IN THE HANDS OF ASSESSEE STANDS SETTLED AGAINST THE ASSESSEE BY EARLIER ORDERS OF ITA NO. 1481 /P U N/20 1 6 ITA NO. 1512 /PUN/201 6 5 TRIBUNAL IN ASSESSEES OWN CASE. THE SECOND ASPECT IS THE CLAIM OF DEDUCTION AGAINST THE SAID INTEREST INCOME WHICH HAS BEEN ALLOWED @ 7.5% OF INTEREST EARNED. IN THIS REGARD, HE PLACED RELIANCE ON THE FOLLOWING ORDERS OF TRIBUNAL: - A. POONA CLUB LTD. VS ACIT IN ITA NOS.1068 & 1069/PUN/2014, RELATING TO ASSESSMENT YEARS 2008 - 09 & 2009 - 10, ORDER DATED 23.01.2018 B. POONA CLUB LTD. VS. ACIT IN ITA NO.625/PN/1998, RELATING TO ASSESSMENT YEAR 1994 - 95, ORDER DATED 17.05.2000 C. POONA CLUB LTD. VS. ACIT IN ITA NO.476/PN/1999, RELATING TO ASSESSMENT YEAR 1995 - 96, ORDER DATED 05.09.2005 D. ACIT VS. POONA CLUB LTD. IN ITA NO.509/PN/1999, RELATING TO ASSESSMENT YEAR 1995 - 96, ORDER DATED 11.11.2009 11. THE TRIBUNAL IN THE LATEST ORDER RELATING TO ASSESSMENT YEAR 2008 - 09 (SUPRA) HAD CONSIDERED THE CLAIM OF ASSESSEE OVER AND ABOVE THE DEDUCTION CLA IMED OUT OF INTEREST EXPENDITURE AND HELD THAT THE ASSESSEE WAS NOT ELIGIBLE FOR CLAIMING ANY DEDUCTION UNDER SECTION 57(III) OF THE ACT OVER AND ABOVE THE DEDUCTION EARLIER ALLOWED BY THE TRIBUNAL IN ASSESSEES OWN CASE TO THE EXTENT OF 7.5%. FOLLOWING T HE SAME PARITY OF REASONING, GROUNDS OF APPEAL NO.1 TO 4 RAISED BY THE ASSESSEE ARE THUS, PARTLY ALLOWED. ALL THE OTHER GROUNDS OF APPEAL ARE NOT PRESSED, HENCE THE SAME ARE DISMISSED AS NOT PRESSED. 12. NOW, COMING TO THE APPEAL OF REVENUE, WHEREIN THE CIT(A) HAD HELD THAT THE RECEIPTS FROM GUEST OF MEMBERS ALSO FALLS UNDER THE PRINCIPLE OF MUTUALITY. 13. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ISSUE STANDS COVERED BY THE ORDER S HON'BLE SUPREME COURT WHICH HAVE BEEN APPLIED BY THE TRIBUNAL IN ASSESSEES OWN CASE AND HENCE, THERE IS NO MERIT IN THE GROUNDS OF APPEAL RAISED BY THE REVENUE. HE PLACED RELIANCE ON THE FOLLOWING DECISIONS: - A. POONA CLUB LTD. VS. ACIT IN ITA NO.625/PN/1998, RELATING TO ASSESSMENT YEAR 199 4 - 95, ORDER DATED 17.05.2000 ITA NO. 1481 /P U N/20 1 6 ITA NO. 1512 /PUN/201 6 6 B. POONA CLUB LTD. VS. ACIT IN ITA NO.476/PN/1999, RELATING TO ASSESSMENT YEAR 1995 - 96, ORDER DATED 05.09.2005 C. ACIT VS. POONA CLUB LTD. IN ITA NO.509/PN/1999, RELATING TO ASSESSMENT YEAR 1995 - 96, ORDER DATED 11.11.2009 D. CIT VS. BANKIPUR CLUB REPORTED IN 226 ITR 97 (SC) E. CHELMSFORD CLUB VS. CIT (2000) 243 ITR 89 (SC) 14. THE REVENUE PLACED RELIANCE ON THE ORDER OF ASSESSING OFFICER. 15. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE RAISED IN THE GROUNDS OF APPEAL FILED BY THE REVENUE IS IN RESPECT OF CHARGES RECEIVED FROM GUEST OF MEMBERS AND WHETHER THE SAME FALL WITHIN THE PRINCIPLE OF MUTUALITY, HENCE NOT TAXABLE IN THE HANDS OF ASSESSEE. 16. THE TRIBUNAL IN ASSESSME NT YEAR 1994 - 95 (SUPRA) HAD ELABORATELY CONSIDERED THE PLEA OF ASSESSEE IN THIS REGARD AND HELD THAT THE SAID CHARGES RECEIVED FROM GUEST OF MEMBERS WERE EXEMPT ON THE PRINCIPLE OF MUTUALITY. THE SAID PRINCIPLE HAS BEEN APPLIED IN LATER YEARS BY THE TRI BUNAL I.E. ASSESSMENT YEAR 1995 - 96 (SUPRA). FOLLOWING THE SAME PARITY OF REASONING, WE FIND NO MERIT IN THE GROUNDS OF APPEAL RAISED BY THE REVENUE. 1 7 . IN THE RESULT, APPEAL OF ASSESSEE IS PARTLY ALLOWED AND APPEAL OF REVENUE IS DISMISSED. ORDER PRONOU NCED ON THIS 26 TH DAY OF SEPTEMBER , 201 8 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 26 TH SEPTEMBER , 201 8 . GCVSR ITA NO. 1481 /P U N/20 1 6 ITA NO. 1512 /PUN/201 6 7 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 3 , PUNE ; 4. THE PR.CIT , PUNE ; 5. 6. , , / DR B , ITAT, PUNE ; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE