ITO, Panchkula V. M/s Gymkhana Club, Panchkula

ITA 152/CHANDI/2012

• Counselvise Citation: 15221514 RSA 2012
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-06-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 06-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH BEFORE MS.SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO. 152/CHD/2012 ASSESSMENT YEAR: 2008-09 ITO, WARD-3, V M/S GYMKHANA CLUB, PANCHKULA. SECTOR 3, PANCHKULA. PAN: AAATG-5668E (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. JAISHREE SHARMA RESPONDENT : SMT.JYOTI DATE OF HEARING : 05.06.2012 DATE OF PRONOUNCEMENT : 21.06.2012 ORDER PER MEHAR SINGH, AM THE PRESENT APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 02.12.2011 PASSED BY THE LD . CIT(A) U/S 250(6) OF THE INCOME-TAX ACT,1961 (IN SHORT 'TH E ACT'). 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLO WING GROUNDS OF APPEAL: 1. THE LD. CIT(A) HAS ERRED IN HOLDING THAT TH E ASSESSEE CLUB IS A MUTUAL CONCERN DISREGARDING THE FINDING OF A.O. THAT THE FINANCIAL AN D ADMINISTRATIVE CONTROL OVER THE ASSESSEE CLUB IS IN HANDS OF HUDA AND THE SOCIETY FAILS ON THE FUNDAMENTAL PRE-REQUISITE OF IDENTITY OF ALL THE MUTUAL CONCERN. 2. THE LD. CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE ON THE BASIS OF DECISION OF HON'BLE ITAT, CHANDIGARH IN THE ASSESSEE'S OWN CASE 2 RELATING TO EARLIER YEAR WHEN THE CLUB DOES NOT FULFILL THE PRINCIPLE OF MUTUALITY AS LAID DOWN BY HON'BLE APEX COURT IN THE CASE OF M/S CHELMSFORD CLUB VS. C/7243-ITR-89. 'THE FUNDS CAN BE EXPANDED FOR MUTUAL BENEFITS OR SURPLUS CAN BE REFUNDED TO THE CONTRIBUTORS.' 3. THE APPLICANT CRAVES FOR LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD AND DISPOSED OFF 4. IT IS PRAYED THAT THE ORDER OF LD.CIT(A) BE SET ASIDE AND THAT OF THE A.O. MAY BE RESTORED. 3. IN THE COURSE OF PRESENT APPELLATE PROCEEDINGS , LD. 'DR' SUPPORTED ORDER PASSED BY THE AO. 4. LD. 'AR' ARGUED THAT THE ISSUE IS COVERED BY THE DECISION OF HON'BLE ITAT, IN ASSESSEE'S OWN CASE IN ITA NO. 777/CHD/2007 ASSESSMENT YEAR 2004-05, ORDER DATED 29.01.2008. IN THIS CONTEXT, HE REFERRED TO LAST P ARA OF THE IMPUGNED ORDER PASSED BY THE HON'BLE TRIBUNAL. 5. REVENUE CONTENDED THAT CIT(A), ERRED IN ALLOWING RELIEF TO THE ASSESSEE, ON THE BASIS OF DECISION OF THE HO N'BLE ITAT CHANDIGARH IN ASSESSEE'S OWN CASE RELATING TO EARLI ER YEAR, WHEN THE CLUB DOES NOT FULFILL THE PRINCIPLE OF MUT UALITY AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF CHELMSFORD CLUB V CIT 253 ITR 89. LD. CIT(A), ON CONSIDERATION OF THE SUBMISSIONS, FILED BY THE ASSE SSEE AND THE CASE LAWS CITED THEREIN, DELETED THE ADDITION, FOLLOWING THE DECISION OF THE TRIBUNAL, AS IS EVIDENT FROM PA RA 6 OF 3 THE SAID ORDER. THE RELEVANT PART OF THE ORDER PAS SED BY THE CIT(A) IS REPRODUCED HEREUNDER : 5. AS THE FACTS OF THE CASE UNDER APPEAL ARE SIMI LAR AS IN THE DECISION OF HON'BLE ITAT IN THE CASE OF GYMKHANA CLUB, SECTOR 6, PANCHKULA IN ITA NO. 900/CHANDI/2000 FOR THE A.Y. 1995-96 DATED 10.12.2004, RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE ITAT CHANDIGARH IN THE CASE OF GYMKHANA CLUB, THE ADDITION OF RS.30,58,400/- IS DIRECTED TO BE DELETED. 6. IN RESULT, APPEAL IS ALLOWED. 5(I) IT WOULD BE RELEVANT TO REPRODUCE THE FINDINGS OF THE DECISION OF THE ITAT, IN THE ASSESSEE'S OWN CASE IN ITA NO.777/CHANDI/2007, A.Y. 2004-05: WE HAVE ALREADY POINTED OUT IN THE INSTANT CASE TH AT IN ALL THE PRECEDING YEARS WHICH WERE THE SUBJECT MATT ER OF THE ADJUDICATION BEFORE THE TRIBUNAL, THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE AND THE MATT ER IS ALREADY BEFORE THE HON'BLE HIGH COURT FOR ADJUDICATION, SO KEEPING IN VIEW THE RATIO LAID DOW N IN THE ABOVE DISCUSSED JUDICIAL PRONOUNCEMENT, WE DO N OT SEE ANY REASON TO DEVIATE FROM THE VIEW TAKEN BY TH E TRIBUNAL IN EARLIER YEARS IN ASSESSEE'S OWN CASE. IT IS ALSO PERTINENT TO MENTION THAT FOR THE SAKE OF CONSISTENCY, WE HAVE PREFERRED THE DECISION OF THE TRIBUNAL IN THE CASE OF THE ASSESSEE TO THE DECISIO N IN THE CASE OF CHANDIGARH GOLF CLUB (SUPRA). THEREFORE , TO MAINTAIN CONSISTENCY ALSO, WE DO NOT SEE ANY MERIT IN THESE APPEALS OF THE DEPARTMENT. 11. IN THE RESULT, THE APPEALS OF THE DEPARTMENT AR E DISMISSED. 6. WE HAVE CAREFULLY PERUSED THE RIVAL SUBMISSIONS, FACTS OF THE CASE AND FOUND THAT THE ISSUE IS SQUARELY CO VERED BY 4 THE DECISION OF THE TRIBUNAL IN ASSESSEE'S OWN CASE , AS POINTED OUT BY LD. 'AR', WHICH WAS NOT DISPUTED BY LD. 'DR'. 7. RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBU NAL IN ASSESSEE'S OWN CASE, ON THE SAME ISSUE, APPEAL OF T HE REVENUE IS DISMISSED. REGISTRY IS DIRECTED TO ENCL OSE A COPY OF THE ORDER DATED 29.01.2008 PASSED BY THE TRIBUNA L IN ITO V GYMKHANA CLUB, SECTOR 3, PANCHKULA IN ITA NO.777/CHD/2007 AND ITA 778/CHD/2007. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST JUNE,2012. SD/- SD/- (SUSHMA CHOWLA) (MEHAR SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 21 ST JUNE,2012. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH