THE PANCHARATNA CO OP HSG SOC. LTD, MUMBAI V. ITO 16(3)(1), MUMBAI

ITA 1610/MUM/2012

• Counselvise Citation: 161019914 RSA 2012
• Duration Of Justice: 1 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-12-2013
• Assessment Year: 1998-1999
• Appeal Filed On: 07-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 148

Judgement Text

C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI .. , # %, & # ' BEFORE SHRI P.M. JAGTAP, AM AND SHRI SANJAY GARG, J M ./ I.T.A. NO.1608 TO 1611 /MUM/2012 ( &% % / ASSESSMENT YEARS : 1995-96, 1997-98, 1998-99 AND 19 99-2000 THE PANCHRATNA CO-OP- HSG. SOC. LTD., OFFICE NO. 21, PANCHRATNA MAMA PARMANAND MARG, MUMBAI 400 004. / VS. INCOME TAX OFFICER 16(3)(1), 2 ND FLOOR, MATRU MANDIR, TARDEO, MUMBAI. . / PAN : AAAAR3507C ( / APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY SHRI FIROZE B. ANDHYARUJINA RESPONDENT B Y : SHRI ASHOK JAIN / DATE OF HEARING : 05-12-2013 / DATE OF PRONOUNCEMENT :13-12-2013 [ / O R D E R PER BENCH . : THESE FOUR APPEALS FILED BY THE ASSESSEE AGAINST FO UR SEPARATE ORDERS PASSED BY THE LD. CIT(A) ALL DATED 30-12-2011 FOR A SSESSMENT YEARS 1995-96, 1997-98, 1998-99 & 1999-2000 INVOLVE COMMON ISSUES AND THE SAME THEREFORE HAVE BEEN HEARD TOGETHER AND ARE BEING DI SPOSED OF BY A SINGLE CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE RELEVANT FACTS OF THE CASE GIVING RISE TO TH ESE APPEALS ARE THAT THE ASSESSEE, A COOPERATIVE HOUSING SOCIETY, DID NOT FI LE THE RETURNS OF INCOME FOR ALL THE FOUR YEARS UNDER CONSIDERATION ON THE GROUN D THAT ITS ENTIRE INCOME WAS EXEMPT FROM TAX ON THE BASIS OF PRINCIPLE OF MU TUALITY. THE A.O. ISSUED NOTICES U/S 148 OF THE ACT TO THE ASSESSEE FOR ALL THE FOUR YEARS UNDER ITA 1608 TO 1611/M/12 2 CONSIDERATION AND IN THE ASSESSMENTS COMPLETED U/S 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961, HE DISALLOWED THE CLAIM OF TH E ASSESSEE THAT ITS INCOME WAS EXEMPT FROM TAX AS PER PRINCIPLE OF MUTUALITY. ACCORDINGLY, THE ASSESSMENTS FOR ALL THE FOUR YEARS UNDER CONSIDERAT ION WERE COMPLETED BY HIM MAKING VARIOUS ADDITIONS TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF INCOME EARNED FROM DIFFERENT SOURCES. AGAINST THE A SSESSMENTS MADE BY THE A.O. U/S 143(3) R.W.S. 147 OF THE ACT FOR ALL THE F OUR YEARS UNDER CONSIDERATION, APPEALS WERE PREFERRED BY THE ASSESS EE BEFORE THE LD. CIT(A) AND AFTER HAVING FAILED TO SUCCEED BEFORE THE LD. C IT(A), FURTHER APPEALS WERE FILED BY THE ASSESSEE BEFORE THE TRIBUNAL. ONE OF T HE ISSUES RAISED BEFORE THE TRIBUNAL BY THE ASSESSEE WAS RELATING TO THE VALIDI TY OF ASSESSMENTS MADE BY THE A.O. ON THE GROUND THAT THE CONCERNED A.O. HAD NO JURISDICTION TO ISSUE NOTICES U/S 148 OF THE ACT. SINCE THIS PRELIMINARY ISSUE RAISED BY THE ASSESSEE INVOLVED VERIFICATION OF RELEVANT FACTS FROM RECORD , THE TRIBUNAL REMITTED THE MATTER BACK TO LD. CIT(A) WITH A DIRECTION TO MAKE NECESSARY VERIFICATION WITH REGARD TO THE AUTHORITY WHICH HAD THE JURISDICTION OVER THE ASSESSEES CASE AT THE TIME OF ISSUE OF NOTICES U/S 148 AND GIVE SPECI FIC FINDING ABOUT THE VALIDITY OF THE REOPENING OF THE ASSESSMENTS. AS PE R THE DIRECTION OF THE TRIBUNAL, THE LD. CIT(A) RE-EXAMINED THE ISSUE AND HELD ON VERIFICATION OF ALL THE RELEVANT RECORDS THAT THE REOPENING OF THE ASSE SSMENTS WAS AS PER LAW AND IT WAS NOT VITIATED BY LACK OF JURISDICTION. AG GRIEVED BY THE ORDERS OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THESE APPEAL S BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN ITS APPEA LS FOR ALL THE FOUR YEARS UNDER CONSIDERATION, THE ASSESSEE HAS MAINLY RAISED TWO COMMON ISSUES, ONE RELATING TO THE VALIDITY OF NOTICES ISSUED U/S 148 OF THE ACT BY THE A.O. FOR LACK OF JURISDICTION AND THE OTHER RELATING TO THE ADDIT ION MADE TO ITS TOTAL INCOME ON ACCOUNT OF CONTRIBUTIONS RECEIVED AT THE TIME OF TRANSFER OF MEMBERSHIP TOWARDS REPAIRS AND RENOVATION FUND. AT THE TIME OF HEARING, THE LD. REPRESENTATIVES OF BOTH THE SIDES HAVE AGREED THAT THE SECOND ISSUE RELATING TO THE ADDITION MADE ON ACCOUNT OF TRANSFER FEES IS SQ UARELY COVERED IN FAVOUR OF ITA 1608 TO 1611/M/12 3 THE ASSESSEE BY THE ORDERS OF THE TRIBUNAL PASSED I N ASSESSEES OWN CASE. THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED ON RECO RD BEFORE US THE COPIES OF THE SAID ORDERS AND A PERUSAL OF THE SAME SHOWS THA T A SIMILAR ISSUE RELATING TO ADDITION ON ACCOUNT OF TRANSFER FEES WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE IN A.Y. 2003-04 VIDE ITS ORDER DATE D 25-07-2012 PASSED IN ITA NO. 5726/MUM/2011 FOLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF MITTAL COURT PREMISES CHS LTD. VS. ITO, 330 ITR 414. IT IS ALSO OBSERVED THAT A SIMILAR VIEW HAS BEEN CONSISTENTLY TAKEN BY THE TRIBUNAL IN ASSESSEES OWN CASE EVEN IN ASSESSMENT YEARS 2001-0 2, 2005-06 AND 2007- 08 (ITA NO. 1668, 1667 AND 1670/MUM/2012 DATED 20-0 3-2013) AND A.Y. 2008-09 (ITA NO. 7651/MUM/2011 DATED 23-4-2013). R ESPECTFULLY FOLLOWING THE ORDERS OF THE TRIBUNAL IN ASSESSEES OWN CASE O N A SIMILAR ISSUE, WE DELETE THE ADDITION MADE BY THE A.O. TO THE TOTAL INCOME O F THE ASSESSEE ON ACCOUNT OF TRANSFER FEES AND ALLOW GROUND NO. 2 OF THE ASSE SSEES APPEALS FOR ALL THE FOUR YEARS UNDER CONSIDERATION. 4. AS A RESULT OF OUR DECISION RENDERED ABOVE DELET ING THE ADDITION MADE TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF TRAN SFER FEES IN ALL THE FOUR YEARS UNDER CONSIDERATION, THE PRELIMINARY ISSUED R AISED BY THE ASSESSEE IN GROUND NO. 1 OF THESE APPEALS RELATING TO THE VALID ITY OF RE-OPENING OF ASSESSMENTS HAS BECOME ONLY ACADEMIC AS AGREED EVEN BY THE LD. REPRESENTATIVES OF BOTH THE SIDES. WE, THEREFORE, D O NOT CONSIDER IT NECESSARY OR EXPEDIENT TO ADJUDICATE UPON THE SAME. 5. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH DECEMBER 2013 . # % & 13/12/2013 SD/ - SD/ (SANJAY GARG) (P.M. JAGTAP ) #* JUDICIAL MEMBER / ACCOUNTANT MEMBER ITA 1608 TO 1611/M/12 4 MUMBAI ; & DATED [ .*../ RK , SR. PS , -&./ 0/ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. , () / THE CIT(A)CONCERNED, MUMBAI. 4. , / CIT CONCERNED, MUMBAI 5. / **1 , 1 , / DR, ITAT, MUMBAI C BENCH 6. 5 / GUARD FILE. / BY ORDER, / * //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI