MUMBAI PUNE MOTOR MALAK SHRAMJIVAN PREMISES CO OP SOC LTD, MUMBAI V. ITO 17(2)(4), MUMBAI

ITA 1739/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1739 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 10-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR SHANTESHWAR SWAMI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH L, MUMBAI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.1739/M/2017 ASSESSMENT YEAR: 2012-13 M/S. MUMBAI PUNE MOTOR MALAK SHRAMJIVAN PREMISES CO-OP SOC. LTD., B-5, WADALA TRUCK TERMINAL, W.T.T. RD., WADALA, MUMBAI 400 037 PAN: AAAAM8387M VS. ITO WARD-17(2)(4), MUMBAI (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI BHUPENDRA SHAH, A.R. REVENUE BY : DR. SHANTESHWAR SWAMI, SR. D.R. DATE OF HEARING : 28.08.2018 DATE OF PRONOUNCEMENT : 30.08.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 11.01.2017 OF THE COMMISSIONE R OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2012-13. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A.O. ERRED IN REJECTING THE PRINCIPLES OF MUTUALITY AND RULE O F CONSISTENCY APPLICABLE TO THE APPELLANT AOP BY WRONGLY INTERPRETING THE FACTS AND DISREGARDING THE OBJECTIVES OF APPELLANT AOP. WITHOUT PREJUDICE TO THE ABOVE AND ALTERNATIVELY , ITA NO.1739/M/2017 M/S. MUMBAI PUNE MOTOR MALAK SHRAMJIVAN PREMISES CO-OP SOC. LTD. 2 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED A.O. ERRED IN ADDING THE FOLLOWING SUMS EVEN THOUGH THE APPELLANT SATISFIES THE CONCEPT OF MUTUALITY. SR NO. PARTICULARS AMOUNT (RS.) 1. INTEREST RECEIVED FROM MEMBERS ON MUMBAI BANK LOAN 16,70,863 2. BANK CHARGES RECOVERY 6,253 3. SOCIETY MAINTENANCE CHARGES RECEIVED 14,60,000 4. FOUNDATION/PLINTH AND PILING INTEREST RECEIVED 3 4,27,171 5. INTEREST RECEIVED FROM MEMBER AGAINST MDCC BANK 48,17,043 TOTAL 1,13,81,330 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED ASSESSING OFFICER ERRED IN DISALLOWING DEDUCTION OF THE FOLLO WING SUMS U/S 80P SR NO. PARTICULARS AMOUNT (RS.) 1. INTEREST ON SAVING BANK ACCOUNT 80,548 2. DIVIDEND FROM CO-OP BANK 4,28,7 12 3. INTEREST ON FIXED DEPOSIT 45,35,291 TOTAL 50,44,551 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER ERRED IN DISREGARDING BASIC DEDUCTION OF RS.50,000/ - U/S 80P (2)(C). 5. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN CONFIRMING ALL THE GROUNDS. 6. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED A.O. ERRED IN INITIATING PENALTY U/S 271 (1) (C) AND INTEREST U/S 234. [B] RELIEF PRAYED : THE APPELLANT THEREFORE PRAYS AS FOLLOWS, 1. TO APPLY THE PRINCIPLES OF MUTUALITY AND RESTORE TA XABLE INCOME AS NIL. 2. TO DELETE THE ADDITION OF RS. 1,13,81,330/- IN RESP ECT OF 5 ITEMS AS ABOVE. 3. TO ALLOW DEDUCTION U/S 80P OF RS. 50,44,551/- IN RESPECT OF 3 ITEMS AS ABOVE 4. TO GRANT BASIC DEDUCTION OF RS. 50,000/- U/S 8 0P (2)(C) 5. TO DELETE PENALTY LEVIED U/S 271(L)(C) INTERES T CHARGED U/S 234. [C] GENERAL : THE APPELLANT RESERVE RIGHTS TO ADD ALTER OR DELETE ANY PORTION OF THIS APPEAL BEFORE ITS CONCLUSION. THIS APPEAL IS FILED IN TIME AND MAY PLEASE BE ALLO WED IN FULL. ITA NO.1739/M/2017 M/S. MUMBAI PUNE MOTOR MALAK SHRAMJIVAN PREMISES CO-OP SOC. LTD. 3 A DETAILED PAPER BOOK ALONG WITH CASE LAWS WILL BE SUBMITTED AT THE TIME OF HEARING. 3. AT THE OUTSET, THE LD. COUNSEL OF THE ASSESSEE SU BMITTED THAT THE ISSUE RAISED IN GROUND NO.2 & 3 IS AS REGA RDS FACTUAL ASPECTS INVOLVED WHICH NEED TO BE EXAMINED BY THE A O QUA THE MUTUALITY AND DEDUCTION UNDER SECTION 80P OF T HE ACT WHICH HAS NOT BEEN EXAMINED DURING THE COURSE OF AS SESSMENT PROCEEDINGS. AS ASSESSEE COULD NOT FILE THE NECESS ARY DETAILS DUE TO THE UNAVOIDABLE CIRCUMSTANCES AND THEREFORE , THE LD AR REQUESTED THAT BOTH THE ISSUES MAY BE RESTORED TO THE FILE OF THE AO SO THAT THE SAME COULD BE EXAMINED AND APPRECIATED ON THE BASIS OF MUTUALITY AND ALSO ON T HE ISSUE OF ALLOWABILITY OF DEDUCTION UNDER SECTION 80P OF THE ACT. THE LD. COUNSEL SUBMITTED THAT THE ASSESSEE IS A CO-OPERATI VE SOCIETY FORMED TO MANAGE THE OFFICE PREMISES AND UNDOUBTEDL Y ON THE CONCEPT OF MUTUALITY . 4. THE LD. D.R. OPPOSED THE ARGUMENTS OF THE LD. A.R. BY REFERRING TO THE ASSESSMENT ORDER AND ALSO THE APPE LLATE ORDER AND POINTED OUT THAT IN BOTH THE PROCEEDINGS BELOW THE ASSESSEE WAS NO CO-OPERATIVE AND THE ISSUE AS RAISE D BY THE ASSESSEE COULD NOT BE EXAMINED DUE TO NON FURNISHIN G OF NECESSARY DETAILS BEFORE BOTH THE AUTHORITIES. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE M ATERIAL ON RECORD, WE ARE OF THE VIEW THAT THE ENDS OF JUSTI CE WOULD BE MET IF THE ISSUE IS AGAIN REFERRED TO THE FILE OF T HE AO TO EXAMINE THE SAME AFRESH IN THE LIGHT OF EVIDENCES P RODUCED BY THE ASSESSEE. ACCORDINGLY, WE RESTORE THE ISSUE TO THE FILE OF ITA NO.1739/M/2017 M/S. MUMBAI PUNE MOTOR MALAK SHRAMJIVAN PREMISES CO-OP SOC. LTD. 4 THE AO WITH THE DIRECTION TO DECIDE THE SAME DENOVO ON THE BASIS OF FACTS AND AS PER LAW AFTER EVALUATING THE EVIDENCES WHICH THE ASSESSEE MAY FILE DURING THE SET ASIDE PR OCEEDINGS. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30.08.2018. SD/- SD/- (JOGINDER SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 30.08.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.