ITO 16(1)(2), MUMBAI V. HIGH LAND MARK CHS LTD, MUMBAI

ITA 1752/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48502 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 13-04-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 05-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI V.DURGA RAO, JM ITA NO.1752/MUM/2010 : ASST.YEAR 2000-2001 THE INCOME TAX OFFICER WARD 16(1)(2) MUMBAI. VS. M/S.HIGH LAND MARK CHS LIMITED LAND MARK, CARMICHAEL ROAD MUMBAI 400 026. PAN :AAABH0003J. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.K.GUPTA RESPONDENT BY : --- NONE --- O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE CIT(A) ON 09.12.2009 IN RELATION TO ASSESSMENT YEAR 2000-2001 . 2. FIRST GROUND IS AGAINST THE DELETION OF ADDITION OF RS.9,72,500 ON ACCOUNT OF VOLUNTARY CONTRIBUTION OF RS.17,11,425 RECEIVED FRO M MEMBERS AS TRANSFER FEES FOLLOWING THE DECISION OF THE HONBLE BOMBAY HIGH C OURT IN THE CASE OF SIND CO- OPERATIVE HOUSING SOCIETY VS. ITO [(2009) 317 ITR 4 7 (BOM.)]. 3. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND PERUSED THE RELEVANT MATERIAL ON RECORD. THERE IS NO APPEARANCE FROM THE SIDE OF THE ASSESSEE DESPITE NOTICE. IT IS SEEN THAT THE ASSESSING OFFIC ER TAXED TRANSFER FEES RECEIVED FROM INCOMING AND OUTGOING MEMBERS AS VOLUNTARY CON TRIBUTION TO THE WELFARE FUND WHICH WAS CLAIMED TO BE EXEMPT ON THE BASIS OF PRIN CIPLE OF MUTUALITY. THE LEARNED CIT(A) NOTED THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SIND CO-OPERATIVE HOUSING SOCIETY (SUPRA) HAS DECIDED THIS ISSUE IN A SSESSEES FAVOUR AND FURTHER IN ASSESSEES OWN CASE RELIEF HAS BEEN GRANTED IN THE IMMEDIATELY PRECEDING YEAR. HE, THEREFORE, ORDERED FOR THE DELETION OF ADDITION OF RS.17.11 LAKHS. AS IS APPARENT FROM GROUND NO.1 ITSELF THAT THE DEPARTMENT HAS FIL ED THIS APPEAL ON THE GROUND THAT IT HAVE NOT ACCEPTED THE JUDGEMENT OF THE HONBLE BOMBAY HIGH COURT. BE THAT AS ITA NO.1752/MUM/2010 M/S.HIGH LAND MARK CHS LIMITED. 2 IT MAY WHEN A PARTICULAR ISSUE HAS BEEN DECIDED BY THE HONBLE JURISDICTIONAL HIGH COURT, THE SAME BECOMES BINDING ON ALL THE AUTHORIT IES WORKING UNDER ITS JURISDICTION. NOTWITHSTANDING THE FACT THAT THE REV ENUE HAS PREFERRED APPEAL AGAINST A PARTICULAR JUDGEMENT TO THE HONBLE SUPREME COURT , BINDING EFFECT OF THE JUDGEMENT REMAINS INTACT. IN VIEW OF THE FACT THAT THE LEARNED CIT(A) HAS DECIDED THIS ISSUE BY FOLLOWING THE JUDGEMENT OF THE HONBL E JURISDICTIONAL HIGH COURT, WHICH FACT HAS NOT BEEN DISPUTED BY THE LEARNED DEP ARTMENTAL REPRESENTATIVE, WE ARE OF THE CONSIDERED OPINION THAT NO INFIRMITY CAN BE FOUND IN THE IMPUGNED ORDER ON THIS SCORE. WE, THEREFORE, UPHOLD THE SAME. THIS GROUND IS NOT ALLOWED. 4. GROUND NO.2 IS AGAINST THE DELETION OF ADDITION ON ACCOUNT OF NON-OCCUPANCY CHARGES OF RS.6,21,000. THE ASSESSING OFFICER TAXED THIS AMOUNT, WHICH WAS CLAIMED BY THE ASSESSEE AS EXEMPT ON THE PRINCIPLE OF MUTUALITY. THE LEARNED CIT(A), FOLLOWING THE JUDGEMENT OF THE HONBLE BOM BAY HIGH COURT IN THE CASE OF MITTAL COURT CHS LTD. VS. CIT [(2010) 320 ITR 4 14 (BOM.)], HELD THE AMOUNT AS NOT TAXABLE ON THE PRINCIPLE OF MUTUALITY. FOLLO WING THE SAME REASONING AS GIVEN IN RESPECT OF GROUND NO.1, WE UPHOLD THE IMPUGNED O RDER ON THIS ISSUE ALSO. 5. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED ON THIS 20 TH DAY OF APRIL, 2011 . SD/- SD/- (V.DURGA RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 20 TH APRIL, 2011. DEVDAS* ITA NO.1752/MUM/2010 M/S.HIGH LAND MARK CHS LIMITED. 3 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - XXVII. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.