JCIT, Noida V. M/s. Royal Garden Residents Welfare Association, Gautam Budh Nagar

ITA 2214/DEL/2012

• Counselvise Citation: 221420114 RSA 2012
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 12-12-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 09-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F: NEW DELHI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER I.T.A. NO.2214/DEL/2012 ASSESSMENT YEAR : 2008-09 JOINT COMMISSIONER OF INCOME-TAX, M/S. ROYAL GARD EN RANGE-1, SECTOR-20, NOIDA.. VS. RESIDENTS WELFARE ASSOCIATION, E-12, SECTOR-61, NOIDA, GAUTAMBUDH NAGAR-201301. PAN : AAAAR2807B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJESH KUMA R, SR. DR. RESPONDENT BY : NONE. DATE OF HEARING : 12-12-2012 DATE OF PRONOUNCEMENT : 12-12-2012 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 10-02-2012 PASSED BY THE LEARNED FIRST APPELLATE AUTHORITY, GH AZIABAD. THE FIRST GROUND RAISED BY THE REVENUE IS THAT ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION OF RS.2,81,500/- MADE ON ACCOUNT OF MEMBERS DEPOSIT AND RS.5,75,199 /- ON ACCOUNT OF ADVANCE MAINTENANCE CHARGES ON THE PRINCIPLE OF MUT UALITY SPECIALLY WHEN ITA NO.2214/DEL/2012 2 NEITHER CONFIRMATION OF THE MEMBERS WERE FILED NOR THEY WERE PRODUCED BEFORE THE AUTHORITIES. 2. DURING HEARING WE HAVE HEARD SHRI RAJESH KUMAR, LEARNED SR. DR WHEREAS NONE WAS PRESENT FOR THE ASSESSEE. WE FIND THAT THIS APPEAL WAS FILED ON 11-06-2012 AND WAS ADJOURNED ON EARLIER OC CASIONS ALSO, THE ASSESSEE DID NOT APPEAR. THEREFORE, WE HAVE NO OPT ION BUT TO PROCEED EX PARTE QUA ASSESSEE AND TEND TO DISPOSE OF THIS APPE AL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE LEARNED SR. DR HAS ALSO NO OBJECTION IF THIS APPEAL IS HEARD IN THE ABSENCE OF THE ASSESSEE. THE CRUX OF ARGUMENTS ON BEHALF OF THE REVENUE IS IDENTICAL TO THE GROUND RAISED. 3. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D SR. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACT S IN BRIEF ARE THAT THE RETURN WAS FILED BY THE ASSESSEE ON 1-12-2008, DECL ARING `NIL INCOME, IN THE STATUS OF A COOPERATIVE SOCIETY. THE RETURN WAS PR OCESSED UNDER SEC. 143(1) OF THE ACT AND THEREAFTER, SELECTED FOR SCRUTINY TH ROUGH CASS. NOTICES UNDER SEC.142(1) AND 143(2) WERE ISSUED TO THE ASSESSEE TO WHICH THE ASSESSEE DID NOT APPEAR. AS PER THE ASSESSMENT ORDER FINALLY PA RT DETAILS WERE SUBMITTED. THE ASSESSEE DECLARED UNSECURED LOAN OF RS.96.18,65 9/- IN THE BALANCE-SHEET. THE ASSESSEE WAS ASKED TO PROVE THE CAPACITY, IDENT ITY AND CREDITWORTHINESS ITA NO.2214/DEL/2012 3 OF THE LENDER. VIDE REPLY DATED 14 TH DECEMBER, 2010, IT WAS CLAIMED BY THE ASSESSEE WHICH IS REPRODUCED HEREUNDER:- UNSECURED LOANS AMOUNTING TO RS.96,18,659/- IS ACT UALLY THE AMOUNT RECEIVED AS SECURITY DEPOSIT FROM THE MEMBER S OF THE SOCIETY AT THE TIME OF POSSESSION OF THE HOUSE IS A MOUNTING TO RS.71,88,556/- AND RS.24,30,103/- IS THE AMOUNT REC EIVED AS ADVANCE MAINTENANCE CHARGES PAID BY THE MEMBERS MONTHLY/QUARTERLY/HALF YEARLY/ANNUAL MODE TOWARDS T HE MAINTENANCE CHARGES OF THE SOCIETY FOR THE BETTERME NT AND BENEFIT OF THE MEMBERS OF THE SOCIETY. THE LEARNED CIT(A) EXAMINED THE CLAIM OF THE ASSESS EE AND FOUND THAT OUT OF THE AMOUNT OF RS.96,18,659/-, THE AMOUNT OF RS.69, 07,056/- WAS COMING AS A BALANCE FROM THE LAST YEAR BEING SECURITY DEPOSIT FROM THE MEMBERS (SHOWN AS UNSECURED LOAN IN THE BALANCE-SHEET). AS PER TH E REVENUE THE NAMES OF THE MEMBERS COULD NOT BE PRODUCED BY THE ASSESSEE. HOWEVER, THE WRITTEN SUBMISSIONS OF THE ASSESSEE WERE DULY CONSIDERED BY CIT(A) WHEREIN THE NAMES AND ADDRESSES OF THE PERSONS/MEMBERS FROM WHO M THE AMOUNTS WERE RECEIVED, WERE DULY FURNISHED. THE SOCIETY IS ALSO GETTING MAINTENANCE CHARGES TO MEET OUT THE DAY-TO-DAY EXPENSES. THE C OPY OF THE PAN CARD WAS ALSO ENCLOSED ALONG WITH THE AMOUNT SO RECEIVED. T HE INCOME AND EXPENDITURE HAS BEEN DULY CONSIDERED BY THE LEARNED CIT(A) AND REMAND REPORT WAS SOUGHT FROM THE AO WHICH HAS ALSO BEEN C ONSIDERED IN THE IMPUGNED ORDER AS HAS BEEN MENTIONED IN PARA 5 ONWA RDS. REPLY ON THE REMAND REPORT WAS ALSO FILED BY THE ASSESSEE AS A R EJOINDER. THE DEPOSITS ITA NO.2214/DEL/2012 4 WERE MADE AS A MAINTENANCE DEPOSITS AS PER BYE LAWS OF THE SOCIETY AND THUS, WE ARE IN AGREEMENT WITH THE CONCLUSION DRAWN IN TH E IMPUGNED ORDER THAT SUCH RECEIPTS FROM THE MEMBERS ARE WITHIN THE AMBIT OF MUTUALITY. THE LEARNED CIT(A) HAS DEALT WITH THE RECEIPTS/MAINTENA NCE CHARGES ETC. SEPARATELY IN WHICH WE FIND NO INFIRMITY. THEREFOR E, THE STAND OF THE LEARNED CIT(A) IS AFFIRMED. 4. THE NEXT GROUND PERTAINS TO DELETING THE DI SALLOWANCE OF RS.9,56,601/-. THE CRUX OF ARGUMENTS ON BEHALF OF THE REVENUE IS T HAT THE EXPENSES ARE OF UNVERIFIABLE NATURE AND MORE SPECIFICALLY THE ASSES SEE DID NOT PRODUCE BOOKS OF ACCOUNTS OR ANY EVIDENCE FOR THE GENUINENESS OF THE CLAIMED EXPENSES. WE FIND THAT THERE IS A CATEGORICAL FINDING IN THE IMPUGNED ORDER THAT THE ASSESSEE WAS NOT PROVIDED OPPORTUNITY TO PRODUCE TH E BOOKS OF ACCOUNTS AND VOUCHERS. EVEN NO VERIFICATION WAS MADE BY THE ASS ESSING OFFICER DURING REMAND PROCEEDINGS. THERE IS UNCONTROVERTED FINDIN G THAT THE ASSESSEE SOCIETY IS MAINTAINING DAY-TO-DAY RECORD OF EXPENSE S. AS OBSERVED EARLIER THE ACTIVITIES OF THE ASSESSEE ARE RUN ON THE PRINC IPLE OF MUTUALITY. THEREFORE, ON THIS GROUND ALSO WE FIND NO INFIRMITY IN THE ORDER OF THE LEARNED CIT(A). THEREFORE, IT IS AFFIRMED. 5. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. 6. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN T HE PRESENCE OF THE LEARNED SR. DR AT THE CONCLUSION OF THE HEARING ON 12 TH DECEMBER, 2012. SD/- SD/- ( B.C. MEENA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12 TH DECEMBER, 2012. ITA NO.2214/DEL/2012 5 COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.