M/S. SHRI BRIJ KUTIR CO-OP. HSG SOCIETY, MUMBAI V. THE ITO WD 15(1)(1), MUMBAI

ITA 2547/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2046 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 03-05-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 11-04-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP HEDAOO
• Assessee Lawyers: JITENDRA SINGH; SATENDRA PANDEY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J BEFORE SHRI N.V. VASUDEVAN (JM) & PRAMOD KUMAR (AM) I.T.A.NO. 2547/MUM/2008 (ASSESSMENT YEAR : 2005-0 6) M/S. SHRI BRIJ KUTIR CO- OPERATIVE HOUSING SOCIETY LTD. 68-A JAGMOHANDAS MARG NAPEAN SEA ROAD MUMBAI-400 006 VS. ITO WARD 15(1)(1) MUMBAI APPELLANT RESPONDENT PAN/GIR NO. : AABAS3681B ASSESSEE BY : SHRI JITENDRA SINGH & SHRI SATENDRA PANDEY DEPARTMENT BY : SHRI PRADEEP HEDAOO ORDER PER N.V. VASUDEVAN, JM :- THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 29.1.2008 OF LEARNED CIT(A)-XV, MUMBAI RELATING TO A.Y. 2005-06. 2. GROUNDS RAISED BY THE ASSESSEE READ AS FOLLOWS : - THE LEARNED CIT(A) ERRED IN LAW AND ON THE FACTS OF THE CASE TO CONFIRM THE ADDITION MADE BY THE ASSESSING OFFICER AND UPHOLDING THAT THE AMOUNT OF RS.9,97,000/- AS INCOME FROM OTH ER SOURCES WHICH IS OTHERWISE EXEMPT FROM TAX IN VIEW OF THE C ONCEPT OF MUTUALITY, SINCE THE APPELLANT IS A COOPERATIVE HOU SING SOCIETY. 3. THE ASSESSEE IS A CO-OPERATIVE HOUSING SOCIETY A SSESSED IN THE STATUS OF AOP. THE ASSESSEE HAD RECEIVED VOLUNTARY CONTRIBUTION FROM OUTGOING MEMBERS AND INCOMING MEMBERS OF RS. 11,84, 000/- AND CLAIMED THE SAME AS EXEMPT FROM TAXATION ON THE PRI NCIPLE OF MUTUALITY. THE ASSESSING OFFICER, HOWEVER, HELD THAT THE SAID AMOUNT IS TAXABLE AND NOT EXEMPT AND CANNOT BE SAID TO BE NOT TAXABLE ON THE PRINCIPLE OF M/S. SHRI BRIJ KUTIR CO-OPERATIVE HOUSING SOCIETY LTD. 2 MUTUALITY. THE ASSESSING OFFICER WAS OF THE VIEW A TRANSFER FEE OF RS. 25,000/-FROM THE OUTGOING MEMBER CAN BE SAID TO BE EXEMPT ON THE PRINCIPLE OF MUTUALITY. SINCE, THERE WERE 8 OUTGOIN G MEMBERS, THE ASSESSING OFFICER REDUCED A SUM OF RS. 2,00,000/- A ND BROUGHT TO TAX THE REMAINING SUM OF RS. 9,84,000/-. ON APPEAL BY THE ASSESSEE, LEARNED CIT(A) CONFIRMED THE ORDER OF ASSESSING OFF ICER BY FOLLOWING THE DECISION OF SPECIAL BENCH OF THE ITAT IN THE CASE O F WALKESHWAR TRIVENI CHS LTD. VS. ITO, 88 ITD 159 (MUM)(SB). 4. AT THE TIME OF HEARING OF THIS APPEAL, IT WAS BR OUGHT TO OUR NOTICE THAT HON'BLE BOMBAY HIGH COURT IN THE CASE OF MITTA L COURT PREMISES CO- OPERATIVE SOCIETY LTD., VS. ITO, 184 TAXMAN 292 (BO M) HAS HELD THAT TRANSFER FEE RECEIVED BY THE ASSESSEE WOULD BE GOVE RNED BY PRINCIPLE OF MUTUALITY AND WOULD NOT BE EXIGIBLE TO TAX. THE DEC ISION IN THE CASE OF WALKESHWAR TRIVENI CHS LTD. (SUPRA) WAS MODIFIED BY THE HONBLE HIGH COURT ON THIS ISSUE. IN VIEW OF THE ABOVE, WE DIRE CT THAT THE ADDITION MADE BY THE ASSESSING OFFICER AND UPHELD BY LEARNED CIT(A) BE DELETED. 5. IN THE RESULT, APPEAL BY THE ASSESSEE IS ALLOWED . ORDER HAS BEEN PRONOUNCED ON 21 ST DAY OF MAY, 2010. SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER SD/- (N.V. VASUDEVAN) JUDICIAL MEMBER DATED : 21 ST MAY, 2010 COPY TO : 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT(A)-CONCERNED. 4. THE CIT, CONCERNED. 5. THE DR CONCERNED, MUMBAI 6. GUARD FILE BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI PS