ITO 21(3)(2), MUMBAI V. SAMRUDRA MAHAL PREMISES, MUMBAI

ITA 255/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2554 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 09-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.255/MUM/2015 ASSESSMENT YEAR: 2011-12 INCOME TAX ACT OFFICER-21(3)(2) ROOM NO. 203, 2 ND FLOOR PIRAMAL CHAMBERS, LALBAUG MUMBAI 400012 / VS. M/S. SAMUDRA MAHAL PREMISES CO-OP SOCIETY LTD. SAMUDRA MAHAL DR. ANNIE BESANT ROAD WORLI, MUMBAI 400018 ( / REVENUE) ( !'# $ /ASSESSEE) PAN. NO. AACTS4733N / REVENUE BY SHRI KAILASH KANOJIYA !'# $ / ASSESSEE BY MS. APURVA SHAH % & $ ' / DATE OF HEARING : 18/07/2016 & $ ' / DATE OF ORDER: 20/07/2016 ITA NO. 255/MUM/2015 M/S. SAMUDRA MAHAL 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 09/10/2014 OF LD. COMMISSIONER OF INCOME TAX. THE FIRST GROUND RAISED BY THE REVENUE IS WITH REGARD T O DELETION OF ADDITION OF RS.1,65,76,003/- BEING INC OME FROM OTHER SOURCES WITHOUT APPRECIATING THE FACT THAT A NY AMOUNT CHARGED IN EXCESS OF RS.25,000/- FOR EACH TR ANSFER IS IN CONTRAVENTION OF THE NOTIFICATION OF GOVERNME NT OF MAHARASHTRA, 2001 AND THE EXCESS AMOUNT WILL BE LIA BLE TO TAX AND WILL NOT BE COVERED UNDER THE CONCEPT OF MU TUALITY. 2. DURING HEARING, SHRI KAILASH KONOJIYA, LEARNED D .R. ADVANCED ARGUMENTS WHICH ARE IDENTICAL TO THE GROUN D RAISED. ON THE OTHER HAND, SHRI APORVA SHAH, LEARNE D COUNSEL FOR THE ASSESSEE CLAIMED THAT THE ISSUE IN HAND IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBU NAL FOR ASSESSMENT YEAR 2009-10, IN THE CASE OF ASSESSEE IT SELF, VIDE ORDER DATED 23.12.2015 (ITA NO. 1787/MUM/2013). OUR ATTENTION WAS ALSO INVITED TO THE ORDER DATED 15.06 .2016 FROM HON'BLE JURISDICTIONAL HIGH COURT IN INCOME TAX APP EALS NO. 7, ETC. OF 2014. THIS FACTUAL MATRIX WAS NOT CONTRO VERTED BY THE LEARNED D.R. 2.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE AB OVE AND BEFORE COMING TO ANY CONCLUSION WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION FROM THE CONCLUSION DRAWN BY THE LEARNED CIT(A) FOR READY REFERENCE AND ANALYSIS : - ITA NO. 255/MUM/2015 M/S. SAMUDRA MAHAL 3 8. I HAVE GONE THROUGH THE ASSESSMENT ORDER PASSED BY THE AO AS WELL AS THE WRITTEN SUBMISSIONS FILED BY THE APPELLANT DURING THE COURSE OF APPELLATE PROCEEDINGS CAREFULL Y. THE AR OF THE APPELLANT HAS VEHEMENTLY CONTENDED THAT THE ISSUE U NDER CONSIDERATION IS COVERED IN FAVOUR OF THE APPELLANT VIDE THE APPELLATE ORDERS OF THE CIT(A) FROM THE A.Y.2002-03 TILL 2009-10. THE AR OF THE APPELLANT FURTHER STATED THAT THE ITA T MUMBAI VIDE ITS ORDER DATED 22/05/2013 HAS ALSO DECIDED THE ISS UES IN FAVOUR OF THE APPELLANT FOR THE A.Y. 2001-02 TO 2007-08. T HE APPELLANT HAS ALSO PLACED THE COPY OF THE ITAT DECISION ON RE CORD. 9. THE ABOVE SUBMISSIONS OF THE APPELLANT HAVE BEEN CONSIDERED AND I INTEND TO AGREE WITH THE ABOVE SUB MISSIONS. FROM THE PERUSAL OF THE CIT(A) ORDER IN THE CASE OF THE APPELLANT FOR THE A.Y. 2009-10, IT CAN BE OBSERVED THAT THE I SSUE WAS DISCUSSED IN DETAIL AND THE ISSUE WAS DECIDED IN FA VOUR OF THE APPELLANT. THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE APPELLANT FROM THE A.Y. 2002-03 TO 2009-10 BY MY PR EDECESSOR CIT(A) AS WELL AS OTHER CIT(A) IN THE EARLIER YEARS . 10. WHILE DECIDING THE ISSUES IN FAVOUR OF THE APPE LLANT FOR THE A.Y. 2001-02 TO 2007-08, THE HON'BLE ITAT, E BENCH MUMBAI VIDE ITS ORDER DATED 22/05/2013 HAS HELD ON THE ISSUE AS UNDER:- ON CONSIDERATION OF SUBMISSIONS OF LD REPRESENTATIV ES OF PARTIES, WE OBSERVE THAT THIS ISSUE IS SQUARELY COV ERED BY THE JUDGEMENT OF HON'BLE BOMBAY HIGH COURT IN THE C ASE OF M/S. SHYAM CHS AND SUPRABHAT CHS ORDER DATED 1.10.2009, WHEREIN, IT HAS BEEN HELD THAT ALL AMOUN TS RECEIVED BY THE CO-OPERATIVE HOUSING SOCIETY ON THE GROUNDS OF TRANSFER CHARGES ARE EXEMPT UNDER THE PR INCIPLE OF MUTUALITY. SIMILAR VIEW HAS ALSO BEEN TAKEN IN T HE CASE OF MITTAL COURT PREMISES CO-OPERATIVE SOCIETY LTD V S. INCOME-TAX OFFICER.320 ITR 414 (BOM). WE ALSO FIND THAT THE CIT(A) HAS FOLLOWED THE DECISION OF HON'BLE BOM BAY HIGH COURT IN THE CASE OF SIND CO-OPERATIVE HOUSING SOCIETY LTD (SUPRA) AND OTHER DECISIONS ON ABOVE IS SUE FOR ALLOWING THE TRANSFER FEES CLAIMED BY THE ASSESSEE. WE, THEREFORE, UPHOLD THE SAME BY REJECTING GROUND OF A PPEAL TAKEN BY DEPARTMENT IN THE ASSESSMENT YEARS UNDER CONSIDERATION VIZ. A.YS.2001-02, 2002- 03, 2004-05, 2005- 06, 2006-07 & 2007-08 RESPECTIVELY. IN THE RESULT, APPEALS TILED BY REVENUE FOR A.YS. 2 001- 02, 2002-03, 2004-05, 2005-06, 2006-07 & 2007-08 AR E DISMISSED.' 11. THE FACT OF THE ISSUE ARE IDENTICAL IN THE YEAR UND ER CONSIDERATION TO THE FACTS OF THE ISSUE IN EARLIER YEARS AND THE CIT(A) HAVE TAKEN A CONSISTENT STAND ON THE ISSUE I N FAVOUR OF THE APPELLANT FROM THE A.Y. 2002-03 TO 2009-10. THE HON'BLE ITAT, 'E' BENCH MUMBAI (SUPRA) HAS ALSO DECIDED THE ISSUE IN ITA NO. 255/MUM/2015 M/S. SAMUDRA MAHAL 4 FAVOUR OF THE APPELLANT FOR THE A.Y. 2002- 03 TO 20 07-08. 12. IN VIEW OF THE ABOVE DECISION OF HON'BLE ITAT, 'E' BENCH MUMBAI AND THE ISSUE BEING DECIDED IN FAVOUR OF THE APPELLANT AND RESPECTFULLY FOLLOWING THE ABOVE DECISION OF TH E JURISDICTIONAL ITAT, THE ISSUE OF THE AMOUNT OF RS. 1,65,76,003/- RECEIVED AS A CONTRIBUTION AND CREDITED IN THE 'COM MON AMENITY FUND' CLAIMED AS EXEMPT ON PRINCIPLE OF MUT UALITY, IS DECIDED IN FAVOUR OF THE APPELLANT FOR THE YEAR UND ER CONSIDERATION I.E. A.Y. 2011-12. THE ADDITION MADE AMOUNTING TO RS.1,65,76,003/- ON TREATING THE RECEIPT AS INCO ME FROM OTHER SOURCES, IS HEREBY DELETED. 13. THE GROUNDS OF APPEAL NO. 1 TO 3 ARE DECIDED IN FAV OUR OF THE APPELLANT. 2.3 WE FIND THAT THE ISSUE UNDER HAND HAS BEEN DECI DED IN FAVOUR OF THE ASSESSEE IN EARLIER ASSESSMENT YEARS AND EVEN THE TRIBUNAL FOR ASSESSMENT YEAR 2001-02 TO 2007-08 VIDE ORDER DATED 22.05.,2013, FOLLOWING THE DECISION FRO M HON'BLE JURISDICTIONAL HIGH COURT IN M/S. SHYAM CHS AND SUPRABHAT CHS ORDER DATED 01.10.2009 AND ANOTHER CA SE OF MITTAL COURT PREMISES CO-OPERATIVE SOCIETY LTD. VS. INCOME TAX OFFICER 320 ITR 414 (BOM.) HELD THAT THE AMOUNT S RECEIVED BY CO-OPERATIVE HOUSING SOCIETIES ON THE G ROUND OF TRANSFER CHARGES ARE EXEMPT UNDER THE PRINCIPLE OF MUTUALITY. NO CONTRARY FACTS WERE BROUGHT TO OUR NOTICE BY EIT HER SIDE AND MORE SPECIFICALLY THE REVENUE. THEREFORE, THE A DDITION WAS RIGHTLY DELETED BY THE LEARNED CIT(A). HIS STAN D IS AFFIRMED, RESULTANTLY THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 18/07/20 SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % MUMBAI; ) DATED : 20/07/2016