SHREE KRISHNA CO OP HSG SOC LTD, MUMBAI V. ITO 33(3)(4), MUMBAI

ITA 2742/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0935 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-06-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 17-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Assessee Lawyers: SANWALA RAM SUTHAR
• Keywords: Opportunity of being heard

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ./ I.T.A. NO. 2742/MUM/2017 ( / ASSESSMENT YEAR: 2012 - 13 ) M/S. SHREE KRISHNA CO - OP. HOUSING SOCIETY LTD. MAHAVIR NAGAR, NEAR KAMLA VIHAR SPORT CLUB, KANDIVALI (W), MUMBAI - 400 067 / VS. ITO - 33(3)(4), MUMBAI ./ ./ PAN/GIR NO. ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI SANWALA RAM SUTHAR / RESPONDENT BY : MS. N. HEMALATHA / DATE OF HEARING : 09.10.2017 / DATE OF PRONOUNCEMENT : 01.01 .2018 / O R D E R PER SHAMIM YAHYA , A. M.: T HIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 45, MUMBAI DATED 09.01.2017 AND PERTAINS TO ASSESSMENT YEAR 2012 - 13. 2. T HE GROUNDS OF APPEAL READ AS UNDER : 1) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ASSESSING OFFICER ERRED IN ADDING RS 4,68,500/ - AS ALLEGED OTHER INCOME . 2 ITA NO. 2742/MUM/2017 (A.Y. 20 12 - 13) M/S. SHREE KRISHNA CO - OP. HOUSING SOCIETY LTD. VS. ITO 2) THE LEARNED ASSESSING OFFICER ERRED IN TREATING RS.4,68,500/ - BEING MEMBER CONTRIBUTION AS INCOME FROM OTHER SOURCES A ND LEARNED COMMISSIONER OF INCOME TAX APPEAL ERRED IN CONFIRMING THE SAME. 3) THE APPELLANT WAS RELIED UPON DECISION OF A LANDMARK JUDGMENT PASSED BY SUPREME COURT ON 14 - JANUARY - 2013, GIVES GREAT CLARITY ON 'PRINCIPLES OF MUTUALITY', UNDER WHICH THE TAX EXEMPTION OF SOCIETIES IS ALSO JUSTIFIED. THE CASE M/S BANGALORE CLUB VS. COMMISSIONER OF INCOME TAX (CIT) THREE CONDITIONS MUST BE SATISFIED, FOR AN INCOME TO BE EXEMPT ON THE PRINCIPLE OF MUTUALITY A) THERE MUST BE A COMPLETE IDENTITY BETWEEN THE CON TRIBUTORS AND PARTICIPATORS. B) THE ACTIONS OF THE PARTICIPATORS AND CONTRIBUTORS MUST BE IN FURTHERANCE OF THE MANDATE OF THE ASSOCIATION. C) THERE MUST BE NO SCOPE OF PROFITEERING BY THE CONTRIBUTORS FROM A FUND MADE BY THEM WHICH COULD ONLY BE EXP ENDED OR RETURNED TO THEMSELVES. THEREFORE ABOVE THREE CONDITION ARE SATISFIED BY THE CO - OPERATIVE HOUSING SOCIETY & THE ASSESSE CONTENTION IS THAT CONTRIBUTION FROM MEMBERS RS 4,68,500 IS ENTITLED TO EXEMPT UNDER THE PRINCIPLE OF MUTUALITY INCOME TAX A CT, 1961. 3. ASSESSEE IN THIS CASE IS A CORPORATIVE S OCIETY. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS SHOWN THE SUM OF RS. 4,68,500 / - AS OTHER INCOME , BUT THE SAME WAS NOT OFFERED TO TAX. IN THE ABSENCE OF ANY EXPLANATION , THE SAME WAS ADDED TO THE INCOME OF THE ASSESSEE. 4. UPON ASSESSEE'S APPEAL , THE LD. COMMISSIONER OF INCOME TAX (APPEALS) C ONFIRMED THE ORDER OF THE ASSESSING OFFICER. 5. AGAINST THIS ORDER , THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 3 ITA NO. 2742/MUM/2017 (A.Y. 20 12 - 13) M/S. SHREE KRISHNA CO - OP. HOUSING SOCIETY LTD. VS. ITO 6. THE LD. COUNSE L OF THE ASSESSEE REITERATED THE SUBMISSIONS AS REFERRED IN THE GROUNDS OF APPEAL ABOVE. IT WAS SUBMITTED THAT THE SAID AMOUNT IS THE CONTRIBUTION BY MEMBERS AND THE SAME CANNOT BE ADDED AS OTHER INCOME. IT WAS SUBMITTED THAT THIS EXPLANATION WAS SUBMITTED TO THE LD. COMMISSIONER OF INCOME TAX (APPEALS) , BUT HE DID NOT CONSIDER THE SAME. 7. UPON HEARING BOTH THE COUNSEL AND PERUSING THE RECORDS , I A M OF THE CONSIDERED OPINION THAT THE SUBMISSION OF THE ASSESSEE THAT THE SAID SUM OF RS. 4,68 , 500 / - IS ACTUAL LY MEMBERS CONTRIBUTION NEEDS FACTUAL EXAMINATION. ACCORDINGLY , I REMIT THIS ISSUE THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER IS DIRECTED TO CONSIDER THE ISSUE IN LIGHT OF THE SUBMISSIONS AND CASE LAWS SUBMITTED BY THE ASSESSEE IN THIS REGARD AS MENTIONED ABOVE AFTER FACTUALLY VERIFYING THE SAME FROM THE RECORDS AS PER LAW. NEEDLESS TO ADD , THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 8 . IN THE RESULT , THIS APPEAL BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01.01.2018 SD/ - (S HAMIM YAHYA ) / A CCOUNTANT MEMBER MUMBAI ; DATED : 01.01.2018 . . ./ ROSHANI , SR. PS 4 ITA NO. 2742/MUM/2017 (A.Y. 20 12 - 13) M/S. SHREE KRISHNA CO - OP. HOUSING SOCIETY LTD. VS. ITO / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI