ITO 16(2)(1), MUMBAI V. ASHOKA APT. CHS LTD, MUMBAI

ITA 2845/MUM/2010

• Counselvise Citation: 284519914 RSA 2010
• Duration Of Justice: 1 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-06-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 09-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIMAL PUNMIYA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, MUMBAI. BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SMT ASHA VIJAYRAGHAVAN, JUDICIAL MEMBER I.T.A NO.2845/ MUM/2010 ASSESSMENT YEAR: 2004-05 INCOME TAX OFFICER 16(2)(1) .. APPELLANT MATRU MANDIR,TARDEO, MUMBAI-007. VS ASHOKA APT. CHS LTD., .. RESPONDEN T 68, NEPEAN SEA ROAD, MUMBAI-400 006. PA NO.AAHFA 6322 Q APPEARANCES: P.K.B. MENON, FOR THE APPELLANT VIMAL PUNMIYA , FOR THE RESPONDENT DATE OF HEARING : 5.9.2011 DATE OF PRONOUNCEMENT : 7 -09-2011 O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HA S CALLED INTO QUESTION CORRECTNESS OF CIT(A)S ORDER DATED 14 TH JANUARY, 2010, IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2004-05. 2. GROUND NO.1 READS AS UNDER: I.T.A NO.2845/ MUM/2010 ASSESSMENT YEAR: 2004-05 2 1. THE LD CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF TRANSFER FEES OF RS.13,27,500 AND RS.2,63,333 FOLLOWING THE DECISION OF HONBLE HIGH COURT OF BOMBAY IN THE CASE OF SHYAM CHS AND SUPRABHAT CHS W HEREIN, IT HAS BEEN HELD THAT ALL AMOUNTS RECEIVED BY THE CHS ON THE G ROUNDS OF TRANSFER CHARGES ARE EXEMPT UNDER THE PRINCIPLE OF MUTUALITY. THE D ECISION HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND THE ISSUE IS SUB-JUD ICE. 3. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE MATERIAL ON RECORD, WE FIND THAT THIS ISSUE IS SQUARELY COVERED BY THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. SHYAM CHS AND SUPRABHAT, CHS, ORDER DATED 1.10.2009 , WHEREIN, IT HAS BEEN HELD THAT ALL AMOU NTS RECEIVED BY THE CO-OPERATIVE HOUSING SOCIETY ON THE GROUNDS OF TRANSFER CHARGES ARE EXEMPT UNDER THE PRINCIPLE OF MUTUALITY . SIMILAR VIEW HAS ALSO BEEN TAKEN IN THE CASE OF MI TTAL COURT PREMISES CO-OPERATIVE SOCIETY LTD. V. INCOME-TAX OFFICER. 32 0 ITR 414(BOM). WE ALSO FIND THAT THE CIT(A) HAS FOLLOWED THE DECISION OF HONBLE BOM BAY HIGH COURT IN THE CASE OF M/S. SHYAM CHS AND SUPRABHAT, CHS(SUPRA) FOR ALLOWI NG THE TRANSFER FEES CLAIMED BY THE ASSESSEE. WE, THEREFORE, UPHOLD THE GRIEVANCE OF THE ASSESSEE AND APPROVE THE STAND TAKEN BY THE CIT(A). 4. GROUND NO. 1 IS DISMISSED. 5. IN GROUND NO.2, THE ASSESSING OFFICER HAS TAKEN THE FOLLOWING GRIEVANCE: THE LD CIT(A) ERRED IN DELETING THE ADDITION ON A CCOUNT OF NON-OCCUPANCY CHARGES OF RS.2,49,960 FOLLOWING THE DECISIONS OF H ONBLE MUMBAI ITAT WHEREIN IT HAS BEEN HELD THAT NON-OCCUPANCY CHARGES TAKEN FROM MEMBERS WHO HAVE LET OUT THEIR FLATS IS EXEMPT UNDER PRINCI PLE OF MUTUALITY. 6. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE MATERIAL ON RECORD, WE FIND THIS ISSUE IS SQUARELY COVERED BY T HE HONBLE BOMBAY HIGH COURTS JUDGMENT IN THE CASE OF MITTAL COURT PREMISES CO-OP ERATIVE SOCIETY LTD. V. INCOME-TAX OFFICER. 320 ITR 414(BOM), WHEREIN, IT HAS BEEN HEL D THAT NON-OCCUPANCY CHARGES WERE NOT TAXABLE. THIS VIEW HAS ALSO BEEN TAKEN BY THE VARIOUS COORDINATE BENCHES I.T.A NO.2845/ MUM/2010 ASSESSMENT YEAR: 2004-05 3 OF THIS TRIBUNAL. IN VIEW OF THIS, SINCE THE CIT(A ) HAS DELETED THE ADDITION FOLLOWING THE VARIOUS DECISIONS OF THE TRIBUNAL, WE DECLINE T O INTERFERE AND UPHOLD THE SAME. 7. GROUND NO.2 IS THUS DISMISSED. 8. GROUND NO.3 READS AS UNDER: . THE LD CIT(A) ERRED IN DELETING THE ADDITION OF RS.4,09,461 ON ACCOUNT OF INTEREST RECEIVED FROM BANK FOLLOWING THE DECISION OF HONBLE MUMBAI ITAT IN THE CASE OF ITO VS. SAGAR SANJOG CHS LTD WHEREIN , IT HAS BEEN HELD THAT THE INTEREST RECEIVED FROM OTHER BANKS ARE EXEMPT UNDER THE PRINCIPLE OF MUTUALITY. 9. HAVING HEARD BOTH THE SIDES, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF THE CIT(A). WE FIND THAT THE CIT(A) HAS D ECIDED THE ISSUE FOLLOWING THE DECISION OF A COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF ITO VS. SAGAR SANJOG CHS LTD., IN ORDER (ITA NOS.1972 TO 1974 AND 223`1 TO 2233/M/2005), WHEREIN, IT HAS BEEN HELD THAT THE INTEREST EARNED OUT OF THE F UND MONEY INVESTED WENT TO REDUCE THE MAINTENANCE EXPENDITURE AND HAD THERE BE EN SURPLUS LEFT AFTER IT BEING ADJUSTED AGAINST THE MAINTENANCE EXPENSES, IT WOULD HAVE BEEN TAXABLE. THERE IS NOTHING ON RECORD THAT THE INTEREST AMOUNT WOULD BE GIVEN TO THE MEMBERS OF THE SOCIETY ON DISSOLUTION OF THE SOCIETY. HENCE, WE A PPROVE THE STANDS BY THE CIT(A) THAT INTEREST RECEIVED FROM OTHER BANKS AS EXEMPT U NDER THE PRINCIPLE OF MUTUALITY. 10. GROUND NO.3 IS THUS DISMISSED. 11. IN THE RESULT, APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 7 TH SEPTEMBER, 2011 SD/- (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATED 7 TH SEPTEMBER, 2011 I.T.A NO.2845/ MUM/2010 ASSESSMENT YEAR: 2004-05 4 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),27 MUMBAI 4. COMMISSIONER OF INCOME TAX,, CITY-XVI , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH A MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI