ITO WD 16(3)(1), MUMBAI V. PANCHRATNA CO.OP.HSG SOC. LTD, MUMBAI

ITA 2858/MUM/2010

• Counselvise Citation: 285819914 RSA 2010
• Duration Of Justice: 1 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 28-07-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 12-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, MUMBAI. BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER I.T.A NO.2858/ MUM/2010: ASSESSMENT YEAR: 2002-03 I.T.A NO.2859/ MUM/2010: ASSESSMENT YEAR: 2004-05 I.T.A NO.2860/ MUM/2010: ASSESSMENT YEAR: 2006-07 INCOME TAX OFFICER 16(3)(1) .. APPELLANT MATRU MANDIR, MUMBAI. VS PANCHRATNA CO. OP. .HSG SOC. LTD. ,. RESPONDE N T 21, PANCHRATNA, M.P. MARG, MUMBAI. PA NO.AAAAT 3507 C APPEARANCES: DEVI SINGH , FOR THE APPELLANT NONE , FOR THE RESPONDENT DATE OF HEARING : 28.7-2011 DATE OF PRONOUNCEMENT: 26-08-2011 O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THESE APPEALS, THE ASSESSING OFFICER HAS CALLED INTO QUESTION CORRECTNESS OF CIT(A)S SEPARATE ORDERS, IN THE MAT TER OF ASSESSMENT UNDER SECTION 144 OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMEN T YEARS 2002-03, 2004-05 AND 2006-07M RESPECTIVELY. SINCE COMMON GROUND RAISED I N ALL THESE APPEALS, THEY WERE I.T.A NO.2858/ MUM/2010: ASSESSMENT YEAR: 2002-03 I.T.A NO.2859/ MUM/2010: ASSESSMENT YEAR: 2004-05 I.T.A NO.2860/ MUM/2010: ASSESSMENT YEAR: 2006-07 2 HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON O RDER FOR THE SAKE OF CONVENIENCE. 2. DESPITE SERVICE OF NOTICE, NO ONE APPEARED ON BE HALF OF THE RESPONDENT- ASSESSEE. WE, THEREFORE, PROCEED TO DECIDE THE APP EAL OF THE REVENUE EXPARTE AFTER HEARING LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 3. GROUND NO.1 COMMON TO ALL THE APPEALS, READS AS UNDER:- THE LD CIT(A) ERRED IN DELETING THE ADDITION ON AC COUNT OF TRANSFER FEES OF RS. 28,24,102, RS. 35,18,603 AND RS.20,79,500 IN AY. 2002-03, 2004-05 AND 2006-07, FOLLOWING THE DECISION OF HONBLE HIGH COU RT OF BOMBAY IN THE CASE OF SHYAM CHS AND SUPRABHAT CHS, WHEREIN, IT HAS BEE N HELD THAT ALL AMOUNTS RECEIVED BY THE CHS ON THE GROUNDS OF TRANSFER CHAR GES ARE EXEMPT UNDER THE PRINCIPLE OF MUTUALITY. THE DECISION HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND THE ISSUE IS SUB-JUDICE. 3. HAVING HEARD LEARNED DEPARTMENTAL REPRESENTATIVE , 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 AMOUNTS RECEIVED BY THE CO-OPERATIVE HOUS ING SOCIETY ON THE GROUNDS OF TRANSFER CHARGES ARE EXEMPT UNDER THE PRINCIPLE OF MUTUALITY . SIMILAR VIEW HAS ALSO BEEN TAKEN IN THE CASE OF MITTAL COURT PREMISES CO -OPERATIVE SOCIETY LTD. V. INCOME- TAX OFFICER. 320 ITR 414(BOM). WE ALSO FIND THAT T HE CIT(A) HAS FOLLOWED THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. S HYAM CHS AND SUPRABHAT, CHS(SUPRA) FOR ALLOWING THE TRANSFER FEES CLAIMED B Y THE ASSESSEE. WE, THEREFORE, UPHOLD THE SAME. 4. GROUND NO.1 IS DISMISSED. 5. IN GROUND NO.2 IN ALL THE APPEALS, THE ASSESSING OFFICER IS AGGRIEVED BY THE DELETION OF ADDITION OF THE AMOUNT RECEIVED FROM PA RTIES ON ACCOUNT OF GENERAL I.T.A NO.2858/ MUM/2010: ASSESSMENT YEAR: 2002-03 I.T.A NO.2859/ MUM/2010: ASSESSMENT YEAR: 2004-05 I.T.A NO.2860/ MUM/2010: ASSESSMENT YEAR: 2006-07 3 MAINTENANCE, MISC .INCOME, CHANGE OF USER CHARGE, L IFT CHARGES, ADVERTISEMENT AND CAR PARKING CHARGES, TREATING THESE AMOUNT EXEMPT U NDER THE PRINCIPLE OF MUTUALITY. 6. HAVING HEARD LEARNED DEPARTMENTAL REPRESENTATIVE , WE FIND THAT THESE CONTRIBUTIONS FROM THE MEMBERS OF THE SOCIETY WERE INCURRED FOR REGULAR MAINTENANCE AND UPKEEP OF THE BUILDING. THEREFORE, THESE ARE COVERED UNDER THE PRINCIPLE OF MUTUALITY. THE CIT(A) FOLLOWING THE D ECISIONS OF HIS PREDECESSORS FROM THE ASSESSMENT YEARS 1995-96 TO 2000-2001 AND ALSO THE DECISIONS OF VARIOUS COURTS ON THE SUBJECT, HAS DELETED THE ADDITION MADE BY T HE ASSESSING OFFICER. WE ARE IN AGREEMENT WITH THE CIT(A) AND DECLINE TO INTERFERE. 7. GROUND NO.2 IS THUS DISMISSED. 8. IN GROUND NO.3 IN ALL THE ASSESSMENT YEARS, THE ASSESSING OFFICER IS AGGRIEVED BY THE DECISION OF THE CIT(A) IN DELETING THE ADDIT ION ON ACCOUNT OF NON-OCCUPANCY CHARGES. 9. HAVING HEARD LEARNED DEPARTMENTAL REPRESENTATIVE , WE FIND THIS ISSUE IS SQUARELY COVERED BY THE HONBLE BOMBAY HIGH COURTS JUDGMENT IN THE CASE OF MITTAL COURT PREMISES CO-OPERATIVE SOCIETY LTD. V. INCOME- TAX OFFICER. 320 ITR 414(BOM), WHEREIN, IT HAS BEEN HELD THAT NON-OCCUPANCY CHARGE S WERE NOT TAXABLE. THIS VIEW HAS ALSO BEEN TAKEN BY THE VARIOUS COORDINATE BENCH ES OF THIS TRIBUNAL. IN VIEW OF THIS, SINCE THE CIT(A) HAS DELETED THE ADDITION FOL LOWING THE VARIOUS DECISIONS OF THE TRIBUNAL, WE DECLINE TO INTERFERE AND UPHOLD THE SA ME. 10. GROUND NO.3 IS THUS DISMISSED. 11. IN GROUND NO.4 FOR THE ASSESSMENT YEAR 2002-03 AND 2004-05, THE ASSESSING OFFICER HAS RAISED THE FOLLOWING GRIEVANCE: I.T.A NO.2858/ MUM/2010: ASSESSMENT YEAR: 2002-03 I.T.A NO.2859/ MUM/2010: ASSESSMENT YEAR: 2004-05 I.T.A NO.2860/ MUM/2010: ASSESSMENT YEAR: 2006-07 4 THE LD CIT(A) ERRED IN DELETING THE ADDITION OF ` .37,89,635 FOR A.Y. 2002-03 AND ` .8,41,863 FOR A.Y. 2004-05 ON ACCOUNT OF INTEREST R ECEIVED FROM BANK, TREATING INTEREST RECEIVED FROM CO-OPERATIVE BANKS ARE EXEMPT U/S. 80P(2)(C) OF THE I.T.ACT, 1961 WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS NOT FILED ANY DETAILS. 12. HAVING HEARD THE LEARNED DEPARTMENTAL REPRESENT ATIVE, WE FIND FROM THE DETAILS OF INVESTMENTS OF THE ASSESSEE, ALL THE IN TEREST INCOME IS FROM CO-OPERATIVE BANK AND NOT FROM NON-COOPERATIVE BANK. THEREFORE, THEY ARE EXEMPT UNDER SECTION 80P(2)(C). IN THE IMPUGNED ORDER, THE CIT(A) HAS D IRECTED THE AO TO VERIFY WHETHER THE CONTENTION OF THE ASSESSEE IS CORRECT THAT ALL THE FIXED DEPOSITS IN THE COOPERATIVE BANK AND ALLOW THE DEDUCTION UNDER SECTION 80P(2)(C ). THEREFORE, WE DO NOT FIND ANY INFIRMITY IN HIS ORDER TO INTERFERE AND, ACCORDINGL Y, UPHOLD THE SAME. 13. GROUND NO.4 IN BOTH THE YEARS IS DISMISSED. 14. IN THE RESULT, ALL THE APPEALS ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 26 TH AUGUST, 2011 SD/- (D. MANMOHAN) VICE PRESIDENT SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATED 26 TH AUGUST, 2011 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 C, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI