THE BOMBAY PRESIDENCY GOLF CLUB LTD, MUMBAI V. ITO (E) 1(1), MUMBAI

ITA 3113/MUM/2012

• Counselvise Citation: 311319914 RSA 2012
• Duration Of Justice: 1 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 07-05-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B P K

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'B' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO. 3113/MUM/2012 (ASSESSMENT YEAR: 2008-09) THE BOMBAY PRESIDENCY INCOME TAX OFFICER - (E)-1(1 ) GOLF CLUB LTD. PIRAMAL CHAMBERS, 6TH FLOOR DR. CHOITARAM GIDWANI ROAD VS. PAREL, MUMBAI 400012 CHEMBUR, MUMBAI 400074 PAN - AAATT5024B APPELLANT RESPONDENT APPELLANT BY: SHRI SHEKHAR GUPTA RESPONDENT BY: SHRI B.P.K. PANDA DATE OF HEARING: 12.11.2013 DATE OF PRONOUNCEMENT: 12.11.2013 O R D E R PER D. MANMOHAN, V.P. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 24.02.2012 PASSED BY THE CIT(A)-1, MUMBAI AND IT PE RTAINS TO A.Y. 2008-09. 2. THE FOLLOWING GROUNDS WERE URGED BEFORE US: - 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN SUSTAINING THE ORDER OF THE ASSESSING OFFICER TAXING INTEREST INCOME OF RS.1,99 ,02,326/- HOLDING THAT THE SAME IS NOT COVERED UNDER THE PRIN CIPLE OF MUTUALITY. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS EARED IN LAW ON THE FACTS OF THE CASE IN NOT ALLOWING ACCUMU LATION U/S. 11(12) OF THE ACT ALTHOUGH FROM NO. 10 WAS FILED BE LATED. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DID NO T APPRECIATE THAT FOR THE ASSESSMENT YEAR 2007-08, THE ITAT HAD DECIDED IN ASSESSEES FAVOUR AND HENCE THE COMMISSIONER OF INC OME TAX (APPEALS) SHOULD HAVE ALLOWED THE ACCUMULATION. 3. AT THE TIME OF HEARING BOTH THE PARTIES ADMITTED TH AT THE ISSUES ARE COVERED BY THE EARLIER ORDER OF THE ITAT IN ASSESSE ES OWN CASE (ITA NO. 7244/MUM/2010 DATED 02.11.2011). IT WAS SUBMITTED T HAT IN RESPECT OF A.Y. 2007-08 THE ITAT B BENCH, MUMBAI OBSERVED TH AT INTEREST ON SURPLUS ITA NO. 3113/MUM/2012 THE BOMBAY PRESIDENCY GOLF CLUB LTD. 2 FUNDS INVESTED IN FIXED DEPOSITS IN BANKS CANNOT BE TREATED AS INCOME FROM MEMBERS. SINCE INTEREST IS RECEIVED FROM BANK, WHIC H IS A THIRD PARTY, PRINCIPLES OF MUTUALITY DO NOT APPLY. SINCE THE VIE W TAKEN BY THE LEARNED CIT(A) IS CONSISTENT WITH THE VIEW TAKEN BY THE ITA T IN ASSESSEES OWN CASE (SUPRA) WE UPHOLD THE ORDER OF THE CIT(A) AND REJEC T GROUND NO. 1 OF THE ASSESSEE. 4. AS REGARD TO GROUND NO. 2, ADMITTEDLY FORM NO. 10 W AS FILED BEFORE COMPLETION OF THE ASSESSMENT AND ON IDENTICAL CIRCU MSTANCES ITAT B BENCH, MUMBAI (SUPRA) OBSERVED THAT ASSESSEES PLEA OF ACCUMULATION UNDER SECTION 11(12) OF THE ACT DESERVES TO BE CONSIDERED AND SHOULD NOT BE REJECTED ON TECHNICAL GROUND AS FORM NO. 10 IS FILE D BEFORE COMPLETION OF ASSESSMENT. BY RESPECTFULLY FOLLOWING THE AFORECITE D DECISION WE DIRECT THE AO TO CONSIDER THE MATTER AFRESH, BEARING IN MIND T HAT THE ASSESSEE HAS FULFILLED THE CONDITION LAID DOWN UNDER SECTION 11( 12) OF THE ACT. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PART LY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH NOVEMBER, 2013. SD/- SD/- (RAJENDRA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 12 TH NOVEMBER, 2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 1, MUMBAI 4. DIRECTOR OF INCOME TAX (EXEMPTIONS), MUMBAI 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.