ITO 16(1)(2), MUMBAI V. HIGH LAND MARK CHS LTD, MUMBAI

ITA 3745/MUM/2010

• Counselvise Citation: 374519914 RSA 2010
• Duration Of Justice: 1 year(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2002-2003
• Appeal Filed On: 10-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMPAT KUMAR
• Assessee Lawyers: RAHUL K HAKANI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH: MUMBAI BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI B. RAMAKOTIAH, ACCOUNTANT MEMBER ITA NO.3745/MUM/2010 (ASSESSMENT YEAR: 2002-03) ITA NO.3746/MUM/2010 (ASSESSMENT YEAR: 2004-05) ITO, -16(1)(2), MATRU MANDIR, MUMBAI -400 007 ....... APPELLANT VS HIGH LAND MARK CHS LTD., LAND MARK, CARMICHAEL ROAD, MUMBAI -400 026 ..... RESPONDENT PAN: AAABH 0003 J APPELLANT BY: SHRI SAMPAT KUMAR RESPONDENT BY: SHRI RAHUL K. HAKANI O R D E R PER R.S. PADVEKAR, JM THESE TWO APPEALS ARE FILED BY THE REVENUE CHALLENG ING THE IMPUGNED ORDERS OF THE LD. CIT (A) -27 MUMBAI DATED 22.2.2010 FOR THE A.Y. 2002-03 AND 2004-05. THE FIRST ISSUE IS I N RESPECT OF TRANSFER FEES PAID BY THE MEMBERS OF THE ASSESSEE SOCIETY AN D THIS IS COMMON ISSUE IN BOTH THE APPEALS. 2. WE HAVE HEARD THE PARTIES. THE ASSESSEE IS A CO -OPERATIVE HOUSING SOCIETY. THE ASSESSEE FILED THE RETURN OF INCOME, WHICH WAS SELECTED FOR SCRUTINY. IT WAS NOTICED BY THE A.O. THAT THE ASSESSEE HAS RECEIVED THE CONTRIBUTIONS FROM THE INCOMING MEMBER S AMOUNTING TO RS 16,50,000/- IN THE A.Y. 2002-03 AND RS 16,50,000 /- IN THE A.Y. ITA NO.3745/MUM/2010 ITA NO.3746/MUM/2010 HIGH LAND MARK CHS LTD. 2 2004-05. THE A.O. BROUGHT TO TAX THE SAID RECEIPTS REJECTING THE CLAIM OF THE ASSESSEE FOR EXEMPTION CLAIMED UNDER THE PRI NCIPLE OF MUTUALITY. THE ASSESSEE CARRIED THE ISSUE BEFORE T HE LD. CIT (A) WHO ALLOWED THE CLAIM OF THE ASSESSEE BY FOLLOWING THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SINDH CHS LTD 317 ITR 47 AS WELL AS THE DECISION IN ASSESSEES OWN CASE. TH E LD. COUNSEL SUBMITTED THAT NOW THE ISSUE STANDS SQUARELY COVERE D IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE SINDH CO-OPERATIVE HOUSING SOCIETY LTD (SUPRA). THE LD. D.R. FAIRLY CONCEDED THAT THE ISS UE STANDS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE JURIS DICTIONAL HIGH COURT, CITED SUPRA. WE, THEREFORE, SEE NO INFIRMITY IN TH E ORDER OF THE LD. CIT (A), AND WE UPHOLD THE SAME. ACCORDINGLY DISMISS GR OUND NO.1 IN BOTH THE APPEALS OF THE REVENUE. 3. THE NEXT ISSUE IS THE ADDITION ON ACCOUNT OF NON OCCUPANCY CHARGES OF RS 6,87,600/- IN THE A.Y. 2004-05. 4. WE HAVE HEARD THE PARTIES. THERE IS NO DISPUTE A BOUT THE FACT THAT THE OCCUPANCY CHARGES ARE RECOVERED FROM THE M EMBERS OF THE ASSESSEE SOCIETY. NOW, THIS ISSUE ALSO STANDS COVE RED IN FAVOUR OF THE ASSESSEE ON THE PRINCIPLES OF MUTUALITY AS NON-OCCU PANCY CHARGES RECOVERED BY THE HOUSING SOCIETY ARE NOT TAXABLE AS HELD BY HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF MITTAL COU RT PREMISES CHS LTD. 320 ITR 414 (BOM). WE FIND NO REASON TO INTER FERE WITH THE ORDER OF THE LD. CIT (A) ON THIS ISSUE ALSO IN BOTH THE A PPEALS. ACCORDINGLY, WE DISMISS RESPECTIVE GROUNDS IN BOTH THE APPEALS O F THE REVENUE. 5. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 1 2 TH MAY 2011. SD/- SD/- ( B. RAMAKOTIAH ) ACCOUNTANT MEMBER ( R.S. PADVEKAR ) JUDICIAL MEMBER ITA NO.3745/MUM/2010 ITA NO.3746/MUM/2010 HIGH LAND MARK CHS LTD. 3 MUMBAI, DATE: 12 TH MAY 2011 COPY TO:- 1) THE APPLICANT. 2) THE RESPONDENT. 3) THE CIT (A)27, MUMBAI. 4) THE CIT CITY -XVI, MUMBAI. 5) THE D.R. H BENCH, MUMBAI. BY ORDER ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN ITA NO.3745/MUM/2010 ITA NO.3746/MUM/2010 HIGH LAND MARK CHS LTD. 4 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 12.05.2011 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 12.05.2011 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER