ITO WD 12(2)(2), MUMBAI V. PILOT BUNDER CO-OP HSG SOCIETY, LTD, MUMBAI

ITA 4000/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49278 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 09-06-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 25-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARTHA SARATHI NAIK
• Assessee Lawyers: M SUBRAMANIAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO. 4000/MUM/2009 (ASSESSMENT YEAR: 2004-05) INCOME TAX OFFICER - 12(2)(2) VS. PILOT BUNDER CO - OP. HOUSING SOCIETY ROOM NO. 137, AAYAKAR BHAVAN SADASHIV PARK, PILOT BUNDER ROAD M.K. ROAD, MUMBAI 400020 COALBA, MUMBAI 400005 PAN - AAAAA 4089 P APPELLANT RESPONDENT APPELLANT BY: SHRI PARTHA SARATHI NAIK RESPONDENT BY: SHRI M. SUBRA MANIAN O R D E R PER P.M. JAGTAP, A.M. THIS APPEAL IS PREFERRED BY REVENUE AGAINST THE ORD ER OF THE LEARNED CIT(A) XII, MUMBAI DATED 02.04.2009 WHEREBY HE DELETED THE ADDITION MADE BY THE A.O. TO THE TOTAL INCOME OF THE ASSESSEE SOCIETY ON ACCOUNT OF NON-OCCUPANCY CHARGES ON THE BASIS OF PRINCIPLE OF MUTUALITY. 2. WE HAVE HEARD THE REPRESENTATIVES OF BOTH THE PARTI ES AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. THE LEARNED REPRES ENTATIVES OF BOTH THE SIDES HAVE AGREED THAT THE SOLITARY ISSUE INVOLVED IN THIS APP EAL OF THE REVENUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE R EVENUE BY THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF MITTAL COU RT PREMISES COOPERATIVE SOCIETY LTD. VS. ITO 320 ITR 414 (BOM) WHEREIN IT W AS HELD THAT NON-OCCUPANCY CHARGES ARE PAYABLE BY THE MEMBER ON ACCOUNT THAT H E IS NOT OCCUPYING THE FLAT AND AS PER THE BYLAWS OF THE SOCIETY, IT IS CONTRIB UTION MADE BY THE MEMBER FOR THE PURPOSE OF INCREASING THE SOCIETYS FUND WHICH COUL D BE USED FOR THE OBJECT OF THE SOCIETY, I.E. TO PROVIDE SERVICES, AMENITIES AND FA CILITIES TO ITS MEMBERS. IT WAS HELD THAT THE PRINCIPLE OF MUTUALITY THUS APPLIES TO THE NON-OCCUPANCY CHARGES AND THE SAME ARE NOT TAXABLE IN THE HANDS OF THE ASSESSEE S OCIETY. RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN TH E CASE OF MITTAL COURT PREMISES CO-OPERATIVE SOCIETY LTD. (SUPRA), WE UPHOLD THE OR DER OF THE LEARNED CIT(A) DELETING THE ADDITION MADE BY THE A.O. TO THE TOTAL INCOME O F THE ASSESSEE SOCIETY ON ACCOUNT OF NON-OCCUPANCY CHARGES AND DISMISS THIS A PPEAL FILED BY THE REVENUE. 3. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JUNE 2011. SD/ - SD/ ( VIJAY PAL RAO ) ( P.M. JAGTAP ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 30 TH JUNE 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XII, MUMBAI 4. THE CIT XII, MUMBAI CITY 5. THE DR, C BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.