ITO WD 19(2)(4), MUMBAI V. NEW SEAGULL CO OP HSG. SOCIETY LTD, MUMBAI

ITA 4648/MUM/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1353 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 07-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEENA SANTOSH
• Assessee Lawyers: BHUPENDRA G FAFADI A
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER ITA NO.4648/MUM/2016 (ASSESSMENT YEAR 2012-13) THE ITO, WARD 19(2), ROOM NO.217, MATRU MANDIR, MUMBAI 400 007. ...... APPEL LANT VS. NEW SEAGULL CO-OP HSG.SOCIETY LTD., SEA GULL BUILDING, 13, M.L.DAHANUKAR MARG, MUMBAI 400 026 PAN: AAAN 1542P .... RESPONDE NT APPELLANT BY : MS. BEENA SANTOSH RESPONDENT BY : SHRI BHUPENDRA G. FAFADI A DATE OF HEARING : 29/12/2016 DATE OF PRONOUNCEMENT : 29/12/2016 ORDER THE CAPTIONED APPEAL FILED BY THE REVENUE PERTA INING TO ASSESSMENT YEAR 2012-13 IS DIRECTED AGAINST AN ORDER PASSED B Y CIT(A)-30, MUMBAI DATED 07/04/2016, WHICH IN TURN, ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX A CT, 1961 (IN SHORT THE ACT) DATED 03/03/2015. 2. IN THIS APPEAL, THE ONLY ISSUE IS AS TO WHETHER THE TRANSFER FEE COLLECTED UNDER THE NAME BUILDING BETTERMENT FUND AMOUNTING TO RS.39.00 LACS IS ENTITLED FOR EXEMPTION UNDER THE PRINCIPLE OF MUTUA LITY. THE RESPONDENT IS A CO-OPERATIVE HOUSING SOCIETY AND IT WAS NOTICED THA T DURING THE YEAR UNDER 2 ITA NO.4648/MUM/2016 (ASSESSMENT YEAR 2012-13) CONSIDERATION IT HAD COLLECTED TRANSFER FEE FROM IN COMING AND OUTGOING MEMBERS OF RS.39.00 LACS. ON BEING SHOW-CAUSED, TH E ASSESSEE CLAIMED BEFORE THE ASSESSING OFFICER THAT THE SAID AMOUNT WAS EXEM PT IN TERMS OF THE PRINCIPLES OF MUTUALITY FOLLOWING THE JUDGMENT OF T HE HON'BLE BOMBAY HIGH COURT IN THE CASE OF MITTAL COURT PREMISES CO-OP.S OCIETY LTD. VS. ITO, (2009) 184TAXAMAN 292 (BOM). THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. DARBHANGA MANSIONS CHS LTD. IN IT A NO.1474 OF 2012 DATED 1/12/2014 WAS ALSO CITED BY THE ASSESSEE. THE ASS ESSING OFFICER DID NOT ACCEPT THE PLEA OF THE ASSESSEE ONLY ON THE GROUND THAT THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF MITTAL COURT PREM ISES CO-OP. SOCIETY LTD. (SUPRA) HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND THE MATTER IS SUB-JUDICE BEFORE THE HON'BLE SUPREME COURT. AS A CONSEQUENCE , THE SUM OF RS.39.00 LACS WAS SOUGHT TO BE TAXED. 3. THE CIT(A) HAS SINCE SET-ASIDE THE STAND OF THE ASSESSING OFFICER FOLLOWING THE JUDGMENT OF THE HON'BLE BOMBAY HIGH C OURT IN THE CASE OF MITTAL COURT PREMISES CO-OP.SOCIETY LTD. (SUPRA) AS WELL A S THE JUDGMENT OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF DARBHANGA MANSIONS CHS LTD (SUPRA). AGAINST SUCH A DECISION OF THE CIT(A), REVENUE IS I N APPEAL BEFORE ME. 4. IT WAS COMMON POINT BETWEEN THE PARTIES THAT THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT RELIED UPON BY THE CIT(A) CONTINUES TO HOLD THE FIELD AND THE SAME HAS NOT BEEN ALTERED BY HON'BLE SUPREME COURT. IN THIS VIEW OF THE MATTER, I FIND NO ERROR ON THE PART OF THE CIT(A) IN HOLDING THAT THE AMOUNT RECEIVED FROM MEMBERS AS TRANSFER FEE UNDER THE HEAD BUILDING 3 ITA NO.4648/MUM/2016 (ASSESSMENT YEAR 2012-13) BETTERMENT FUND IS EXEMPT ON THE PRINCIPLES OF MUT UALITY. AS A CONSEQUENCE, APPEAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 29/12/2016 SD/- (G.S.PANNU) ACCOCUNTANT MEMBER MUMBAI, DATED 29/12/2016 VM , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI