JCIT, Noida V. M/s. Noida Golf Course Society, Noida

ITA 4746/DEL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52992 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 09-10-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 31-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GUNJAN P RASAD
• Assessee Lawyers: KISHAN KUMA R

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E NEW DELHI) BEFORE J.S. REDDY AND SHRI RAJPAL YADAV ITA NO. 4746/DEL/2011 ASSESSMENT YEAR: 2008-09 JOINT CIT, VS. NOIDA GOLF COURSE SOEICTY, RANGE-2, SECTOR 38, NOIDA. NOIDA (PAN: AAAJN0017A) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI GUNJAN P RASAD, CIT(DR) RESPONDENT BY: SHRI KISHAN KUMA R, CA ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF LEARNED CIT(APPEALS) DATED 11.11.2008 PASSED FOR ASSESSMENT YEARS 2008-09. THE SOLITARY GRIEVANCE OF THE REVENUE IS THAT LEARNED C IT(APPEALS) HAS ERRED IN HOLDING THAT INTEREST ON FDR AND DIVIDEND AMOUNTING TO RS.90,41,170 IS EXEMPT FROM TAX ON THE BASIS OF PRINCIPLES OF MUTUA LITY. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HA S FILED ITS RETURN OF INCOME ON 29 TH SEPTEMBER, 2008 DECLARING NIL INCOME. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND A NOTICE UNDER SEC. 143(2) OF THE INCOME-TAX ACT, 1961 WAS ISSUED AND SERVED U PON IT. ON SCRUTINY OF THE ACCOUNTS, IT REVEALED TO THE ASSESSING OFFICER THAT ASSESSEE HAS EARNED INTEREST INCOME FROM BANK AND INTEREST ON INCOME-TA X REFUND OF 2 RS.90,41,170, WHICH ACCORDING TO THE ASSESSING OFFI CER LIABLE TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES. HE INVITED TH E EXPLANATION OF THE ASSESSEE AS TO WHY THIS INCOME BE NOT ASSESSED TO T AX. THE ASSESSEE HAS SUBMITTED A DETAILED NOTE AND POINTED OUT THAT RIGH T FROM ASSESSMENT YEAR 1993-94, SUCH INCOME HAS BEEN EXEMPTED FROM TAX. TH E DISPUTE TRAVELED UP TO HON'BLE HIGH COURT. LEARNED ASSESSING OFFICER W AS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE ON THE GROUND THAT HON' BLE MADRAS HIGH COURT, IN THE CASE OF COIMBATORE COSMOPOLITAN REPORTED IN 229 CTR 414 AND HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. CLUB REPORTED IN 287 ITR 263 HAVE EXPRESSED DIFFERENT OPINIONS ON THE IN TEREST INCOME EARNED FROM THE BANKS ON SURPLUS FUNDS. THE DEPARTMENT HAS FILED SLP IN THE HON'BLE SUPREME COURT IN THE ASSESSEES OWN CASE. A CCORDINGLY, HE ASSESSED THE INCOME. 3. ON APPEAL, LEARNED CIT(APPEALS) HAS FOLLOWED THE ORDER OF THE HON'BLE HIGH COURT AS WELL AS ITAT IN EARLIER YEARS AND DELETED THE DISALLOWANCE. 4. BEFORE ITAT, ASSESSEE HAS FILED A PAPER BOOK CON TAINING 110 PAGES. FROM PAGE NOS. 47 TO 110, IT HAS PLACED A COPY OF T HE HON'BLE HIGH COURTS DECISIONS FROM ASSESSMENT YEARS 1993-94 TO 2004-05 AND OF TRIBUNAL FROM 3 ASSESSMENT YEARS 1993-94 TO 2007-08. THE DISCUSSION OF HON'BLE HIGH COURT IN ITA NO. 221 OF 2009 FOR ASSESSMENT YEAR 2003-04 READS AS UNDER: CASE:- INCOME TAX APPEAL NO. 221 OF 2009 PETITIONER:- COMMISSIONER OF INCOME-TAX RESPONDENT:- M/S. NOIDA GOLF COURSE SOCIETY (REGD.) PETITIONER COUNSEL: S.C. DHANANJAY AWASTHI RESPONDENT COUNSEL:- S.D. SINGH HONBLE RAJES KUMAR, J. HONBLE BHARATI SAPRU,J THE FOLLOWING QUESTION HAS BEEN RAISED IN THE PRESE NT APPEAL: WHETHER THE HONBLE ITAT WAS JUSTIFIED IN LAW AND ON THE FACT IN HOLDING THAT THE DOCTRINE OF MUTUALITY WOULD ALSO A PPLY IN ASSESSEES CASE EVEN WHEN THE QUESTION OF EARNING INTEREST INC OME ON FDRS AND MUTUAL FUNDS ARISES OUT OF THE FUNDS INVESTED WITH NON-MEMBERS, WHICH IS NOT THE CASE OF THE ASSESSEE? SIMILAR QUESTION WAS ALSO INVOLVED IN INCOME TAX AP PEAL(3)) OF 2003. THE COMMISSIONER OF INCOME-TAX-II & ANOTHER V S. M/S. NOIDA GOLF COURSE SOCIETY. THIS COURT HAS DISMISSED THE A PPEAL ON 26.5.2010. IN VIEW OF THE ABOVE, THE APPEAL IS DISMISSED. SD/- RAJES KUMAR, J. SD/- BHARTI SAPRU, J ORDER DATE: 28.7.2010 4 5. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY MERIT IN THIS APPEAL. IT IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 19.10.201 2 SD/- SD/- ( J.S. REDDY ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19/10/2012 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR