TULSIANI CHAMBERS PREMISES CO.OP.SOC.LTD., MUMBAI V. ITO 12 (3)(2), MUMBAI

ITA 491/MUM/2014

• Counselvise Citation: 49119914 RSA 2014
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 21-01-2014
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: TASNEEM VARAWALA

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH MUMBAI . . , , BEFORE SHRI R.C.SHARMA , A M & SHRI SANJAY GARG , J M ./ ITA NO . 491 / MUM/20 1 4 ( / ASSESSMENT YEAR : 20 0 9 - 10 ) TULSIANI CHAMBERS PREMISES CO.OP. SOCIETY LTD., TULSIANI CHAMBERS , 212, NARIMAN POINT, MUMBAI - 400021 VS. ITO 12(3)(2), MUMBAI ./ ./ PAN/GIR NO. : A A AAT 8890 N ( / A PPELLANT ) .. ( / RESPONDENT ) AND ./ ITA NO. 926 / MUM/20 14 ( / ASSESSMENT YEAR :2009 - 10 ) ITO 12(3)(2), MUMBAI VS. TULSIANI CHAMBERS PREMISES CO.OP. SOCIETY LTD., TULSIANI CHAMBERS, 212, NARIMAN POINT, MUMBAI - 400021 ./ ./ PAN/GIR NO. : A AAAT 8890 N ( / APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI NEIL PHILIP /ASSESSEE BY : MS. TASNEEM VARAWALA / DATE OF HEARING : 29 /0 6 / 2015 / DATE OF PRONOUNCEMENT 29/06/ 2015 / O R D E R PER R.C.SHARMA (A.M) : THESE ARE THE APPEALS FILED BY THE ASSESSEE AND REVENUE AGAINST THE ORDER OF CIT(A), MUMBAI FOR THE ASSESSMENT YEAR 2009 - 2010. ITA NO S . 491& 926 /1 4 2 2. THE GRIEVANCE OF THE ASSESSEE IN ITS APPEAL (ITA NO.491/MUM/2014) RELATES TO CONFIRMING THE ADDITION MADE ON ACCOUNT OF AMOUNT OF 4,86,000/ - RECEIVED BY WAY OF DISH ANTENNA SERVICE CHARGES FROM THE VARIOUS MEMBERS OF THE SOCIETY WHEREAS REVENUE IN ITS APPEAL (I.E. ITA NO.9 26/MUM/2014) IS AGGRIEVED FOR DELETING THE ADDITION MADE ON ACCOUNT OF TRANSFER FREES BY HOLDING THAT THE RECEIPT IS COVERED BY THE CONCEPT OF MUT U ALITY, HENCE, NOT TAXABLE 3. LD. AR PLACED ON RECORD ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE AS WELL AS OTHER ORDER OF THE TRIBUNAL WHEREIN BOTH THE ISSUES HAVE BEEN CONSIDERED AND DECIDED IN FAVOUR OF THE ASSESSEE. THE LD. AR PLACED ON RECORD ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEAR S 2001 - 02 & 2004 - 05 DATED 29 - 5 - 2009, ASSESSMENT YEAR 200 5 - 06 , DATED 30 - 7 - 2010 , ASSESSMENT YEAR 2008 - 09 DATED 13 - 3 - 2013. THE PRECISE OBSERVATION OF THE TRIBUNAL IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR 2008 - 09 DATED 13 - 3 - 2013 WAS AS UNDER : - 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SIMILAR IS SUE HAD COME FOR CONSIDERATION BEFORE THE TRIBUNAL IN THE EARLIER YEARS, IN THE CASE OF ASSESSEE, WHICH HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT, THIS ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSE E BY THE DECISION OF THE TRIBUNAL. AFTER CAREFULLY CONSIDERING THE ORDERS OF THE ASSESSING OFFICER AS WELL AS THE CIT(A), WE FIND THAT THE CIT(A) WITH REGARD TO THE ISSUE RAISED IN GROUND NO. 1 HEREIN ABOVE, HAS OBSERVED AND HELD AS UNDER : - 2.2 IN APPEA L PROCEEDINGS THE APPELLANT RELIED UPON THE ORDER OF CIT(A) IN THE APPELLANT'S OWN CASE FOR A. Y. 2006 - 07. THE APPELLANT ALSO RELIED UPON THE BOMBAY HIGH COURT ORDER DATED 31.08.2009 IN WP NO. 710 OF 1996 IN THE APPELLANT'S OWN CASE WHEREIN IT IS HELD THAT THE ISSUE IN THE APPELLANT'S CASE IS COVERED BY THE JUDGEMENT OF THE COURT IN SINDH CO - OPERATIVE HOUSING ITA NO S . 491& 926 /1 4 3 SOCIETY VS ITO IN ITA NO. 931 OF 2004 DATED 17.07.2009 AND HENCE THIS PETITION IS ALLOWED. 2.3 THE ASSESSING OFFICER'S ORDER, SUBMISSIONS MADE FOR TH E APPELLANT AND MATERIALS ON RECORD HAVE BEEN CONSIDERED. RESPECTFULLY FOLLOWING THE JUDGEMENT OF THE BOMBAY HIGH COURT IN THE APPELLANT'S OWN CASE AND ORDER OF CIT(A) DATED 11.02.2010 FOR ASSESSMENT YEAR 2006 - 07 IN APPEAL NO. CIT(A) - 23/12(3)(2)/IT - 410, TH E ADDITION MADE BY THE ASSESSING OFFICER IS DELETED. 3. WITH REGARD TO GROUND NO. 2, ALSO THE CIT(A) HAS ALSO RELIED UPON THE FINDING OF THE TRIBUNAL IN ASSESSMENT YEAR 2006 - 07, AFTER OBSERVING AND HOLDING AS UNDER - 3.2 BEFORE ME, THE APPELLANT PLACED RELIANCE ON THE ORDER OF CIT(A) IT ITS OWN CASE FOR A. Y. 2006 - 07 AND BOMBAY HIGH COURT DECISION IN WRIT PETITION NO. 710 OF 1996 IN THE APPELLANT'S OWN CASE . 3.3 THE ASSESSING OFFICER'S ORDER, SUBMISSIONS MADE FOR THE APPELLANT AND MATERIALS ON RECORD HAVE BEEN CONSIDERED. IN APPEAL PROCEEDINGS FOR A. Y. 2006 - 07 THE APPELLANT PLACED RELIANCE ON ITAT, MUMBAI BENCH ORDER IN THE APPELLANT'S OWN CASE IN. ITA NO. 2784/MUM/2002 DATED 08.05.2009 PASSED BY THE ITAT IN RESPECT OF A. Y. 2003 - 04. THE ITAT HAS HELD THAT AS LONG AS THE SOCIETY HAS UNDERTAKEN THE WORK OF INSTALLATION OF THE DISH ANTENNA, THE CONTRIBUTIONS RECEIVED FROM THE FEW MEMBERS OF THE SOCIETY ARE NOT EXIGIBLE TO TAX. ACCORDINGLY, THE RECEIPT OF AMOUNTS ON SOME OF THE MEMBERS OF THE SOCIETY DOE S NOT ALTER THE SITUATION AS THERE CAN BE MANY REASONS FOR NON - PAYMENT OF THE CONTRIBUTIONS BY SOME MEMBERS OF THE SOCIETY. IT WAS HELD THAT FOLLOWING THE SAID ITAT, MUMBAI DECISION ADDITION ON ACCOUNT OF DISH ANTENNA CHARGES IS DELETED. SINCE THE FACTS AND CIRCUMSTANCES REMAIN THE SAME, THE ADDITION MADE IN RESPECT OF DISH ANTENNA CHARGES IS DELETED. 4. FURTHER, IT IS NOTED THAT THE TRIBUNAL IN THE ASSESSEE'S CASE FOR THE ASSESSMENT YEAR 2007 - 08 HAS DEALT WITH SIMILAR ISSUE AND HAS DISMISSED THE SIMILA R GROUNDS RAISED BY THE DEPARTMENT AFTER NOTING THE FACTS OF THE CASE AND ALSO THE EARLIER ORDERS OF THE TRIBUNAL IN THE FOLLOWING MANNER: - 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A CO - OPERATIVE SOCIETY AND HAS SHOWN INCOME OF R S. 1,13,365/ - DURING THE YEAR UNDER CONSIDERATION. FROM THE DETAILS FILED BY THE ASSESSEE ALONG WITH THE RETURN, IT WAS FOUND THAT DURING THE YEAR ASSESSEE HAS COLLECTED TRANSFER FEE AMOUNTING TO RS.18,30,OOO/ - AND SHOWN UNDER THE HEAD 'TRANSFER FEE AND MAJ OR BUILDING REPAIR FUND', RENT FOR AIR CONDITIONER INSTALLED BY ONE MEMBER OF RS.60,000/ - AND DISH ITA NO S . 491& 926 /1 4 4 ANTENNA CHARGES OF'RS.4,38,000/ - . ACCORDING TO ASSESSING OFFICER, THE ABOVE AMOUNTS RECEIVED BY THE ASSESSEE FROM THE MEMBERS OF THE SOCIETY WAS A TAXABLE IN COME AND THE PRINCIPLE OF MUTUALITY NO APPLICATION. ACCORDINGLY, ASSESSING MADE ADDITION ON ACCOUNT OF THE ABOVE THREE AMOUNTS RECEIVED BY THE ASSESSEE. ON APPEAL THE LEARNED CIT(A) DELETED THE ADDITION IN RESPECT OF RS.18,30,000/ - MADE BY THE BY THE ASSES SING OFFICER BY FOLLOWING THE DECISION OF THE LEARNED CIT(A) IN ASSESSEE'S OWN CASE IN A. Y. 2006 - 07 VIDE ORDER DATED 11.12.2010. IN SO FAR AS THE ADDITION IN RESPECT OF RS. 4,38,000/ - RELATING TO DISH ANTENNA CHARGES AND RS.60,000/ - BEING SERVICES CHARGES FOR INSTALLATION OF AIR CONDITIONER, THE LEARNED CIT(A) DELETED THE MADE BY THE ASSESSING OFFICER BY FOLLOWING THE DECISION OF ITAT IN ITA NO. 2784/M/2007, DATED 08.05.2009 IN ESSESSEE'S OWN CASE FOR A. Y. 2003 - 04. 4. AGAINST THE ORDER OF THE LEARNED CI T(A), THE REVENUE CARRIED MATTER IN APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ISSUE INVOLVED IN THIS APPEAL WAS SQUARELY COVERED BY THE DECISION IN ASSESSEE'S OWN CASE IN ITA NO. 32 92/M/2010 FOR A. Y. 2006 - 07 VIDE ORDER DATED 2GH JUNE, 2011. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY AGREED THAT THE ISSUES INVOLVED IN THIS APPEAL COVERED IN FAVOUR OF THE ASSESSEE. 6. WE HAVE HEARD BOTH THE SIDES, PERUSE THE RECORD AND GONE TO THE ORDERS OF THE AUTHORITIES BELOW. 7. IN SO FAR AS ADDITION IN RESPECT OF TRANSFER FEE IS CONCERNED, THE TRIBUNAL HAS HELD THAT 'THE HON'BLE BOMBAY HIGH COURT JUDGM E NT DATED 13.0FJ.2009 IN THE CASE OF THE ASSESSEE IN WRIT PETITION NO . 710 OF 1996, WHEREIN THE HON'BLE HIGH COURT FOLLOWED THE DECISION IN THE CASE OF SINDH CO - OPERATIVE HOUSING SOCIETY VS. ITO, 317 ITR 47 (BOM), ALLOWED THE APPEAL OF THE ASSESSEE. WE. FIND THAT IN THE IMPUGNED ORDER, THE CIT(A) ALLOWED THE APPEAL OF THE A SSESSEE FOLLOWING JUD GMENT OR THE HON'BLE BOMBAY HIGH COURT IN ASSESSEE'S OWN CASE. WE, ACCORDINGLY, UPHOLD THE S A ME.' WE, RESPECTFULLY FOLLOWING TH E COORDINATE BENCH OF THE TRIBUNAL IN THE ASSESSEE'S OWN CASE, WE UPHOL D THE DECISION OF ADDITION MADE BY LE ARNED CIT(A) ON ACCOUNT OF RS. 18,30,000/ - AND THIS GROUND OF APPEAL RAISED BY THE REVENUE IS DISMISSED. 8. IN SO FAR AS DISH ANTENNA CHARGES IS CONCERNED, THE HON'BLE TRIBUNAL BY FOLLOWING THE DECISION IN ASSESSEE'S OWN CASE IN ITA NO. 2784/M/20(,J7, DECI DED IN FAVOUR OF THE ASSESSEE. WHILE DECIDING, THE TRIBUNAL, INTER. ALIA, EXTRACTED ITA NO S . 491& 926 /1 4 5 THE 'OBSERVATION OF THE TRIBUNAL WHICH IS REPRODUCED AS UNDER: - 'WE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT ORDERS OF THE REVENUE AUTHORITIES IN THIS REGARD. IT I S WELL SETTLED LAW THAT THE AMOUNTS RECEIVED FROM THE MEMBERS IS NOT EXIGIBLE TO TAX IN THE LIGHT OF THE AFORESAID SPECIAL BENCH DECISION. ALTHOUGH, THE ABOVE PRINCIPLES IS ESTABLISHED IN THE CONTEXT OF TRANSFER FEE FOR THE MUTUA L BENEFITS OF THE SOCIETY, THE SAID PRINCIPLES HOLDS GOOD IN RESPECT OF THE AMOUNTS RECEI V ED FROM THE SEVEN MEMBERS OF THE SOCIETY FOR THE COMMON BENEFIT OF THIS SOCIETY. AS DISCUSSED IN PARA 70 OF THE SAID DECISION, IT IS COMPULSORY THAT THE ALL MEMBERS OF THE BUILDING ARE THE MEMB ERS OF THE SOCIETY AND CONTRIBUTIONS ARE TO BE MADE COMPULSORILY. CONSIDERING THE A BOVE PRINCIPLES LAID DOWN BY THE SPECIAL BENCH, WE ARE OF THE CONSIDERED OPINION THAT, AS LONG AS THE SOCIETY HAS UNDERTAKEN THE WORK OF INSTALLATION OF THE DISH ANTENNA, TH E CONTRIBUTIONS RECEIVED FROM THE FEW MEMBERS OF THE SOCIETY ARE NOT EXIGIBLE TO TAX. ACCORDINGLY, THE RECEIPT OF AMOUNTS FROM SOME OF THE MEMBERS OF THE SOCIETY DOES NOT ALTER THE SITUATION AS THERE CAN BE MANY REASONS FOR NON - PAYMENT OF THE CONTRIBUTIONS BY SOME MEMBERS OF THE SOCIETY. THEREFORE, WE ARE OF THE CONSIDERED OPINION, THAT THE ORDER OF THE CIT(A) MUST BE REVERSED. ACCORDINGLY, GROUND NO. 1 OF THE ASSESSEE'S APPEAL IS ALLOWED.' WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE COORDIN ATE BENCH IN ASSESSEE'S OWN CASE FOR A. Y. 2006 - 07, THIS GROUND OF APPEAL RAISED BY THE ASSESSEE IS ALLOWED. 9. IN SO FAR AS ADDITION IN RESPECT OF RENT RECEIVE FOR INSTALLATION OF AIR CONDITIONERS IS CONCERNED, THE LEARNED CIT(A) HAS ALLOWED BY FOLLOWIN G THE 'PRINCIPLE OF MUTUALITY'. WE FIND NO INFIRMITY IN THE ORDER PASSED BY THE LEARNED CIT(A). WE, THEREFORE, UPHOLD THE ORDER OF THE LEARNED CIT(A). 10. IN THE RESULT, ALL THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 5. THUS, RESPECTFULLY FOLLOWING THAT AFORESAID PRECEDENCE, WE DO NOT FIND ANY REASON TO DEVIATE FROM SUCH FINDINGS AND ACCORDINGLY, THE GROUNDS RAISED BY THE DEPARTMENT ARE TREATED AS DISMISSED. 4. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE VARIOUS ORDERS OF THE TRIBUNAL WHEREIN EXACTLY SIMILAR ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE WITH REGARD TO AMOUNT RECEIVED ON ACCOUNT OF ITA NO S . 491& 926 /1 4 6 DISH ANTENNA SERVICES CHARGES AND TRANSFER FEES. AS THE FACTS AND CIRCUMSTANCES DURING THE YEAR UNDER CONSIDERATION ARE SAME, RESPE CTFULLY FOLLOWING THE ORDERS OF THE TRIBUNAL IN ASSESSEES OWN CASE, APPEAL OF THE ASSESSEE IS ALLOWED , WHEREAS APPEAL OF THE REVENUE IS DISMISSED. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED, WHEREAS APPEAL OF THE REVENUE IS DISMISSED . O R DER PRONOUNCED IN THE OPEN COURT ON THIS 29/06 / 201 5 . SD/ - SD/ - ( ) ( SANJAY GARG ) ( . . ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNT ANT MEMBER MUMBAI ; DATED 17 /0 8 /201 5 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//