ASHOK APARTMENT OWNERS CO OP HOUSING SOCIETY LTD, MUMBAI V. ITO 16(2)(1), MUMBAI

ITA 5042/MUM/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8379 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 04-08-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES SMC, MUMBAI . . , BEFORE SHRI I P BANSAL, JUDICIAL MEMBER ./ITA NO.5042/MUM/2014 ( / ASSESSMENT YEAR:2009-10) ASHOK APARTMENTS OWNERS CO-OP. HSG. SOC. LTD. GR. FLOOR, ASHOK APTS., 68 NEPEAN SEA ROAD, MUMBAI 400 066 PAN AABAA3417B VS. THE ITO 1 6 ( 2 )( 1 ), MUMBAI ( ! /APPELLANT) ( '# ! / RESPONDENT) APPELLANT BY : MR. VIMAL PUNMIYA RESPONDENT BY : MR. NEIL PHILIP DATE OF HEARING : 27.11.2014 DATE OF PRONOUNCEME NT :27.11.2014 $ / O R D E R THIS APPEAL IS FILED BY THE ASSESSEE. IT IS DIRECT ED AGAINST THE ORDER PASSED BY THE CIT(A), DATED 03.12.2013, FOR A.Y. 2009-10. TH E GROUNDS OF APPEAL READ AS UNDER: GROUND NO.1 THE LD. CIT(A) HAS GROSSLY ERRED IN TREATING NON OC CUPANCY CHARGES AMOUNTING TO RS.3,44,064/- RECEIVED BY THE SOCIETY AS INCOME OF THE ASSESSEE EVEN THOUGH THE SAME IS COVERED BY THE PRI NCIPLES OF MUTUALITY. GROUND NO.2 THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS.600/- EVEN THOUGH THE SAME IS COVERED BY THE PRINCIPLES O F MUTUALITY. 2 ITA NO.5042/MUM/2014 AY:2009-10 GROUND NO.3. THE LD. CIT(A) HAS ERRED IN RELYING ON THE DECISION OF HONORABLE ITAT, MUMBAI, IN THE CASE OF HATKESH CO-OPERATIVE SOCIETY LTD. IN ITA NO. 494 TO 500/MUM/2011 DATED 04.09.2013 WHICH IS SQUAR ELY DISTINGUISHABLE TO THE FACTS OF THE ASSESSEE. GROUND NO.4 THE ASSESSEE CRAVES LEAVE TO ADD, ALTER OR AMEND TH E EXISTING GROUNDS OF APPEAL ON OR BEFORE THE DATE OF THE HEARING. 2. GROUND NO. 1 & 3 RAISES ONE ISSUE I.E. REGARDING NON- OCCUPANCY CHARGES AMOUNTING TO RS.3,44,064/- WHICH ACCORDING TO GROUN DS OF APPEAL COULD NOT BE ASSESSED AS INCOME AS THE SAME IS COVERED BY PRINCI PLES OF MUTUALITY. DURING THE COURSE OF HEARING, IT WAS BROUGHT TO MY NOTICE THAT TRIBUNAL, VIDE ORDER DATED 07.09.2012, IN ASSESSEES OWN CASE HAS DECIDED SIMI LAR ISSUE IN FAVOUR OF THE ASSESSEE IN RESPECT OF A.Y. 2004-05. COPY OF THIS ORDER IS FILED AT PAGES 21-23 OF THE PAPER-BOOK. THIS ISSUE IS DISCUSSED AND DECIDED BY THE TRIBUNAL AS FOLLOWS :- 2. GROUND NO.1 READS AS UNDER: 1. THE LD CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF TRANSFER FEES OF RS.13,27,500 AND RS.2,63,333 FOLLOWING THE DECISION OF HONBLE HIGH COURT OF BOMBAY IN THE CASE OF SHYAM CHS AND S UPRABHAT CHS WHEREIN, IT HAS BEEN HELD THAT ALL AMOUNTS RECEIVED BY THE CHS ON THE GROUNDS OF TRANSFER CHARGES ARE EXEMPT UNDER THE PR INCIPLE OF MUTUALITY. THE DECISION HAS NOT BEEN ACCEPTED BY TH E DEPARTMENT AND THE ISSUE IS SUB-JUDICE. 3. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE MATERIAL ON RECORD, WE FIND THAT THIS ISSUE IS SQUARELY COVE RED BY THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. SH YAM CHS AND SUPRABHAT, CHS, ORDER DATED 1.10.2009, WHEREIN, IT HAS BEEN HELD THAT ALL AMOUNTS RECEIVED BY THE CO-OPERATIVE HOUSING SO CIETY ON THE GROUNDS OF TRANSFER CHARGES ARE EXEMPT UNDER THE PR INCIPLE OF MUTUALITY. SIMILAR VIEW HAS ALSO BEEN TAKEN IN THE CASE OF MITTAL COURT PREMISES CO-OPERATIVE SOCIETY LTD. V. INCOME-TAX OF FICER. 320 ITR 414(BOM). WE ALSO FIND THAT THE CIT(A) HAS FOLLOWED THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. SHYAM CHS AND SUPRABHAT, CHS(SUPRA) FOR ALLOWING THE TRANSFER FEE S CLAIMED BY THE ASSESSEE. WE, THEREFORE, UPHOLD THE GRIEVANCE OF TH E ASSESSEE AND APPROVE THE STAND TAKEN BY THE CIT(A). 4. GROUND NO. 1 IS DISMISSED. 3 ITA NO.5042/MUM/2014 AY:2009-10 IT WAS FURTHER SUBMITTED THAT NON-OCCUPANCY CHARGES ISSUE IS ALSO COVERED BY FOLLOWING DECISIONS MITTAL COURT PREMISES CO-OPERATIVE HOUSING SOCIETY LTD. VS. ITO [ITA NO.999 OF 2004 (HC)] STERLING CO-OP HOUSING SOCIETY LTD. [ITA NO.8197/M/ 2011(ITAT)] SUPRABHAT CHS IN ITA NO.12972 OF 2009 (HC) M/S. SHYAM CHS VIDE ITA NO.92, 93, 206 OF 2009, DAT ED 17.7.2009 (HC) 3. THE LEARNED DR RELIED UPON THE ORDERS PASSED BY THE AO AND THE CIT(A). 4. I HAVE HEARD BOTH THE PARTIES AND THEIR CONTENTI ONS HAVE BEEN CAREFULLY CONSIDERED. THE LEARNED CIT(A) DID NOT ACCEPT THE CONTENTIONS OF THE ASSESSEE FOR THE REASONS THAT THE DECISIONS RELIED UPON BY THE L EARNED AR HAVE NOT BEEN ACCEPTED BY THE DEPARTMENT AND SLP HAS BEEN FILED BEFORE THE HONBLE SUPREME COURT. IN MY CONSIDERED OPINION, THE STAND TAKEN BY THE LEANED C IT(A) IS NOT CORRECT. THE ISSUE IS DIRECTLY COVERED BY THE DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE AND ALSO BY THE AFORESAID DECISIONS. THEREFORE, I DELETE TH E DISALLOWANCE. GROUND NOS.1 AND 3 ARE ALLOWED. 5. APROPOS GROUND NO.2, THE ASSESSEE IS CLAIMING BE NEFIT OF PRINCIPLES OF MUTUALITY ON MISCELLANEOUS INCOME OF RS.600/- WHICH ACCORDING TO THE LEARNED AR RELATES TO SALE OF EMPTY CEMENT BAGS. ON THIS ISSU E I HAVE HEARD BOTH THE PARTIES AND AFTER HEARING BOTH THE PARTIES I DO NOT FIND AN Y FORCE IN THE CONTENTION OF THE LEARNED AR THAT SUCH AMOUNT COULD BE TREATED TO BE COVERED BY THE PRINCIPLE OF MUTUALITY AS THE SAME REPRESENTS SALE OF EMPTY CEME NT BAGS, WHICH IS NOT AN AMOUNT RECEIVED BY THE ASSESSEE FROM MEMBERS. THIS GROUND IS ACCORDINGLY DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF NOVEMBER, 2014. SD/- (I P BANSAL) JUDICIAL MEMBER MUMBAI, DT : 27 TH NOVEMBER, 2014 SA 4 ITA NO.5042/MUM/2014 AY:2009-10 COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE C.I.T, CONCERNED 4. THE CIT (A)-CONCERNED 5. THE DR, SMC BENCH, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI