ITO 21(3)-1, MUMBAI V. FLORENTINE CHS LTD, MUMBAI

ITA 5851/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1417 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2004-2005
• Appeal Filed On: 04-11-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANIL KUMAR SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESDIENT AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 5851/M/2009 ASSESSMENT YEAR: 2004-05 INCOME-TAX OFFICER, APPELLANT WARD 21(3)-1, C-11, BLDG., 5 TH FLOOR, PRATYAKSH KAR BHAVAN, BKC, BANDRA (E), MUMBAI 51. VS. M/S FLORENTINE CHS LTD., RESPONDENT HIRANANDANI GARDENS, POWAI, MUMBAI 76. (PAN AAAJF0007A) APPELLANT BY : MR. ANIL KUMAR SINGH RESPONDENT BY : MR. HARIDAS BHAT ORDER PER A.L. GEHLOT, A.M.: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF CIT(A)- XXI, MUMBAI, PASSED ON 12.08.2009 FO R THE ASSESSMENT YEAR 2004-05 WHEREIN THE REVENUE HAS RAI SED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 7, 57,500/- RECEIVED ON ACCOUNT OF TRANSFER PREMIUM. THE SAME I S TAXABLE AS THE PRINCIPLE OF MUTUALITY SHOULD NOT BE APPLICA BLE IN THIS CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE A DDITION OF RS. 6,23,000/- ON ACCOUNT OF DEVELOPMENT FUND. THE SAME IS TAXABLE AS THE PRINCIPLE OF MUTUALITY SHOULD NOT BE APPLICABLE IN THIS CASE. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CI T(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSIN G OFFICER BE RESTORED. ITA NO. 5851/M/09 M/S FLORENTINE CHS LTD. 2 2. THE AO DID NOT ACCEPT THE PRINCIPLE OF MUTUALITY IN RESPECT OF AMOUNT RECEIVED ON ACCOUNT OF TRANSFER PREMIUM AND DEVELOPMENT FUND. THE CIT(A) FOLLOWED THE JUDGMENT OF THE JURIS DICTIONAL HIGH COURT IN THE CASE OF SIND CO-OPERATIVE HOUSING SOCI ETY VS. ITO, [2009] 317 ITR 47 AND DELETED THE ADDITION. 3. THE LEARNED DR SUBMITTED THAT CERTAIN FACTS ARE REQUIRED VERIFICATION IN RESPECT OF DEVELOPMENT FUND IN THE LIGHT OF JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE OF SIND CO -OPERATIVE HOUSING SOCIETY CITED SUPRA. 4. AFTER HEARING THE LEARNED AR, WE REMIT THE MATTE R BACK TO THE FILE OF THE AO WITH A DIRECTION TO VERIFY THE AMOUN TS AND FACTS IN RESPECT OF DEVELOPMENT FUND AND DECIDE THE BOTH ISS UES IN THE LIGHT OF JURISDICTIONAL HIGH COURT IN THE CASE OF SIND CO OPERATIVE HOUSING SOCIETY (SUPRA) AFTER PROVIDING REASONABLE OPPORTUN ITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF JUNE, 2010. SD/- SD/- (D. MANMOHAN) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED: 28 TH JUNE, 2010 ITA NO. 5851/M/09 M/S FLORENTINE CHS LTD. 3 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, FBENCH, I.T. A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. KV S.NO. DESCRIPTION DATE INTLS 1. DRAFT DICTATED ON 28.6.10 SR.P.S./P.S 2. DRAFT PLACED BEFORE AUTHOR 28.6.10 SR.P.S/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.P.S./PS SR.P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON SR. P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER