ITO 21(1)(1), MUMBAI V. ASHOK NAGAR CO OP HOUSING SOCIETY, MUMBAI

ITA 5916/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88410 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 04-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN
• Assessee Lawyers: NIL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER ITA NO.5916/MUM/2013 (A.Y. 2009-10) ITO-21(1)(1), ROOM NO.603, C-10, 6 TH FLOOR, BKC, BANDRA(E), MUMBAI-51. (APPELLANT ) VS. M/S.ASHOK NAGAR CO OP HOUSING SOCIETY, VISHNU PRASAD DESAI BHAVAN, V.L.MEHTA MARG, JVPD SCHEME, VILE PARLE (W), MUMBAI 56. (RESPONDENT) APPELLANT BY : SHRI ASGHAR ZAIN RESPONDENT BY : SHRI NI L DATE OF HEARING : 18/02/2015 DATE OF PRONOUNCEMENT : 18 /02/2015 ORDER PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE REVENUE AND IT IS D IRECTED AGAINST ORDER PASSED BY LD. CIT(A)-22 MUMBAI DATED 16/07/2013 FOR ASSESS MENT YEAR 2009-10. GROUNDS OF APPEAL READ AS UNDER: ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.15 LAKHS M ADE ON ACCOUNT OF RECEIPT OF TRANSFER FEES IGNORING THAT THE MAXIMUM AMOUNT R ECEIVABLE AS PER MODEL BYE LAWS IN RESPECT OF CO-OPERATIVE HOUSING SOCIETY IS RS.25,000/- ONLY. ITA NO.5916/MUM/2013 (A.Y. 2009-10) 2 2. THE ASSESSE IS A REGISTERED SOCIETY UNDER BOMBAY CO-OPERATIVE SOCIETIES ACT 1925. THE SOCIETY IS A PLOT HOLDER SOCIETY HAVING 34 MEMBERS. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAD RECEIVED A SUM OF RS.15.00 LACS AS TRANSFER FEE FROM OUTGOING MEMBERS AND THE SAID AMOUNT WAS C LAIMED AS EXEMPTION ON THE PRINCIPLE OF MUTUALITY. THE AO DID NOT ACCEPT SUCH SUBMISSION OF THE ASSESSEE AND ASSESSED THE SAID AMOUNT AS TAXABLE INCOME. 3. LD. CIT(A) HAS GRANTED RELIEF TO THE ASSESSEE FO LLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF SINDH CO-O PERATIVE HOUSING SOCIETY VS. ITO,182 TAXMAN 346 (BOM). THE HEAD NOTES OF TH E SAID DECISION HAVE BEEN REPRODUCED IN THE ORDER PASSED BY LD. CIT(A). IT HAS BEEN HELD THAT PRINCIPLE OF MUTUALITY IS APPLICABLE IN RESPECT OF TRANSFER FEE RECEIVED BY THE CO-OPERATIVE SOCIETY WHETHER FROM OUTGOING OR INCOMING MEMBER. SECTION 28(III) HAS NO APPLICATION TO THE TRANSFER FEES RECEIVED BY CO-OPE RATIVE HOUSING SOCIETY AS SUCH SOCIETY HAS NO SIMILARITY WHATSOEVER WITH A PROFESS IONAL ASSOCIATION. 4. NOTICE OF HEARING WAS SENT TO THE ASSESSEE. HO WEVER, NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. SINCE THE ISSUE IS COVERED BY THE AFOREMENTIONED DECISION OF HONBLE JURISDICTIONAL HIGH COURT WE PROCEED TO DECIDE THE APPEAL FILED BY THE REVENUE EX-PARTE QUA THE ASSESSEE. 5. LD. DR RELIED UPON THE ASSESSMENT ORDER. 6. AFTER HEARING LD. DR AND CONSIDERING THE FACTS A VAILABLE ON RECORD AND THE DECISION RENDERED BY LD. CIT(A), WE FIND NO INFIR MITY IN THE RELIEF GRANTED BY LD. CIT(A) AS THE SAME IS BASED UPON THE DECISION OF HO NBLE JURISDICTIONAL HIGH ITA NO.5916/MUM/2013 (A.Y. 2009-10) 3 COURT. WE DECLINE TO INTERFERE. THE APPEAL FILED BY THE REVENUE IS DEVOID OF MERITS AND IS DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 8/02/2015 ! ' #$% & '() 18/02/2015 $ ' * + SD/- SD/- ( /CHANDRA POOJARI ) ( . . / I.P. BANSAL ) /ACCOUNTANT MEMBER / JUDICIAL EMBER MUMBAI; '( DATED 18/02/2015 ! ! ! ! ' '' ' ,-. ,-. ,-. ,-. /.%- /.%- /.%- /.%- / COPY OF THE ORDER FORWARDED TO : 1. 01 / THE APPELLANT 2. ,201 / THE RESPONDENT. 3. 3 ( ) / THE CIT(A)- 4. 3 / CIT 5. .4* ,-( , , / DR, ITAT, MUMBAI 6. *5 6 / GUARD FILE. !( !( !( !( / BY ORDER, 2.- ,- //TRUE COPY// 7 77 7 / 8 8 8 8 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ( . ./ VM , SR. PS