ITO 16(1)(2), MUMBAI V. USHA KIRAN CHS LTD, MUMBAI

ITA 5924/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1416 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2000-2001
• Appeal Filed On: 06-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL KUMAR SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F : MUMBAI BEFORE SHRI D. MANMOHAN, HONBLE VICE PRESIDENT AND SHRI ANANDI LAL GEHLOT, ACCOUNTANT MEMBER ITA. NO. 5924/MUM/2009 ASSESSMENT YEAR 2000-2001 ITO 16 (1) (2) MATRU MANDIR MUMBAI 400 007. VS. NEW USHA KIRAN CHS LTD. 15, M.L. DAHANUKAR MARG MUMBAI 400 026 PAN AAAAN-1557-A (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI ANIL KUMAR SINGH FOR RESPONDENT : SHRI MADHUR AGARWAL ORDER PER D. MANMOHAN, V.P. 1. THE ONLY GROUND URGED BY THE REVENUE READS AS U NDER : THE LEARNED CIT(A) ERRED IN RELYING UPON THE DECIS ION ON HONBLE ITAT IN THE ASSESSEES OWN CASE FOR A.Y. 19 99-2000, WHERE IT HAS BEEN HELD THAT THE PRINCIPLE OF MUTUA LITY IS APPLICABLE, WHEREAS, THE FACT IS THAT ALL THE PARTI CIPANTS TO THE NON-OCCUPANCY COMMON FUND ARE NOT CONTRIBUTOR S TO THE NON-OCCUPANCY COMMON FUND WHICH THUS DEFIES THE PR INCIPLE OF MUTUALITY . 2. AS COULD BE NOTICED FROM PARA 5 OF THE ORDER PA SSED BY THE LEARNED CIT(A) THE CASE OF THE ASSESSEE THAT THE MO NEY COLLECTED FROM THE MEMBERS WHO DO NOT OCCUPY THE FLATS (IN THE FORM OF NON-OCCUPANCY CHARGES) IS NOT ASSESSABLE TO TAX ON THE PRINCIPLE S OF MUTUALITY, WAS ACCEPTED BY THE FIRST APPELLATE AUTHORITY IN THE LI GHT OF DECISION OF THE ITAT, B BENCH, MUMBAI IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 1999-2000. NO MATERIAL WHATSOEVER WAS FILED BY THE LEARNED DR TO SHOW THAT THE DECISION OF THE ITAT (SUPRA) WAS OVERRULED BY A HIGHER FORUM. UNDER THESE CIRCUMSTANCES, ORDER PASSED BY THE LEAR NED CIT(A), BEING IN CONSONANCE WITH THE VIEW TAKEN BY THE ITAT IN ASSES SEES OWN CASE FOR THE EARLIER YEAR, DOES NOT CALL FOR ANY INTERFERENC E. WE THEREFORE, DISMISS THE APPEAL FILED BY THE REVENUE. ORDER PRONOUNCED ACCORDINGLY IN THE OPEN COURT. SD/- SD/- (ANANDI LAL GEHLOT) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 28 TH JUNE, 2010. VBP/- COPY TO 1. ITO 16 (1) (2), MATRU MANDIR, MUMBAI 400 007. 2. NEW USHA KIRAN CHS LTD. 15, M.L. DAHANUKAR MARG , MUMBAI 400 026 PAN AAAAN-1557-A 3. CIT (A)-XVI, MUMBAI. 4. CIT, CITY-XVI, MUMBAI. 5. D.R. F BENCH 6. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI. SNO DATE INITIALS 1 DRAFT DICTATED ON 28-06-2010 SR.P.S. 2. DRAFT PLACED BEFORE AUTHOR 28-06-2010 SR.P.S. 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 28-06-2010 V.P. 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER - 06-2010 A.M 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.P.S. 6. KEPT FOR PRONOUNCEMENT ON SR.P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S. 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER