I.T.O.12(2)(1), MUMBAI V. CCI CHAMBERS CHS SOCIETY LTD., MUMBAI

ITA 5986/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71860 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 01-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJIV JAIN
• Assessee Lawyers: MRUGAKSHI K JOSHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ITA NO. 5986/MUM/12 (ASSESSMENT YEAR: 2009-10) ITO 12(3)(3) R. NO. 123, 1 ST FLOOR AAYAKAR BHAVAN, MUMBAI-400 020. VS. CCI CHAMBERS CO - OP HOUSING SOCIETY LTD. GROUND FLOOR, DINSHAW WACHHA MARG. CHURCHGATE, MUMBAI-400 020. (APPELLANT) (RESPONDENT) P.A. NUMBER : AAAJC 0006 E ASSESSEE BY : MS. MRUGAKSHI K. JOSHI REVENUE BY : SHRI SANJIV JAIN DATE OF HEARING : 28/11/2013 DATE OF PRONOUNCEMENT : 29/11/2013 O R D E R PER P.M. JAGTAP, ACCOUNTANT MEMBER: THIS APPEAL PREFERRED BY THE REVENUE IS AGAINST THE ORDER OF THE LD. CIT(A)-23, MUMBAI, DATED 27/07/2012, AND THE SOLITA RY ISSUE INVOLVED THEREIN IS RELATING TO DELETION MADE BY THE LD. CIT (A) OF THE ADDITION MADE BY ASSESSING OFFICER ON ACCOUNT OF TRANSFER FEES RE CEIVED BY THE ASSESSEE SOCIETY BY ITS MEMBERS WHICH IS RAISED BY TAKING TH E FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, WHETHER THE LD.CIT(A) ERRED IN DELETING THE ADDITION OF RS.44,89,634/- ON ACCOUNT OF TRANSFER F EES RECEIVED BY THE ASSESSEE FROM TWO MEMBERS WITHOUT APPRECIATING THE FACT THAT THE RECEIPT OF TRANSFER FEES IN THE GUISE OF VOLUNTARY CONTRIBUTION. ITA NO.5986/M/12 A.Y.09-10 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE WHETHER THE LD.CIT(A) ERRED IN APPRECIATING THE FAC T THAT THE ASSESSEE HAS VIOLATED THE LIMITATION OF TRANSFER FE E AMOUNT OF RS.25,000/- FIXED BY THE NOTIFICATION OF GOVT. OF M AHARASHTRA, AND THE AO HAS RIGHTLY TAXED THE AMOUNT, AS IT WAS NOT COVERED UNDER THE PRINCIPLES OF MUTUALITY. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE WHETHER THE LD.CIT(A) FAILED TO APPRECIATE THE FACT S AND REVENUE HAS CHALLENGED THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF MITTAL COURT PREMISES CO- OP HOUSING SOCIETY LTD. 320 ITR 414 (BOM) ON THE IDENTICAL ISS UE BY FILING SLP AND THE ISSUE IS PENDING BEFORE THE HONBLE SUP REME COURT. 2. AS AGREED BY THE LD. REPRESENTATIVES OF BOTH THE SIDES, THE SOLITARY ISSUE INVOLVED IN THIS APPEAL OF THE REVENUE IS SQU ARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE IMMEDIATELY PRECEDING YEAR I.E. ASSESSMENT YEAR 2008-09 RENDERED BY ITS ORDER DATED 29/08/2012 IN ITA NO.6509/MUM/2011 WHEREIN A SIMILAR ISSUE WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE FOR THE FOLLOWING REASONS GIVEN IN PARA-3 OF ITS ORDER. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES A ND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS AGREED BY THE LEARNED REPRESENTATIVES OF BOTH THE SIDES, THE ISSUE INVOLVED IN THIS APPEAL OF THE REVENUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE HIGH COURT IN THE CASE OF MITTAL COURT PREMISES CO-OP SOCIET Y LTD. (SUPRA) AND SIND CO-OP. HOUSING SOCIETY (SUPRA) RELIED UPON BY THE LEARNED CIT(APPEALS) IN HIS IMPUGNED ORDER. AS FURTHER POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESS EE, THE CO- ORDINATE BENCH OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2005-06 HAS DECIDED A SIMILAR ISSU E IN FAVOUR OF THE ASSESSEE BY AN ORDER DATED 14-10-2011 PASSED IN ITA NO.2494/MUM/2010 FOLLOWING THE SAID DECISION OF HONBLE JURISDICTIONAL HIGH COURT. THE ISSUE INVO LVED IN THIS APPEAL OF THE REVENUE THUS IS SQUARELY COVERED IN F AVOUR OF THE ASSESSEE BY THE DECISION OF COORDINATE BENCH O F THIS TRIBUNAL IN ASSESSEES OWN CASE AS WELL AS BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF MITTAL ITA NO.5986/M/12 A.Y.09-10 3 COURT PREMISES CO-OP SOCIETY LTD. (SUPRA) AND SIND CO-OP. HOUSING SOCIETY (SUPRA). RESPECTFULLY FOLLOWING T HE SAID JUDICIAL PRONOUNCEMENTS, WE UPHOLD THE IMPUGNED ORD ER OF THE LEARNED CIT(APPEAL S) DELETING THE ADDITION OF RS.46,00,000/- MADE BY THE AO ON ACCOUNT OF TRANSFE R FEES RECEIVED BY THE ASSESSEE SOCIETY FROM ITS TWO MEM BERS AND DISMISS THIS APPEAL OF THE REVENUE. 2.1 RESPECTFULLY FOLLOWING THE DECISION OF THE CO-O RDINATE BENCH OF THIS TRIBUNAL RENDERED IN ASSESSEES OWN CASE FOR THE AS SESSMENT YEAR 2008- 09 ON SIMILAR ISSUE, WE UPHOLD THE IMPUGNED ORDER O F THE LD. CIT(A) DELETING THE ADDITION MADE BY AO ON ACCOUNT OF TRAN SFER FEES RECEIVED BY THE ASSESSEE SOCIETY FROM ITS MEMBERS. 3. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH NOVEMBER, 2013. SD/- SD/- (VIVEK VARMA ) JUDICIAL MEMBER (P.M. JAGTAP ) ACCOUNTANT MEMBER MUMBAI, DATED: 29/11/2013. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.