KONKAN CO-OP HOUSING SOCIETY LTD., MUMBAI V. INCOME TAX OFFICER WARD 18(3)(2), MUMBAI

ITA 6076/MUM/2008

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4262 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 04-07-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 08-10-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KALIK SINGH
• Keywords: Earning of tax free income; Additional evidence
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI . , ! ' #'' '$ , % ! & BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER . : 6076 / / 2008 A.Y. 2004-05 ITA NO. : 6076/MUM/2008 (ASSESSMENT YEAR: 2004-05) KOKAN CO-OP. HOUSING SOCIETY LTD., LT. P.N. KOTNIS MARG, MAHIM, MUMBAI -400 016 .: PAN: AAAAK 3406 F VS INCOME TAX OFFICER, WARD 18(3)(2), PIRAMAL CHAMBERS, MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIPUL JOSHI RESPONDENT BY : SHRI KALIK SINGH /DATE OF HEARING : 04-07-2013 !' / DATE OF PRONOUNCEMENT : 10 -07-2013 * O R D E R #'' '$ , : PER VIVEK VARMA, JM: THE APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) 28, MUMBAI, DATED 16.06.2008, WHEREIN THE FOLLOWING GROUNDS WERE TAKEN : 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS )-XXVIII, MUMBAI, [LD. CIT(A)] ERRED IN CONFIRMING THE ACTI ON OF THE ASSESSING OFFICER (A.O.) WHEREBY THE A.O. TREATED THE AMOUNT OF PENALTY CHARGES OF RS. 7,985/- AND MISCELLANEOUS RECEIPTS OF RS. 53,233/- UNDER THE HEAD INCOME FROM OTHER SOUR CES AS AGAINST THE CLAIM OF THE APPELLANT TO NOT TO REGARD THEM INCOME, MUCH LESS TAXABLE UNDER THE PROVISIONS OF THE INCOM E TAX ACT, 1961. 2. IT IS SUBMITTED THAT IN THE FACTS AND CIRCUMSTAN CES OF THE CASE, AND IN LAW, NO SUCH ACTION WAS CALLED FOR. 2.1 THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION O F THE A.O., WHEREBY THE A.O. TREATED THE AMOUNT OF RS. 15,12,000/- (REC EIVED FROM A KOKA N CO-OP. HOUSING SOCIETY LTD. ITA NO. 6076/MUM/2008 2 NOMINAL MEMBER OF THE APPELLANT SOCIETY FOR USE OF ITS HALL) AND RS. 15,000/- (RECEIVED AS OCCUPANCY CHARGES FOR USE OF ITS PREMISES) UNDER THE HEAD INCOME FROM HOUSE PROPERT Y INSTEAD OF TREATING THE SAME AS EXEMPT INCOME ON THE PRINCI PLES OF MUTUALITY. 2.2 IT IS SUBMITTED THAT IN THE FACTS AND IN THE CI RCUMSTANCES OF THE CASE, AND IN LAW, NO SUCH ACTION WAS CALLED FOR. 2.3 WITHOUT PREJUDICE TO THE ABOVE, AND IN THE ALTE RNATIVE, THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE A.O. I N NOT ALLOWING DEDUCTION OF RS. 94,548/- WHILE COMPUTING INCOME UN DER THE HOUSE PROPERTY INCOME. 2.4 IT IS SUBMITTED THAT IN THE FACTS AND IN THE C IRCUMSTANCES OF THE CASE, AND IN LAW, NO SUCH DISALLOWANCE WAS CALLED F OR. 2. THE ASSESSEE VIDE APPLICATION DATED 22.10.2010, FILED ADDIT IONAL GROUNDS OF APPEAL, WHICH ARE AS FOLLOWS: 1. THE ASSESSING OFFICER IN THE PRESENT APPEAL HAD REOPENED THE ASSESSMENT OF THE APPELLANT BY INVOKING THE PROVISI ONS OF SECTION 147 OF THE INCOME TAX ACT, 1961 (THE ACT) AND PASSED THE ASSESSMENT ORDER U/S. 143(3) R.W.S. 147 OF THE ACT, MAKING VARIOUS ADDITIONS / DISALLOWANCES. 2. AT THE TIME OF FILING THE GROUNDS OF APPEAL, INA DVERTENTLY, THE APPELLANT HAD NOT TAKEN THIS GROUND CHALLENGING THE ACTION OF THE A.O. IN REOPENING THE ASSESSMENT OF THE APPELLA NT. 3. IN THE CIRCUMSTANCES, THE APPELLANT MOST RESPECT FULLY SUBMITS THAT THE APPELLANT BE ALLOWED TO RAISE THE ADDITION AL GROUND ATTACHED HEREWITH FOR THE FOLLOWING REASONS: (I) THE ISSUE RAISED IN THESE GROUNDS GOES TO THE ROOTS/JURISDICTION OF THE REASSESSMENT FRAMED. (II) ENTERTAINING THESE ADDITIONAL GROUNDS WILL NOT REQUIRE INVESTIGATION INTO ANY FRESH FACTS, ALREADY ON RECO RDS. (III) NOT TAKING THESE GROUNDS AT THE TIME OF FILING OF T HE APPEAL WAS PURELY UNINTENTIONAL AND DUE TO OVERSIGH T. (IV) THE APPELLANT HAD OTHERWISE TAKEN GENERAL GROUNDS CHALLENGING THE INDIVIDUAL ADDITIONS. 3. AT THE TIME OF HEARING, THE AR SUBMITTED THAT ADDITION AL GROUND, AS RAISED VIDE LETTER DATED 22.10.2010 IS NOT PRESSED. 4. SINCE THE GROUND IS NOT PRESSED, THE ADDITIONAL GROUND , AS RAISED IS REJECTED. 5. THE AR FURTHER POINTED OUT THAT IN SO FAR AS GROUND NO. 2.1, WAS CONCERNED, THE ASSESSEE HAD VIDE LETTER DATED 15.04.2013 , FILED A PRAYER OF SUBMISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF THE ITAT RULE, 1963, WHICH WOULD BE IMPORTANT FOR DISPOSAL OF THE ISSU E IMPUGNED IN GROUND NO. 2.1, AS IT WENT TO THE ROOT OF THE ISSUE. THE KOKA N CO-OP. HOUSING SOCIETY LTD. ITA NO. 6076/MUM/2008 3 ASSESSEE, THEREFORE, FILED AN ADDITIONAL EVIDENCE, AS PER THE APPLICATION, WHICH READS AS APPLICATION FOR ADDITIONAL EVIDENCE U/R. 29 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963 KONKAN CO-OP. HSG. SOC. LTD. ITA NO.: 6076/M/08 A.Y. :2004 -2005 1. THE APPLICANT IS CO-OPERATIVE HOUSING SOCIETY. IT D OES NOT HAVE FULL TIME ACCOUNTANT OR REGULAR TAX ADVISOR. BY AND LARG E, INCOME OF THE APPLICANT IS EXEMPT UNDER THE PRINCIPLE OF MUTUALIT Y. IT IS ONLY FOR A.Y. 2003-2004 AND 2004-2005 THAT SCRUTINY ASSESSME NTS WERE FRAMED. AS SUCH, THE APPLICANT IS NOT WELL CONVERSA NT WITH THE PROCEDURE OF THE APPEAL UNDER THE INCOME TAX ACT, 1 961. 2. IN THE PAPER BOOK FILED BY THE APPLICANT, IT IS ORI GINALLY CERTIFIED ON BEHALF OF THE APPLICANT THAT A COPY OF THE BYE LAWS WAS FILED BEFORE THE AO/CIT(A). THIS WAS ON THE BASIS OF THE UNDERST ANDING GIVEN BY THE PART TIME ACCOUNTANT, MR. RAJENDRA OGAVE, WHO W AS ASSISTING AND COORDINATING IN THESE PROCEEDING. HOWEVER, NOW WE UNDERSTAND THAT A COPY OF SUCH BYE LAWS IS NOT ON THE RECORD W ITH THE A.O. AS THE APPLICANT IS NOT ABLE TO SUBSTANTIATE ITS CLAIM , IT HAS REVISED THE CERTIFICATE. CONSEQUENTLY, A COPY OF BYE LAW IS AN ADDITIONAL EVIDENCE WHICH THE APPLICANT SEEK TO REFER AND RELY UPON. 3. THE APPLICANT MOST RESPECTFULLY SUBMITS THAT THE BY E LAWS IS A VERY VITAL DOCUMENT AND THE IT GOES TO THE VERY ROOT OF THE ISSUE OF TAXABILITY OF THE RECEIPT FROM M/S EUREKA FORBES LT D., WHICH IS THE SUBJECT MATTER OF THE APPEAL. THE APPLICANT SUBMITS THAT THE NON- FILING THE SAME BEFORE THE LOWER AUTHORITIES WAS NE ITHER INTENTIONAL NOR DELIBERATE. THE NON-FILING SEEMS TO BE PURELY I NADVERTENT. IN ANY CASE, THE BYE LAWS IS ON THE SAME LINE AS THE MODEL BYE LAWS AS STATUTORILY PRESCRIBED UNDER THE MAHARASHTRA COOPER ATIVE SOCIETIES ACT, 1960. HE, THEREFORE, PRAYED THAT THE ISSUES IN THE GROUND BE R ESTORED TO THE AO. 6. THE AR SUBMITTED THAT SINCE THE REMAINING GROUNDS A RE MINOR, THEY MAY ALSO BE RESTORED TO THE FILE OF THE AO. 7. THE DR, DID NOT OPPOSE TO THE SUBMISSIONS, AS THE APPLIC ATION FOR ADMISSION OF ADDITIONAL EVIDENCE WAS ALREADY ON RECORD. 8. AFTER HEARING THE PARTIES, WE FEEL THAT IN THE INTEREST O F JUSTICE, THE PRAYER OF THE ASSESSEE BE ACCEDED TO. WE, THEREFORE , SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO REFRAME THE ASSESSMENT AFR ESH, TAKING INTO CONSIDERATION THE ADDITIONAL EVIDENCE, AS PLACED BEFORE THE ITAT. KOKA N CO-OP. HOUSING SOCIETY LTD. ITA NO. 6076/MUM/2008 4 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JULY, 2013. SD/- SD/- ( . ) ( #'' '$ ) ! ! (B. RAMAKOTAIAH) (VIVEK VARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 10 TH JULY, 2013 / COPY TO:- 1) / THE APPELLANT. 2) / THE RESPONDENT. 3) THE CIT (A)-28, MUMBAI. 4) & & ' 6, MUMBAI / THE CIT6, MUMBAI. 5) ()* + , , & + , -. / THE D.R. A BENCH, MUMBAI. 6) */ 0 COPY TO GUARD FILE. &12 / BY ORDER [ 3 / 4 5 & + , -. DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI *784 . . * CHAVAN, SR. PS