ITO, Panchkula V. M/s Gymkhana Club, Panchkula

ITA 619/CHANDI/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51605 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 01-12-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 02-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI SHREE SHARMA
• Assessee Lawyers: S K MUKHI
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH BEFORE SHRI H.L.KARWA, VICE PRESIDENT AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO. 619/CHD/2011 ASSESSMENT YEAR: 2008-09 ITO, WARD 2, V M/S GYMKHANA CLUB, PANCHKULA. SECTOR 6, PANCHKULA. PAN: AAAAG-0115B (APPELLANT) (RESPONDENT) DEPARTMENT BY: SMT.JAISHREE SHARMA ASSESSEE BY : SHRI S.K.MUKHI DATE OF HEARING : 01.12.2011 DATE OF PRONOUNCEMENT : 5.12.2011 ORDER PER MEHAR SINGH, AM THE PRESENT APPEAL FILED BY THE REVENUE IS AGAINST THE ORDER DATED 31.03.2011 PASSED BY THE LD. CIT(A) U/S 250(6) OF THE INCOME-TAX ACT,1961 (IN SHORT 'THE ACT'). 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLO WING GROUNDS OF APPEAL: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS RIGHT IN HOLDING THA T THE ASSESSEE CLUB IS A MUTUAL CONCERN DISREGARDING THE FINDING OF THE AO THAT THE FINANCIAL AND ADMINISTRATIVE CONTROL OVER THE ASSESSEE CLUB IS IN HANDS OF HUDA AND THAT THERE IS NO COMPLETE EQUALITY BETWEEN THE CONTRIBUTORS OF THE CLUB. 2. THE APPELLANT CARVES LEAVE TO ADD OR AMEND THE GROUND OF APPEAL BEFORE THE APPEAL IS HEARD AND DISPOSED OFF. 2 3. IT IS PRAYED THAT THE ORDER OF LD. CIT(A) BE SET ASIDE AND THAT OF THE AO MAYBE RESTORED.. 3. GROUND NOS. 2 AND 3 ARE GENERAL IN NATURE AND NE ED NO SEPARATE ADJUDICATION. 4. IN THE COURSE OF PRESENT APPELLATE PROCEEDINGS, BOTH THE LD. 'DR' AND LD. 'AR' STATED THAT THE ISSUE IN QUESTION IS COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEE 'S OWN CASE IN ITA NO. 363/CHD/2011 (A.Y. 2005-06) DATED 13.05.2011. 5. WE HAVE CAREFULLY PERUSED THE FACTS OF THE CASE AND FINDINGS OF THE LD CIT(A) WHICH ARE REPRODUCED HERE UNDER, AND FOUND THAT ISSUE IN QUESTION IS COVERED BY THE DECISION OF THE CO-ORDINATE BENCH IN ASSESSEE'S OWN CASE, AS MENTIONED EARLIER. THE FINDINGS OF LD. CIT(A) FOLLO WING THE DECISION OF THE HON'BLE ITAT CHANDIGARH IS REPRODUC ED HEREUNDER: 4. I HAVE CAREFULLY CONSIDERED ARGUMENTS FOR THE COUNSEL OF THE APPELLANT AND HAVE ALSO PERUSED THE ASSESSMENT ORDER. I HAVE ALSO CAREFULLY GONE THROU GH THE DECISION OF THE ITAT CHANDIGARH IN ITA NO.1083/CHD/2009 AND ITA NO.1033/CHD/2010 IN THE APPELLANTS OWN CASE. THE AO HAS NOT TREATED TH E APPELLANT AS A MUTUAL CONCERN FOR DIFFERENT REASONS DISCUSSED EARLIER. THE COUNSEL FOR THE APPELLANT O N THE OTHER HAND ARGUED IN WRITTEN SUBMISSION WHICH HAS BEEN REPRODUCED IN BRIEF ABOVE THAT THE APPELLA NT IS A MUTUAL CONCERN. THE COUNSEL ALSO RELIED ON THE HON'BLE ITAT CHANDIGARH DECISION IN THE APPELLANTS OWN CASE FOR THE A.Y. 2006-07 AND 2007-08 IN ITA NO.1083/CHD/2009 AND ITA NO.1033/CHD/2010 DATED 28.2.2011. ON CAREFUL CONSIDERATION, I FIND T HAT 3 THE SAME ISSUE HAS COME UP REPEATEDLY IN THE APPELLANTS OWN CASE IN THE EARLIER ASSESSMENT YEAR S. IN EARLIER YEARS, IT HAS BEEN DECIDED THAT THE APPE LLANT IS A MUTUAL CONCERN AND ALL ITS INCOME INCLUDING INTEREST INCOME ON BANK DEPOSITS FALL WITHIN THE CONCEPT OF MUTUALITY AND IS NOT TAXABLE. THE ITAT CHANDIGARH IN THE APPELLANTS OWN CASE FOR THE A.Y.2007-08 HAS UPHELD MY PREDECESSORS ORDER AND DECIDED THE ISSUE IN FAVOUR OF THE APPELLANT. SINCE THE ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR OF THE APPELLANT BY THE ITAT CHANDIGARH, IT IS HELD THAT T HE APPELLANT IS A MUTUAL CONCERN AND ITS INCOME INCLUD ING THE INTEREST INCOME FROM BANK ACCOUNT IS NOT TAXABL E SINCE THE SAME FALLS WITHIN THE CONCEPT OF MUTUALIT Y. THE EXCESS OF INCOME OVER EXPENDITURE AMOUNTING TO RS.31,37,238/- TAXED BY THE AO IS DIRECTED TO BE TREATED AS EXEMPT. THIS GROUND OF APPEAL IS ALLOWED . 6. RESPECTFULLY FOLLOWING THE DECISION OF THE ITAT CHANDIGARH, GROUND NO.1 RAISED BY THE REVENUE IS DISMISSED. 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH DEC.,2011. SD/- SD/- (H.L.KARWA) (MEHAR SINGH) VICE PRESIDENT ACCOUNTANT MEMBER DATED: 5 TH DEC.,2011. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH