M/S. MAHALAXMI SHEELA PREMISES CO-OP SOC. LTD, MUMBAI V. THE ITO 16(2)(1), MUMBAI

ITA 6325/MUM/2006

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8771 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 28-11-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HARIGOVIND SINGH
• Section: 143(3)

Judgement Text

I.T.A NO.6325/ MUM/2006 MAHALAXMI SHEELA PREMISES CO.OP.SOC. LTD. 1 IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, MUMBAI. [ CORAM: D.MANMOHAN, V.P. AND PRAMOD KUMAR, AM ] I.T.A NO.6325/ MUM/2006 ASSESSMENT YEAR: 2003-04 MAHALAXMI SHEELA PREMISES CO.OP.SOC. LTD. .. APP ELLANT SHEELA PREMISES, 2, BHULABHAI DESAI ROAD, MUMBAI. PA NO.AAAMB 0285 F VS INCOME TAX OFFICER, 16(2)(1) ,. RESPONDEN T MUMBA. APPEARANCES: NONE, FOR THE APPELLANT HARI GOVIND SINGH, FOR THE RESPONDENT O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSEE HAS CALLED INTO QUESTION CORRECTNESS OF CIT(A)S ORDER DATED 8 TH AUGUST, 2006, IN THE MATTER OF ASSESSMENT UNDER S ECTION 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2003 -04. 2. THIS APPEAL WAS DECIDED BY THE TRIBUNAL VIDE ORD ER DATED 14.5.2009. HOWEVER, SINCE GROUND NO.1 RAISED BY THE ASSESSEE IN ITS MEM ORANDUM OF APPEAL WAS NOT ADJUDICATED, VIDE ORDER DATED 17.9.2010 IN AN MA NO.408/M/2010, THE APPEAL HAS BEEN RECALLED FOR THE LIMITED PURPOSE OF ADJUDICATING GROUND NO.1. 3. GROUND NO.1 RAISED READS AS UNDER:- 1(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (A) ERRED IN CONFIRMING THAT THE VOLUNTARY CONTRIBU TION OF RS. 4,00,000 RECEIVED FROM OUTGOING MEMBERS AS TAXABLE INCOME. I.T.A NO.6325/ MUM/2006 MAHALAXMI SHEELA PREMISES CO.OP.SOC. LTD. 2 1(B) THE LD CIT (A) ERRED IN STATING THAT THE PRINC IPLE OF MUTUALITY WOULD NOT APPLY IN RESPECT OF THESE RECEIPTS. 4. NONE APPEARED FOR THE ASSESSEE. WE HAVE HEARD T HE LEARNED DEPARTMENTAL REPRESENTATIVE, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTUAL MATRIX OF THE CASE AS ALSO THE APPLICABLE LEGAL POSITION. 5. EVEN AS LEARNED DEPARTMENTAL REPRESENTATIVE DUT IFULLY RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW, HE FAIRLY DID NOT DISPUTE THAT THE ISSUE IN APPEAL IS NOW COVERED IN FAVOUR OF THE ASSESSEE BY THE HONBLE JURISDICTIONAL HIGH COURTS JUDGEMENT IN THE CASE OF SIND CO- OPERATIVE HOUSING SOCIETY, 317 ITR 47 (BOM). HE, HOWEVER, SUBMITS THAT HE WOULD NEVERTHELESS RELY UPON THE ORDERS OF THE AUTHORITIE S BELOW. 6. WE HAVE NOTED THAT THE IMPUGNED RECEIPTS OF ` .4, 00,000 WERE RECEIVED IN THE NATURE OF TRANSFER FEES BY OUTGOING MEMBERS AS ALSO INCOMI NG MEMBERS. AS HELD BY HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SIND CO-OP ERATIVE HOUSING SOCIETY (SUPRA), THE PRINCIPLE OF MUTUALITY WILL APPLY ON BOTH OF THESE RECEIPTS AND, ACCORDINGLY, CHARGING OF IMPUGNED TRANSFER FEES, SANCTIONED BY LAW, HAS NO E LEMENT OF COMMERCIALITY. GRIEVANCE OF THE ASSESSEE IS THUS UPHELD. THE AO IS DIRECTED TO DELETE THE IMPUGNED ADDITION. 7. TO THE EXTENT ABOVE, ORDER DATED 14 TH MAY, 2009 STANDS MODIFIED AND SUPPLEMENTED. PRONOUNCED IN THE OPEN COURT ON 1 ST FEBRUARY, 2011 SD/- (D.MANMOHAN ) (VICE PRESIDENT) SD/- (PRAMOD KUMAR) (ACCOUNTANT MEMBER) MUMBAI, DATED 1 ST FEBRUARY, 2011 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),XVI, MUMBA I 4. COMMISSIONER OF INCOME TAX, CITY XVI , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH B, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI I.T.A NO.6325/ MUM/2006 MAHALAXMI SHEELA PREMISES CO.OP.SOC. LTD. 3 I.T.A NO.6325/ MUM/2006 MAHALAXMI SHEELA PREMISES CO.OP.SOC. LTD. 4