ITO 16(2)(1), MUMBAI V. NEW BREACH CANDY CO OP HSG SOCIETY LTD, MUMBAI

ITA 6490/MUM/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9213 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 04-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA P YADAV
• Assessee Lawyers: RAHUL K HAKANI

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND AMIT SHUKLA, (JM) . . , , ./ I.T. A. NO. 6490 / MUM/20 1 3 ( / ASSESSMENT YEAR : 20 10 - 11 ) INCOME TAX OFFICER, 16(2)(1), ROOM NO.221, MATRU MANDIR , TARDEO ROAD, MUMBAI - 400007 / VS. NEW BREACH CANDY CO - OP HSG SOCIETY LTD, 70 - C, BHULABHAI DESAI ROAD, MUMBAI - 400026 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AAAAN0005D / APPELLANT BY SHRI AKHILENDRA P YADAV / RE SPONDENT BY SHRI RAHUL K HAKANI / DATE OF HEARING : 2 5 .3 . 201 5 / DATE OF PRONOUNCEMENT : 25. 3. 201 5 / O R D E R PER B.R. BASKARAN (AM) THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 23.8.2013 PASSED BY LD . C IT(A) - 27 , MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 20 10 - 11 2. THE REVENUE IS A SSAILING THE ORDER OF LD.CIT(A) IN RESPECT OF FOLLOWING ISSUES : A) DELETING THE ADDITION RELATING TO TRANSFER CHARGES; B) DELETING THE ADDITION RELATING TO NON - OCCUPANCY C HARGES. I.T.A. NO. 6490 / MUM/201 3 2 3. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE IS A CO - OPERATIVE HOUSING SOCIETY. THE AO NOTICED THAT THE ASSESSEE HAS RECEIVED TRANSFER FEE AND ALSO VOLUNTARY CONTRIBUTION FROM THE TRANSFEREES OF FLATS, WHICH AGGREGAT ED TO RS.31 LAKHS. OUT OF THE ABOVE SAID AMOUNT, THE ASSESSEE HAD REFUNDED THE AMOUNT OF RS.50,000/ - TO ONE OF THE FLAT OWNER S AND CREDITED THE BALANCE AMOUNT OF RS.30,50,000/ - TO THE C OMMON AMENITIES FUND ACCOUNT. THE AO TOOK THE VIEW THAT AS PER BYE - LAW OF THE CO - OPERATIVE HOUSING SOCIETY , THE CO - OPERATIVE HOUSING SOCIETY CAN CHARGE AN AMOUNT OF RS.25,000/ - ONLY AS TRANSFER FEE. THE AO FURTHER NOTICED THAT IN THE ASSESSMENT YEAR 2009 - 10 ALSO , THE VOLUNTARY CONTRIBUTION RECEIVED FROM THE TRANSFEREES WAS ASSESSED TO INCOME TAX. EVEN THOUGH THE ASSESSEE RELIED UPON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SIND CO - OPERATIVE HOUSING SOCIETY V/S ITO 317 ITR 47 (BOM), THE AO REFUSED TO FOLLOW THE SAME ON THE REASONING TH A T THE DECISION OF THE JURISDICT IONAL HIGH COURT WAS NOT ACCEPTED BY THE DEPARTMENT AND THE MATTER IS SUB - JUDICE. ACCORDINGLY, THE AO ASSESSED THE AMOUNT OF RS.30,50,000/ - AS INCOME OF THE ASSESSEE. THE AO FURTHER NOTICED THAT THE ASSESSEE HAS RECEIVED A SUM OF RS.15,001/ - AS NON - OCCUPAN CY CHARGES FROM ONE OF THE FLAT OWNER S . THE AO TOOK THE VIEW THAT THE ABOVE SAID RECEIPT IS NOT COVERED BY PRINCIPLE OF MUTUALITY AND FURTHER IN THE ASSESSMENT YEAR 2009 - 10 AN IDENTICAL RECEI PT WAS ASSESSED TO TAX. I.T.A. NO. 6490 / MUM/201 3 3 ACCORDINGLY , HE ASSESSED THE AMOUNT OF RS .15,001/ - ALSO AS INCOME OF THE ASSESSEE. 4 . IN THE APPEAL FILED BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY, THE FIRST APPELLATE AUTHORITY HAS DELETED BOTH THE ADDITIONS BY FOLLOWING THE DECISION RENDERED BY THE HONBLE BOMBAY HIGH COURT RENDERE D IN THE CASE OF SIND CO - OPERATIVE HOUSING SOCIETY(SUPRA) AND THE DECISION IN THE CASE OF MITTAL COURT PREMISES CO - OP. SOCIETY LD. V/S ITO (2009) 184 TAXMAN 292 (BOM). AGGRIEVED BY THE ORDER OF THE LD.CIT(A), THE REVENUE HAS FILED THIS APPEAL BEFORE US. 5. BEFORE US, THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT AN IDENTICAL ADDITION S HAVE BEEN MADE BY THE AO IN THE ASSE SS MENT YEAR 2009 - 10 AND THE BOTH T HE ADDITIONS WERE DELETED BY THE LD.CIT(A) IN THE APPEAL FILED BY THE ASSESSEE AND THE OR DER OF LD.CIT(A) WAS CONFIRMED BY THE CO - ORDINATE BENCH OF THE TRIBUNAL IN ITS ORDER DATED 10.1.2014 PASSED IN THE ASSESSEES OWN CASE IN ITA NO.6685/MUM/2012 (AY - 2009 - 10). THE LD. COUNSEL FURTHER SUBMITTED TH AT THE VOLUNTARY CONTRIBUTION RECEIVED BY TH E ASSESSEE WAS A LSO SUBJECT MATTER OF ADDITION IN THE ASSE SS MENT YEARS 2004 - 05 AND 2005 - 06 AND THE TRIBUNAL HAD DELETED THE ADDITION , VIDE ITS ORDER DATED 9.10.2009 PASSED IN ASSESSEES OWN CASE IN ITA NO.4713/MUM/2007 AND ITA NO.873/MUM/2008 BY FOLLOWING THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF SIND CO - OPERATIVE HOUSING I.T.A. NO. 6490 / MUM/201 3 4 SOCIETY(SUPRA). THE SAID ORDER OF THE TRIBUNAL HAS SINCE BEEN APPROVED BY THE HONBLE JURISDICTIONAL HIGH COURT VIDE ITS ORDER DATED 6.7.2011 PASSED IN INCOME TAX APPEAL NO.3345 OF 2010. 6 . THE LD. DR DID NOT CONTROVERT THE FACTUAL ASPECT PRESENTED BY THE LD. AR. 7 . THE FOREGOING DISCUSSION S WOULD SHOW THAT THE IDENTICAL ADDITION S HAVE BEEN MADE IN THE EARLIER ASSE SSMENT YEARS AND THE SAME HAS BEEN DELETED BY TH E TRIBU NAL AND THE ORDER OF THE T RIBUNAL WAS CONFIRMED BY THE HONBLE BOMBAY HIGH COURT ALSO BY FOLLOWING THE DECISION RENDERED BY IT IN THE CASE OF SIND CO - OPERATIVE HOUSING SOCIETY(SUPRA). THE HONBLE JURISDICTIONAL HIGH COURT HAS ALSO IN ITS DECISION DATED 18 - 12 - 2014 RENDERED IN THE CASE OF CIT VS. DARBHANGA MANSION CHS LTD IN ITA NO.1474 OF 2012 HAS HELD THAT THE VOLUNTARY CONTRIBUTIONS ARE ALSO COVERED BY THE PRINCIPLE OF MUTUALITY. FURTHER, WE NOTICE TH A T THE LD.CIT(A) HAS FOLLOWED THE DECISION RENDERED BY THE JURISDICTIONAL HIGH COURT. UNDER THESE CIRCUMSTANCES, WE DO NOT FIND ANY NECESSITY TO INTERFERE WITH THE ORDER PASSED BY THE LD CIT(A) ON BOTH ISSUES. I.T.A. NO. 6490 / MUM/201 3 5 8 . IN T HE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. THE AB OVE ORDER WAS PRONOU NCED IN THE OPEN COURT ON 25TH MARCH, 2015 . 25TH MARCH, 2015 SD SD ( / AMIT SHUKLA ) ( . . / B.R. BASKARAN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI: 25TH MARCH,2015 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI