ITO 16(2)(3), MUMBAI V. NEW BREACH CANDY CO-OP HSG. SOCIETY LTD, MUMBAI

ITA 6685/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75207 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 02-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI .. , , BEFORE SHRI P.M. JAGTAP, AM AND SHRI AMIT SHUKLA, J M ./ I.T.A. NO.6685 /MUM/2012 ( / ASSESSMENT YEAR : 2009-2010 THE ITO 16(2)(1), ROOM NO. 221, MATRU MANDIR, TARDEO, MUMBAI 400 007. / VS. M/S NEW BREACH CANDY CO-OP HOUSING SOCIETY LTD., 70-C, BHULABHAI DESAI ROAD, MUMBAI -400 026. . / PAN : AAAAN0005D ( # / APPELLANT ) .. ( $%# / RESPONDENT ) APPELLANT BY SHRI SURENDRA KUMAR RESPONDENT B Y : SHRI DR. K. SHIVARAM ) * / DATE OF HEARING :07-01-2014 ) * / DATE OF PRONOUNCEMENT :10-01-2014 [ / O R D E R PER P.M. JAGTAP, A.M . : .. , THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) -27, MUMBAI DATED 17-8-2012 AND THE GROUNDS RAISED BY THE REVENUE READ AS UNDER:- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION O N ACCOUNT OF TRANSFER CHARGES OF RS. 14,00,000/- (RECEIVED FROM TWO INCOM ING MEMBERS UNDER COMMON AMENITIES FUND). 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION O N ACCOUNT OF NON- OCCUPANCY CHARGES (LETTING OUT OF FLATS) OF RS. 450 01/-. ITA 6685/M/12 2 2. AT THE TIME OF HEARING BEFORE US, THE LD. REPRES ENTATIVES OF BOTH THE SIDES HAVE AGREED THAT THE ISSUE INVOLVED IN GROUND NO. 1 OF THE REVENUES APPEAL RELATING TO TAXABILITY OF THE AMOUNT OF TRAN SFER CHARGES IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F HONBLE BOMBAY HIGH COURT IN ASSESSEES OWN CASE FOR THE EARLIER YEARS WHEREIN THE DECISION OF THE TRIBUNAL HOLDING THAT VOLUNTARY CONTRIBUTION RECEIV ED BY THE ASSESSEE SOCIETY FROM ITS MEMBERS AS TRANSFER CHARGES IS NOT LIABLE TO TAX ON THE BASIS OF PRINCIPLE OF MUTUALITY WAS UPHELD BY THE HONBLE BO MBAY HIGH COURT IN IT APPEAL 3345 OF 2010 (DATED 6 TH JULY, 2011) FOLLOWING ITS EARLIER DECISION RENDERED IN THE CASE OF SIND CO-OPERATIVE HOUSING S OCIETY VS. ITO REPORTED IN 317 ITR 47. RESPECTFULLY FOLLOWING THE SAID DECISI ON OF THE HONBLE BOMBAY HIGH COURT IN ASSESSEES OWN CASE ON SIMILAR ISSUE, WE UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(A) DELETING THE ADDITION MADE BY THE A.O. ON ACCOUNT OF TRANSFER CHARGES RECEIVED FROM ITS MEMBERS AND DISM ISS GROUND NO. 1 OF REVENUES APPEAL. 3. AS REGARDS GROUND NO. 2, THE LD. REPRESENTATIVE S OF BOTH THE SIDES HAVE AGREED THAT THE ISSUE INVOLVED THEREIN RELATING TO THE TAXABILITY OF NON- OCCUPANCY CHARGES IS ALSO SQUARELY COVERED IN FAVOU R OF THE ASSESSEE BY THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF MITTAL COURT PREMISES CO-OP. SOCIETY LTD. VS. ITO (2010) -320 IT R 414 WHEREIN IT WAS HELD THAT NON-OCCUPANCY CHARGES RECEIVED BY THE ASSESSEE FROM ITS MEMBERS IS NOT CHARGEABLE TO TAX ON THE BASIS OF PRINCIPLE OF MUTU ALITY. RESPECTFULLY FOLLOWING THE SAID DECISION OF HONBLE BOMBAY HIGH COURT, WE UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(A) DELETING THE ADDITION MADE BY THE A.O. ON ACCOUNT OF NON-OCCUPANCY CHARGES AND DISMISS GROUND NO. 2 OF R EVENUES APPEAL. ITA 6685/M/12 3 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JANUARY, 2014. . ) / 0 10-01-2014 ) SD/- SD/- (AMIT SHUKLA) (P.M. JAGTAP ) JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; 0 DATED 1050152014 [ .../ RK , SR. PS ' #%& '& / COPY OF THE ORDER FORWARDED TO : 1. # / THE APPELLANT 2. $%# / THE RESPONDENT. 3. () / THE CIT(A)27, MUMBAI. 4. / CIT CITY - 16, MUMBAI 5. : $< , * < , / DR, ITAT, MUMBAI B BENCH 6. ? / GUARD FILE. / BY ORDER, %: $ //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI