A.C.I.T - 21 (1), MUMBAI V. THE HATESH CHS LTD., MUMBAI

ITA 7109/MUM/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0675 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2000-2001
• Appeal Filed On: 05-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: OTHER A; RAHUL K HAKANI ITA NOS MUM
• Keywords: Question of law; Wrong claim

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI VIJAY PAL RAO ( JM ) AND D. KARUNAKAR RAO, (AM) , . , ./ I.T.A. NO .7108 / MUM/20 1 3 ( / ASSESSMENT YE A R : 1996 - 97 ) ASSTT. COMMISSIONER OF INCOME TAX - 21 (1), 6 TH FLOOR, PRATYAKSHKAR BHAVAN, C - 10, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 51 / VS. M/S THE HATESH CHS LTD., PLOT NO.51, JAI H IND SOCIETY, 2 ND FLOOR, JAI HIND CLUB, JVPD SCHEME, VILE PARLE (W), MUMBAI - 400049 ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO .7109 TO 711 1 / MUM/20 13 ( / ASSESSMENT YE A R S : 2000 - 01 TO 2002 - 03 ) ASSTT. C OMMISSIONER OF INCOME TAX - 21(1), 6 TH FLOOR, PRATYAKSHKAR BHAVAN, C - 10, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 51 / VS. M/S THE HATESH CHS LTD., PLOT NO.51, JAI HIND SOCIETY, 2 ND FLOOR, JAI HIND CLUB, JVPD SCHEME, VILE PARLE (W), MUMBAI - 4000 49 ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO .7112 AND 7113/ MUM/20 13 ( / ASSESSMENT YE A R S : 2006 - 07 AND TO 2007 - 08 ) ASSTT. COMMISSIONER OF INCOME TAX - 21(1), 6 TH FLOOR, PRATYAKSHKAR BHAVAN, C - 10, BA NDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 51 / VS. M/S THE HATESH CHS LTD., PLOT NO.51, JAI HIND SOCIETY, 2 ND FLOOR, JAI HIND CLUB, JVPD SCHEME, VILE PARLE (W), MUMBAI - 400049 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AAALH0017Q / REVENUE BY SHRI NEIL PHILIP / ASSESSEE BY S HRI RAHUL K HAKANI ITA NOS. 7108 /MUM/201 3 AND OTHER 5 APPEALS 2 / DATE OF HEARING : 6 .5.2015 / DATE OF PRONOUNCEMENT : 20 .5. 2015 / O R D E R PER BENCH THESE SIX APPEALS BY THE REVENUE ARE DIRECTED AGAINST THE SIX SEPARATE ORDER S OF LD. CIT(A) DATED 23.9.2013 ARISING FROM THE PENALTY ORDER PASSED UNDER SECTION 271(1)( C) OF THE INCOME TAX ACT, 1961 (THE ACT) FOR THE ASSESSMENT YEARS 1996 - 97, 2000 - 01 TO 2002 - 03, 2006 - 07 AND TO 2007 - 08. SINCE, ISSUES RAISED IN ALL THESE APPEALS ARE COMMON, THEREFORE, FOR THE SAKE OF CONVENIENCE, WE HAVE HEARD THESE APPEALS TOGETHER AND ARE BEIN G DISPOSED OF BY THIS CONSOLIDATED ORDER . 2. THE REVENUE HAS RAISED IDENTICAL GROUNDS IN AYS 1996 - 97, 2000 - 01 TO 2002 - 03 IN THESE APPEALS EXCEPT DIFFERENCE IN FIGURES OF THE AMOUNT IN THE QUANTUM ADDITION AND CONSEQUENTIAL PENALTY. FOR THE SAKE OF BREVITY , WE ARE REPRODUCING THE GROUNDS OF APPEAL TAKEN BY THE REVENUE IN ASSESSMENT YEAR 1996 - 97. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LA W , THE LD. CIT(A) ERRED IN DELETING HE PENALTY AMOUNTING TO RS.4,74,600/ - ON THE QUANTUM ADDITION MADE ON ACCOUNT OF RECEIPT OF TRANSFER FEES OF RS.13,56,000/ - IGNORING THAT THESE W E RE NOT VOLUNTARY CONTRIBUTIONS AND THERE IS NO PRINCIPLE OF MUTUALITY INVOLVED, 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED I N DELETING PENALTY AMOUNTING TO RS.4,74,600/ - IGNORING THAT THE DECISION OF THE HONBLE ITAT DELETING SIMILAR QUANTUM ADDI TION MADE IN RESPECT OF RECEIPT OF TRANSFER FEES FOR AYS 2003 - 04, 2004 - 05 AND 2005 - 06 HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND FUR THER APPEAL HAS BEEN FILED . 3. THE REVENUE HAS ALSO RAISED FOLLOWING GROUNDS IN AYS - 2006 - 07 AND 2007 - 08. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING HE PENALTY AMOUNTING TO RS. 22,00,031 / - ON THE Q UANTUM ADDITION MADE ON ACCOUNT OF RECEIPT OF TRANSFER FEES OF RS.1 5,45,000 / - AND TDR PREMIUM RECEIPTS OF RS.56,44,670/ - IGNORING ITA NOS. 7108 /MUM/201 3 AND OTHER 5 APPEALS 3 THAT THESE WERE NOT VOLUNTARY CONTRIBUTIONS AND THERE IS NO PRINCIPLE OF MUTUALITY INVOLVED, 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING PENALTY AMOUNTING TO RS. 22,00,031/ - IGNORING THAT THE DECISION OF THE HONBLE ITAT DELETING SIMILAR QUANTUM ADDITION MADE IN RESPECT OF RECEIPT OF TRANSFER FEES FOR AYS 2003 - 04, 2004 - 0 5 AND 2005 - 06 HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND FURTHER APPEAL HAS BEEN FILED. 4 . THE PENALTY HAS BEEN LEVIED BY THE AO IN RESPECT OF ALL THESE ASSESSMENTS AGAINST THE ADDITION ON ACCOUNT OF TRANSFER FEES RECEIVED BY THE ASSESSEE SOCIETY. WHERE AS FOR THE ASSESSMENT YEARS 2006 - 07 AND 2007 - 08 AGAINST THE ADDITION ON ACCOUNT OF TRANSFER FEES AS WELL AS TDR PREMIUM. IN THE QUANTUM, FOR THE ASSESSMENT YEARS FOR ALL THE ASSESSMENT YEARS THIS ISSUE HAVE BEEN DECIDED BY THIS TRIBUNAL VIDE CONSOLI DATED ORDER 4.9.2013 AGAINST THE ASSESSEE. HOWEVER, FOR THE ASSESSMENT YEARS 2003 - 04, 2004 - 05 AND 2005 - 06 WHICH IS NOT A SUBJECT MATTER OF THE APPEALS BEFORE US , T HE TRIBUNAL DECIDED THE QUANTUM APPEALS IN FAVOUR OF THE ASSESSEE VIDE CONSOLIDATED ORDER D ATED 24.6.2011. THE LD. AR OF THE ASSESSEE HAS POINTED OUT THAT AGAINST THE ORDER DATED 24.6.2011 OF THIS TRIBUNAL, THE REVENUE HAS FILED APPEALS BEFORE THE HONBLE HIGH COURT WHICH ARE DISMISSED BY THE JURISDICTIONAL HIGH COURT VIDE ORDER DATED 17.7.2 014, THEREFORE, THE ISSUE IS NOW FINALLY DECIDED BY THE HONBLE HIGH COURT IN FAVOUR OF THE ASSESSEE . HE HAS FURTHER CONTENDED TH A T , EVEN OTHERWISE, THIS IS A DEBATABLE ISSUE AND DISALLOWANCE/ADDITION MADE BY THE AO AND CONFIRMED BY THIS TRIBUNAL IN S OME OF THE CASES WOULD NOT ATTRACT THE PENALTY UNDER SECTION 271(1)( C) OF THE ACT. 5 . ON THE OTHER HAND, THE LD. DR HAS NOT DISPUTED THE FACTUAL ASPECT THAT FOR THE ASSESSMENT YEARS 2003 - 04 TO 2005 - 06, THE ISSUE IN QUANTUM APPEALS WERE DECIDED IN FAVOU R OF THE ASSESSEE AND FURTHER, THE HONBLE H IGH COURT HAS DISMISSED THE APPEALS FILED BY THE REVENUE. 6 . HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD, WE NOTE THAT THERE ARE DIVERGENT VIEW AND FINDINGS OF THE TRIBUNAL I N ASSESSEES OWN CASES ON THE ISSUE OF ADDITION ON ACCOUNT OF TRANSFER FEES AND ITA NOS. 7108 /MUM/201 3 AND OTHER 5 APPEALS 4 TDR PREMIUM RECEIVED BY THE ASSESSEE . FOR THE ASSESSMENT YEARS 2003 - 04 TO 2005 - 06, THIS TRIBUNAL VIDE ORDER DATED 24.6.2011 DECIDED THE QUANTUM APPEAL S IN FAVOUR OF THE ASSE SSEE WHEREAS FOR THE ASSESSMENT YEARS UNDER CONSIDERATION OF ALL THESE APPEALS, THE TRIBUNAL SUBSEQUENTLY, DECIDED THE ISSUE AGAINST THE ASSESSEE VIDE ORDER D A TED 4.9.2013. THE ISSUE IS NO W SETTLED BY THE DECISION OF THE JURISDICTIONAL HIGH COURT VID E ORDER DATED 17.7.2014 IN THE APPEALS FILED BY THE REVENUE FOR THE ASSESSMENT YEARS 2003 - 04 TO 2005 - 06 AGAINST THE ORDER OF THE TRIBUNAL DATED 24.6.2011. THE HONBLE HIGH COURT HAS DISMISSED THE APPEAL FILED BY THE REVENUE IN INCOME TAX APPEAL NO.427 OF 2012 WITH INCOME TAX APPEAL NO.590 OF 2012 AND INCOME TAX APPEAL NO. 428 OF 2012 VIDE ORDER DATED 17.7.2014 AS UNDER : HAVING HEARD MS. BHARUCHA, LEARNED COUNSEL, APPEARING IN SUPPORT OF THIS APPEAL AND MR. HAKANI, LEARNED COUNSEL, APPEARING ON BE H ALF OF THE RESPONDENT ASSESSEE, WE ARE OF THE OPINION THA T THE APPEALS DO NOT RAISE ANY SUBSTANTIAL QUESTION OF LAW. THE FINDINGS RENDERED BY THE TRIBUNAL ARE IN CONSONANCE WITH THE FUNCTIONING AND ADMINISTRATION OF A COOPERATIVE HOUSING SOCIETY THAT HAS BEEN RECOGNIZED BY A DIVISION BENCH OF THIS COURT AND T HE D EC ISION TO THAT EFFECT IN MITTAL COURT PREMISES CO - OPERATIVE HOUSING SOCIETY LTD V/S INCOME TAX OFFICER REPORTED IN (2010) 320 ITR 414 CONCLUDES THE ISSUE. IN THE LIGHT OF THIS DIVISION BENC H ORDER AND WHICH HAS BEEN FOLLOWED IN THE CASE OF JAI HIND CO - OPERATIVE HOUSING SOCIETY LTD, SUPRABHAT HOUSING SOCIETY LT D . THAT WE ARE OF THE OPINION THAT THE APPEAL DESERVE TO BE DISMISSED. THEY ARE ACCORDINGLY DISMISSED. NO COSTS THUS, IT IS CLE AR THAT IN THE QUANTUM APPEALS FOR THE ASSESSMENT YEARS 2003 - 04 TO 2005 - 06 THE ISSUE IS DECIDED IN F AVOUR OF THE ASSESS E E, THEREFORE EVEN IF THE TRIBUNAL CONFIRMED THE ADDITION FOR THE ASSESSMENT YEAR UNDER CONSIDERATION IT DOES NOT LEAD TO THE CONCLUSI ON THAT THE CLAIM OF THE ASSESSEE BY APPLYING THE PRINCIPLE OF MUTUALITY IN RE SPECT OF TRANSFER FEE AND TDR PREMIUM IS BOGUS CLAIM OR ABSOLUTELY INCORRECT CLAIM . W HEN THE ISSUE IS DECIDED BY THE HONBLE JURISDICTIONAL HIGH COURT IN FAVOUR OF THE ASSESS EE THEN THE CLAIM OF THE PRINCIPLE OF MUTUALITY OF THIS RECEIPT IS A BONAFIED CLAIM AND DOES NOT ATTRACT THE PENALTY UNDER SECTION 271(1)( C) OF THE ACT. ACCORDINGLY, WE DO NOT FIND ANY ILLEGALITY OF INFIRMITY IN THE ORDER OF LD. CIT(A) IN DELETING THE PENALTY LEVIED UNDER SECTION 271(1)( C ) OF THE ACT FOR ALL THESE ASSESSMENT YEARS. ITA NOS. 7108 /MUM/201 3 AND OTHER 5 APPEALS 5 7 . IN THE RESULT, THE APPEALS OF THE REVENUE ARE DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 20TH MAY , 201 5 . 20TH MAY , 2015 SD SD ( . / D. KARUNAKAR RAO) ( / VIJAY PAL RAO ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: MAY , 2015 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESP ONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI