ITO 16(2)(4), MUMBAI V. PRITHVI CO OP HSG. SOC. LTD, MUMBAI

ITA 8122/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8241 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 05-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANDIP GOYAL
• Assessee Lawyers: VIPUL B JOSHI; SANJIVANI MORE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C , MUMBAI BEFORE SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ITA NO. 8122/MUM/2011 ASSESSMENT YEAR : 2006-07 INCOME TAX OFFICER WARD 16(2)(4) MATRU MANDIR TARDEO ROAD MUMBAI-400 007. VS. M/S. PRITHVI CO-OP. HSG. SOC. LTD., 21 ALTAMOUNT ROAD MUMBAI-400 026 PAN NO. AAAAP 2333 A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SANDIP GOYAL RESPONDENT BY : SHRI VIPUL B. JOSHI AND MS. SANJIVANI MORE DATE OF HEARING : 19.11.2012 DATE OF PRONOUNCEMENT : 19.11.2012 O R D E R PER RAJENDRA SINGH, AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDE R DATED 20.9.2011 OF CIT(A) FOR THE ASSESSMENT YEAR 2006-07. TH E DISPUTES RAISED BY THE REVENUE IN THE APPEAL RELATE TO APPLICA BILITY OF PRINCIPLES OF MUTUALITY IN RELATION TO TRANSFER FEES, VOLUNTARY DONATION AND NON OCCUPANCY CHARGES RECEIVED FROM MEMBERS AS WELL AS THE INT EREST INCOME RECEIVED FROM FIXED DEPOSIT AND SAVING BANK ACCOUN T. ITA NO.8122/M/11 A.Y. 06-07 2 2. BEFORE US, THE LD. AR FOR THE ASSESSEE AT THE VERY OU TSET POINTED OUT THAT THE ISSUE REGARDING APPLICABILITY OF PRINCIPLE OF MUTUALITY IN RELATION TO TRANSFER FEES, VOLUNTARY DONATION AND NON -OCCUPANCY CHARGES IS COVERED BY THE DECISION OF THE TRIBUNAL IN A SSESSEES OWN CASE IN ASSESSMENT YEAR 2004-05 IN WHICH THE TRIBUNAL VIDE ORDER DATED 8.10.2009 IN ITA NO.7474/M/2007 HAD RESTORED T HE ISSUE TO THE FILE OF AO FOR DECIDING AFRESH IN THE LIGHT OF JUDGME NT OF THE HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF SIND CO-OP HSG. SOCIE TY VS. ITO (182 TAXMANN 346). THE APPLICABILITY OF MUTUALITY PR INCIPLE TO INTEREST INCOME WAS ALSO COVERED BY THE DECISION OF THE TRIBUNAL I N ASSESSEES OWN CASE IN ASSESSMENT YEAR 2004-05 (SUPRA) AND BY THE DE CISION OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2003-04 IN ITA NO.5062/M/2006. THE LD. DR PLACED RELIANCE ON THE OR DER OF AO. 3. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. THE DISPUTE IS REGARDING APPLICABILITY OF MU TUALITY PRINCIPLE AND EXEMPTION OF INCOME ON ACCOUNT OF TRANSFER FEES, NON OCCUPANCY CHARGES, VOLUNTARY DONATIONS RECEIVED BY THE CO-OP. HSG. SOCIETY FROM MEMBERS AS WELL AS TO THE INTEREST INCOME RECEIVED FROM T HE FIXED DEPOSIT AND SAVING BANK ACCOUNT OF THE SOCIETY. WE FIND T HAT ALL THESE ISSUES ARE COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSE ES OWN CASE. THE ISSUE OF TRANSFER FEES, NON-OCCUPANCY CHARGE AND VO LUNTARY DONATIONS IS COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN ITA NO.8122/M/11 A.Y. 06-07 3 CASE FOR ASSESSMENT YEAR 2004-05 WHERE THE TRIBUNAL RESTOR ED THE ISSUE TO THE FILE OF AO FOR FRESH DECISION IN THE LIGHT OF THE JUDGMENT OF HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF SIND CO-OP HSG. SOCIETY (SUPRA). THEREFORE RESPECTFULLY FOLLOWING THE DECISION O F THE TRIBUNAL IN ASSESSMENT YEAR 2004-05 (SUPRA), WE RESTORE THE ISSUE TO TH E FILE OF AO FOR FRESH DECISION. THE ISSUE OF INTEREST FROM FIXED DEPOSITS AND SAVING BANK ACCOUNT IS ALSO COVERED IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2004-05 (SUPRA), AS WELL ASSESSMENT YEAR 2003 -04 (SUPRA), IN WHICH IT HAS BEEN HELD THAT INTEREST INCOME WILL BE COVERED BY THE PRINCIPLE OF MUTUALITY AND THE ADDITION HAS BE EN DELETED. RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL (SU PRA), WE DELETE THE ADDITION ON ACCOUNT OF INTEREST THIS YEAR ALSO. 4. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 19.11.2012. SD/- SD/- (VIVEK VARMA ) JUDICIAL MEMBER (RAJENDRA SINGH) ACCOUNTANT MEMBER MUMBAI, DATED: 19.11.2012. JV. ITA NO.8122/M/11 A.Y. 06-07 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.