MEHERINA CO-OPERATIVE HOUSING SOCIETY, V. ITO 16(2)(1),

MA 123/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6679 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Assessment Year: 2001-2002
• Appeal Filed On: 23-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M R KUBAL
• Assessee Lawyers: YOGESH A THAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, MUMBAI BEFORE SHRI D.K. AGARWAL, J.M. AND SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER M.A. NO.123/MUM./2011 (ARISING OUT OF ITA NO.7805/MUM./2004 ) (ASSESSMENT YEAR : 2001-02 ) DATE OF HEARING: 24.6.2011 M/S. MEHERINA CO. OP. HSG. SCT. LTD. C-51, NEPEANSEA ROAD MUMBAI 400 026 PAN AAAAM3083G .. APPLICANT V/S INCOME TAX OFFICER WARD-16(2), MUMBAI .... RESPONDENT ASSESSEE BY : MR. YOGESH A. THAR REVENUE BY : MR. M.R. KUBAL O R D E R PER J. SUDHAKAR REDDY, A.M. THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE STATING THAT THERE IS A MISTAKE APPARENT ON RECORD IN THE IMPUGN ED ORDER DATED 27 TH SEPTEMBER 2007, PASSED BY MUMBAI K BENCH OF THIS TRIBUNAL IN ITA NO.7805/MUM./ 2004, FOR ASSESSMENT YEAR 2001-02. 2. AFTER HEARING THE RIVAL CONTENTIONS, WE FIND THAT T HE TRIBUNAL, IN THE IMPUGNED ORDER, VIDE GROUND NO.2, PARAS-6 & 7, WHIC H RELATES TO ADDITION IN RESPECT OF INCOME FROM TRANSFER FEES RECEIVED FROM THE TRANSFERORS, PRIOR TO THEIR ADMISSION AS MEMBERS OF THE SOCIETY, HAS FOLL OWED THE DECISION OF MUMBAI SPECIAL BENCH REPORTED AS WALKESHWAR TRIVENI CO. OPERATIVE M/S. MEHERINA CO. OP. HSG. SCT. LTD. MA NO.123/MUM./2011 2 HOUSING SOCIETY LTD. V/S ITO, (2004) 88 ITD (SB) 15 9 (MUM.), AND DECIDED THE ISSUE OF TAXABILITY OF TRANSFER FEE RECEIVED BY THE SOCIETY, AGAINST THE ASSESSEE. THE HON'BLE JURISDICTIONAL HIGH COURT IN SIND CO. OPERATIVE HOUSING SOCIETY V/S ITO, (2009) 317 ITR 47 (BOM.), REVERSED THE DECISION OF MUMBAI SPECIAL BENCH IN WALKESHWAR TRIVENI CO. OPER ATIVE HOUSING SOCIETY LTD. (SUPRA) AND DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. CONSEQUENTLY, WE HOLD THAT THERE IS A MISTAKE APPARENT ON RECORD IN THE IMPUGNED ORDER DATED 27 TH SEPTEMBER 2007 AND, HENCE, WE PROCEED TO RECTIFY T HE SAME BY FOLLOWING THE JUDGMENT OF HON'BLE JURISDICTIONAL HI GH COURT IN SIND CO. OPERATIVE HOUSING SOCIETY (SUPRA) AND ALLOW GROUND NO.2 RAISED BY THE ASSESSEE, AS IT IS WELL SETTLED THAT A SUBSEQUENT J UDGMENT RENDERED BY A JURISDICTIONAL HIGH COURT ON THE ISSUE, CAN CONSTIT UTE AN ERROR APPARENT ON RECORD. WE RELY ON THE JUDGMENT OF THE HON'BLE SUPR EME COURT IN ACIT V/S SAURASHTRA KUTCH STOCK EXCHANGE LTD., (2008) 305 IT R 227 (SC). 3. IN THE RESULT, MISC. APPLICATION FILED BY THE ASSES SEE IS ALLOWED. SD/- D.K. AGARWAL JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 22.7.2011 COPY TO : (1) THE ASSESSEE (2) THE RESPONDENT (3) THE CIT(A), MUMBAI, CONCERNED (4) THE CIT, MUMBAI CITY CONCERNED (5) THE DR, K BENCH, ITAT, MUMBAI TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI