HATKESH CO OP HSG SOC. LTD, V. ASST CIT CIR 21(1),

MA 19/MUM/2014

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4327 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-05-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 1996-1997
• Appeal Filed On: 21-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHMD RIZWAN
• Keywords: Capital asset; Gift; Business income; Principle of natural justice
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI SANJAY ARORA , A M AND SHRI PAWAN SINGH, JM . / MA NOS. ARISING OUT OF I.T.A. NOS. / ASSESSMENT YEARS 19/MUM/2014 4 94/MUM/2011 1996 - 1997 20/MUM/2014 495/MUM/2011 2000 - 2001 21/MUM/2014 496/MUM/2011 2001 - 2002 22/MUM/2014 498/MUM/2011 2002 - 2003 23/MUM/2014 499/MUM/2011 2006 - 2007 24/MUM/2014 500/MUM/2011 2007 - 2008 HATKESH CO.OP. HSG. SOC. LTD. PLOT NO. 51, JAI HIND SOCIETY, 2 ND FLOOR, JAI HIND CLUB, N. S. ROAD NO. 11, J.V.P.D. SCHEME, VILE PARLE (W), MUMBAI 400 056 / VS. ASST. CIT, CIRCLE - 21(1), 6 TH FLOOR, PRATYAKSHAKAR BHAVAN, BLD. NO. C - 10, BANDRA (E), MUMBAI - 400 051 ./ ./ PAN/GIR NO. AAALH 0017 Q ( APPLICANT ) : ( RESPONDENT ) APPLICANT BY : SHRI RAHUL HAKANI RESPONDENT BY : SHRI MOHMD. RIZWAN / DATE OF HEARING : 26 .0 2 .201 6 / DATE OF PRONOUNCEMENT : 27 . 0 5 .201 6 / O R D E R PER SANJAY ARORA, A. M.: THE INSTANT M ISCELLANEOUS P ETITION BY THE A SSESSEE UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) ARIS ES OUT OF A COMBINED O RDER BY 2 MA NOS. 19 TO 21, 22 TO 24/MUM/2014 HATKESH CO.OP. HSG. SOC. LTD. VS. ASST. CIT THE T RIBUNAL DATED 04/9/2013 , DISMISSING THE ASSESSEES APPEALS CHALLENGING ITS ASSESSMENTS UNDER SECTION 143(3) READ WITH SEC. 147 OF THE ACT, AS CONFIRMED BY THE FIRST APPELLATE AUTHORITY, FO R ASSESSMENT YEARS1996 - 97, 200 0 - 0 1 TO 2002 - 03 & 2007 - 07 TO 2007 - 08 . 2. 1 THE ISSUE ARISING IN THESE APPEALS WAS THE TAXABILITY UNDER THE ACT OF THE RECEIPTS BY WAY OF TRANSFER FEES AND TDR PREMIUM BY THE ASSESSEE, A PLOT OWNERS SOCIETY REGISTERED UNDER T HE MAHARASHTRA COOPERATIVE SOCIETIES ACT, 1960 (MHSA) . WHILE THE ASSESSEE CLAIMED EXEMPTION THEREOF ON THE GROUND OF MUTUALITY, THE ASSESSEE RELIED ON THE DECISIONS IN THE CASE OF SIND CHS V. ITO [2009] 317 ITR 47 (BOM); MITTAL COURT PREMISES CHS LTD. V. I TO [2010] 320 ITR 414 (BOM); AND CIT V. JAI HIND CHS LTD . [2012] 349 ITR 541 (BOM) , BESIDES ON THE ORDER BY THE TRIBUNAL , AGAIN COMBINED, DATED 24/6/2011 , IN THE ASSESSEES OWN CASE FOR A.YS. 2003 - 04 TO 2005 - 06 , STATING THEM TO CONSTITUTE BINDING PRECEDENT S . THE REVENUE, ON THE OTHER HAND, BASED ITS CASE ON THE SETTLED LAW ON MUTUALITY, AS APPLIED TO THE FACTS AND CIRCUMSTANCES OF THE CASE. IN ADDITION, IT RELIED ON THE VERY SAME DECISIONS BY THE H BLE JURISDICTIONAL H IGH C OURT. THE ISSUE FOR ADJUDICATION BEFORE THE TRIBUNAL WAS WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE RECEIPTS BY WAY OF TRANSFER FEES AND TDR PREMIUM WOULD BE GOVERN ED BY THE PRINCIPLES OF MUTUALITY OR NOT, IN WHICH (LATTER) CASE THEY WOULD NOT STAND TO BE TAX - EXEMPT U NDER THE ACT. 2 . 2 THE TRIBUNAL PROCEEDED BY EXAMINING THE LAW ON MUTUALITY WITH REFERENCE TO SEVERAL DECISION S BY THE HONBLE A PEX C OURT , WHICH I T FOUND AS WELL SETTLED, CULLING OUT THE GUIDING PRINCIPLES , WHICH HA D FOUND EXPRESSION, ONCE AGAIN, PER THE RECENT DECISION BY IT IN BANGALORE CLUB VS. CIT [2013] 350 ITR 509 (SC) (PARA 4.1) . THE MATTER, EVEN AS OBSERVED BY THE APEX COURT TIME AND AGAIN, WAS 3 MA NOS. 19 TO 21, 22 TO 24/MUM/2014 HATKESH CO.OP. HSG. SOC. LTD. VS. ASST. CIT E SSENTIALLY A MIXED QUESTION OF FACT AND LAW, I.E., WHETHER O N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE CONCERN UNDER REFERENCE COULD BE SAID TO BE MUTUAL CONCERN, OR THE TRANSACTION S UNDER REFERENCE AS SATISFYING THE CONDITIONS OF MUTUALITY, VIZ. A) COMPLETE IDENTITY BETWEEN CONTRIBUTORS AND PARTICIPANTS (OF COURSE, RECKONED AS A CLASS); B) THE ACTIONS OF THE PARTICIPANTS MUST BE IN FURTHERANCE OF THE MANDATE OF THE SOCIETY - WHICH IS A MATTER OF FACT , TO BE DETERMINED FROM THE MEMORANDUM AND ARTICLES OF ASSOCIATION, RULES OF THE MEMBERSHIP, RULES OF ORGANIZATION, ETC.; AND C) THERE MUST BE NO SCOPE OF PROFITEERING BY THE CONTRIBUTORS FROM THE FUND MADE BY THEM, WHICH COULD ONLY BE EXPENDED ON OR RETURNED TO THEM. [EMPHASIS, OURS] TH E MANNER IN WHICH THE ASSESSEE - SOCIETY OPERATES WAS FOUND BY THE TRIBUNAL AS IN VIOLATION OF THE PERCEPTS AND CONCEPTS OF A MUTUAL CONCERN, RESULT AS IT DID IN AN INCOME GENERATING, CAPITAL ASSET(S) (BY WAY OF LEASEHOLD RIGHTS) IN HANDS OF THE MEMBERS OF T HE SOCIETY, WHICH THEY COULD LEVERAGE ON TO GENERATE WEALTH A SOURCE OF INCOME, AS WELL AS INCOME . THE ASSESSEE - SOCIETY FAILED IN ITS CLAIM AS A MUTUAL CONCERN AT THE ENTITY LEVEL (REFER DETAILED DISCUSSION AT P ARA 4.2) . SO, HOWEVER, MUTUALITY WAS ESSENT IALLY A N ACTIVITY BASED PHENOMENA , SO THAT SPECIFIC TRANSACTION S WITH ITS MEMBERS COULD YET BE BASED ON MUTUALITY. TOWARDS THIS, SOME EVERYDAY E X AMPLES WERE DRAWN FROM THE RELEVANT (HOUSING) SECTOR ITSELF , AS IN RESPECT OF MAINTENANCE EXPENSES, WHICH COULD BE ORGANIZED ON THE PRINCIPLES OF MUTUALITY. IN THE FACTS OF THE CASE, REFERENCE WAS MADE, TO BEGIN WITH, TO THE RELEVANT PROVISIONS OF IT S CONSTITUTION ; BY E - LAWS ADOPTED, AS WELL THE RESOLUTION S PASSED, AS IN FACT WAS DONE BY THE R EVENUE ( R EFER P ARA 6 OF THE ASSESSMENT ORDER AND P ARA S 3.3 4 MA NOS. 19 TO 21, 22 TO 24/MUM/2014 HATKESH CO.OP. HSG. SOC. LTD. VS. ASST. CIT TO 3.8 OF THE IMPU GNED ORDER). THE MEMBERS OF THE ASSESSEE - SOCIETY , WHO HAD 998 YEAR LEASE BY THE ASSESSEE - SOCIETY IN THEIR FAVOUR), HAD BY PAYING TRANS FER CHARGES & TDR PREMIUM (WHICH A RE TO BE PAID WHEN TDR S ARE PUR CHASED BY A MEMBER FROM THE MARKET, FOR BEING LOADED O N THEIR LEASEHOLD PLOT S ), CONSTRUCTED SUPER - STRUCTURE S THEREON, AS IN THE FORM OF MULTI - STOR I E D BUILDING S O N THEIR PLOT S (BY DEMOLISHING THEIR EXISTING STRUCTURES), RENTING AND SELLING OF INDIVIDUAL F LATS TO THE OUTSIDERS (NON - MEMBERS) , WHO THUS RESIDED THEREAT. THE RESIDENT NON - MEMBERS ALSO ENJOY ED THE PREMISES AT THE SOCIETYS PLOTS ( IN THE FORM OF THE SAID RESIDENTIAL FLAT S ) , AS WELL AS , OSTENSIBLY , THE VARIOUS FACILITIES IN CIDENT TO RESIDENCE. REFE RENCE WAS ALSO MADE BY THE TRIBUNAL TO THE FINDINGS OF THE FIRST APPELLATE AUTHORITY IN THE MATTER . T HE MEMBERS HA D IN FACT TRADED ON THEIR CAPITAL ASSETS , WHICH THEY WERE FOUND TO HAVE COME TO OWN BY VIRTUE OF THE IR MEMBERSHIP (OF THE ASSESSEE - SOCIETY) , A ND WHICH THEY USED TO GENERATE PROFIT (INCOME) FOR THEMSELVES - THE VERY SAME FACT (AS WELL AS ARGUMENT ) THAT HAD LED THE T RIBUNAL TO CONSIDER THE ASSESSEE AS NOT QUALIFIED AS A MUTUAL CONCERN IN THE FIRST PLACE. THERE WAS, IN ANY CASE, A BREAK - DOWN IN MUT UALITY, WHICH THE HON BLE APEX COURT HAD IN BANGALORE CLUB (SUPRA) EXPLAINED IN TERMS OF A CLOSED CIRCUIT. HOW COULD THE RECEIPT BY WAY OF TRANSFER CHARGES AND TDR PREMIUM BE THEN REGARDED AS RECEIPTS GOVERNED BY MUTUALITY ? IT WAS EXPLAINED THAT IT IS FOR THIS REASON THAT THE SOCIAL CLUBS PROVIDED FOR A N EMBARGO ON TRANSFER OF THEIR MEMBERSHIP, SO THAT IT WAS NOT A TRANSFERABLE RIGHT ( R EFER P ARA 4.2 ). IN FACT , THE HON BLE JURISDICTIONAL HIGH COURT HAD IN THE ASSESSEES OWN CASE IN CIT VS. PRESIDENCY CO - OPER ATIVE HOUSING SOCIETY LTD. & OTHERS (INCLUDING HATKESH CO - OPERATIVE HOUSING SOCIETY LTD. ) [1995] 2 16 ITR 321 (BOM ) , FOUND THE ARRANGEMENT TO BE AKIN TO TRANSFER ( OF THE UNDERLYING ASSET). TOWARD THE SAME THE H ON BLE C OURT EXAMINED THE ARRANGEMENT WITH REFE RENCE TO THE ASSESSEE S CONSTITUTION AND RESOLUTION S , AS WELL AS THE LEASE DEED BETWEEN THE SOCIETY AND ITS MEMBERS . IT RELIED ON AN OTHER DECISION BY IT ( SHREE NIRMAL 5 MA NOS. 19 TO 21, 22 TO 24/MUM/2014 HATKESH CO.OP. HSG. SOC. LTD. VS. ASST. CIT COMMERCIAL LTD. VS. CIT [1992] 193 ITR 694 (BOM) , WHICH IT QUOTED PROFUSELY, NOTING ITS F ACTS AS WELL. THAT IS, I T FOUND THE TRANSACTION AS RESULTING IN INCOME . THE TRANSACTION WAS THUS V ITIATED , BOTH ON THE GROUND S OF BREAK IN MUTUALITY AS WELL A S OF COMMERCIALITY. TRUE, THE TRIBUNAL NOTED REFERENCE TO THE SAID DECISION IN SIND CHS (SUPRA), A DECISION CITED BOTH BY THE ASSESSEE AND THE R EVENUE IN THEIR FAVOUR, ST ATING OF IT AS NOT CONCERNING MUTUALITY, BUT DECIDING THE ISSUE OF WHETHER THE RECEIPT BY WAY OF TRANSFER FEE WAS CAPITAL OR REVENUE IN NATURE . WHAT IS RELEVANT IS THE RATIO OF A DECIS ION . THE TRANSACTION WAS CLEARLY HELD AS RESULTING IN GENERATION OF INCOME IN THE HANDS OF THE SOCIETY , I.E., ON REVENUE ACCOUNT , EVEN AS THE HONBLE COURT DID NOT ANSWER IF THE INCOME ARISING IS BUSINESS INCOME OR NOT, FINDING THE SAME NOT RELEVANT. REFER ENCE IN THIS CONTEXT IS MADE TO DISCUSSION BEGINNING PARA 328H OF THE REPORTS. THE CONCEPT OF INCOME AND MUTUALITY ARE ANTITHESIS TO EACH OTHER IN - AS - MUCH AS INCOME FLOWS FROM OUTSIDE ONESELF, WHILE THE BASIS OF MUTUALITY IS THAT NO ONE COULD MAKE PROF IT OUT OF ONESELF , WITH THAT BEING IN FACT CONSIDERED AS THE RATIO OF THE SAID DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT (R EFER P ARA S 4.2,4.3 ) . THAT IS , THERE IS A CONCEPTUAL DIFFERENCE BETWEEN INCOME AND SURPLUS, WHICH ( DIFFERENCE ) ARISES OUT OF, AND IS DETERMINED ON THE BASIS OF, THE NATURE OF THE RECEIPT. THE ASSESSEE S CASE WAS THUS COVERED SQUARELY AGAINST ITSELF (REFER P ARA S 4.3, 4.4) . THE FACTS OF THE CASE, NOT DISPUTED BEFORE THE AUTHORITIES BELOW, WERE UNDISPUTED (REFER PARA 4.5 ) . THE T RIBUNAL NOTED THAT THE ASSESSEE HAS RAISED AN OBJECTION BEFORE IT, STATING THE MAINTENANCE SERVICES AS BEING NOT ENJOYED OR AVAILED OF BY THE NON - MEMBERS (OF THE ASSESSEE - SOCIETY). THE SAME , IN ITS OPINION, WOULD NOT HELP THE ASSESSEE S CASE AT ALL. THE QU ESTION, IN ITS OPINION, WAS NOT WHETHER THE ASSESSEE - SOCIETY PROVIDED SOME SERVICE TO THE NON - MEMBERS , BUT WHETHER THE Y RESIDED , AS DID THE MEMBERS, ON THE PLOT S OF THE SOCIETY? AND WHICH THEY SURELY DID , AS RESIDENTS OF THE FLAT S IN THE BUILDING S CONSTRU CTED ON THESE FLATS, PURCHASED OR RENTED BY THEM FROM MEMBERS. RATHER, 6 MA NOS. 19 TO 21, 22 TO 24/MUM/2014 HATKESH CO.OP. HSG. SOC. LTD. VS. ASST. CIT BEING RESIDENTS, THEY WOULD AVAIL OF THE INFRASTRUCTURE FACILITIES VIZ . SEWAGE, LIGHTING, VEHICLE PARKING, PARKS , ETC. ON THE SOCIETYS LAND (R EFER PARA S 4.5, 5.2 ) . THE TRIBUNAL THEN NO TED THAT THE HONBLE JURISDICTIONAL HIGH COURT HA D IN SIND CHS (SUPRA) HELD THE TRA NSFER CHARGES TO THE EXTENT OF R S. 25000 PER TRANSACTION, I.E., AS PER N OTIFICATION DATED 09/08/2001 ISSUED BY THE S TATE G OVERNMENT UNDER THE GOVERNING LAW (MAHARASHTRA COOP ERATIVE SOCIETIES ACT, 1960 ) , AS E XEMPT. IT HAD CLEARLY HELD OF RECEIPT IN EXCESS OF THAT SPECIFIED AS BEING NOT SUBJECT TO MUTUALITY, QUOTING FROM THE RELEVANT PARAGRAPH OF THE DECISION (REFER PARA 5.1 ) . EVEN AS THE TRIBUNAL HAD FOUND THE RECEIPT, BASED O N ITS NATURE, AS WHOLLY IN THE NATURE OF THE INCOME, THE VERY SAME FINDING THAT THE HONBLE COURT HAD ITSELF ISSUED IN THE ASSESSEES OWN CASE IN PRESIDEN CY CHS LTD. (SUPRA), THE TRIBUNAL , B O W ING TO THE HIGHER WISDOM OF THE H ON B LE C OURT, CONFIRMED IT AS E XEMPT TO THAT EXTENT, I.E. , THE LIMIT AS PRESCRIBED PER THE SAID N OTIFICATION. IT BEING TRI T E L AW THAT THE NATURE OF RECEIPT ( AS APPOSED TO ITS QUANTUM) DETERMINE S ITS CHARACTER AND, THUS , ITS TAXABILITY UNDER THE ACT , I T RECONCILED THE LAW AS LAID DOWN B Y THE HON BLE JURISDICTIONAL HIGH C O URT IN SIND CHS (SUPRA) BY STATING THAT THE HON BLE COURT HAD THEREBY PROVIDED A WINDOW OF EXEMPTION (JUSTIFYING IT ON THE BASIS OF INCIDE NTAL EXPENSES INVOLVED) (REFER P ARA 5.1 ). THE RELIANCE BY THE ASSESSEE ON THE DECI SION IN THE CASE OF MITTAL COURT PCS LTD. (SUPRA) A ND JAI HIND CHS LTD. (SUPRA) WAS ALSO MET BY THE TRIBUNAL. THE TWO DECISION S, FIRSTLY, DID N O T OVERRIDE , OR EVEN DISAPPROVE THE DECISION IN THE CASE OF SIND CHS (SUPRA) , A CASE OF A PLOT OWNER S SOCIETY , A ND WHICH HAD IN FACT RULED AGAINST MUTUALITY FOR THE AMOUNT IN EXCESS OF THAT PRE SCRIBED UNDER THE N OTIFICATION. T HE TRIBUNAL HAD IN FACT INDEPENDENTLY ARRIVED AT I T S DECISION ; THE SAME, GIVEN THE CLEAR LAW IN THE MATTER, BEING LARGELY A QUESTION OF FACT, TO BE DECIDED IN THE CONSPECTUS OF THE FACTS AND CIRCUMSTANCES OF THE CASE. RATHER , STOOD DECIDED BY THE H ON B LE JURISDICTIONAL H IGH C OURT IN THE ASSESSEES OWN CASE IN 7 MA NOS. 19 TO 21, 22 TO 24/MUM/2014 HATKESH CO.OP. HSG. SOC. LTD. VS. ASST. CIT PRESIDE NCY CHS LTD. (SUPRA), FINDING IT AS COMMERCIAL AND REVENUE IN NATURE (REFER PAR AS 328 - H THRO 331 - A OF THE REPORTS) . THE DECISION IN MITTAL COURT PCS LTD. (SUPRA) HAD CLARIFIED THAT THE N OTIFICATION WAS NOT APPLICABLE TO A COMMERCIAL SOCIETY AND, THEREFORE, COULD NOT BE CONSIDERED AS RECEIVED IN EXCESS OF THE LIMIT SPECIFIED THEREIN . THE DECISION WAS CLEARLY INAPPLICABLE AS THE ASSESSEE WAS A RESIDENT IAL HOUSING SOCIETY AND, TWO, THE CHARGES COLLECTED WERE I N PURSUANCE OF ITS BY E - LAWS ; RESOLUTIONS , ETC., CONSTITUTING A CONTRACT, SO THAT THERE WAS NOT QUESTION OF IT BEING VOLUNTARY OR IN THE NATURE OF A GIFT (REFER PARA 5.1 ) . SIMILARLY, THE DECISION IN JAI HIND CHS LTD. (SUPRA) WAS FOUND TO BE IN A DIFFERENT FACT - S E TTING , CLEARLY STATING THE REASONS WHY THE SAME WOULD NOT BE APPLICABLE IN THE FACTS AND CIRCUMSTANCES OF THE CASE (REFER P ARA 5.2 ) . THE H ON BLE C OURT HAD JUSTIFIED THE SAME ON THE GROUND OF MAINTENANCE OF THE INFRASTRUCTURE FACILITIES BY THE RECIPIENT - SOCIETY . THE SAME HAD NOTHING TO DO WITH THE MEMBERS TRANSACTING WITH THE NON - MEMBERS, AS IN THE INSTANT CASE WHERE THE MEMBER S TRADED OR LEVERAGED ON THEIR CAPITAL ASSET, REALIZING INCOME BY LETTING OR SALE TO NON - MEMBERS, SO THAT T HERE W AS A CLEAR CASE OF BREAK IN MUTUALITY , BESIDES OF THE TRANSACTIONS BEING COMMERCIAL IN NATURE . 3. THE ASSESSEE HAS NOW MOVED THE INSTANT APPLI CATION, RAISING SEVERAL OBJECTIONS, STATING EACH OF THEM TO CONSTITUTE A MISTAKE APPARENT FROM RECORD IN TERMS OF SECTION 254(2) OF THE ACT, PRAY ING FOR A RECALL OF THE IMPUGN ED ORDER OR ANY SUITABLE MODIFICATION THERETO. 4. WE HAVE HEARD THE PARTIES, AND PURSUED THE MATERIAL OF RECORD, GIVING OUR CAREFUL CONSIDERATION TO THE MATTER. 4.1 EACH OF THE OBJECTIONS, TO OUR MIND, RAISES AN ISSUE, WHICH IS EITHER NOT MAINTAINABLE IN THE FACTS AND CIRCUMSTANCES OF THE CASE, OR CALL S FOR A REVIEW, 8 MA NOS. 19 TO 21, 22 TO 24/MUM/2014 HATKESH CO.OP. HSG. SOC. LTD. VS. ASST. CIT IM PERMISSIBLE UNDER PROCEEDINGS UNDER SECTION 254 (2) OF THE ACT. RATHER , IN OUR CONSIDERED VIEW, WE FIND THE DECISION TO BE BASED ON JUDICIAL BINDING PRECEDENTS BY THE APEX COURT AND THE HONBLE JURISDICTIONAL HIGH COURT. 4.2 IT IS CLAIMED THAT THE DECISION IN BANGALO RE CLUB (SUPRA) HAS BEEN APPLIED WITHOUT PROVIDING DUE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN ITS CASE WITH REFERENCE THERETO, SO THAT THERE HAS BEEN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. THE CHARGE IS PLAINLY LUDICROUS. EVEN AS THERE IS NO ESTOPPEL AGAINST LAW, WHICH IS CLEAR AND WELL SETTLED, THE DECISION BY THE APEX COURT IN BANGALORE CLUB (SUPRA) DOES NOT LAY DOWN ANY NEW LAW, I.E., ANY DIFFERENT FROM WHAT IT HAD ALWAYS BEEN AND EXPLAINED AS. RATHER, THE VERY PURPOSE OF ADVERTING THERETO WAS TO EM PHASIZE JUST THAT ; THAT THE LAW HAS NOT UNDERGONE ANY CHANGE, BEING PREMISED ON AND ROOTED IN THE BASIC POSTULATE THAT NO ONE CAN PROFIT OR EARN INCOME FROM ONESELF. REFERENCE IN THIS REGARD WAS AGAIN MADE BY THE TRIBUNAL TO SEVERAL DECISIONS BY THE HONBL E APEX COURT, SOME OF WHICH WERE FOLLOWED OR NOTED WITH THE APPROVAL BY THE H ONBLE C OURT ITSELF IN BANGALORE CLUB (SUPRA) (REFER PARA 4.1 ). IT IS THE RATIO OF A DECISION OR THE PRINCIPLE/S LAID THEREIN, WHICH IS RELEVANT AND BINDING, AND WHICH THE TRIBUNA L FOUND AS BEING NOT IN VARIANCE, NOR WAS ANY POINTED OUT DURING THE HEARING OF THE INSTANT PETITION . WHY, THE REVENUE HAS APPLIED THE SAME LAW (REFER PARAS 6.2 & 3.7 OF THE ASSESSMENT AND THE IMPUGNED ORDER RESPECTIVELY) IN HOLDING THE IMPUGNED TRANSACTIO NS AS, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, NOT SUBJECT TO MUTUALITY, I.E., DE HORS OR INDEPENDENT OF THE DECISION IN BANGALORE CLUB (SUPRA) , DELIVERED MUCH AFTER THE ORDER APPEALED AGAINST BEFORE THE TRIBUNAL. THE FACTS OR THE FACT - SETTING OF EACH CASE DECISION WOULD ONLY BE DIFFERENT; THE DECISION CONTEXTUALIZES THE LAW, WHICH HAS REMAINED THE SAME. REFERENCE TO CASE LAW, WOULD N OT BY ITSELF CAUSE PREJUDICE, LEADING TO RECTIFICATION , EVEN AS IN THE INSTANT CASE IT IS TO TH E WELL SETTLED LAW BY THE APEX COURT . TOWARD THE SAME, AS WELL AS ON THE 9 MA NOS. 19 TO 21, 22 TO 24/MUM/2014 HATKESH CO.OP. HSG. SOC. LTD. VS. ASST. CIT SCOPE OF S. 254(2), WE FIND T HE RELIANCE BY THE LD. DR BEFORE US ON THE DECISIONS IN CIT V. RAMESH ELECTRIC & TRADING CO . [1993] 203 ITR 497 (BOM); RAJA BALDEODAS BIRLA KOSH V. CIT [1986] 158 ITR 601 (RAJ) ; G EOFIN INVESTMENT (P.) LTD. V. CIT (IN WP(C IVIL ) NO. 3744/2011 DATED 27/5/2011 (DEL); AND DHARIWAL INDUSTRIES LTD. V. DY. CIT (IN MA NO. 15 - 22/M/2009 DATED 05/5/2001 (PUNE)(SB), AS APPOSITE. 4.3 THEN, IT IS ARGUED, WITH REFERENCE TO THE DECISION IN CIT VS. QUALITY STEEL TUBES LTD . [2013] 254 CTR 298, THAT WRONG APPLICATION OF LEGAL PRINCIPLES AS RESULTING IN A MISTAKE APPARENT FROM RECORD, RECTIFIABLE UNDER SECTION 254 (2). BUT, THEN, AS A PREREQUISITE, IT HAS TO BE SHOWN AS A FACT THAT THE PRINCIPLES HAVE BEEN WRONGLY APPLIED, OR WERE NOT APPLICABLE IN THE FACTS OF THE CASE. THE REVENUE, AS AFORE - NOTED, APPLIED THE VERY SAME PRINCIPLES, WHICH HAD NOT UNDERGONE ANY CHANGE, AND AGAINST WHOSE DECISION / S THE ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL, EVEN AS IT FILES A RECTIFICATION PETITION (AS OPPOSED TO AN APPEAL OR REVIEW) AGAINST ITS DECISION CONFIRMING THE DECISION BY THE REVENUE? THAT IS, THE ASSESSEE, IN DOING SO, CONTRADICTS ITSELF AND DEFEAT ITS OWN CASE. TRUE, WRONG APPLICATION OF SETTLE D PRINCIPLES, WHERE NOT IN DISPUTE, WOULD GIVE RISE TO A MISTAKE, BUT NOT WHERE THAT ITSELF IS A SUBJECT MATTER OF DISPUTE, WITH EACH SIDE MAKING CONTRARY CLAIMS IN THE MATTER. THAT, IN FACT, IS PRECISELY WHAT THE HONBLE COURT EMPHASIZED: THAT THE CONCEPT OF MUTUALITY IS WELL - SETTLED IS TRUE ENOUGH, BUT IT IS IT S APPLICATION IN A GIVEN CASE LARGELY A QUESTION OF FACT, THAT EASILY LEADS TO CONFUSION , I.E., DETERMINING WHERE THE RELATIONSHIP OF MUTUALITY ENDS AND THAT OF TRADING BEGINS. IN FACT, THE TRIBU NAL NOTES THIS AT THE OUTSET , THAT IT IS THIS ASPECT THAT POSES AN ISSUE, AND AS OBSERVED BY THE HONBLE APEX COURT IN CIT V. BANKIPUR CLUB LTD . [1997] 226 ITR 97 (SC) , IS ALWAYS A DIFFICULT AND VEXED QUESTION OF FACT AND LAW (REFER PARA 4.1) . IN OTHER WO RDS, THE CASE OF THE PARTIES REMAINS IN 10 MA NOS. 19 TO 21, 22 TO 24/MUM/2014 HATKESH CO.OP. HSG. SOC. LTD. VS. ASST. CIT SUBSTANCE THE SAME AS IT WAS PRIOR TO THE STAGE OF THE TRIBUNAL. WHY, THE DECISION IN THE CASE OF THE SIND (SUPRA); MITTAL COURT PCS LTD. (SUPRA); AND JAI HIND CHS LTD. (SUPRA), ARE ALL RENDERED ONLY IN THE EXERCISE OF ITS APPELLATE JURISDICTION BY THE HONBLE HIGH COURT. GOING BY THE ASSESSEES STAND, ALL THE SAID DECISIONS, INCLUDING BY THE APEX COURT, ARISE OUT OF DECISIONS WHICH WERE MISTAKEN AND, THUS, RECTIFIABLE, AND NOT OUT OF DECI SIONS, WHICH WERE, OR WERE NOT , APPLYING THE LAW ON MUTUALITY CORRECTLY IN THE FACT S AND CIRCUMSTANCES OF THE CASE, I.E., DEPENDING ON HOW ONE MAY SEE IT. IN THE PRESENT CASE, AS WOULD BE APPARENT FROM A READING OF THE IMPUGNED ORDER, AS ALSO THE FOREGOING, ENCAPSULATING THE SAME, EACH DECISION CITED HAS BEEN CONSIDERED BY THE TRIBUNAL. THE DECISION IN THE CASE OF QUALITY STEEL TUBES LTD . (SUPRA) WOULD THUS NOT APPLY IN THE PRESENT CASE. 4.4 THEN, IT IS SAID THAT THE DECISION IN PRESIDENCY CHS LTD. (SUPRA) WAS NOT PUT TO THE ASSES SEE. IN OUR CONSIDERED VIEW, GIVEN THE CLEAR FINDINGS AND RATIO OF THE SAID DECISION, IT IS THE ASSESSEE WHO, ON THE OTHER HAND, OUGHT TO HAVE, IN ORDER TO ENABLE THE TRIBUNAL TO ARRIVE AT A CORRECT DECISION, REFER RED TO THE SAME. THIS IS ALL THE MORE SO, AS IT IS IN ITS OWN CASE. NOT ONLY DOES IT NOT DO SO, IT CHARGES THE TRIBUNAL FOR RELYING ON THE DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT IN ITS OWN CASE ! RATHER, THE FINDINGS BY THE TRIBUNAL, INDEPENDENTLY ARRIVED AT, FIND COMPLETE ENDORSEMENT IN THAT BY THE H ONBLE C OURT, SO THAT THE SAID DECISION IS BOTH RELIED UPON AS WELL AS DRAWN SUPPORT FROM AS BINDING PRECEDENTS . THE ASSESSEE, AGAIN, DOES NOT REFER TO THIS DECISION WHEN THE REVENUE S APPEALS AGAINST THE TRIBUNAL S ORDER DATED 24/6/2011 SU PRA CAME UP FOR CONSIDER ATION BY THE HONBLE COURT AS CONFIRMED BY THE LD. AR DURING HEARING OF THE INSTANT PETITION, ON BEING QUESTIONED BY THE BENCH IN THE MATTER . IN OUR VIEW, ALL TH IS CONSTITUTES A CLEAR DERELICTION OF DUTY CAST ON THE PARTIES PART ICULARLY THE ASSESSEE ( WHO CANNOT BE CONSIDERED AS NOT IN KNOW OF THE DECISION IN ITS OWN CASE ) , BEING BOUND IN LAW 11 MA NOS. 19 TO 21, 22 TO 24/MUM/2014 HATKESH CO.OP. HSG. SOC. LTD. VS. ASST. CIT TO ASSIST THE COURT IN ARRIVING AT A CORRECT DECISION IN THE FACTS AND CIRCUMSTANCES OF ITS CASE. I TS ACTION IN NOT ADVERTING TO THE DECIS ION BY THE HONBLE JURISDICTION HIGH COURT IN ITS OWN CASE IN PRESIDEN CY CHS LTD . (SUPRA) BEFORE US , CLEARLY DELIBERATE , CANNOT BUT BE DISCOUNTENANCED . IT DOES THIS THE SECOND TIME OVER , BEFORE THE HONBLE COURT ITSELF, IN ITS APPEALS FOR THE LATER YEARS AND, FURTHER, NOTWITHSTANDING THAT THE SAID DECISION STANDS TAKEN NOTE OF AND RELIED BY THE T RIBUNAL IN ARRIVING AT , AS WELL AS SEEKING ENDORSEMENT OF ITS FINDINGS IN ITS CASE , FOR OTHER YEARS. THE TRIBUNAL HAS CLEARLY STATED ITS REASON S AS TO WHY IT CONSI DERS THE SAME AS BOTH RELEVANT AND SIGNIFICANT (REFER PARA S 4.3, 4.4 & 5.1 ). IN SUM, A CLEAR BREAK IN MUTUALITY, AS WELL AS ITS OPERATIONS BEING IMBUED WITH COMMERCIALITY. IT IS ARGUED THAT THE SAID DECISION DID NOT EXAMINE THE ASPECT OF THE MUTUALITY. TR UE, BUT THEN IT MAY NOT BY ITSELF MAKE THE SAME IRRELEVANT; IT CLEARLY STATING OF THE TRANSACTIONS BEING COMMERCIAL AND, IN FACT, ON REVENUE ACCOUNT, LEADING TO INCOME (ALSO REFER PARA 2.2 OF THIS ORDER) . RATHER, AS EXPLAINED, THE CONCEPT OF INCOME AND MUT UALITY ARE ANTITHESIS TO EACH OTHER (REFER PARA 4.3). IN FACT, AS APPARENT, THE FACTS BEFORE THE TRIBUNAL, I.E., OF THE MEMBERS HAVING SOLD/LET OUT, ETC. THE RESIDENTIAL FLATS CONSTRUCTED ON THEIR PLOTS TO OUTSIDERS, ARE EVEN MORE IMP UGN ING OF THE ASSESSEE S CASE, I.E., THAN THAT BEFORE THE HONBLE COURT. THIS, THEREFORE, EMPHASIZES THE PRIMACY AS WELL AS THE CRITICALITY OF THE FACTS . THE TRIBUNAL, THUS, THOUGH RELIES AND DRAWS UPON THE SAID DECISION, YET ISSUES INDEPENDENT FINDINGS OF FACT, ENDORSING THAT BY THE HONBLE COURT. THERE IS ALSO ANOTHER ASPECT OF THE MATTER, I.E., THAT THOUGH DECISIONS ARE OFTEN CITED TOWARD PROPOSITIONS, A DECISION NECESSARILY RESTS, AS INDEED DOES IN THE INSTANT CASE, ON THE FACTUAL MATRIX OF THE CASE, SO THAT IT HAS TO BE REA D, UNDERSTOOD AND APPRECIATED WITH REFERENCE THERETO. THIS WOULD ALSO EXPLAIN AS TO WHY THE TRIBUNAL CONSIDERED THE ORDER DATED 24/6/2011 IN THE ASSESSEES OWN CASE AS DISTINGUISHABLE. THE FACTS AS STATED AT PARA 3.7 OF THE ORDER OF THE FIRST APPELLATE AUT HORITY, AGAIN REFERRED TO AT PARAS 4.2 TO 4.5 OF THE IMPUGNED ORDER, FIND NO MENTION, A RE MUCH LESS DISCUSSED, 12 MA NOS. 19 TO 21, 22 TO 24/MUM/2014 HATKESH CO.OP. HSG. SOC. LTD. VS. ASST. CIT IN THE SAID ORDER BY THE TRIBUNAL. THE UPHOLDING OF THE SAID ORDER BY THE TRIBUNAL, AS BROUGHT TO OUR NOTICE BY THE APPLICANT DURING HEARING OF T HE INSTANT PETITION, WOULD THUS BY ITSELF NOT OPERATE TO DIMINISH THE IMPUGNED ORDER IN ANY MANNER, MUCH LESS GIVE US THE POWER TO REVIEW THE SAME. THE DOCTRINE OF MERGER, WHICH THE ASSESSEE EMPHASIZES WITH REFERENCE TO THE DECISION IN NIRMA INDUSTRIES LTD . V. CIT [2006] 283 ITR 402 (GUJ), ON WHICH PRINCIPLE/DOCTRINE THERE IS NEITHER ANY, NOR COULD BE, ANY DISPUTE, SHALL OPERATE ONLY QUA THE SAID ORDER BY THE TRIBUNAL. THIS IS MORE SO AS THE TRIBUNAL IS AT PAINS TO EMPHASIZE THAT THE ISSUE UNDER REFERENCE R AISES A MIXED QUESTION OF FACT AND LAW, WITH IT BEING, AS OPINED BY THE HONBLE APEX COURT ITSELF IN BANKIPUR CLUB LTD . (SUPRA), LARGELY A QUESTION OF FACT, AND ALWAYS A VEXED QUESTION (REFER PARA 4.1). ON THE CONTRARY , THE DECISION BY THE HONBLE HIGH COU RT IN PRESIDENCY CHS LTD . (SUPRA) WOULD ANSWER THE QUESTION/S ARISING IN THE ASSESSEES CASE FOR ALL THE SUBSEQUENT YEARS AS WELL ! THEN IT IS STATED THAT THE TRIBUNAL HAS ISSUED A FINDING AS TO THE ASSESSEE - SOCIETY BEING NOT, IN ITS DESIGN, CONC EPT AND FOR M, A MUTUAL CONCERN, WHEN IT IS NOT SO CLAIMED EVEN BY THE REVENUE. THE TRIBUNAL DOES SO, GIVING ITS DETAILED REASONS FOR THE SAME (REFER PARAS 4.2, 4.3). THE RELEVANT OBJECT CLAUSE/S OF ITS OBJECTS, REPRODUCED AT PARA 4.4 OF THE IMPUGNED ORDER, ITSELF STA TES OF THE ASSESSEE - SOCIETY AS BEING INCORPORATED TO CARRY TRADE, INCLUDING BUYING, SELLING, HIRING, DEVELOPING LAND A FACT PUT TO THE LD. AR HIMSELF DURING HEARING (PARA 4.4). HOW COULD THEN, THE FINDING BY THE TRIBUNAL BE FAULTED WITH ? FURTHER, T HE SAM E IN FACT, AS CLEARLY STATED THEREIN, STANDS REPRODUCED AT PARA 3 OF THE ASSESSMENT ORDER (PARA 4.4) . HOW COULD THEN IT BE SAID THAT THE SAME HAS NOT BEEN SO CONSIDERED BY THE REVENUE ? THE TRIBUNAL IS, RATHER, IN LAW, NOT BOUND BY THE FINDINGS BY THE REVEN UE. IT, IN FACT, DISCUSSES THE OPERATIONS OF THE SOCIETY AS WELL. AGAIN, IT DOES NOT STOP THERE, DISCUSSING ITS OBJECTIONS AS DOVETAILING EACH OTHER (PARA 4.4). 13 MA NOS. 19 TO 21, 22 TO 24/MUM/2014 HATKESH CO.OP. HSG. SOC. LTD. VS. ASST. CIT 4.5 THEN IT IS SAID THAT THE AUTHORITIES BELOW HAD NOWHERE FOUND THE ASSESSEE - SOCIETY TO BE C HARGING FIFTY PER CENT. OF THE CONSIDERATION BY THE WAY OF TRANSFER FEES. THE CHARGE IS CLEARLY UNSUSTAINABLE IN - AS - MUCH AS THE RELEVANT PROVISIONS OF ITS BYE - LAWS /RESOLUTIONS FIND CLEAR MENTION IN THE ASSESSEE ORDER. WHY, THE HONBLE JURISDICTIONAL HIGH COURT ITSELF FOUND AS SO IN PRESIDENCY CHS LTD. (SUPRA). ON THE CONTRARY, ITS CLAIM OF THE TRANSFER CHARGES BEING BASED ON THE AREA (OF THE PLOT), AND NOT AT 50% OF THE CONSIDERATION, WHICH THE ASSESSEE HAS PROJECTED BEFORE THE TRIBUNAL IN RECTIFICATION P ROCEEDING, AND WITHOUT REFERENCE TO ANY MATERIAL ON RECORD , IS NOT MAINTAINABLE ON THE BASIS OF THE MATERIAL ON RECORD . FURTHER, THE QUESTION AS TO WHETHER THIS WOULD, YET, MATERIALLY ALTER THE ASSESSEES CASE IS ANOTHER MATTER . IT IS TO BE APPRECIATED THA T THESE ARE RECTIFICATION PROCEEDINGS, THE SCOPE OF WHICH IS SEVERELY LIMITED. IN FACT, WE HAVE DONE NO MORE THAN, AND COULD DO NO MORE THAN, MERELY RECOUNTING AND EXPLAINING THE IMPUGNED DECISION AND, AGAIN, IN TERMS OF WHAT HAS BEEN CLEARLY STATED THEREI N. THIS ALSO EXPLAINS OUR CONSTANT REFERENCE TO THE RELEVANT PARAS OF THE IMPUGNED ORDER. THEN IT IS STATES OF THE TRIBUNALS FINDING QUA THE USE OF ROADS, PARKS, ETC. BY THE NON - MEMBERS AS INCORRECT. THE SAID OBJECTION STANDS IN FACT SPECIFICALLY NOTED AN D DISCUSSED AT PARA 4.5 OF THE IMPUGNED ORDER, WHILE DISCUSSING THE ASPECT OF BREAK - DOWN IN THE IDENTITY BETWEEN THE CONTRIBUTORS AND PARTICIPANTS, I.E., BOTH AS A CLASS. THE REVENUES STAND IN THE MATTER IS ALSO NOTED BY THE TRIBUNAL. 4.6 CONTINUING FURT HER, IT IS STATED THAT THE TRIBUNAL HAS RELIED ON THE DECISIONS IN THE CASE OF BHARAT BHAWAN COOPERATIVE (IN WP NO. 1094 OF 2004 DATED 17/2/2010) AND K KEM CAS LTD. V. ASST. CIT [2013] 143 ITD 594 (DEL). THE IMPUGNED ORDER IS ONLY TO BE READ, I.E., MEANINGFU LLY AND PURPOSIVELY, TO COME TO AN IRRESISTIBLE CONCLUSION AS TO THE FALSITY OF THE CLAIM. THE STATEMENT WOULD BE VALID ONLY WHERE THE TRIBUNAL WOULD NOT HAVE ARRIVED AT THE SAID DECISION 14 MA NOS. 19 TO 21, 22 TO 24/MUM/2014 HATKESH CO.OP. HSG. SOC. LTD. VS. ASST. CIT OTHERWISE, I.E., BUT FOR THESE DECISIONS. THE HONBLE COURT IN MITTA L COURT PCS LTD. (SUPRA) HAS ITSELF HELD THAT THE PAYMENT OF THE TRANSFER CHARGES IS A TRANSACTION/ CONTRACTUAL OBLIGATION VOIDABLE AT THE OPTION OF THE PAYER. IN FACT, IN SIND CHS (SUPRA), A DECISION OF EVEN DATE, IT HAD ABUNDANTLY CLARIFIED THAT ALL SUCH CHARGES ARE CONTRACTUAL IN NATURE, AND WHERE AND TO THE EXTENT REGULATED BY LAW, THE AMOUNT RECEIVED IN EXCESS WOULD NOT BE GOVERNED BY MUTUALITY, NOTED AND REPRODUCED BY THE TRIBUNAL AT PARA 5.1 OF ITS ORDER, ALSO REFERRED TO EARLIER. REFERENCE IN THIS R EGARD IS MADE BY THE HONBLE COURT TO S. 72 OF THE CONTRACT ACT . IT IS THIS OBSERVATION BY IT THAT FINDS RESONANCE IN BHARAT BHAWAN COOP. (SUPRA) , WHICH IS NOTED BY THE TRIBUNAL. STATING IT TO THE STATE THAT THIS FORMS THE BASIS OF ITS FINDINGS AS TO BREAK DOWN OF MUTUALITY AND COMMERCIALITY IS A COMPLETE MISREADING OF ITS ORDER. THE TRIBUNAL FINDING THE CHARGES PAID IN PURSUANCE TO THE OBLIGATION CAST ON THE MEMBERS BY THE RULES OF THE SOCIETY, FOUND THEM AS NOT LEGAL, SO THAT THEY COULD NOT BEEN HELD AS EI THER VOLUNTARY OR AS A VALID PAYMENT UNDER LAW. AGAIN, REFERENCE TO K KEM CAS LTD. (SUPRA) IS MADE TOWARD THE TRIBUNAL IN THAT CASE ALSO READING THE DECISION IN SIND CHS (SUPRA) SIMILARLY. THE OBJECTION IS THUS MISCONCEIVED. 4.7 CITING INVESTURE GROWTH AN D SECURITIES LTD. V. ITAT [2010] 324 ITR 319 (BOM), IT IS STATED THAT THE IMPUGNED ORDER BE RECALLED AS RELIANCE S TANDS PLACED ON DECISIONS WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE , CAUSING PREJUDICE TO IT . T HE SAID RELIANCE , AS EXPLAINED, IS ONLY TOWARD ALLUDING TO THE SETTLED LAW IN THE MATTER. NO PREJUDICE STANDS CAUSED ; THE CASE OF THE PARTIES BEING THE SAME AS PRIOR TO THE STAGE OF THE TRIBUNAL. THE LAW IN THE MATTER IS WELL - SETTLED, WITH THE TRIBUNAL ONLY CONSIDERING I T S AP PLICATION IN THE GIVEN FA CTS AND CIRCUMSTANCES OF THE CASE, UPHOLDING THE REVENUES STAND, WITH, RATHER , THE ASSESSEE WITHHOLDING THE DECISION IN ITS OWN CASE IN PRESIDENCY CHS LTD . (SUPRA) HOLDING TRANSFER CHARGES (PREMIUM) AS RECEIPT OF COMMERCIAL AND REVENUE IN NATURE, BEARING THE CHARACTER OF 15 MA NOS. 19 TO 21, 22 TO 24/MUM/2014 HATKESH CO.OP. HSG. SOC. LTD. VS. ASST. CIT INCOME . IN FACT, T HE ASSESSEE HA S ALREADY IMPUGNED THE SAID RELIANCE , PER THE INSTANT PETITION, SEPARATELY FOR EACH DECISION, ALREADY DEALT WITH BY US, SO THAT THIS DOES NOT GI VES RISE TO A SEPARATE OR A NEW CAUSE OF ACTION/GRIEVANCE ? THE RELIANCE ON CH OW R I NG H EE SALES BUREAU (P.) LTD. VS. CIT [1973] 87 ITR 542 (SC) AND SINCLAIR MURRAY & CO. VS. CIT [1974] 97 ITR 615 (SC) IS AGAIN TOWARD SETTLED PROPOSITION QUA TAX ING SUMS WRONGLY RETAINED (PARA 5.1/PGS. 25 - 26) . THE PRINCIPLE OF TAX ATION OF UNJUST ENRICHMENT IS WELL - SETTLED ( SHREE DIGVIJAY CEMENT CO. VS. UOI [2003] 259 ITR 705 (SC)) . THE MATTER, THUS, IS CLEARLY OF APPLICATION OF THE SETTLED LAW. 4.8 W E MAY, BEFORE PARTING WITH OUR ORDER, ALSO ADD THAT THE ISSUE AS REGARDS TDR PREMIUM, A S CLARIFIED BY THE TRIBUNAL PER PARA 5.2 OF ITS ORDER, ARISE S ONLY FOR AYS. 2006 - 07 & 2007 - 08 . FURTHER, REFERENCE TO DIFFERENT PARAS IN THIS ORDER IS TO THAT OF THE IMPUGNED ORDER. WE MAY ALSO TAKE THIS OPPORTUNITY TO RECTIFY SOME TYPOGRAPHICAL ERRORS/OMI SSIONS THAT HAVE COME TO OUR NOTICE ON READING THE IMPUGNED ORDER. THE WORD THIS IN THE SENTENCE .. AND THIS IS PRECISELY.., AT LINE 3 , PAGE 13 OF THE IMPUGNED ORDER, IS TO BE READ AS IT. SIMILARLY THE WORD RIGHTS AT LINE 4 OF SUB - PARA BEGINNING WI TH THE WORDS ONTINUING FURTHER. IS TO BE READ AS RIGHT. THE WORD WHILE AT LINE 3 OF PARA 4.4 (PG. 16) , IS TO BE READ AS VIDE. THE WORDS IN THE BRACKET ( IN THE SAID LINE ) MAY KINDLY BE READ AS ( REPRODUCED AT PARA 3 (PAGE 6) OF THE ASSESSMENT ORDE R DATED 28.2.2003, I.E., PASSED IN THE FIRST ROUND ) . THE WORD COURT IS TO READ BETWEEN THE WORDS HONBLE AND ADVERTS AT LINE 4 OF PAGE 24 (PARA 5.1) OF THE ORDER. THE CORRECTION OF SAID APPARENT ERRORS, NEEDLESS TO ADD, DO ES NOT CAUSE ANY PREJUDICE TO ANY SIDE. IN OUR VIEW, THEREFORE, APART FROM THE SAID CORRECTIONS, NO INTERFERENCE IS CALLED FOR. WE , ACCORDINGLY , IN VIEW OF THE FOREGOING, DISMISS THE ASSESSEES APPLICATION . 16 MA NOS. 19 TO 21, 22 TO 24/MUM/2014 HATKESH CO.OP. HSG. SOC. LTD. VS. ASST. CIT 5. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPLICATION S ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON MAY 27 , 201 6 SD/ - SD/ - ( PAWAN SINGH ) (S ANJAY ARORA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 27 . 0 5 .201 6 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APP LIC ANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI