MEHERINA CO OP HSG. SOC. LTD, V. ITO WD 16(2)(1),

MA 586/MUM/2012

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1470 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-12-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 11-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SAHU
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI B BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI VIJAY PAL RAO, JM & SHRI N. K. BILLAIYA , AM MISCELLANEOUS APPLICATION NO. 586/MUM/2012 ( ARISING FROM ITA NO. 5527/MUM/2006 A. Y - 2003-04 ) MEHERINA CO-OPERATIVE HOUSING SOCIETY LTD., 51C, NEPEAN SEA ROAD, MUMBAI-400026 VS THE INCOME TAX OFFICER, WARD-16(2)(1) MUMBAI (APPLICANT) (RESPONDENT) PAN NO. AAAAM3083G ASSESSEE BY SHRI MANISH SHAH REVENUE BY SHRI R. K. SAHU DATE OF HEARING 10 TH JANUARY 2014 DATE OF PRONOUNCEMENT 17 TH JANUARY 2014 ORDER PER VIJAY PAL RAO, JM BY WAY OF THIS MISCELLANEOUS APPLICATION BY THE AS SESSEE IS SEEKING RECTIFICATION OF MISTAKE IN THE ORDER DATED 16.09.2 008 OF THIS TRIBUNAL IN RESPECT OF GROUND NO. 6 OF THE ASSESSEES APPEAL FO R THE ASSESSMENT YEAR 2003-04. 2. WE HAVE HEARD THE LD. A.R AS WELL AS LD. D.R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD. A.R OF THE ASS ESSEE HAS SUBMITTED THAT WHILE DECIDING THE GROUND NO. 6 REGARDING TRAN SFER FEE RECEIVED BY THE ASSESSEE FROM TRANSFEREES, THE TRIBUNAL HAS FOL LOWED THE DECISION OF SPECIAL BENCH IN CASE OF WALKESHWAR TRIVENI CO-OPER ATIVE HOUSING SOCIETY LTD. VS ITO 88 ITD 159 (MUM) (SB). THE SAID DECISIO N OF THE SPECIAL BENCH HAS BEEN REVERSED BY THE HONBLE JURISDICTIONAL HIG H COURT IN THE CASE OF SIND CO-OPERATIVE HOUSING SOCIETY LTD. VS ITO 317 I TR 47 THERE IS A MISTAKE APPARENT IN THE ORDER OF THIS TRIBUNAL WITH RESPECT TO THE FINDING MA 586/M/2012 MEHERINA CO-OPERATIVE HOUSING SOCIETY LTD. 2 OF GROUND NO. 6 IN PARA 14 TO 16 OF THE IMPUGNED OR DER WHICH HAS TO BE RECTIFIED U/S 254(2). HE HAS FURTHER POINTED OUT TH AT FOR THE ASSESSMENT YEAR 2001-02 THE TRIBUNAL HAS ALREADY RECALL THE OR DER ON VIEW OF THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN CA SE OF SIND CO-OPERATIVE HOUSING SOCIETY LTD. VS ITO (SUPRA). ON THE OTHER H AND, THE LD. D.R HAS RELIED UPON THE IMPUGNED ORDER OF THE TRIBUNAL. 3. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FULLY PERUSED THE RELEVANT RECORD WE NOTE THAT FOR THE ASSESSMENT YEA R 2001-02 THE ASSESSEE FILED A MISCELLANEOUS APPLICATION NO. 123/ 2011 WHICH HAS BEEN ALLOWED BY THE TRIBUNAL VIDE ORDER DATED 27.7.2011 AS UNDER: 2. AFTER HEARING THE RIVAL CONTENTIONS, WE FIND TH AT THE TRIBUNAL, IN THE IMPUGNED ORDER, VIDE GROUND NO.2, PARAS-6 & 7, WHICH RELATES TO ADDITION IN RESPECT OF INCOME FROM TRANS FER FEES RECEIVED FROM THE TRANSFERORS, PRIOR TO THEIR ADMIS SION AS MEMBERS OF THE SOCIETY, HAS FOLLOWED THE DECISION O F MUMBAI SPECIAL BENCH REPORTED AS WALKESHWAR TRIVENI CO. OP ERATIVE HOUSING SOCIETY LTD. V/S ITO, (2004) 88 LTD (SB) 15 9 (MUM.), AND DECIDED THE ISSUE OF TAXABILITY OF TRANSFER FEE REC EIVED BY THE SOCIETY, AGAINST THE ASSESSEE. THE HONBLE JURISDIC TIONAL HIGH COURT IN SIND CO. OPERATIVE HOUSING SOCIETY V/S ITO , (2009) 317 ITR 47 (BOM.), REVERSED THE DECISION OF MUMBAI SPEC IAL BENCH IN WALKESHWAR TRIVENI CO. OPERATIVE HOUSING SOCIETY LT D. (SUPRA) AND DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. CO NSEQUENTLY, WE HOLD THAT THERE IS A MISTAKE APPARENT ON RECORD IN THE IMPUGNED ORDER DATED 27TH SEPTEMBER 2007 AND, HENCE , WE PROCEED TO RECTIFY THE SAME BY FOLLOWING THE JUDGME NT OF HONBLE JURISDICTIONAL HIGH COURT IN SIND CO. OPERATIVE HOU SING SOCIETY (SUPRA) AND ALLOW GROUND NO.2 RAISED BY THE ASSESSE E, AS IT IS WELL SETTLED THAT A SUBSEQUENT JUDGMENT RENDERED BY A JURISDICTIONAL HIGH COURT ON THE ISSUE, CAN CONSTIT UTE AN ERROR APPARENT ON RECORD. WE RELY ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN ACIT V/S SAURASHTRA KUTCH STOCK EX CHANGE LTD., (2008) 305 ITR 227 (SC). 4. THUS, IT IS CLEAR THAT AN IDENTICAL ISSUE HAS BE EN CONSIDERED IN THE MISCELLANEOUS APPLICATION BY THE TRIBUNAL AND THE O RDER OF THE TRIBUNAL MA 586/M/2012 MEHERINA CO-OPERATIVE HOUSING SOCIETY LTD. 3 DATED 27.9.2007 WAS RECALLED. FOLLOWING THE EARLIER ODER AS REPRODUCED ABOVE WE RECALL THE ORDER DATED 16.9.2008 OF THIS T RIBUNAL FOR THE ASSESSMENT YEAR 2003-04 TO THE EXTENT OF GROUND NO. 6 FOR CONSIDERING THE SAME AFRESH IN THE LIGHT OF THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN CASE OF SIND CO-OPERATIVE HOUSING SOCIETY LTD. V S ITO (SUPRA) AS WELL AS OTHER RELEVANT DECISION ON THE POINT. THE REGISTRY IS DIRECTED TO FIX THE APPEAL OF THE ASSESSEE FOR FRESH HEARING ON THE GRO UND NO. 6 REGARDING TAXABILITY OF TRANSFER FEE RECEIVED FROM THE TRANSF EREES. NOTICE BE ISSUE TO THE PARTY. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF JANUARY 2014 SD/- SD/- (N. K. BILLAIYA) ACCOUNTANT MEMBER (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI: DATED: 17 TH JANUARY 2014 SUBODH. COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI