VENKATESH PREMISES CO OP SOCIETY LTD, V. ITO 12(3)(2),

MA 80/MUM/2010

• Counselvise Citation: [2010] 111 COUNSELVISE.COM (IT) 0289 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-04-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2004-2005
• Appeal Filed On: 08-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F : MUMBAI BEFORE SHRI D. MANMOHAN, HONBLE VICE PRESIDENT AND SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER M.A.NO. 80/MUM/2010 ARISING OUT OF ITA. NO. 6523/MUM/2007 ASSESSMENT YEAR 2004-2005 M/S. VENKATESH PREMISES COOP. SOCIETY LTD. MUMBAI 400 021. PAN AADFV-1309-E VS. ITO, 12 (3) (2) MUMBAI 400 020. (APPLICANT) (RESPONDENT) FOR APPLICANT : SHRI M.K. MADAAN FOR RESPONDENT : SHRI S.M. KESHKAMAT (DR) ORDER PER D. MANMOHAN, V.P. 1. BY THIS APPLICATION, ASSESSEE STATES THAT THE O RDER DATED 12 TH MAY, 2009 OF THE ITAT F BENCH, MUMBAI VIDE ITA. N O. 6523/MUM/2009 CONTAIN CERTAIN MISTAKES APPARENT FROM RECORD IN TH E LIGHT OF LATER DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF SIND CO- OPERATIVE HOUSING SOCIETY LTD. AS WELL AS IN ASSESS EES OWN CASE IN INCOME TAX APPEAL. NO. 335 OF 2005 DATED 18 TH JANUARY, 2010 AND INCOME TAX APPEAL. NOS. 679 AND 680 AND 684 OF 2009 DATED 11 TH JANUARY, 2010. 2. IN THE IMPUGNED ORDER THE BENCH FOLLOWED THE DE CISION OF THE ITAT SPECIAL BENCH IN THE CASE OF WALKESHWAR TR IVENI CO-OPERATIVE HOUSING SOCIETY LTD. VS. ITO 88 ITD 159 TO HOLD THA T TRANSFER FEE RECEIVED FROM THE INCOMING MEMBER IS ASSESSABLE TO TAX BECAU SE PRINCIPLES OF MUTUALITY DOES NOT APPLY TO SUCH RECEIPT. HOWEVER, THIS DECISION OF THE SPECIAL BENCH WAS OVERRULED BY THE HONBLE BOMBAY H IGH COURT IN THE CASE OF SIND CO-OPERATIVE HOUSING SOCIETY LTD. 317 ITR 447 AND IN ASSESSEES OWN CASE (SUPRA) THE HONBLE HIGH COURT ACCEPTED HIS PLEA AND THUS THE ORDER PASSED BY THE ITAT SUFFERS FROM MISTAKE APPARENT FROM RECORD. 2 3. HAVING REGARD TO THE CONTENTION OF THE ASSESSEE AND ALSO IN THE LIGHT OF DECISIONS CITED (SUPRA) WE ARE OF THE VIEW THAT THE IMPUGNED ORDER SUFFERS FROM MISTAKE APPARENT FROM RECORD. IT MAY NOT BE OUT OF PLACE TO MENTION THAT THE HONBLE SUPREME COURT, IN THE CASE OF SOURASHTRA-KUTCH STOCK EXCHANGE 305 ITR 227, HELD T HAT A DECISION OF THE TRIBUNAL TO THE EXTENT THAT IT IS CONTRARY TO A LATER DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, GIVES RAISE TO M ISTAKE APPARENT FROM RECORD RECTIFIABLE UNDER SECTION 254 (2) OF THE I.T . ACT, 1961. WE THEREFORE, HOLD THAT THE AMOUNTS RECEIVED BY THE AS SESSEE ARE NOT CHARGEABLE TO TAX SINCE PRINCIPLES OF MUTUALITY ARE APPLICABLE AND ACCORDINGLY DECIDE GROUNDS 2 AND 3 IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 4. IN THE RESULT, MA FILED BY THE ASSESSEE IS ALLO WED. PRONOUNCED ACCORDINGLY. SD/- SD/- (J.SUDHAKAR REDDY) ( D MANMOHAN ) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI : DATED: 19 TH APRIL, 2010 VBP/- COPY FORWARDED TO: 1 M/S. VENKATESH PREMISES COOP. SOCIETY LTD. HOECHS T HOUSE, 193, BACKBAY RECLAMATION, NARIMAN POINT, MUMBAI 400 02 1. PAN AADFV-1309-E 2 ITO, 12 (3) (2), AAYAKAR BHAVAN, M.K. ROAD, MUMBA I 400 020. 3 CIT (A)-XII, MUMBAI. 4 CIT-XII, MUMBAI. 5 DR F BENCH 6. GUARD FILE /TRUE COPY/ BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI 3 SL. NO. PARTICULARS DATE INITIAL 1. DRAFT DICTATED ON 16-04-2010 SR. P.S. 2. DRAFT PLACED BEFORE THE MEMBER 16-04-2010 SR. P.S. 3 DRAFT APPROVED AND SENT TO SECOND MEMBER V.P. 4. DRAFT APPROVED BY SECOND MEMBER A.M. 5. DRAFT RECEIVED BY SR. P.S. SR. P.S. 6. KEPT FOR PRONOUNCEMENT SR. P.S. 7. SENT TO BENCH CLERK SR. P.S. 8. DATE OF DISPATCH OF THE ORDER