New Breach Candy Co Op Hsg Society Ltd, ... vs Department Of Income Tax

आयकर अपील य अ धकरण, मुंबई यायपीठ "डी " मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL" D" BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND AMIT SHUKLA, (JM) सव ी बी.आर.बा करन, लेखा सद य एवं अ मत शु ला, या यक सद य के सम

आयकर अपील सं./I.T.A. No.6490/Mum/2013 ( नधारण वष / Assessment Year :2010-11)

Income Tax Officer, 16(2)(1), बनाम/ New Breach Candy Co-op Hsg Room No.221, Vs. Society Ltd, Matru Mandir, 70-C, Tardeo Road, Bhulabhai Desai Road, Mumbai-400007 Mumbai-400026 (अपीलाथ /Appellant) .. ( यथ / Respondent)

थायी ले ख ा सं . /जीआइआर सं . /PAN/GIR No. :AAAAN0005D

अपीलाथ ओर से / Appellant by Shri Akhilendra P Yadav यथ क ओर से/Respondent by Shri Rahul K Hakani

सुनवाई क तार ख / Date of Hearing : 25.3.2015 घोषणा क तार ख /Date of Pronouncement : 25.3.2015

आदे श / O R D E R

PER B.R. BASKARAN (AM)

The appeal filed by the Revenue is directed against the order dated 23.8.2013 passed by Ld.CIT(A)-27, Mumbai and it relates to the assessment year 2010-11

2. The Revenue is assailing the order of ld.CIT(A) in respect of

following issues :

a) Deleting the addition relating to transfer charges;

b) Deleting the addition relating to non-occupancy charges.

2 I . T . A . N o . 6 4 9 0 / Mu m / 2 0 1 3

3. We have heard the parties and perused the record. The assessee is

a Co-operative Housing Society. The AO noticed that the assessee has

received transfer fee and also voluntary contribution from the transferees

of flats, which aggregated to Rs.31 lakhs. Out of the above said amount,

the assessee had refunded the amount of Rs.50,000/- to one of the Flat

owners and credited the balance amount of Rs.30,50,000/- to the

"Common amenities fund account. The AO took the view that as per Bye-

Law of the Co-operative Housing Society, the Co-operative Housing Society

can charge an amount of Rs.25,000/-"only as transfer fee. The AO further

noticed that in the assessment year 2009-10 also, the voluntary

contribution received from the transferees was assessed to income tax.

Even though the assessee relied upon the decision of the Hon'ble Bombay

High Court in the case of Sind Co-operative Housing Society V/s ITO 317

ITR 47 (Bom), the AO refused to follow the same on the reasoning that

the decision of the Jurisdictional High Court was not accepted by the

department and the matter is sub-judice. Accordingly, the AO assessed the

amount of Rs.30,50,000/- as income of the assessee. The AO further

noticed that the assessee has received a sum of Rs.15,001/- as non-

occupancy charges from one of the flat owners. The AO took the view that

the above said receipt is not covered by principle of mutuality and further

in the assessment year 2009-10 an identical receipt was assessed to tax.

3 I . T . A . N o . 6 4 9 0 / Mu m / 2 0 1 3

Accordingly, he assessed the amount of Rs.15,001/- also as income of the

assessee.

4. In the appeal filed by the assessee before the First Appellate

Authority, the First Appellate Authority has deleted both the additions by

following the decision rendered by the Hon'ble Bombay High Court

rendered in the case of Sind Co-operative Housing Society(supra) and the

decision in the case of Mittal Court Premises Co-op. Society Ld. V/s ITO

(2009) 184 Taxman 292 (Bom). Aggrieved by the order of the ld.CIT(A),

the Revenue has filed this appeal before us.

5. Before us, the ld. Counsel appearing for the assessee submitted that

an identical additions have been made by the AO in the assessment year

2009-10 and the both the additions were deleted by the ld.CIT(A) in the

appeal filed by the assessee and the order of ld.CIT(A) was confirmed by

the Co-ordinate Bench of the Tribunal in its order dated 10.1.2014 passed

in the assessee's own case in ITA No.6685/Mum/2012 (AY-2009-10). The

ld. Counsel further submitted that the voluntary contribution received by

the assessee was also subject matter of addition in the assessment years

2004-05 and 2005-06 and the Tribunal had deleted the addition, vide its

order dated 9.10.2009 passed in assessee's own case in ITA

No.4713/Mum/2007 and ITA No.873/Mum/2008 by following the decision

of the Jurisdictional High Court in the case of Sind Co-operative Housing 4 I . T . A . N o . 6 4 9 0 / Mu m / 2 0 1 3

Society(supra). The said order of the Tribunal has since been approved by

the Hon'ble Jurisdictional High Court vide its order dated 6.7.2011 passed

in Income Tax Appeal No.3345 of 2010.

6. The ld. DR did not controvert the factual aspect presented by the ld.

AR.

7. The foregoing discussions would show that the identical additions

have been made in the earlier assessment years and the same has been

deleted by the Tribunal and the order of the Tribunal was confirmed by the

Hon'ble Bombay high Court also by following the decision rendered by it in

the case of Sind Co-operative Housing Society(supra). The Hon'ble

jurisdictional High Court has also in its decision dated 18-12-2014 rendered

in the case of CIT Vs. Darbhanga Mansion CHS Ltd in ITA No.1474 of 2012

has held that the voluntary contributions are also covered by the principle

of mutuality. Further, we notice that the ld.CIT(A) has followed the

decision rendered by the Jurisdictional High Court. Under these

circumstances, we do not find any necessity to interfere with the order

passed by the ld CIT(A) on both issues.

5 I . T . A . N o . 6 4 9 0 / Mu m / 2 0 1 3

8. In the result, the appeal of the Revenue stands dismissed.

The above order was pronounced in the open court on 25th March, 2015.

घोषणा खल ु े यायालय म दनांकः 25th March, 2015 को क गई ।

Sd sd

(अ मत शु ला / AMIT SHUKLA) (बी.आर.बा करन / B.R. BASKARAN) या यक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER

मुंबई Mumbai: 25th March,2015.

व. न.स./ SRL , Sr. PS

आदे श क त ल प अ े षत/Copy of the Order forwarded to :

1. अपीलाथ / The Appellant

2. यथ / The Respondent.

3. आयकर आयु त(अपील) / The CIT(A)- concerned

4. आयकर आयु त / CIT concerned

5. वभागीय त न ध, आयकर अपील य अ धकरण, मुंबई / DR, ITAT, Mumbai concerned

6. गाड फाईल / Guard file.

आदे शानस ु ार/ BY ORDER, True copy सहायक पंजीकार (Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई /ITAT, Mumbai