New Gulistan Chs Ltd, Mumbai vs Department Of Income Tax
- CitationITA No. : 1453/Mum/2011
Ratio decidendi
The rule this decision rests on
The Tribunal dismissed the Revenue's appeal as non-maintainable on the ground that the tax effect fell below the monetary threshold prescribed by the CBDT instruction dated 09.02.2011 (Instruction No. 3/2011), which fixed a minimum tax effect of Rs. 3,00,000 for filing appeals. Where the tax effect of the disputed grounds is below that threshold, the appeal is not maintainable and is dismissed on that basis without adjudication of the merits.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH "G", MUMBAI ᮰ी आर. आर. सी. सी. शमाᭅ, लेखा सद᭭य एवं ᮰ी िववेक वमाᭅ, ᭠याियक सद᭭य के समᭃ । BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ITA No. : 1453/Mum/2011 (Assessment year: 2001-02) Income Tax Officer -16(1)(2), Vs New Gullistan CHS Ltd., Matru Mandir, 13 Carmichael Road, 2nd Floor, Matru Mandir, Tardeo Road, Mumbai -400 026 Mumbai -400 007 ःथयी लेखा सं.:PAN:AAAAN 1756 F अपीलाथȸ (Appellant) ू×यथȸ (Respondent) Appellant by : Shri R N D'Souza Respondent by : Shri Nishtha Pandya
सुनवाई कȧ तारȣख /Date of Hearing : 18-11-2014 घोषणा कȧ तारȣख /Date of Pronouncement : 02-01-2015
आ दे श ORDER िौ ǒववेक वमा[, Ûया स: स: PER VIVEK VARMA, JM:
The appeal is filed by the department against the order of CIT(A)-27, Mumbai, dated 11.11.2010, wherein the following grounds have been taken:
"1. The Ld. CIT(A) erred in deleting the addition on account of transfer charges of Rs. 5,00,000/- following the decision of Hon'ble High Court of Bombay in the case of M/s Suprabhat CHS wherein it has been held that all amounts received by the CHS on the grounds of transfer charges are exempt under the principle of mutuality. The decision has not been accepted by the Department and the issue is sub-judice.
2. The Ld. CIT(A) erred in deleting the addition on account of non-occupancy charges of Rs. 1,40,900/- and shifting charges of Rs. 51,000/- following the decisions of Hon'ble High Court of Bombay in the case of Mittal Court CHS and M/s Suprabhat CHS wherein it has been held that non-occupancy charges taken from members who have let out their flats is exempt under principle of mutuality.
2 New Gullistan CHS Ltd.
ITA 1453/M/2011
3. The appellant craves leave to amend or alter any ground or add ground/s which may be necessary".
2. At the time of hearing, the AR submitted that the grounds taken are identical to the GOA filed by the department in ITA No. 8152/Mum/2011, for assessment year 1999-2000 (where one of us was party), which are as follows:
"1 The Ld. CIT(A) erred in deleting the addition on account of transfer fees of Rs. 12,00,000/- following the decisions of Hon'ble High Court of Bombay in the case of M/s Sind Co-op Hsg. Society, M/s. Suprabhat CHS and M/s. Shyam CHS wherein it has been held that all amounts received by the CHS on the ground of transfer fees are exempt under the principle of mutuality. The decision has not been accepted by the Department and the issue is subjudice. 2 The Ld. CIT(A) in deleting the addition on account of shifting charges of Rs. 32,500/- following the decision of Hon'ble High court in the case of Atlanta Premises CHS by holding that the same is exempt under the principle of mutuality.
3. The appellant craves leave to amend or alter any ground or add ground/s which may be necessary".
3. The AR pointed out that the ITAT had sustained the order of the CIT(A) in deleting the addition made by the AO. The AR also submitted other orders of the ITAT in assessee's own case on the similar GOA.
4. On going through the various orders of the ITAT, we find that the grounds raised are fully covered not only by the order of the ITAT but by the order of Hon'ble Bombay High Court as well in the assessee's own case, wherein ITA(L) No. 1905 of 2010, the appeal filed by the department u/s 260A had been dismissed and the issue of shifting charges on the concept of mutuality is also found covered by the decision of Atlanta Premises Coop. Society.
5. In these unchanged circumstances, we do not find any reason to disturb the order of the CIT(A) and deviates from our own orders as well.
6. We, therefore, reject the grounds taken in the GOA.
3 New Gullistan CHS Ltd.
ITA 1453/M/2011
7. At the time of hearing, the AR also pointed out that the appeal is otherwise non maintainable on the issue of low tax effect as per Instruction No. 3/2011 (F.No. 279/Misc.142/2002 ITJ) dated 09.02.2011 wherein the minimum tax effect should have been Rs. 3,00,000/-.
8. In such a circumstance, the appeal is held to be non maintainable.
9. In the result, the appeal is dismissed as non maintainable. Order pronounced in the open Court on 2nd January, 2015.
(आर.
आर. सी.
सी. शमाᭅ) (िववेक वमाᭅ) Sd/- Sd/-
लेखा सदःय Ûयाईक सदःय (R C SHARMA) (VIVEK VARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Date: 2nd January, 2015
ूित/Copy to:- 1) अपीलाथȸ /The Appellant. 2) ू×यथȸ /The Respondent. 3) The CIT(A)-27, Mumbai. 4) The CIT- 16, Mumbai.
5) ǒवभागीय ूितिनिध "जी", आयकर अपीलीय अिधकरण, मुबं ई/ The D.R. "G" Bench, Mumbai.
6) गाड[ फाईल Copy to Guard File.
आदे शानुसार/By Order / / True Copy / /
उप/सहायक पंजीकार आयकर अपीलीय अिधकरण, मुबं ई Dy./Asstt. Registrar
*च᭪हान व.िन.स I.T.A.T., Mumbai
*Chavan, Sr.PS
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free