ITO, Gurgaon v. M/s HEWO Apartment Owners Welfare Association, Gurgaon

ITA 2328/DEL/2016 | 2012-2013
Pronouncement Date: 29-09-2016 | Result: Dismissed

Appeal Details

RSA Number 232820114 RSA 2016
Assessee PAN AAAAH8013K
Bench Delhi
Appeal Number ITA 2328/DEL/2016
Duration Of Justice 5 month(s)
Appellant ITO, Gurgaon
Respondent M/s HEWO Apartment Owners Welfare Association, Gurgaon
Appeal Type Income Tax Appeal
Pronouncement Date 29-09-2016
Appeal Filed By Department
Order Result Dismissed
Bench Allotted SMC 1
Tribunal Order Date 29-09-2016
Date Of Final Hearing 27-09-2016
Next Hearing Date 27-09-2016
Assessment Year 2012-2013
Appeal Filed On 28-04-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC-I : NEW DELHI BEFORE SHRI R.S. SYAL ACCOUNTANT MEMBER ITA NO.2328/DEL/2016 ASSESSMENT YEAR : 2012-13 ITO WARD 2(1) GURGAON. VS. HEWO APARTMENT OWNERS WELFARE ASSOCIATION GH 41 SECTOR 56 GURGAON. PAN: AAAAH8013K (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI KAPIL GOEL ADVOCATE DEPARTMENT BY : SHRI RAJESH KUMAR SR. DR DATE OF HEARING : 28.09.2016 DATE OF PRONOUNCEMENT : 29.09.2016 ORDER THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER PASSED BY THE CIT(A) ON 16.2.2016 IN RELATION TO THE ASSES SMENT YEAR 2012-13. 2. THE FIRST GROUND IS AGAINST THE DELETION OF A DDITION OF RS.1 48 600/- MADE BY THE AO BY TREATING THE `RECEIPT FROM BOOKI NG OF COMMUNITY CENTRE AS TAXABLE INCOME. THE AO OBSERVED THAT TH IS AMOUNT WAS SHOWN ITA NO.2328/DEL/2016 2 TO HAVE BEEN RECEIVED FROM NON-MEMBERS. THE ASSESSE E WAS CALLED UPON TO EXPLAIN AS TO WHY THE PRINCIPLE OF MUTUALITY BE NOT IGNORED BECAUSE THIS AMOUNT WAS RECEIVED FROM NON-MEMBERS. THE ASSESSEE CONTENDED THAT NO AMOUNT WAS RECEIVED FROM NON-MEMBERS AND THE ENTIRE RECEIPT WAS ONLY FROM ITS MEMBERS. NOT CONVINCED THE AO MADE ADDIT ION FOR THIS SUM. THE LD. CIT(A) DELETED THIS ADDITION BY OBSERVING T HAT THIS AMOUNT WAS RECEIVED ONLY FROM MEMBERS AND NOT FROM NON-MEMBERS . 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD. THE WHOLE CASE OF THE AO IS THAT SINCE THE AMOUNT WAS RECEIVED FROM NON-MEMBERS HENCE THE MUTUALITY LACK ED AND THE AMOUNT BECAME CHARGEABLE TO TAX. IT IS SEEN THAT THE ASSES SEE CATEGORICALLY STATED BEFORE THE AO THAT COMMUNITY CENTRE WAS AVAILABLE F OR USE ONLY TO THE MEMBERS AND NOT TO THE NON-MEMBERS. THIS WAS REITE RATED BEFORE THE LD. CIT(A) AND A COPY OF RESOLUTION WAS APPENDED AS PER WHICH THE COMMUNITY CENTRE SERVICES WERE AVAILABLE ONLY TO TH E SOCIETY RESIDENTS SINCE INCEPTION. THE AO TOOK THE AMOUNT AS HAVING B EEN RECEIVED FROM NON-MEMBERS ON THE BASIS OF DEPICTION IN THE INCOME AND EXPENDITURE ACCOUNT OF THE ASSESSEE WHICH IS AS UNDER : - ITA NO.2328/DEL/2016 3 `OTHER INCOME MEMBERS & NON-MEMBERS BOOKING OF COMMUNITY CENTRE 1 48 600 TRANSFER FROM CHANDIGARH 40 00 000 BANK INTEREST 35 588 FDRS INTEREST ACCRUED BUT NOT DUE 19 232 42 03 420 4. IT IS OBVIOUS FROM THE ABOVE THAT THERE IS A COMMON HEADING OF INCOME FROM MEMBERS AND NON-MEMBERS. THEN THERE ARE TRANSACTIONS BOTH WITH THE MEMBERS AND NON-MEMBERS. FROM A TOTAL MIX OF INCOME FROM BOTH THE STREAMS RECEIPT OF BANK INTEREST AND FDR INTEREST ARE FROM TRANSACTIONS WITH NON-MEMBERS AND THE RECEIPT FROM BOOKING OF COMMUNITY CENTRE IS FROM MEMBERS AS WAS FORCEFULLY CONTENDED BY THE ASSESSEE BEFORE THE AO. ONCE IT IS SHOWN THAT THE C OMMUNITY CENTRE WAS AVAILABLE ONLY TO THE MEMBERS THERE CAN BE NO REAS ON FOR TREATING ITS USE AS FOR NON-MEMBERS AND CONSEQUENTLY MAKING THE ADDI TION. I THEREFORE UPHOLD THE IMPUGNED ORDER ON THIS SCORE. ITA NO.2328/DEL/2016 4 5. THE ONLY OTHER GROUND IS AGAINST THE DELETION OF DISALLOWANCE OF RS.40 LAC MADE BY THE AO. THE FACTS OF THIS GROUND ARE THAT THE ASSESSEE SHOWED A RECEIPT OF RS.40 LAC UNDER THE HEAD TRANS FER FROM CHANDIGARH. ON BEING CALLED UPON TO EXPLAIN THE NATURE OF THIS RECEIPT THE ASSESSEE SUBMITTED THAT IT WAS RECEIVED FROM HEWO PANCHKULA FOR MAINTENANCE WORK. NOT SATISFIED THE AO MADE DISALLOWANCE. TH E LD. CIT(A) RELYING ON AN ORDER DATED 13.11.2009 PASSED BY THE DELHI BE NCH OF THE TRIBUNAL UNDER SIMILAR CIRCUMSTANCES IN HEWO APARTMENT ASSOCIATION FLAT NO. 98 HEWO APARTMENTS SECTOR 15 PART II GURGAON H ARYANA VS. ITO IN ITA NO.2952/DEL/2009 DELETED THE DISALLOWANCE. THE REVENUE IS AGGRIEVED AGAINST SUCH DELETION. 6. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD. A COPY OF THE TRIBUNAL ORDER RELIED ON BY THE LD. CIT(A) IS AVAILABLE ON RECORD. PARA 9 OF THIS ORDER DISCUSSE S THE NATURE OF AMOUNT AS TRANSFER FEES RECEIVED BY THAT ASSESSEE FROM HEWO PANCHKULA. THE TRIBUNAL OBSERVED THAT THE AMOUNT OF TRANSFER FEE R ECEIVED BY THAT ASSESSEE COULD NOT BE TREATED AS AN INCOME. NO DIFFERENCE IN THE NATURE OF RECEIPT BY THAT ASSESSEE AND THE INSTANT ASSESSEE HAS BEEN POINTED OUT BY THE LD. ITA NO.2328/DEL/2016 5 DR. RESPECTFULLY FOLLOWING THE PRECEDENT I UPHOLD THE VIEW TAKEN BY THE LD. CIT(A). THIS GROUND FAILS. 7. IN THE RESULT THE APPEAL IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 29.09.20 16. SD/- [R.S. SYAL] ACCOUNTANT MEMBER DATED 29 TH SEPTEMBER 2016. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT AR ITAT NEW DELHI.