ITO 21(1)-3, MUMBAI v. NAVYUG CHS LTD, MUMBAI

ITA 3399/MUM/2010 | 2004-2005
Pronouncement Date: 22-02-2012 | Result: Dismissed

Appeal Details

RSA Number 339919914 RSA 2010
Assessee PAN AAAAT0325L
Bench Mumbai
Appeal Number ITA 3399/MUM/2010
Duration Of Justice 1 year(s) 9 month(s) 22 day(s)
Appellant ITO 21(1)-3, MUMBAI
Respondent NAVYUG CHS LTD, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 22-02-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted H
Tribunal Order Date 22-02-2012
Date Of Final Hearing 09-02-2012
Next Hearing Date 09-02-2012
Assessment Year 2004-2005
Appeal Filed On 30-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH MUMBAI BEFORE SHRI J. SUDHAKAR REDDY ACCOUNTANT MEMBER A ND SHRI R.S. PADVEKAR JUDICIAL MEMBER ITA NO. 3399/MUM./2010 (ASSESSMENT YEAR : 2004-05 ) INCOME TAX OFFICER WARD-21(1)-3 C-10 R.NO.605 PRATYAKSHAKAR BHAVAN BANDRA KURLA COMPLEX BANDRA (E) MUMBAI 400 051 PAN AAAAT0325L .. APPELLANT V/S M/S. NAVYUG CHS LTD. PLOT NO.51 JAI HIND RECREATION CLUB 11 TH ROAD 2 ND FLOOR JVPD SCHEME JUHU MUMBAI 400 049 PAN AAAAT0325L .... RESPONDENT REVENUE BY : MR. V.V. SHASTRI ASSESSEE BY : MRS. AARTI VISSANJI DATE OF HEARING 09.02.2012 DATE OF ORDER 22.02.2012 O R D E R PER J. SUDHAKAR REDDY A.M. THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AGAINST THE IMPUGNED ORDER DATED 12 TH FEBRUARY 2010 PASSED BY THE COMMISSIONER (APPEALS)-XXXII MUMBAI FOR ASSESSMENT YEAR 2004-0 5 ON THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED CIT(A) ERRED IN DELETING THE PREMIUM ON TRANSFER FEES OF ` 10 60 000 RECEIVED FROM MEMBERS RELYING ON THE DECI SION OF THE M/S. NAVYUG CHS LTD. ITA NO.3399/MUM./2010 2 MUMBAI HIGH COURT IN THE CASE OF SIND COOP. HSG. SO CY. (2009) 26 DTR (BOM.) 149. 2(I) IN DOING SO THE LEARNED CIT(A) HAS ERRED IN I GNORING CERTAIN PARAS OF THE ABOVE CITED JUDGMENT WHEREIN IT IS CAT EGORICALLY STATED THAT THIS CASE LAW WOULD PERTAIN TO THE ASSESSMENT YEARS PRIOR TO NOTIFICATION DATED 9.8.2001 OF GOVT. OF MAHARASHTR A FOR CO. HSG. SOCIETIES. IN THE INSTANT CASE THE ASSESSMENT YEAR BEING PREVIOUS TO THIS NOTIFICATION DATED 27.11.1989 WOULD BE APPLIC ABLE WHICH SPECIFIED A MAXIMUM OF UPTO 1000/- AS TRANSFER PREMIUM PAYABL E AS PER THE THEN BYE LAW OF SOCIETY. (II) IN THE INSTANT CASE THE ASSESSMENT YEAR IN QU ESTION PERTAINS TO PERIOD PRIOR TO THE NOTIFICATION DATED 27.11.1989 O F GOVT. OF MAHARASHTRA FOR C.H.S. BY IGNORING THIS POINT THE LEARNED CIT(A) HAS FAILED TO APPRECIATED THAT PRINCIPLE OF MUTUALITY W ILL NOT APPLY IN THE CASE OF PREMIUM ON TRANSFER FEE AS THE SOCIETY HAS CHARGED MORE AMOUNT THAN THE PERMISSIBLE LIMITS AS PER THE BYE L AW OF CO.OP. HSG. SCTY OR GOVT. NOTIFICATION & THEREFORE THE SOCIETY IS BOUND TO REPAY THE SAME & IF IT RETAINS SUCH EXCESS AMOUNT THEN IT WI LL BE IN THE NATURE OF PROFIT MAKING & SUCH SUM WILL BE ELIGIBLE TO TAX. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED CIT(A) ERRED IN DELETING A SUM OF ` 3 33 662 BEING TDR PREMIUM RECEIVED FROM THE MEMBERS RELYING ON THE DE CISION OF MUMBAI HIGH COURT IN THE CASE OF SIND CHS (2009) 26 DTR 149. 2. AFTER HEARING RIVAL CONTENTIONS WE FIND THAT THE U NDISPUTED FACTS ARE THAT THE ASSESSEE IS A PLOT SOCIETY AND NOT A FLAT SOCIETY. THUS NOTIFICATION DATED 9 TH AUGUST 2001 ISSUED BY GOVT. OF MAHARASHTRA DOES NOT APPLY TO THE FACTS OF THE CASE. THE FIRST APPELLATE AUTHORIT Y HAD FOLLOWED THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT IN SIND CO. OP ERATIVE HOUSING SOCIETY [2009] 26 DTR 149 (BOM.) AND GRANTED RELIEF TO THE ASSESSEE. AS ALL THE RECEIPTS ARE ADMITTEDLY FROM THE MEMBERS WE HAVE T O NECESSARILY UPHOLD THE ORDER OF THE FIRST APPELLATE AUTHORITY AND DISM ISS THE APPEAL OF THE REVENUE. 3. IN THE RESULT REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.2.2012 SD/- R.S. PADVEKAR JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI DATED: 22 ND FEBRUARY 2012 M/S. NAVYUG CHS LTD. ITA NO.3399/MUM./2010 3 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A) MUMBAI CONCERNED; (4) THE CIT MUMBAI CITY CONCERNED; (5) THE DR H BENCH ITAT MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT MUMBAI BENCHES MUMBAI DATE INITIAL 1. DRAFT DICTATED ON 20.2.2012 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 20.2.2012 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 20.2.2012 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 20.2.2012 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 20.2.2012 SR.PS 6. DATE OF PRONOUNCEMENT 22.2.2012 SR.PS 7. FILE SENT TO THE BENCH CLERK 22.2.2012 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER