ACIT CIR 21(1), MUMBAI v. JAI HIND CO-OP HSG. SOCIETY LTD, MUMBAI

ITA 4737/MUM/2009 | 2006-2007
Pronouncement Date: 06-10-2010 | Result: Dismissed

Appeal Details

RSA Number 473719914 RSA 2009
Assessee PAN AAAAJ2782R
Bench Mumbai
Appeal Number ITA 4737/MUM/2009
Duration Of Justice 1 year(s) 1 month(s) 23 day(s)
Appellant ACIT CIR 21(1), MUMBAI
Respondent JAI HIND CO-OP HSG. SOCIETY LTD, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 06-10-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted J
Tribunal Order Date 06-10-2010
Date Of Final Hearing 22-09-2010
Next Hearing Date 22-09-2010
Assessment Year 2006-2007
Appeal Filed On 13-08-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'J' BENCH MUMBAI BEFORE SHRI D.K. AGARWAL JUDICIAL MEMBER AND SHRI PRAMOD KUMAR ACCOUNTANT MEMBER ITA NO. 4737/MUM/2009 (ASSESSMENT YEAR: 2006-07) ACIT CIRCLE - 21(1) M/S. JAI HIND CHS LTD. ROOM NO. 601 6TH FLOOR PLOT NO. 51 JAI HIND RECRE ATION CLUB PRATYAKSHAKAR BHAVAN BKC VS. N.S. ROAD NO. 11 JUHU BANDRA (E) MUMBAI 400051 MUMBAI 400049 PAN - AAAAJ 2782 R APPELLANT RESPONDENT APPELLANT BY: SHRI SURENDRA KUMAR RESPONDENT BY: SHRI RAJESH SHAH O R D E R PER D.K. AGARWAL J.M. THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AG AINST THE ORDER DATED 01.05.2009 PASSED BY THE LEARNED CIT(A) FOR A .Y. 2006-07. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSES SEE IS A COOPERATIVE SOCIETY. ASSESSEE FILED RETURN DECLARING TOTAL INCO ME AT NIL. HOWEVER THE ASSESSMENT WAS COMPLETED AT AN INCOME OF ` 79 49 270/- VIDE ORDER DATED 19.12.2008 PASSED UNDER SECTION 143(3) OF THE I.T. ACT 1961 (THE ACT). ON APPEAL THE LEARNED CIT(A) WHILE PARTLY ALLOWING TH E APPEAL ALLOWED SUBSTANTIAL RELIEF TO THE ASSESSEE. 3. BEING AGGRIEVED BY THE ORDER OF THE CIT(A) THE REVE NUE IS IN APPEAL BEFORE US. 4. GROUND NO. 1 IS AGAINST DELETION OF ADDITION OF TRA NSFER FEES OF ` 12 00 000/- MADE BY THE A.O. 5. THE BRIEF FACTS OF THE ABOVE ISSUE AS OBSERVED BY THE LEARNED CIT(A) ARE THAT THE A.O. DID NOT DISCUSS THIS ISSUE AS TO WHY THE AMOUNT OF ` 12 00 000/- IS CONSIDERED AS INCOME FOR THE YEAR IN APPEAL. THE A.O. MADE THE ADDITION PRESUMABLY ON THE GROUND THAT THE ASSE SSEE ITSELF HAS SHOWN ITA NO. 4737/MUM/2009 M/S. JAI HIND CHS LTD. 2 THE AMOUNT OF ` 12 00 000/- AS INCOME FROM OTHER SOURCE IN THE COMP UTATION OF INCOME. BEFORE THE LEARNED CIT(A) IT WAS POINTED THAT THERE WAS NO RECEIPT BY WAY OF TRANSFER FEES FROM SHRI RAMESH GOENKA DU RING THE YEAR UNDER APPEAL. SHRI RAMESH GOENKA HAS SUBMITTED HIS PAPER FOR TRANSFER OF FLAT NO. 43. HOWEVER THE ASSESSEE HAD NOT CONSIDERED THIS A PPLICATION DURING THE YEAR UNDER APPEAL THE RECEIPT OF ` 12 00 000/- WAS SHOWN UNDER THE HEAD DEPOSIT. THROUGH OVER SIGHT AND PRESUMING THAT TH E TRANSFER APPLICATION SUBMITTED BY SHRI RAMESH GOENKA WAS PROCESSED AND A CCEPTED THE ASSESSEE HAD RETURNED THE INCOME FOR THE YEAR UNDER APPEAL. IT WAS FURTHER SUBMITTED THAT THE TRANSFER APPLICATION SUBMITTED B Y SHRI GOENKA WAS PROCESSED AND ACCEPTED IN A.Y. 2007-08 AND THE ASSE SSEE HAS RETURNED THE INCOME FOR THE SAID ASSESSMENT YEAR SUBJECT TO THE DECISION OF THE HON'BLE SUPREME COURT ON THE PRINCIPLES OF MUTUALITY. IT WA S THEREFORE SUBMITTED THAT THE AMOUNT OF ` 12 00 000/- WHICH HAS BEEN ASSESSED AS INCOME FROM OTHER SOURCES FOR THE YEAR UNDER APPEAL AND AGAIN T AXED FOR A.Y. 2007-08 ON ACCRUAL BASIS AMOUNTS TO DOUBLE ASSESSMENT. THE LEA RNED CIT(A) WHILE OBSERVING THAT THE INCOME BY WAY OF TRANSFER FEES W OULD ACCRUE ONLY ON THE ACCEPTANCE OF THE TRANSFER APPLICATION OF SHRI GOEN KA AND THIS ASPECT HAS BEEN FINALISED IN A.Y. 2007-08 HE WAS OF THE VIEW THAT INCOME OF ` 12 00 000/- BY WAY OF TRANSFER FEE IS ASSESSABLE IN A.Y. 2007-08 AND NOT IN A.Y. 2006-07 AND ACCORDINGLY HE DELETED THE ADDITIO N MADE BY THE A.O. 6. AT THE TIME OF HEARING THE LEARNED D.R. SUPPORTS AN D ORDER OF THE A.O. 7. ON THE OTHER HAND THE LEARNED COUNSEL FOR THE ASSE SSEE SUPPORTS THE ORDER OF THE LEARNED CIT(A). 8. HAVING CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD AND IN TH E ABSENCE OF ANY MATERIAL TO SHOW THAT THE TRANSFER FEES OF ` 12 00 000/- HAS NOT BEEN ASSESSED AS INCOME FOR A.Y. 2007-08 WE ARE OF THE VIEW THAT TAX ING THE SAME IN THE YEAR UNDER CONSIDERATION AMOUNTS TO DOUBLE ADDITION AND ACCORDINGLY WE ARE INCLINED TO UPHOLD THE FINDINGS OF THE LEARNED CIT( A) IN DELETING THE SAME. GROUND TAKEN BY THE REVENUE IS THEREFORE REJECTED . ITA NO. 4737/MUM/2009 M/S. JAI HIND CHS LTD. 3 9. GROUND NOS. 2 & 3 ARE AGAINST DELETION OF ADDITION MADE ON ACCOUNT OF TDR PREMIUM OR ` 57 46 540/-. 10. THE BRIEF FACTS OF THE ABOVE ISSUE ARE THAT IT HAS BEEN OBSERVED BY THE A.O. THAT THE ASSESSEE HAS RECEIVED TDR PREMIUM AMO UNTING TO ` 57 46 540/- AND THE SAME HAS BEEN CLAIMED AS EXEMPT ON THE PRINCIPLES OF MUTUALITY. HOWEVER THE A.O. WHILE OBSERVING THAT I N THE EARLIER ASSESSMENT YEARS 1999-2000 2000-01 AND 2003-04 THE SAME HAS B EEN ADDED AS INCOME OF THE ASSESSEE AND FOR THE SAME REASONS THE PRINCIPLES OF MUTUALITY DOES NOT HOLD GOOD. HE FURTHER OBSERVED THAT THE DE PARTMENT HAS NOT ACCEPTED THE ORDER OF THE LEARNED CIT(A) AND THE TR IBUNAL AND APPEAL HAS BEEN FILED UNDER SECTION 260A BEFORE HON'BLE HIGH C OURT AND ACCORDINGLY HE ADDED THE TDR PREMIUM OF ` 57 46 540/- AS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. ON APPEAL THE LEARNED CIT(A) FOLLOWING THE TRIBUNAL ORDER IN ASSESSEES OWN CASE AND OTHER DECISIONS OF THE TRIBUNAL ON SIMILAR ISSUE HAS DELETED THE ADDITION MADE BY THE A.O. 11. AT THE TIME OF HEARING THE LEARNED D.R. SUBMITS THA T FOR THE REASONS AS MENTIONED IN THE ASSESSMENT ORDER THE LEARNED CIT( A) WAS NOT JUSTIFIED IN DELETING THE ADDITION MADE BY THE A.O. HE THEREFOR E SUBMITS THAT THE ADDITION MADE BY THE A.O. BE RESTORED. 12. ON THE OTHER HAND THE LEARNED COUNSEL FOR THE ASSE SSEE WHILE RELYING ON THE ORDER OF THE CIT(A) SUBMITS THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 1999-2000 2000-01 AND 2005-06. HE ALSO PLACE D ON RECORD THE ORDERS OF THE TRIBUNAL. HE THEREFORE SUBMITS THAT THE ORDER PASSED BY THE LEARNED CIT(A) IN DELETING THE DISALLOWANCE BE UPHE LD. 13. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND M ERIT IN THE PLEA OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE IMPUGNED ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF T HE TRIBUNAL IN ASSESSEE OWN CASE IN THE JAI HIND CO-OPERATIVE HOUSING SOCIE TY LTD. VS. ITO IN ITA NOS. 150 & 151/MUM/2004 FOR ASSESSMENT YEARS 1999-2 000 AND 2000-01 DATED 31 ST DECEMBER 2007 WHEREIN IT HAS BEEN HELD THAT THE RE CEIPT RECEIVED ITA NO. 4737/MUM/2009 M/S. JAI HIND CHS LTD. 4 BY THE ASSESSEE SOCIETY ON ACCOUNT OF TDR PREMIUM I S CONSIDERED TO BE NON- TAXABLE ON GROUND OF MUTUALITY. THE ABOVE ORDER OF THE TRIBUNAL HAS BEEN FOLLOWED IN ASSESSEES OWN CASE IN ITO VS. JAI HIND CHS LTD. IN ITA NO. 4020/MUM/2008 FOR A.Y. 2005-06 DATED 06.08.2009. IN THE ABSENCE OF ANY DISTINGUISHING FEATURES BROUGHT ON RECORD BY THE RE VENUE WE RESPECTFULLY FOLLOWING THE CONSISTENT VIEW OF THE TRIBUNAL DECLI NE TO INTERFERE WITH THE ORDER PASSED BY THE CIT(A) ON THIS ACCOUNT AND ACCO RDINGLY THE GROUNDS TAKEN BY THE REVENUE ARE REJECTED. 14. GROUND NO. 4 IS AGAINST DELETION OF DISALLOWANCE OF EXPENSES OF ` 37 11 781/-. 15. THE BRIEF FACTS OF THE ABOVE ISSUE ARE THAT THE A.O . HAS DISALLOWED AN EXPENSES OF ` 37 11 781/- ON THE GROUND THAT THE SAME ARE NOT INC URRED FOR EARNING INCOME. BEFORE THE LEARNED CIT(A) THE ASSES SEE HAS FILED DETAILS OF THE EXPENSES. THE LEARNED CIT(A) AFTER CONSIDERING THE NATURE OF EXPENSES FOLLOWED THE APPELLATE ORDERS FOR ASSESSMENT YEARS 2001-02 AND 2005-06 AND HELD THAT THE EXPENSES ARE ALLOWABLE TO THE EXT ENT OF ` 33 13 028/- AS AGAINST THE CLAIM OF ` 37 11 781/-. 16. AT THE TIME OF HEARING THE LEARNED D.R. SUPPORTS TH E ORDER OF THE A.O. 17. ON THE OTHER HAND THE LEARNED COUNSEL FOR THE ASSE SSEE SUPPORTS THE ORDER OF THE LEARNED CIT(A). IN THE ALTERNATIVE HE SUBMITS THAT IN VIEW OF THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE HE HAS NO OBJECTION IF THE ISSUE IS SET ASIDE TO THE FILE OF THE A.O. 18. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT IT HAS BEEN OBSERVED BY THE LEARNED CIT(A) THAT ALTHOUGH BIFURCATION OF THE EXPENDITURE HAS BEEN FURNISHED BEFORE THE A.O. ITEMS HAS NOT BEEN DEALT WITH BY HIM SEPARATELY. THE LEARNED CIT(A) AFTER CONSIDERING THE DETAILS F ILED BY THE ASSESSEE BEFORE HIM WITHOUT GIVING ANY OPPORTUNITY TO THE A.O. HAS ACCEPTED THE CLAIM OF THE ASSESSEE TO THE EXTENT OF ` 33 13 028/-. THIS IS A CLEAR VIOLATION OF RULE 46A OF THE INCOME TAX RULES. THIS BEING SO AND KEEP ING IN VIEW THAT THE NEXUS HAS NOT BEEN PROVED BY THE ASSESSEE AND ALSO FOLLOWING THE ORDER OF ITA NO. 4737/MUM/2009 M/S. JAI HIND CHS LTD. 5 THE TRIBUNAL FOR A.Y. 2005-06 WHEREIN THE TRIBUNAL HAS SENT BACK THE MATTER TO THE FILE OF THE A.O. FOR FRESH CONSIDERATION WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE THE MATTER SHOULD GO BACK TO TH E FILE OF THE A.O. AND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LE ARNED CIT(A) ON THIS ACCOUNT AND SEND BACK THE MATTER TO THE FILE OF THE A.O. WHO SHALL EXAMINE THE SAME AFRESH IN THE LIGHT OF OUR OBSERVATIONS HE REINABOVE AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. GROUND TAKEN BY THE REVENUE IS THEREFORE PARTLY ALL OWED FOR STATISTICAL PURPOSE. 19. THE OTHER GROUNDS ARE GENERAL IN NATURE AND IN THE ABSENCE OF ANY SPECIFIC PLEA THE SAME ARE THEREFORE REJECTED. 20. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH OCTOBER 2010. SD/- SD/- (PRAMOD KUMAR) (D.K. AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 6 TH OCTOBER 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XXI MUMBAI 4. THE CIT XXI MUMBAI CITY 5. THE DR J BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P.