ITO WD 21(2)(4), MUMBAI v. VITHALNAGAR CO- OPERATIVE HSG. SOCIETY, MUMBAI

ITA 5887/MUM/2009 | 2002-2003
Pronouncement Date: 28-01-2011 | Result: Dismissed

Appeal Details

RSA Number 588719914 RSA 2009
Bench Mumbai
Appeal Number ITA 5887/MUM/2009
Duration Of Justice 1 year(s) 2 month(s) 23 day(s)
Appellant ITO WD 21(2)(4), MUMBAI
Respondent VITHALNAGAR CO- OPERATIVE HSG. SOCIETY, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted F
Tribunal Order Date 28-01-2011
Date Of Final Hearing 18-01-2011
Next Hearing Date 18-01-2011
Assessment Year 2002-2003
Appeal Filed On 05-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F MUMBAI BEFORE SHRI S V MEHROTRA ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO JUDICIAL MEMBER ITA NO. 5887/MUM/2009 (ASSESSMENT YEAR 2002-03) INCOME TAX OFFICER WARD 21(2)(4) PRATYAKSHA KAR BHAVAN 503 C-10 BANDRA KURLA COMPLEX BANDRA (E) MUMBAI-400051 . APPELLANT VS THE VITHALNAGAR CO-OPERATIVE HOUSING SOCIETY PLOT NO.51 2 ND FL JAI HIND CLUB N S ROAD NO.11 JVPD SCHEME VILE PARLE (W) MUMBAI-400056 RESPONDENT APPELLANT BY : SHRI ABAMNI KANTA NAYAK RESPONDENT BY : SHRI SHALIN S DIVAT IA O R D E R PER VIJAY PAL RAO JM THIS APPEAL BY THE REVENUE DIRECTED AGAINST THE ORD ER DATED 17.08.2009 OF THE CIT(A) ARISING FROM THE PE NALTY ORDER PASSED U/S 271(1)( C ) FOR THE ASSESSMENT YEAR 2002 -03. ITA NO. 5887/MUM/2009 (ASSESSMENT YEAR 2002-03) 2 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL: 1) (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY OF RS.4 66 704 LEVIED BY THE AO U/S 271(1)( C ) OF THE IT ACT 1961; (II) BY DELETING THE PENALTY LEVIED U/S 271(1)( C ) THE CIT(A) HAS ERRED ON THE GROUNDS THAT ONCE THE SUBSTANTIATIE ADDITION HAS BEEN ANALYZED AND CONFIRMED BY THE APPELLATE AUTHORITY IT AUTOMATICA LLY LEADS TO THE CONCLUSION OF THE CONCEALMENT OF INCOM E OR FILING OF THE INACCURATE PARTICULARS OF INCOME DEPENDING UPON THE FACTS OF THE CASE 2. WE HAVE HEARD THE LEARNED DR AS WELL AS THE LEAR NED AR OF THE ASSESSEE AND CONSIDERED THE RELEVANT RECORD. WE FIND THAT WHILE COMPLETING THE ASSESSMENT U/S 143(3) ON 24.3.2005 THE AO MADE THE FOLLOWING ADDITIONS TO THE TOTAL I NCOME OF THE ASSESSEE (A) IN RESPECT OF REFUNDABLE DEPOSITS FOR CONSTRUCTION BY MEMBERS USING TDR RS.20 16 400/- AND (B) IN RESPECT OF REFUNDABLE DEPOSITS RECEIVED BY THE SOCIETY ON TRANSFER OF PLOTS OF RS.30 52 760/- 3. ON APPEAL THE CIT(A) DELETED THE ADDITION WITH REGARD TO THE REFUNDABLE DEPOSITS FOR CONSTRUCTION BY THE MEM BERS USING THE TDR OF RS.20 16 400/-. ACCORDINGLY THE AO L EVIED THE PENALTY OF RS.4 66 704/- VIDE ORDER DATED 30.3.200 7 UNDER ITA NO. 5887/MUM/2009 (ASSESSMENT YEAR 2002-03) 3 SECTION 271(1)( C ) OF THE ACT IN RESPECT OF THE R EFUNDABLE DEPOSIT RECEIVED FROM THE TRANSFER OF FLATS. 4. ON APPEAL THE CIT(A) HAS DELETED THE PENALTY BY HOLDING AS UNDER : 3.3 I HAVE CAREFULLY CONSIDERED THE ISSUE. THERE IS NO DENYING THE FACT THAT THE ISSUE OF TAXABILITY OF THE TRANSFER FEES AND REFUNDABLE DEPOSITS RECEIVED BY T HE SOCIETY FROM ITS MEMBERS ON THE OCCASION OF TRANSFE R OF PLOTS/FLATS HAS BEEN A CONTENTIONS ISSUE AND PENDING BEFORE VARIOUS COURTS IN THE CASE OF INNUMERABLE SOCIETIES. THEREFORE THE CLAIM MADE BY THE APPELLANT HIDDEN ANY BASIC FACTS WHICH AMOUNTS TO FILING OF INACCURATE PARTICULARS OF INCOME. ACCORDI NGLY IT IS HELD THAT PENALTY U/S 271(1)( C ) IS NOT LEV IABLE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THE AO IS DIRECTED TO DELETE THE PENALTY OF RS.4 66 704 LEVI ED U/S 271(1)( C) OF THE IT ACT 5. SINCE THE ISSUE OF TRANSFER OF FEES RECEIVED FRO M THE MEMBERS OF THE SOCIETY IS A DEBATABLE ISSUE AND AS PER THE DECISION OF THE HONOURABLE JURISDICTIONAL HIGH COU RT IN THE CASE OF NEW SINDH CO-OPERATIVE HOUSING SOCIETY REPO RTED IN 317 ITR 47 CANNOT BE TREATED AS INCOME OF THE CO-O PERATIVE HOUSING SOCIETY THOUGH WITH CERTAIN RIDERS. SINCE THE ISSUE IS DEBATABLE ISSUE AND ASSESSEE HAS CLAIMED THE SAME A S EXEMPT INCOME WHICH DOES NOT AMOUNT TO CONCEALMENT OF THE INCOME OR FURNISHING INACCURATE PARTICULARS OF INCO ME WHEN THE PRIMARY FACTS WERE DISCLOSED BY THE ASSESSEE. THE ASSESSEE ALSO RELIED UPON THE DECISIONS OF THE HONBLE SUPRE ME COURT IN ITA NO. 5887/MUM/2009 (ASSESSMENT YEAR 2002-03) 4 THE CASE OF CIT V/S RELIANCE PETROPRODUCTS PVT.LT D REPORTED IN 322 ITR 158(SC). THEREFORE IN VIEW OF THE DECI SION OF THE HON. SUPREME COURT IN THE CASE OF CIT V/S RELIANCE PETROPRODUCTS PVT LTD WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER OF THE LEARNED CIT(A) AND ACCORDINGLY WE CONFIRM THE SAME. 6. IN THE RESULT APPEAL OF THE REVENUE STANDS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.01.2011 SD SD (S V MEHROTRA ) (VIJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL M EMBER MUMBAI DATED 28TH JAN 2011 SRL:18111 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR ITAT MUMBAI