WALKESHWAR GITANJALI CHS LTD, MUMBAI v. ITO 16(1)(2), MUMBAI

ITA 6158/MUM/2009 | 1999-2000
Pronouncement Date: 20-08-2010 | Result: Allowed

Appeal Details

RSA Number 615819914 RSA 2009
Assessee PAN AAAAW0159M
Bench Mumbai
Appeal Number ITA 6158/MUM/2009
Duration Of Justice 8 month(s) 24 day(s)
Appellant WALKESHWAR GITANJALI CHS LTD, MUMBAI
Respondent ITO 16(1)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 20-08-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 20-08-2010
Date Of Final Hearing 12-08-2010
Next Hearing Date 12-08-2010
Assessment Year 1999-2000
Appeal Filed On 26-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G MUMBAI BEFORE SHRI D.K. AGARWAL J.M. AND SHRI A.L. GEHLOT A.M. ITA NO. 6158/M/2009 ASSESSMENT YEAR: 1999-2000 WALKESHWAR GITANJALI CGS LTD. APPELLANT 73-75 WALKESHWAR ROAD MUMBAI 400 008. (PAN AAAAW0159M) VS. INCOME TAX OFFICER 16(1)(2) RESPONDENT AAYKAR BHAVAN MUMBAI. APPELLANT BY : MR. JAYESH DADIA RESPONDENT BY : MR. A.K. NAYAK ORDER PER A.L. GEHLOT A.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT(A)-27 MUMBAI PASSED ON 7 TH OCTOBER 2009 FOR THE ASSESSMENT YEAR 1999-2000. 2. TWO EFFECTIVE GROUNDS ARE RAISED IN THIS APPEAL NAMELY ADDITION OF RS. 3 79 700/- ON ACCOUNT OF VOLUNTARY CONTRIBUTION AND ADDITION ON ACCOUNT OF INTEREST EARNED FROM NAT IONALIZED BANK NOT ACCEPTING PRINCIPLE OF MUTUALITY. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE IS A COOPERATIVE HOUSING SOCIETY WHICH COLLECTS MAINTEN ANCE CHARGES FROM ITS MEMBERS TO MEET VARIOUS EXPENSES MUNICIPA L TAXES ETC. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTICED THAT THE SOCIETY RECEIVED VOLUNTARY CONTRIBUTION OF RS. 3 79 700/- FROM M/S URVASHIBEN SHAH A MEMBER AND OWNER OF FLAT NO. 65. SHE ALSO PAID RS. 25 000/- AS TRANSFER FEE WHICH IS AS PER MAHARASHTRA COOPERATIVE SOCIETY ACT. THE ASSESSEE CLAIMED THESE AMOUNTS TO BE EXEMPT ON THE PRINCIPLE OF MUTUALITY. THE AO MADE A DDITION OF BOTH THE SAID AMOUNTS. CIT(A) DELETED THE ADDITION OF RS . 25 000/- ITA NO. 6158/M/09 WALKESHWAR GITANJALI CHS LTD. 2 FOLLOWING THE DECISION OF ITAT IN THE CASE OF WALKE SH TRIVENI HOUSING SOCIETY. HOWEVER HE SUSTAINED THE ADDITION OF RS. 3 79 700/- ON ACCOUNT OF VOLUNTARY CONTRIBUTION. 4. THE LEARNED AR SUBMITTED THAT THE ISSUE IS SQUA RELY COVERED BY VARIOUS JUDGMENTS OF JURISDICTIONAL HIGH COURT I NCLUDING THE JUDGMENT OF SIND CO-OPERATIVE HOUSING SOCIETY LTD. V. ITO 317 ITR 47. THE LEARNED AR FURTHER SUBMITTED THAT INTER EST INCOME IS ALSO COVERED BY THE PRINCIPLE OF MUTUALITY. THE LEA RNED AR RELIED UPON ANOTHER JUDGMENT HONBLE JURISDICTIONAL HIGH C OURT IN THE CASE OF SU PRABHAT CO-OPERATIVE HOUSING SOCIETY LTD . VIDE INCOME TAX APPEAL NO. 1972 OF 2009 JUDGMENT DATED 1 ST OCTOBER 2009. THE SUBSTANTIAL QUESTION BEFORE THE HONBLE HIGH CO URT AND FINDING THERE ON READS AS UNDER:- APPEAL IS ADMITTED ON THE FOLLOWING SUBSTANTIAL QUE STION OF LAW:- 1) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE APPELLATE TRIBUNAL WAS RIGHT IN COMING TO THE CONCL USION THAT THE PRINCIPLE OF MUTUALITY DOES NOT APPLY TO V ARIOUS AMOUNTS RECEIVED BY THE APPELLANT ? 2) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE SUM OF RS. 2 44 000/- RECEIVED FROM ITS MEMBERS IS LIABLE TO BE TAXED AS INCOME OF THE APPELLANT ? 3) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE SUM OF RS. 20 695/- RECEIVED AS INTEREST IS LIABLE TO BE TAXED AS INCOME OF THE APPELLANT ? RELEVANT FINDING READS AS UNDER: BOTH PARTIES AGREE THAT THE AFORESAID THREE QUESTI ONS ARE COVERED BY THE JUDGMENT OF THE OF DIVISION BENCH OF THIS COURT DATED 17 TH JULY 2009 IN INCOME TAX APPEAL NO. 931/2004 (SIND CO-OP. HSG. SOCIETY V. INCOME TAX OFFICER) RE PORTED IN [2009] 26 DTR (BOM.) 149. ACCORDINGLY ALL THE THRE E QUESTIONS ARE ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. APPEAL IS DISPOSED OF IN TERMS OF THIS ORD ER WITH NO ORDER AS TO COSTS. 5. THE LEARNED AR HAS ALSO RELIED UPON THE OTHER CA SES OF THE ITAT AND PHOTO COPIES OF THOSE DECISIONS HAVE BEEN FILED ON RECORD. 6. THE LEARNED DR ON THE OTHER HAND RELIED UPON T HE ORDER OF CIT(A) AND IN RESPECT OF INTEREST HE SUBMITTED THA T INTEREST IS NOT EXEMPT UNDER THE PRINCIPLES OF MUTUALITY FOR WHICH HE RELIED UPON ITA NO. 6158/M/09 WALKESHWAR GITANJALI CHS LTD. 3 THE JUDGMENT OF HONBLE MADRAS HIGH COURT IN THE C ASE OF MADRAS GYMKHANA CLUB VS. DCIT [2009] 183 TAXMAN 333 (MADR AS). 7. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND PERUSED THE RECORD. WE FIND THAT THE JUDGMENT OF TH E HONBLE MADRAS HIGH COURT POINTED OUT BY THE LEARNED DR DOE S NOT HELP TO THE CASE OF THE REVENUE BECAUSE THE ISSUE IS COVERE D BY THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN TH E CASE OF SU PRABHAT CO-OPERATIVE HOUSING SOCIETY LTD. AND SIND CO-OPERATIVE HOUSING SOCIETY LTD CITED SUPRA. WE RESPECTFULLY FO LLOW THE AFORESAID JUDGMENT OF THE HONBLE JURISDICTIONAL HI GH COURT AND IN THE LIGHT OF THAT BOTH THE ADDITIONS OF RS. 3 79 70 0/- AND INTEREST AMOUNT OF RS. 2 31 076/- ARE DELETED. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. PRONOUNCED IN THE OPEN COURT ON THIS 20 TH DAY OF AUGUST 2010. SD/- SD/- (D. K. AGARWAL) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED: 20 TH AUGUST 2010 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE G BENCH I.T .A.T. MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR I.T.A.T. MUMBAI. KV