ITO 21(1)(2), MUMBAI v. THE HATKESH CO. OP. HSG SOCIETY LTD, MUMBAI

ITA 6365/MUM/2009 | 1994-1995
Pronouncement Date: 29-07-2011 | Result: Dismissed

Appeal Details

RSA Number 636519914 RSA 2009
Assessee PAN AAALH0017Q
Bench Mumbai
Appeal Number ITA 6365/MUM/2009
Duration Of Justice 1 year(s) 7 month(s) 19 day(s)
Appellant ITO 21(1)(2), MUMBAI
Respondent THE HATKESH CO. OP. HSG SOCIETY LTD, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 29-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted H
Tribunal Order Date 29-07-2011
Date Of Final Hearing 07-07-2011
Next Hearing Date 07-07-2011
Assessment Year 1994-1995
Appeal Filed On 10-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH: MUMBAI BEFORE SHRI P.M. JAGTAP ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR JUDICIAL MEMBER ITA NO.6365/MUM /2009 (ASSESSMENT YEAR: 1994-95) ASSTT. CIT-CIRCLE 21(1) 6 TH FLOOR ROOM NO.601 PRATYAKSHAKAR BHAVAN BANDRA-KURLA COMPLEX BANDRA (E) MUMBAI-400 051 ....... APPELLANT VS M/S. THE HATKESH CO-OP. HSG. SOC. LTD. VISHNU PRASAD DESAI BHAVAN OPP. MITHIBAI COLLEGE V L MEHTA MARG JVPD SCHEME VILE PARLE (W) MUMBAI -400 056 ..... RESPONDENT PAN: AAALH 0017 Q APPELLANT BY: SHRI T.T. JACOB RESPONDENT BY: NONE O R D E R PER R.S. PADVEKAR JM IN THIS APPEAL THE REVENUE HAS CHALLENGED THE IMPUG NED ORDER OF THE LD. CIT (A)-32 MUMBAI DATED 24.09.2009 FOR THE A.Y. 1994-95 IN WHICH THE PENALTY LEVIED BY THE A.O. U/S.271(1)(C) IS CANCELLED. THE REVENUE HAS TAKEN THE FOLLOWING EFFECTIVE GROUND:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT (A) ERRED IN DELETING PENALTY OF R S 5 70 137/- LEVIED U/S.271(1)(C) OF THE I.T. ACT DE SPITE THE QUANTUM ADDITION BEING CONFIRMED BY THE TRIBUNAL. ITA 6365/MUM/2009 M/S. THE HATKESH CO-OP. HSG. SOC. LTD. 2 2. THE LD. D.R. WAS PRESENT. NONE WAS PRESENT ON B EHALF OF THE ASSESSEE. IT IS SEEN THAT THE NOTICE SENT THROUGH R PAD HAS BEEN RETURNED UN-SERVED BY THE POSTAL AUTHORITIES WITH T HE POSTAL REMARK LEFT. NO OTHER ADDRESSES ARE AVAILABLE ON RECORD . WE HAVE NO OPTION BUT TO DISPOSE OF THIS APPEAL ON MERIT. 3. THE FACTS WHICH REVEALED FROM THE RECORD ARE AS UNDER. THE ASSESSEE IS CO-OPERATIVE HOUSING SOCIETY REGISTERED UNDER THE MAHARASHTRA CO-OPERATIVE SOCIETIES ACT. IN THIS CA SE THE ASSESSEE FILED THE RETURN OF INCOME DECLARING NIL INCOME A ND THERE WAS NO REGULAR ASSESSMENT. SUBSEQUENTLY THE A.O. INITIAT ED THE PROCEEDINGS U/S.147 AND ISSUED NOTICE U/S.148 ON THE REASON THA T THE ASSESSEE HAS CLAIMED THE WRONG DEDUCTION U/S.80P(2)(D) OF TH E ACT. THE A.O. COMPLETED THE ASSESSMENT DETERMINING THE TOTAL INCO ME OF THE ASSESSEE AT RS 12 11 340/-. 4. THE ISSUE IN CONTROVERSY IS WHETHER TRANSFER FEE S OF RS 14 85 862/- WHICH WAS CLAIMED AS EXEMPT UNDER THE HEAD PRINCIPLE OF MUTUALITY AND THE A.O. INITIATED THE PENALTY PR OCEEDINGS AND LEVIED THE PENALTY OF RS 5 70 137/- BY HOLDING THAT THE AS SESSEE HAS CONCEALED THE INCOME TO THE EXTENT OF RS 14 85 862/ -. THE ASSESSEE CHALLENGED THE PENALTY ORDER BEFORE THE LD. CIT (A) THE LD. CIT (A) DELETED THE PENALTY BY HOLDING THAT THE TRANSFER FE E RECEIVED BY THE ASSESSEES HOUSING SOCIETY IS EXEMPT AND AS SAID BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SINDH CHS LTD. 317 ITR 47. 5. WE HAVE HEARD THE LD. D.R. 6. THE ONLY CONTROVERSY SO FAR AS QUANTUM IS CONCER NED I.E. IN RESPECT OF WHETHER THE TRANSFER FEE RECEIVED BY THE ASSESSEE SOCIETY IS EXEMPT ON THE PRINCIPLE OF MUTUALITY. WE FIND THAT ON MERIT THE SAID ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF ITA 6365/MUM/2009 M/S. THE HATKESH CO-OP. HSG. SOC. LTD. 3 THE SINDH CHS LTD (SUPRA) AS WELL AS BY THE DECISIO N OF MITTAL COURT PREMISES CHS LTD. 320 ITR 414. 7. IN OUR OPINION THE ASSESSEE HAS NOT CONCEALED A NY PARTICULARS OF INCOME NOR HAS FURNISHED ANY INACCURATE PARTICUL ARS OF INCOME. WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE L D. CIT (A) AND ACCORDINGLY THE SAME IS CONFIRMED. 8. IN THE RESULT REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 9TH JULY 2011. SD/- SD/- ( P.M. JAGTAP ) ACCOUNTANT MEMBER ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI DATE : 29TH JULY 2011 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) 32 MUMBAI. 4) THE CIT-CITY-21 MUMBAI. 5) THE D.R. H BENCH MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T. MUMBAI *CHAVAN ITA 6365/MUM/2009 M/S. THE HATKESH CO-OP. HSG. SOC. LTD. 4 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 26.07.2011 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 27.07.2011 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER