BODY RYTHEM ENTERPRISES LTD, v. ACIT 5(8),

MA 855/MUM/2009 | 1994-1995
Pronouncement Date: 22-04-2010 | Result: Allowed

Appeal Details

RSA Number 85519924 RSA 2009
Assessee PAN AAACT1594B
Bench Mumbai
Appeal Number MA 855/MUM/2009
Duration Of Justice 4 month(s) 4 day(s)
Appellant BODY RYTHEM ENTERPRISES LTD,
Respondent ACIT 5(8),
Appeal Type Miscellaneous Application
Pronouncement Date 22-04-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 22-04-2010
Assessment Year 1994-1995
Appeal Filed On 18-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI D.K.AGARWAL JM & SHRI RAJENDRA SINGH AM & M.A.NOS.855 TO 857/MUM/2009 [ARISING OUT OF I.T.A.NOS.1761 TO 1763/M/2006] A.YRS. 1994-95 TO 1995-96 M/S BODYRHYTHM ENTERPRISES LTD. ADVENT 12-A GENERAL J. BHOSLE MARG MUMBAI 400 021 PAN NO. AAACT 1594 B VS. ASST. COMMISSIONER OF I.T. CIRCLE (5) (8) MUMBAI (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI PRAMOD KUMAR PARIDA & SANJUKTA CHOWDHARY. RESPONDENT BY : SHRI S.K.MAHAPATRA. O R D E R PER RAJENDRA SINGH AM: THESE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED B Y THE ASSESSEE REQUESTING FOR AMENDMENT OF THE ORDER DATE D 20/2/2009 OF THE TRIBUNAL IN I.T.A.NOS.1671 TO 1763/M/06. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE CLUB FOR THE RELEVANT YEARS HAD RECEIVED SUMS OF RS.83.80 LA KHS RS.85.19 LAKHS AND RS.2 06 981/- RESPECTIVELY FROM LIFE MEMBERS. T HE ASSESSEE TREATED ONLY 1/10 TH OF THE LIFE MEMBERSHIP FEES AS INCOME IN THE YEAR OF RECEIPT AND THE REMAINING AMOUNT WAS SHOWN AS LIABI LITY ON THE GROUND THAT THE MEMBERSHIP FEES WAS REFUNDABLE IN CASE OF RESIGNATION BY THE MEMBER AFTER DEDUCTION OF 10% LUMP SUM FEES FOR EAC H YEAR OF USER OF CLUB FACILITIES. THE DEPARTMENT HAD HOWEVER AS SESSED THE ENTIRE 2 RECEIPTS AS INCOME OF THE RELEVANT YEAR WHICH HAD B EEN CONFIRMED BY THE CIT[A] . IN FURTHER APPEAL THE TRIBUNAL AFTER CONSIDERING THE MATERIAL PLACED ON RECORD AND AFTER REFERRING TO TH E JUDGMENTS RELIED UPON BY THE AUTHORITIES HELD THAT IN CASE IN TERMS OF RULES AND REGULATIONS APPLICABLE FOR THE RELEVANT YEAR THE LI FE MEMBERSHIP FEE WAS REFUNDABLE AT THE TIME OF RESIGNATION AFTER DED UCTION OF 1/10 TH P.A. FOR USING THE CLUB FACILITIES THE TREATMENT GIVEN BY THE ASSESSEE FOR DECLARING ONLY 1/10 TH OF LIFE MEMBERSHIP FEES AS TAXABLE INCOME WILL HAVE TO BE ACCEPTED BUT IN CASE THE LIFE MEMBERSHI P FEES WAS NOT REFUNDABLE THE ENTIRE LIFE MEMBERSHIP FEES WILL BE TAXABLE IN THE YEAR OF RECEIPT. THE TRIBUNAL HOWEVER NOTICED THAT THE C OPY OF RULES AND REGULATIONS PLACED BEFORE IT CONTAINED ONLY 22 CLAU SES COMPARED TO 35 CLAUSES IN THE RULES PLACED BEFORE THE CIT[A] . THU S THE RULES WHICH WERE PLACED BEFORE THE TRIBUNAL WERE DIFFERENT FROM THOSE QUOTED BEFORE THE CIT[A] . THE MATTER THEN REQUIRED VERIFI CATION WHETHER THERE WAS PROVISION FOR REFUND OF FEES. THE TRIBUNAL THE REFORE SET ASIDE THE ORDER OF THE CIT[A] AND RESTORED THE MATTER TO THE FILE OF THE AO FOR PASSING A FRESH ORDER AFTER NECESSARY VERIFICATION OF RULES AND REGULATIONS IN THE LIGHT OF OBSERVATIONS MADE AND AFTER ALLOWING OPPORTUNITY OF HEARING TO THE ASSESSEE. 3. THE ASSESSEE IN THE MISCELLANEOUS PETITION HAS SUBMITTED THAT THE AO IS INSISTING ON PRODUCTION OF ITS ACCOUNTS F OR VERIFYING THE CLAIM OF REFUND OF FEES BUT THERE WAS NO DIRECTION OF TR IBUNAL REGARDING VERIFICATION OF BOOKS. ACCORDINGLY IT HAS BEEN REQ UESTED THAT THE ORDER 3 MAY BE AMENDED SO AS TO MAKE PROVISION FOR VERIFICA TION OF BOOKS. WE AGREE THAT THE VERIFICATION OF BOOKS WOULD BE NECES SARY FOR ASCERTAINING THE CLAIM OF THE ASSESSEE OF REFUND OF FEES. THEREF ORE WE AMEND THE ORDER BY SUBSTITUTING THE FOLLOWING IN PLACE OF LAS T SENTENCE OF THE ORDER OF THE TRIBUNAL IN PARA-4.4: 4.4 .. WE THEREFORE SET ASIDE THE ORDER OF THE CIT[A] AND RESTORE THE MATTER TO THE FILE OF THE A O FOR PASSING FRESH ORDERS AFTER NECESSARY VERIFICATION O F RULES AND REGULATIONS AND BOOKS OF ACCOUNT IN THE LIGHT OF OB SERVATIONS MADE ABOVE AND AFTER ALLOWING OPPORTUNITY OF HEARIN G TO THE ASSESSEE. 4. IN THE RESULT THE MISCELLANEOUS APPLICATIONS OF THE ASSESSEE STAND ALLOWED. ORDER PRONOUNCED ON THIS 22 ND DAY OF APRIL 2010. SD/- SD/- (D.K.AGARWAL) (RAJENDRA SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 22 ND APRIL 2010. P/-* 4