ITO 5(1)(4), MUMBAI vs. HILL PROPERTIES LTD, MUMBAI

Hill Properties Ltd. ITO 5(1)(4), R. No. 509, 5th floor, बिधम/ Hill Park Estate, A. G. Bell Road, Malabar Hill, AayakarBhavan, M.K. Vs. Mumbai-400006. Road, Mumbai-400020. स्थायीलेखासं./जीआइआरसं./ PAN No. AABCH7578L (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant by : Shri M. C. Omi Ningshen, DR प्रत्यथीकीओरसे/Respondentby : Shri FarukhIrani, AR सुनवाईकीतारीख/ : 16.04.18 Date of Hearing घोषणाकीतारीख / : 01.05.18 Date of Pronouncement आदेश / O R D E R

Per Sandeep Gosain, Judicial Member:

Hill Properties Ltd. 1. "Whether on the facts and circumstances of the case and in law, the LdCIT(A) has erred in allowing the appeal of the assessee without considering the facts that the Principles of mutuality applies only to Co- operative societies and does not apply to corporate entity.

2. Whether on the facts and circumstances of the case and in law the LdCIT(A) has erred in holding that share transfer fees of Rs. 25,50,000/- on transfer of flats, nominee occupancy charges of Rs. 10,00,000/- from non-members (tenants) and non-refundable security deposit of Rs. 3,27,500/- for repairs to flats received by the assessee company are exempt from income-tax on the principal of mutuality which applies only to co-operative societies and does not apply to a corporate entity?"

3. "Whether on the facts and circumstances of the case and in law the LdCIT(A) has erred in not adjudicating the addition made on alternate ground that even if it is assumed that the principal of mutuality applies to the assessee, the share transfer fees and nominee occupancy charges are taxable in the hands of the assessee as it has been collected in excess against the directive of Govt. of Maharashtra which shows that the impugned income is tainted by commerciality?

Hill Properties Ltd.

Aggrieved by the order of AO, the assessee preferred the appeal before Ld. CIT and the Ld. CIT(A) after considering the case of both the parties partly allowed the appeal filed by the assessee.

Hill Properties Ltd. Aggrieved by the order of Ld. CIT(A), the revenue has filed the present appeal before us on the grounds mentioned hereinabove.

Ground No. 1 to 3.

After careful consideration of the facts, we find that there are series of orders passed in favour of assessee by the Hon’ble ITAT and even the Hon’ble ITAT in appeal filed by the revenue in for assessment year 2009-10 decided on 12.08.16, has categorically held that all the three issue raised by the revenue i.e. share transfer fee received by the assessee company on transfer of flat, nominee occupancy charges and non-refundable security deposits are squarely covered in favour of the assessee. It was categorically held by the Ld. CIT(A) that similar issues had already been decided by the Tribunal in favour of assessee and rightly relied upon the orders passed by the Coordinate Bench of Hon’ble ITAT in assessee's own case.

Therefore, considering the facts of the present case, we are of the opinion that since the Coordinate Bench of Hon’ble ITAT had already decided the issue in favour of assessee and therefore respectfully following the orders of the coordinate bench and in Hill Properties Ltd. order to maintain judicial consistency and judicial discipline, we dismiss these grounds raised by the revenue.