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Income Tax Appellate Tribunal, MUMBAI BENCHES “A”, MUMBAI
Before: Shri Joginder Singh, & Shri Rajesh Kumar
Per Joginder Singh (Judicial Member) The Revenue is aggrieved by the impugned order dated 09/10/2014 of Ld. Commissioner of Income Tax. The first ground raised
by the Revenue is with regard to deletion of addition of Rs.1,65,76,003/- being ‘income from other sources’ without appreciating the fact that any amount charged in excess of Rs.25,000/- for each transfer is in contravention of the Notification of Government of Maharashtra, 2001 and the excess amount will be liable to tax and will not be covered under the concept of Mutuality.
2. During hearing, Shri Kailash Konojiya, learned D.R. advanced arguments which are identical to the ground raised. On the other hand, Shri Aporva Shah, learned counsel for the assessee claimed that the issue in hand is covered in favour of the assessee by the decision of the Tribunal for Assessment year 2009-10, in the case of assessee itself, vide order dated 23.12.2015 (ITA No. 1787/Mum/2013). Our attention was also invited to the order dated 15.06.2016 from Hon'ble Jurisdictional High Court in Income Tax Appeals No. 7, etc. of 2014. This factual matrix was not controverted by the learned D.R. 2.1 We have considered the rival submissions and perused the material available on record. In view of the above and before coming to any conclusion we are reproducing hereunder the relevant portion from the conclusion drawn by the learned CIT(A) for ready reference and analysis: - M/s. Samudra Mahal “8. I have gone through the assessment order passed by the AO as well as the written submissions filed by the appellant during the course of appellate proceedings carefully. The AR of the appellant has vehemently contended that the issue under consideration is covered in favour of the appellant vide the appellate orders of the CIT(A) from the A.Y.2002-03 till 2009-10. The AR of the appellant further stated that the ITAT Mumbai vide its order dated 22/05/2013 has also decided the issues in favour of the appellant for the A.Y. 2001-02 to 2007-08. The appellant has also placed the copy of the ITAT decision on record.
The above submissions of the appellant have been considered and I intend to agree with the above submissions. From the perusal of the CIT(A) order in the case of the appellant for the A.Y. 2009-10, it can be observed that the issue was discussed in detail and the issue was decided in favour of the appellant. The issue has been decided in favour of the appellant from the A.Y. 2002-03 to 2009-10 by my predecessor CIT(A) as well as other CIT(A) in the earlier years.
While deciding the issues in favour of the appellant for the A.Y. 2001-02 to 2007-08, the Hon'ble ITAT, “E” Bench Mumbai vide its order dated 22/05/2013 has held on the issue as under:- “On consideration of submissions of Ld representatives of parties, we observe that this issue is squarely covered by the judgement of Hon'ble Bombay High Court in the case of M/s. Shyam CHS and Suprabhat CHS order dated 1.10.2009, wherein, it has been held that all amounts received by the Co-operative Housing Society on the grounds of transfer charges are exempt under the principle of mutuality. Similar view has also been taken in the case of Mittal Court premises Co-operative Society Ltd Vs. Income-tax Officer.320 ITR 414 (Bom). We also find that the CIT(A) has followed the decision of Hon'ble Bombay High Court in the case of Sind Co-operative Housing Society Ltd (supra) and other decisions on above issue for allowing the transfer fees claimed by the assessee. We, therefore, uphold the same by rejecting ground of appeal
taken by department in the assessment years under consideration viz. A.Ys.2001-02, 2002- 03, 2004-05, 2005- 06, 2006-07 & 2007-08 respectively. In the result, appeals tiled by revenue for A.Ys. 2001- 02, 2002-03, 2004-05, 2005-06, 2006-07 & 2007-08 are dismissed."
11. The fact of the issue are identical in the year under consideration to the facts of the issue in earlier years and the CIT(A) have taken a consistent stand on the issue in favour of the appellant from the A.Y. 2002-03 to 2009-10. The Hon'ble ITAT, "E" Bench Mumbai (supra) has also decided the issue in M/s. Samudra Mahal favour of the appellant for the A.Y. 2002- 03 to 2007-08.
12. In view of the above decision of Hon'ble ITAT, "E" Bench Mumbai and the issue being decided in favour of the appellant and respectfully following the above decision of the jurisdictional ITAT, the issue of the amount of Rs. 1,65,76,003/- received as a contribution and credited in the "Common Amenity fund" claimed as exempt on principle of mutuality, is decided in favour of the appellant for the year under consideration i.e. A.Y. 2011-12. The addition made amounting to Rs.1,65,76,003/- on treating the receipt as income from other sources, is hereby deleted.
The grounds of appeal no. 1 to 3 are decided in favour of the appellant.” 2.3 We find that the issue under hand has been decided in favour of the assessee in earlier assessment years and even the Tribunal for Assessment year 2001-02 to 2007-08 vide order dated 22.05.,2013, following the decision from Hon'ble Jurisdictional High Court in M/s. Shyam CHS and Suprabhat CHS order dated 01.10.2009 and another case of Mittal Court Premises Co-operative Society Ltd. vs. Income Tax Officer 320 ITR 414 (Bom.) held that the amounts received by Co-operative Housing Societies on the ground of transfer charges are exempt under the principle of mutuality. No contrary facts were brought to our notice by either side and more specifically the Revenue. Therefore, the addition was rightly deleted by the learned CIT(A). His stand is affirmed, resultantly the appeal of the Revenue is dismissed. This order was pronounced in the open court in the presence of Ld. Representative from both sides at the conclusion of the hearing on 18/07/20 Sd/- Sd/- (Rajesh Kumar) (Joginder Singh) लेखा सद�य / ACCOUNTANT MEMBER �या�यक सद�य / JUDICIAL MEMBER मुंबई Mumbai; �दनांक Dated : 20/07/2016