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From the Courts »
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Asstt. Commissioner of Income tax- 21(1), C-10, Bandra Kurla Complex, Bandra (E), Mumbai-51 Vs. M/s The Hatesh CHS Ltd., Plot No.51, Vile Parle (W), Mumbai-400049
May, 27th 2015
                 ,   "" 
  IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI
  BEFORE S/SHRI VIJAY PAL RAO (JM) AND D. KARUNAKAR RAO, (AM)
         ,      .   ,     

                ./I.T.A. No.7108/Mum/2013
              (   / Assessment Year :1996-97)

Asstt. Commissioner of Income   / M/s The Hatesh CHS Ltd.,
tax- 21(1), 6th floor,              Plot No.51, Jai Hind Society,
                                Vs.
Pratyakshkar Bhavan,                2nd floor, Jai Hind Club,
C-10, Bandra Kurla Complex,         JVPD Scheme, Vile Parle (W),
Bandra (E),                         Mumbai-400049
Mumbai-51
       ( /Appellant)            ..    (    / Respondent)

            ./I.T.A. No.7109 to 7111/Mum/2013
        (   / Assessment Years :2000-01 to 2002-03)

Asstt. Commissioner of Income   / M/s The Hatesh CHS Ltd.,
tax- 21(1), 6th floor,              Plot No.51, Jai Hind Society,
                                Vs.
Pratyakshkar Bhavan,                2nd floor, Jai Hind Club,
C-10, Bandra Kurla Complex,         JVPD Scheme, Vile Parle (W),
Bandra (E),                         Mumbai-400049
Mumbai-51
       ( /Appellant)            ..    (    / Respondent)

           ./I.T.A. No.7112 and 7113/Mum/2013
     (   / Assessment Years :2006-07 and to 2007-08)

Asstt. Commissioner of Income   / M/s The Hatesh CHS Ltd.,
tax- 21(1), 6th floor,              Plot No.51, Jai Hind Society,
                                Vs.
Pratyakshkar Bhavan,                2nd floor, Jai Hind Club,
C-10, Bandra Kurla Complex,         JVPD Scheme, Vile Parle (W),
Bandra (E),                         Mumbai-400049
Mumbai-51
       ( /Appellant)            ..    (    / Respondent)


        . /   . /PAN/GIR No. :AAALH0017Q

          / Revenue by                Shri Neil Philip
            / Assessee by             Shri Rahul K Hakani
                                       2                 I T A N o s . 7 1 0 8 / Mu m / 2 0 1 3
                                                               and other 5 appeals

             / Date of Hearing
                                               :   6.5.2015
            /Date of Pronouncement : 20.5.2015

                                 / O R D E R

PER BENCH


      These six appeals by the revenue are directed against the six separate
orders of ld. CIT(A) dated 23.9.2013 arising from the penalty order passed under
section 271(1)( c) of the Income Tax Act, 1961 (the Act) for the assessment
years 1996-97, 2000-01 to 2002-03, 2006-07 and to 2007-08. Since, issues
raised in all these appeals are common, therefore, for the sake of convenience,
we have heard these appeals together and are being disposed of by this
consolidated order.





2.    The revenue has raised identical grounds in AYs 1996-97, 2000-01 to
2002-03 in these appeals except difference in figures of the amount in the
quantum addition and consequential penalty. For the sake of brevity, we are
reproducing the grounds of appeal taken by the revenue in assessment year
1996-97.


      "1.    On the facts and in the circumstances of the case and in law, the
      ld. CIT(A) erred in deleting he penalty amounting to Rs.4,74,600/- on
      the quantum addition made on account of receipt of transfer fees of
      Rs.13,56,000/- ignoring that these were not voluntary contributions and
      there is no principle of mutuality involved,

      2.     On the facts and in the circumstances of the case and in law, the
      ld. CIT(A) erred in deleting penalty amounting to Rs.4,74,600/- ignoring
      that the decision of the Hon'ble ITAT deleting similar quantum addition
      made in respect of receipt of transfer fees for AYs 2003-04, 2004-05 and
      2005-06 has not been accepted by the department and further appeal has
      been filed".

3.    The Revenue has also raised following grounds in AYs-2006-07 and 2007-
08.
      "1.   On the facts and in the circumstances of the case and in law, the
      ld. CIT(A) erred in deleting he penalty amounting to Rs.22,00,031/- on
      the quantum addition made on account of receipt of transfer fees of
      Rs.15,45,000/- and TDR premium receipts of Rs.56,44,670/- ignoring
                                        3                 I T A N o s . 7 1 0 8 / Mu m / 2 0 1 3
                                                                and other 5 appeals
      that these were not voluntary contributions and there is no principle of
      mutuality involved,

      2.     On the facts and in the circumstances of the case and in law, the
      ld. CIT(A) erred in deleting penalty amounting to Rs.22,00,031/- ignoring
      that the decision of the Hon'ble ITAT deleting similar quantum addition
      made in respect of receipt of transfer fees for AYs 2003-04, 2004-05 and
      2005-06 has not been accepted by the department and further appeal has
      been filed".


4.    The penalty has been levied by the AO in respect of all these assessments
against the addition on account of transfer fees received by the assessee society.
Whereas for the assessment years 2006-07 and 2007-08 against the addition
on account of transfer fees as well as TDR premium. In the quantum, for the
assessment years for all the assessment years this issue have been decided by
this Tribunal vide consolidated order 4.9.2013 against the assessee. However,
for the assessment years 2003-04, 2004-05 and 2005-06 which is not a subject
matter of the appeals before us, the Tribunal decided the quantum appeals in
favour of the assessee vide consolidated order dated 24.6.2011. The ld. AR of
the assessee has pointed out that against the order dated 24.6.2011 of this
Tribunal, the revenue has filed appeals before the Hon'ble High Court which are
dismissed by the Jurisdictional      High Court vide order dated 17.7.2014,
therefore, the issue is now finally decided by the Hon'ble High Court in favour of
the   assessee.   He has further contended that, even otherwise, this is a
debatable issue and disallowance/addition made by the AO and confirmed by
this Tribunal in some of the cases would not attract the penalty under section
271(1)( c) of the Act.


5.    On the other hand, the ld. DR has not disputed the factual aspect that for
the assessment years 2003-04 to 2005-06, the issue in quantum appeals were
decided in favour of the assessee and further, the Hon'ble           High Court has
dismissed the appeals filed by the revenue.





6.    Having considered the rival submissions as well as relevant material on
record, we note that there are divergent view and findings of the Tribunal in
assessee's own cases on the issue of addition on account of transfer fees and
                                        4                  I T A N o s . 7 1 0 8 / Mu m / 2 0 1 3
                                                                 and other 5 appeals
TDR premium received by the assessee. For the assessment years 2003-04 to
2005-06, this Tribunal vide order dated 24.6.2011 decided the quantum appeals
in favour of the assessee whereas for the assessment years under consideration
of all these appeals, the Tribunal subsequently, decided the issue against the
assessee vide order dated 4.9.2013. The issue is now settled by the decision of
the Jurisdictional High Court vide order dated 17.7.2014 in the appeals filed by
the revenue for the assessment years 2003-04 to 2005-06 against the order of
the   Tribunal dated   24.6.2011.    The Hon'ble High Court has dismissed the
appeal filed by the revenue in Income Tax Appeal No.427 of 2012 with Income
Tax Appeal No.590 of 2012 and Income Tax Appeal No. 428 of 2012 vide order
dated 17.7.2014 as under :
      "Having heard Ms. Bharucha, learned counsel, appearing in support of this
      appeal and Mr. Hakani, learned counsel, appearing on behalf of the
      respondent assessee, we are of the opinion that the appeals do not raise
      any substantial question of law. The findings rendered by the tribunal are
      in consonance with the functioning and administration of a cooperative
      housing society that has been recognized by a division bench of this Court
      and the decision to that effect in Mittal court Premises co-operative
      Housing Society Ltd V/s Income Tax Officer reported in (2010) 320 ITR
      414 concludes the issue. In the light of this division bench order and
      which has been followed in the case of Jai Hind Co-operative Housing
      society Ltd, Suprabhat Housing Society Ltd. that we are of the opinion
      that the appeal deserve to be dismissed. They are accordingly dismissed.
      No costs"


Thus, it is clear that in the quantum appeals for the assessment years 2003-04
to 2005-06 the issue is decided in favour of the assessee, therefore even if the
Tribunal confirmed the addition for the assessment year under consideration it
does not lead to the conclusion that the claim of the assessee by applying the
principle of mutuality in respect of transfer fee and TDR premium is bogus claim
or absolutely incorrect claim. When the issue is decided by the Hon'ble
Jurisdictional High Court in favour of the assessee then the claim of the principle
of mutuality of this receipt is a bonafied claim and does not attract the penalty
under section 271(1)( c) of the Act. Accordingly, we do not find any illegality of
infirmity in the order of ld. CIT(A) in deleting the penalty levied under section
271(1)( c ) of the Act for all these assessment years.
                                       5                   I T A N o s . 7 1 0 8 / Mu m / 2 0 1 3
                                                                 and other 5 appeals




7.    In the result, the appeals of the revenue are dismissed.




      The above order was pronounced in the open court on 20th May, 2015.
            20th                            May, 2015    


      Sd                                              sd
(.   /D. KARUNAKAR RAO)                         (   /VIJAY PAL RAO)
   / ACCOUNTANT MEMBER                              / JUDICIAL MEMBER
 Mumbai:            May, 2015.
. ../ SRL , Sr. PS


        /Copy of the Order forwarded to :
1.  / The Appellant
2.     / The Respondent.
3.     () / The CIT(A)- concerned
4.      / CIT concerned
5.      ,     ,  /
     DR, ITAT, Mumbai concerned
6.     / Guard file.
                                                                    / BY ORDER,
                                    True copy
                                                          (Asstt. Registrar)
                                                     ,   /ITAT, Mumbai

 
 
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