Case: Jay Bharat Coop. Hsg. Society Ltd. Vs The Income Tax Officer. ITAT (Income Tax Appellate Tribunal)
| Judges | Sunil Kumar Yadav, Judicial Member and D. Karunakara Rao, Accountant Member |
| Issue | Direct Taxation |
| Citation | 2009 (125) TTJ 552 (Mum) |
| Judgement Date | January 15, 2009 |
| Court | ITAT (Income Tax Appellate Tribunal) |
Order:
Sunil Kumar Yadav, Judicial Member, (Mumbai 'J' Bench)
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This appeal is preferred by the assessee against the Order of the CIT (A) on various grounds which are as under:
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The learned CIT (A) has erred in following the judgment of Apex Court in Goetzee ((India)) Ltd. and erred in not deciding the levy of tax on a receipt on which tax is not leviable on the ground of mutuality in spite of the Income tax Officer dealing with the same and giving his finding on the same.
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Without prejudice to the above ground, the learned CIT (A) has erred in confirming levy of tax on Rs. 25,81,607/- received from the Members for development of their property used for residence on the ground of mutuality.
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The learned CIT (A) has erred in confirming levy of Rs. 1,59,467/- being interest from Bank and not holding that such receipt/income is not taxable on the ground of mutuality.
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The learned CIT (A) has erred in confirming the receipts of the Cooperative Society and not following principles of not taxing an income/receipts on the ground of mutuality as laid down by the Apex Court in case of the Chemford Club 243 ITR 89.
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The Assessee reserves right to add, amend or alter any grounds of appeal as and when found necessary.
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Though the assessee has raised various grounds, but, they all relate mainly on two issues viz., (1) whether the new claim raised by the assessee without filing a return before the Assessing Officer under Section 139 can be entertained by the Assessing Officer? and (2) Whether the CIT (A) can entertain that claim or direct the Assessing Officer to entertain the same if the Assessing Officer did not entertain the same during the course of assessment proceedings?
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The brief facts borne out from the record in this regard arc that assessee is a Cooperative Group Housing Society registered under Maharashtra State Cooperative Societies Act. The Society formed by the Members who have been allotted plots for construction of house for their residential use and society does not carry out any activity according to the Assessing Officer. During the year under consideration, assessee has received interest from Cooperative Bank of Rs. 15239/-, interest from Bank of Rs. 1,44,220/- and amounts received from Members for issuing NOC of Rs. 25,81,607/- aggregating to Rs. 27,41,066/-. A sum of Rs. 25,81,607/- has been taken into advance property, development fund in the balance sheet and as per the return of income, assessee has offered receipts of Rs. 26,52,226/- for taxation and paid the tax thereon accordingly. During the course of assessment proceedings, vide letter dated 12-8-2006, assessee has claimed the entire receipt as exempt on the ground of mutuality relying on the Gujarat High Court decision in the case of Adarsh Cooperative Housing Society Ltd. 213 ITR 677 without filing a revised return as per Section 139 of the Act. The Assessing Officer did not entertain the claim raised through a letter dated 12-8-2006 following the judgment of the Apex Court in the case of Goetze (India) Ltd. v. CIT 284 ITR 323 in which it has been held that the Assessing Officer has no power to entertain the claim made otherwise than by way of a revised return.
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The assessee preferred an appeal before the CIT (A) against the Order of the Assessing Officer and the CIT (A) approved the Order of the Assessing Officer by making the following observations:
2.3. I have tried to address the issue raised before me on the basis of the fact available on record vis-d-vis in the light of decision of Hon'ble Supreme Court in the case of Goetzee ((India)) Ltd. 284 ITR 323 (S.C.). I find that the appellant himself offered the entire receipt got from the members of the society relating to NOC as taxable. Even after receipt of intimation letter and the rectification order passed in respect of intimation slip the appellant did not bother to revise the return in respect of the non-taxability of the amount received from the members of the society on account of NOC. It is at the time of the assessment stage in the proceeding Under Section 143(3), the appellant raised this question of taxability. The appellant claimed that at the time of assessment proceedings the time for filing a revised return has expired. Now the question arises as to whether such kind of claim can be entertained at the assessment stage by the A.O. or not whereas the appellant himself offered the amount as a income in the return of income. The decision of Hon'ble Supreme Court in the case of...
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