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2016 (10) TMI 964 - AT - Income TaxDetermination of head of income - amount received by the assessee as their share of sale consideration of plot of land - Held that:- Inspite of the AO allowing the assessee adequate opportunity and requiring it to furnish specific details in respect of all the 14 cooperative societies who were allotted land by the Bombay Housing Board vide agreement dated 26.04.1960, such as total area allotted to them to claim leasehold rights on the land, the number of plots allotted with specification, plot numbers, area in sq. yards, etc. the assessee was not able to furnish the same. Notices issued under section 133(6) of the Act by the AO to the 14 cooperative societies involved also could not elicit any suitable response from most of them. It is seen that even the six societies which responded could not specifically give proof of plot allotted to each of the 14 cooperative societies or documents/evidence which could specify the area allotted to them or that public utilities and public amenities as per Schedule-I and II were created by them thereon. In this factual matrix the case, we are of the considered view and agree with the findings of the learned CIT(A) that as per the submissions put forth by it, the assessee has not been able to controvert that factual findings of the AO in leading him to treat the receipt of money by the assessee from transfer of plot as business income. We, therefore, uphold the findings of the authorities below - Decided against assessee Amount received from members as ‘transfer fees’ - nature of income - Held that:- was received by the assessee society from the transaction of the structure on plot No. 26 by Prakash R. Tolat and Gautam R. Tolat to Mehta & Shah. This fact was not brought to the notice of the AO. On detection thereof, the AO brought the said transfer fee received by the assessee to tax in the assessee’s hands. In respect of the assessee’s claim that the said transfer fee received by it was not exigible to tax based on the concept of mutuality, we find that the learned CIT(A) on examination of the facts on the issue rightly concluded that the concept of mutuality did not operate in this transaction. Mehta & Shah who paid the said transfer fee were only nominal members of the assessee society and except for the structure purchased and occupied by them, had no voting rights or interest in the property of the society. Following the decision of the Coordinate Bench in the case Hatkesh Co-op Housing Society Ltd. (2013 (9) TMI 411 - ITAT MUMBAI) wherein after considering judicial pronouncements relied on by the assessee, which were on similar facts as those of the case on hand, we also hold that the assessee does not represent mutual concerns and to such activities the concept of mutuality cannot be applied. In this factual and legal matrix of the case, we concur with the findings of the authorities below that the said ‘transfer fee’ received by the assessee was to be taxed in its hands. - Decided against assessee
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