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2023 (7) TMI 793 - ITAT AHMEDABADPrinciples of mutuality - Surplus income shown in the return of income by mistake - Taxation at maximum marginal rate - society v/s AOP - whether income of a Co- Operative Housing Society is assessable as Co-op Society u/s 80P or as AOP at maximum marginal rate? - principles of “consistency" - a mistake has been committed by the CA of the assessee, wherein at the time of filing return of income, the surplus income earned by the assessee, which operates on the principle of mutuality, has been incorrectly offered to tax in the return of income - HELD THAT:- As in the past years as well as in the succeeding assessment years, the income earned by the assessee has not been subject to tax, since it is a society formed exclusively for the benefit of its members, and the Department has accepted this position both in the preceding and succeeding assessment years. Accordingly, in view of the well-established principles of “consistency”, the surplus income earned by the assessee cannot be subject to tax, since this income was offered to tax purely by way of mistake by the CA of the assessee at the time of filing of return of income. Matter is being restored to the file of Ld. CIT(Appeals) to analyse whether this position taken by the assessee that it’s income has not been subject to tax in any of the earlier or succeeding assessment years by the Department, is factually correct. It is a well-settled principle of law that if there is no change in facts relation to assessee’s case, then the position taken by the Department in the earlier and succeeding assessment years should not be disturbed, unless certain new facts are before the Department, which would necessitate it to change its earlier position. Appeal of the assessee is allowed for statistical purposes.
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