TMI Blog2012 (10) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. F.V. Irani and P.C. Tripathi for the Respondent. ORDER 1. This appeal arises from the decision of the Income Tax Appellate Tribunal, dated 6 August 2009. The appeal relates to Assessment Year 2005-06. The Revenue has raised the following question of law: "Whether on the facts and circumstances of the case and in law, the ITAT is right in upholding the CIT(A) order that the case of the assessee is covered by principles of mutuality and hence, TDR premium received by the Society is not taxable, without appreciating that the TDR premium payment is made by only those members availing the additional FSI?" 2. In the present case, the facts are not in dispute. The assessee is a Co-operative Housing Society formed of plot ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee for Assessment Year 2002-03 in which it was held that the principle of mutuality would apply. The Tribunal held there that the Society is constituted of individual members and in the event that any member is desirous of developing his plot by utilizing extra F.S.I., TDR premium was payable to the Society. This option of availing additional FSI was available to each member of the Society and the payment is required to be made by only those members who are desirous of availing of additional FSI. In the order for Assessment Year 2002-03, the Tribunal also relied upon its decision in the case of the Society for Assessment Years 1999-00 to 2001-02. 4. The admitted facts would indicate that the TDR premium is liable to be paid by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by its order dated 14 November 2011 CIT v. Jaihind Co-operative Housing Society Ltd. [IT Appeal No. 2275 of 2009] remanded the proceedings back to the Tribunal. We have perused the judgment of the Division Bench dated 14 November 2011. From the judgment, it would appear that in the original return of income, the Society had offered TDR premium to tax and after deducting the expenditure incurred by it, computed the income chargeable to tax. The return was processed under Section 143(1). Thereafter, the assessment was reopened by a notice under Section 148. During the course of reassessment proceedings, the assessee contended that the TDR amount was not taxable on the principles of mutuality. The Assessing Officer rejected the contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in disguise. Since the decision of the ITAT is contrary to the aforesaid decision of the Apex Court, the impugned decision of the ITAT is quashed and set aside and the matter is restored to the file of the ITAT for fresh decision in accordance with law." In paragraph 10 of the judgment, the Division Bench made it clear that since the TDR premium received by the assessee had been voluntarily offered to tax, the question of considering the taxability of that amount by applying the principles of mutuality in the reassessment proceedings did not arise at all. It was only the expenditure claimed to have been incurred by the assessee, which was disallowed in the reassessment order which was required to be considered by the Income Tax Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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