9911796707
TMI Blog2014 (4) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... aised:- "1. The learned CIT(A) erred in confirming the order of the Assessing Officer charging to tax as business income, capital gains of Rs. 73,52,640 received by the assessee on sale of common plot of land. 2. The learned CIT(A) erred in confirming the order of the Assessing Officer charging to tax contribution received from members aggregating to Rs. 30,30,000 incidental to sale of plot which was exempt on the principle of mutuality." 2. Facts in brief:- Brief facts, qua the issue raised in ground no.1, are that during the year, the assessee has sold its share in the common plot number 22 as jointly held by 14 co-operative housing society for Rs. 90 lakhs and long term capital gain has been computed at Rs. 73,52,640, which has been i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration before the Tribunal in assessee's own case in IT no.7168/Mum./2008 and in case of other societies also, who were one of the parties in the sale of the said plot. In the said decision, the Tribunal has set aside this issue to the file of the Assessing Officer for deciding the same afresh as per the direction given by the Tribunal dated 17th November 2005, relevant observation and directions fo the Tribunal are as under:- "We have heard the arguments of both the sides and also perused the relevant material on record. It is observed that the amount of similar nature was received by 14 cooperative housing societies including the four assessee societies in the present case on account of sale consideration of plot of land jointly ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the first round vide his order dated 17th Nov. 2005. We, therefore, restore this issue once again to the file of the A.O for deciding the same afresh as per the direction given by the Tribunal vide its order dated 17th Nov. 2005. The assessees are directed to furnish the addresses of the other cooperative housing societies to the A.O. who shall enforce their compliance in order to decide this issue as per the direction given by the Tribunal." 5. In view of the aforesaid decision of the Tribunal, we set aside the impugned order passed by the learned Commissioner (Appeals) and restore the issue back to the file of the Assessing Officer and direct him to decide the same in view of the observations and directions given by the Tribunal in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... striction of Rs. 25,000 does not apply to plot owner co-operative housing society. However, the learned Commissioner (Appeals), after detail discussion, rejected the assessee's contention and held that the society could have charged transfer fee of Rs. 25,000 each and, therefore, only to this extent, the principles of mutuality will apply in view of the decision of the Bombay High Court in Sindh Housing Co-operative Society (supra). Accordingly, he disallowed Rs. 30.30 lakhs. 9. Before us, the learned Counsel for the assessee submitted that this issue is not only squarely covred by the decision of the Bombay High Court in Sindh Housing Co-operative Society (supra) but also by the decision of Bombay High Court in Mittal Court Premises Co-op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter se arrangement between the incoming members and the transferee is irrelevant insofar as the Society is concerned. There is an agreement by which the amount is paid by the transferee. Insofar as Society is concerned, even if receipt is issued in the name of transferee it is the nature of admission fee which could be appropriated, only on the transferee being admitted. Merely because the amount may be appropriated earlier, it will not lose the character of the amount being paid by a member. In these circumstances, the identity of the contributor and beneficiary being satisfied and considering the provisions of Maharashtra Co-operative Societies Act and rules framed thereunder, surplus can be disposed of in favour of the members only or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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