TMI Blog2014 (4) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... sh adjudication – Decided in favour of Assessee. Taxability of transfer fee received from members – Principle of Mutuality – Held that:- The notification issued by the State Government putting restrictions on the amount of transfer fee and the member desired transfer of their shares or occupancy rights are only in respect of housing residential society - the decision in Mittal Court Premises Co-operative Society Ltd. Versus Income-tax Officer [2009 (7) TMI 689 - BOMBAY HIGH COURT] - Merely because the amount may be appropriated earlier, it will not lose the character of the amount being paid by a member - the identity of the contributor and beneficiary being satisfied and considering the provisions of Maharashtra Co-operative Societies A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 invested in NABARD capital gain bonds for claiming exemption under section 54EC. The assessee, along with other 14 co operative housing societies were incorporated in the year 1947 for providing housing facilities in Vile Parle area. The then Government of the Province, acquired the land and the individual plots were conveyed to each of the 14 co operative housing societies to develop residential colonies. Due to certain circumstances, these societies have sold part of this plot of land, which were marked for amenities and the sale proceeds were offered for taxation as capital gain. The Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by 14 cooperative housing societies including the four assessee societies in the present case on account of sale consideration of plot of land jointly owned by them. When the issue relating to head of income under which the said amount was chargeable to tax had come up for consideration in the cases of the assessee before the Tribunal in the first round, the Tribunal found it relevant to ascertain as to what had happened in the cases of other societies. None of the parties appearing before the Tribunal, however, could furnish the relevant details in this regard. The issue, therefore, was restored by the Tribunal to the file of the A.O. for deciding the same afresh after taking into consideration the final decision rendered on a similar i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 the aforesaid case. Thus, ground no.1, is allowed for statistical purposes. 6. In ground no.2, the assessee has challenged the taxability of transfer fee of Rs. 30.30 lakhs received from the members. 7. The Assessing Officer held that the entire transfer fee received from Mr. Padamshri Soni, amounting to Rs. 15.40 lakhs and Juhugreen Apartments Owners India Pvt. Ltd. of Rs. 15.40 lakhs as taxable. The assessee had claimed the said amount received as exempt on the basis of principle of mutuality. Before the Assessing Officer, the assessee relied upon the decision of the Bombay High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 operative Society v/s ITO, [2010] 320 ITR 414 (Bom.). In this case, the High Court have categorically held that the notification issued by the State Government putting restrictions on the amount of transfer fee and the member desired transfer of their shares or occupancy rights are only in respect of housing residential society. In this case, admittedly, it is not in respect of housing residential society but a plot society. Therefore, in view of the later decision of the Bombay High Court, this issue should be decided in favour of the assessee. 10. The learned Departmental Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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