TMI Blog2014 (7) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... repairs and maintenance fund received from buyers – Held that:- As decided in assessee’s own case for the earlier assessment year, it has been held that, the assessee has received transfer fees from the incoming member of the society i.e. the buyer of the flats - payment made by the buyer is in the nature of transfer fees which is received on becoming the member of the society, hence as per principle of mutuality any receipt from member to society is not taxable - the transfer fees is accepted only on admission of the member to society - transfer fees are not taxable - CIT(A) has allowed the claim of the assessee - revenue could not bring before us any contrary law to the decision – Decided against Revenue. - ITA Nos.2287, 2288, 2289 & 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in allowing transfer fees of ₹ 19,160/- and contribution to repairs maintenance fund of ₹ 3,97,500/- received by the assessee without appreciating the facts that the assessee is in receipt of the buyers who are non-members of the society and hence such receipts would also not get excluded from the clutches of tax in as much as principles of mutuality would not be applicable to such receipts and as such the AO has correctly taxed ₹ 19,160/- in the hands of the assessee. 3. The appellant prays that the order of the CIT(A) on the above ground be set aside and that of the A.O be restored. 4. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary. Ground No.1 3. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 7,26,005/- service/maintenance charges from the above companies, the Ld. AO has allowed 1/19th deduction amounting to ₹ 78,727/- as against the claim of ₹ 3,63,003/-. 5.6 The Hon. ITAT Order in Appellant's own case for the assessment year 2001- 2002 order dated 04.04.2006 has directed to allow 50% of the expenditure against the income under the head service charges in place of 1/19th expenditure allowed on estimated basis by A.O. Meanwhile the department had filed the miscellaneous application requesting for recalling the order passed by Hon. ITAT Mumbai i.e. deduction of expenses @ 50% is uncalled. The Hon. ITAT while dismissing this application vide its order dated 11th May 2011 observed as under: The present mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling the said order of the Tribunal on the issue which was also dismissed by the Tribunal. The order of the Tribunal has not been set aside by any higher authorities. Ld. D.R. could not bring any law or decision of any higher court contrary to the view taken by the Tribunal in the own case of the assessee. Hence, we do not find any infirmity in the order of the ld. CIT(A) while allowing the claim of the assessee at the rate of 50% of the service charges following the decision of the Tribunal in the own case of the assessee for the earlier assessment year. Ground No.2 6. The ground No.2 is relating to the allowability of transfer fees and contribution to repairs and maintenance fund received by the assessee from the buyers. It ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly on admission of the member to society. In support of it, the appellant has submitted the observation of Hon'ble ITAT, Mumbai 'J' Bench in case of Jal Darshan CHS Ltd., Mumbai vs. Assessee dated 21.09.2012 in which the Hon'ble ITAT has observed that: By our judgment dated 17th July, 2009 in Income Tax Appeal No.931 of 2004 in the case of Sind Coop. Hsg. Soc. Versurs The Income Tax Officer, we have held that both contributions by the outgoing and incoming members are subject to principle of mutuality. 6.4 Accepting the above observations, I hold that transfer fees of ₹ 19,160/- are not taxable. Hence, this ground of appeal of the appellant is allowed. 7. A perusal of the above reproduced observations of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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