TMI Blog2010 (8) TMI 969X X X X Extracts X X X X X X X X Extracts X X X X ..... d ₹ 13,24,004/- under the head towards sub-letting charges in its P L Account. The assessee has shown this amount as amount collected from members as contribution. However, the Assessing Officer observed that this is not a contribution but amount collected from members on account of those members who are not residing in their premises in the society and leased out to outsiders and collecting rent from the lessee. The Assessing Officer in view of the Appellate Order in the assessee's own case for the Assessment Year 2003-04, on the similar issue, allowed ₹ 1,08,837/- being 10% maintenance charges of ₹ 10,88,369/- and excess over 10% of maintenance charges ₹ 12,15,167/- ( ₹ 13,24,000 ₹ 1,08,837) bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieved by the order of the ld. CIT(A) the revenue is in appeal before us taking following sole ground of appeal :- The ld. CIT(A) erred in deleting the addition on account of contribution towards non-occupancy charges of ₹ 12,15,167/-, transfer fee of ₹ 1,95,000/- and ₹ 54,52,000/- received by way of voluntary donation, following the decision of Hon ble High Court of Bombay in the case of M/s. Shyam CHS and Supraphat CHS wherein it has been held that all amounts received by the CHS on the grounds of transfer charges are exempt under the principle of mutuality. The decision has not been accepted by the department and the matter is subjudiced . 5. At the time of hearing the ld. DR supports the order of the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1973 1974/M/05 dated 10.7.2008. Respectfully following the consistent view of the Tribunal, the order passed by the ld. CIT(A) in deleting the addition in this regard does not call for any interference. 9. With regard to the transfer fee and voluntary contribution we find merit in the plea of the ld. Counsel for the assessee that the issue stands covered in favour of the assessee by the decision of the Hon ble Jurisdictional High Court in Sind Co operative Housing Society vs. ITO (2009) 317 ITR 47 (Bom.) wherein it has been held (at placitum 44 to 46 at page 62,63 of the ITR) as under : Let us now apply the various tests which are to be considered for applying the principle of mutuality to a case of a co-operative housing societ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st is also satisfied in the case of a housing co-operative society. (4) Do the members have the right to share in the surplus and do they have a right to deal with its surpluses. In terms of the bye laws it is only the members who have a right to share in the surplus. Under the Maharashtra Cooperative Societies Act, no part of the funds, as provided in section 64 can be paid by way of bonus or dividend or otherwise distributed among its members except as provided therein. Under section 67, there is a limit on the dividend to be paid on liquidation. Under section 110 of the Maharashtra Co-operative Societies Act, the surplus can only be dealt with in the manner provided therein which includes any member or devoted to objects provided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular dated 27.11.1989 and 20.12.1989. It is submitted that clause 40(d)(7) of the Model bye laws drafted on 2.7.2001 and the circular dated 9.8.2001 were therefore, not applicable to the case of the appellant. By our judgment dated 17th July, 2009 In Income Tax Appeal No.931 of 2004 in the case of Sind Coop. Hsg. Soc. Versus The Income Tax Officer, we have held that both contributions by the outgoing and incoming members are subject to principle of mutuality. We have also discussed the effect of the Government Circular dated 27.11.1989 and 20.12.1989. In the light of that, the question has to be answered in the affirmative in favour of the assessee and against the revenue. 11. Similar view was taken by Their Lordships in Su Prab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue of mutuality was neither argued or considered, we respectfully following the decision of the Hon'ble Jurisdictional High Court hold that the amount received by the assessee are subject to principle of mutuality and accordingly we are inclined to uphold the finding of the ld. CIT(A) in deleting the addition made by the Assessing Officer . 13. Further from the reading of the ground of appeal we find that the appeal was filed by the revenue on the ground that the decision rendered by the Hon ble Bombay High Court in Shyam Co-operative Housing Society Ltd. and Su Prabhat Co-operative Housing Society Ltd. have not been accepted by the department and the matter is subjudiced. At this juncture the reliance is placed on the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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