Commissioner Of Income Tax, Panchkula v. M/S Gymkhana Club, Panchkula

ITA No. 277 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ITA No. 277 of 2011 (O&M) Date of Decision: 5.12.2015 Commissioner of Income Tax, Panchkula ....Appellant. Versus M/s Gymkhana Club, Panchkula ...Respondent. 1.Whether the Reporters of the local papers may be allowed to see the judgment?the judgment? 2.To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? CORAM:-HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.HON'BLE MR. JUSTICE RAMENDRA JAIN. PRESENT: Mr. Yogesh Putney, Advocate for the appellant. Mr. Rajiv Sharma, Advocate for the respondent. AJAY KUMAR MITTAL, J. 1.This order shall dispose of two appeals bearing ITA Nos.277 and 278 of 2011 as according to learned counsel for the parties,common questions of law and facts are involved in the appeals. Forbrevity, the facts are being extracted from ITA No. 277 of 2011. 2.ITA No. 277 of 2011 has been filed by the revenue underSection 260A of the Income Tax Act, 1961 (in short “the Act”) against theorder dated 28.2.2011 (Annexure A-3) passed by the Income TaxAppellate Tribunal, Chandigarh Bench “B”, Chandigarh (hereinafterreferred to as “the Tribunal”) in ITA No. 1033/Chandi/2010 for the assessment year 2007-08. The appeals were admitted by this Courtvide order dated 19.10.2011 for determination of the following substantialquestions of law:- 1)Whether in the fact and circumstances of thecase, the Ld. ITAT was right in law in holdingthat the assessee club is a mutual concern dis-regarding the finding of the A.O. that thefinancial and administrative control over theassessee club is in the hands of HUDA and thatthere is no identity between the contributors andthe participants of the assessee club?case, the Ld. ITAT was right in law in holdingthat the assessee club is a mutual concern dis-regarding the finding of the A.O. that thefinancial and administrative control over theassessee club is in the hands of HUDA and thatthere is no identity between the contributors andthe participants of the assessee club? 2)Whether on the facts and circumstances of thecase, the Ld. ITAT was right in law in treatingthe charges received from non-member guestsas not liable to tax?”case, the Ld. ITAT was right in law in treatingthe charges received from non-member guestsas not liable to tax?” 3.A few facts necessary for adjudication of the present appealas narrated therein may be noticed. The assessee filed its return on31.10.2007 for the assessment year 2007-08 declaring nil income beinga mutual concern. As per income and expenditure account, the assesseehad shown surplus of ` 28,78,817/- including interest income amountingto ` 1,79,395/-. The Assessing Officer vide assessment order dated29.12.2009 (Annexure A-1) assessed the income of the assessee at` 28,78,817/- holding that there was no complete identity between thecontributors and the participants and, therefore, it was not a mutualconcern. Feeling aggrieved, the assessee filed an appeal before theCommissioner of Income Tax (Appeals) [for brevity “the CIT(A)”]. TheCIT(A) vide order dated 3.5.2010 (Annexure A-2) allowed the appeal and ITA No. 277 of 2011 held the assessee to be a mutual concern. The excess of income overexpenditure amounting to ` 28,78,817/- taxed by the Assessing Officerwas directed to be treated as exempt. Against the order, Annexure A-2,the revenue filed an appeal before the Tribunal. The Tribunal videcommon order dated 28.2.2011 (Annexure A-3) dismissed the appeals ofthe revenue for the different assessment years following its earlierdecision in the case of the assessee for the assessment year 2004-05.Hence, the present appeals by the revenue. 4.We have heard learned counsel for the parties. ITA No. 277 of 2011 held the assessee to be a mutual concern. The excess of income overexpenditure amounting to ` 28,78,817/- taxed by the Assessing Officerwas directed to be treated as exempt. Against the order, Annexure A-2,the revenue filed an appeal before the Tribunal. The Tribunal videcommon order dated 28.2.2011 (Annexure A-3) dismissed the appeals ofthe revenue for the different assessment years following its earlierdecision in the case of the assessee for the assessment year 2004-05.Hence, the present appeals by the revenue. 4.We have heard learned counsel for the parties. 5.There was no dispute between the parties that the matterstands concluded by the decision of this Court in the case of theassessee itself in ITA No. 690 of 2005 (The Commissioner of IncomeTax, Panchkula v. M/s Gymkhana Club, Panchkula) and otherconnected cases decided on 30.11.2015. 6.Disposed of in the same terms. (AJAY KUMAR MITTAL) JUDGE December 5, 2015 gbs (RAMENDRA JAIN) JUDGE