Shri A.c.kamdar v. P.v.m.nair,Income-Tax Officer,Ward 29(6),Aayakar Bhavan,Room

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.727 OF 1994 1. Maker Chambers III,Premises Co-operativeSociety Limited,16th floor,Maker Chambers III,223, Nariman Point,Bombay- 400 021. 2. Shri A.C.Kamdar,residing at:C-6, "Triveni",66, Walkeshwar Road,Bombay- 400 006and carrying on professionat: 94, Maker Chambers III,223, Nariman Point,Bombay- 400 021. ...Petitioners. v. 1. P.V.M.Nair,Income-tax Officer,Ward 29(6),Aayakar Bhavan,Room No.654,Maharshi Karve Road,Bombay- 400 020. 2.Union of India ...Respondents. WITH WRIT PETITION NO.728 OF 1994 1 Bajaj Bhavan Owners premises Co-operativeSociety Ltd.226, Nariman Point, 2 Bombay 400 021 2 Shri Ravi Mehra,having office at62, Bajaj Bhavan,226, Nariman Point,Bombay 400 021 ...Petitioners. v. 1.P.V.M.Nair,Income-tax Officer,Ward 29(6),Aayakar Bhavan,Room No.654,Maharshi Karve Road,Bombay- 400 020. 2. Union of India ...Respondents. WITH WRIT PETITION NO.729 OF 1994 1.Atlanta Premises Co-operativeSociety Ltd."Atlanta"205, Nariman Point,Bombay- 400 0212. Shri G.Kripalanicarrying on business at:"Atlanta"205, Nariman Point,Bombay 400 021 ...Petitioners. v. 1.P.V.M.Nair,Income-tax Officer,Ward 29(6),Aayakar Bhavan,Room No.654, Maharshi Karve Road,Bombay- 400 020. 2. Union of India ...Respondents. WITH WRIT PETITION NO.730 OF 1994 1. New Maker Chamber IV premisesCo-operative Society Ltd.Maker Chamber IV,222, Backbay Reclamation,Bombay- 400 021. 2. K.G.Shenoycarrying on business atNew Maker Chamber IV,222, Backbay Reclamation,Bombay 400 021. v. 1.P.V.M.Nair,Income-tax Officer,Ward 29(6),Aayakar Bhavan,Room No.654,Maharshi Karve Road,Bombay- 400 020. 2. Union of India ...Respondents. WITH WRIT PETITION NO.731 OF 1994 1. Embassy Centre PremisesCo-operative Society Ltd.Embassy Centre,Nariman Point,Mumbai 400 021. 2. O.P.Kanoongo Embassy Centre,207, Nariman Point,Nariman Point,Bombay 400 021. v. 1.P.V.M.Nair,Income-tax Officer,Ward 29(6),Aayakar Bhavan,Room No.654,Maharshi Karve Road,Bombay- 400 020. 2. Union of India ...Respondents. WITH WRIT PETITION NO.732 OF 1994 1. Dalamal Tower PremisesCo-operative Society Ltd.Dalamal Tower,211, Nariman Point,Bombay 400 021. 2. Shri S.P.Jain,carrying on business at:907, Dalamal Tower,Nariman Point,Nariman Point,Bombay 400 021 ..Petitioners. v. 1.P.V.M.Nair,Income-tax Officer,Ward 29(6),Aayakar Bhavan,Room No.654,Maharshi Karve Road,Bombay- 400 020. 2. Union of India ...Respondents. WITH WRIT PETITION NO.733 OF 1994 1. Nariman Bhavan PremisesCo-operative Society Ltd.Nariman Bhavan,211, Nariman Point,Bombay 400 021. 2. N.L.Dalmiahaving office at72/73,Nariman Bhavan,211, Nariman Point, Bombay- 400 021. ...Petitioners. v. 1.P.V.M.Nair,Income-tax Officer,Ward 29(6),Aayakar Bhavan,Room No.654,Maharshi Karve Road,Bombay- 400 020. 2 Union of India ...Respondents. WITH WRIT PETITION NO.526 OF 1996 Mittal Court PremisesCo-operative Society Ltd.,Mittal Court Basement,224, Nariman Point,Mumbai 400 021 ...Petitioner v. 1. The Income-tax Officer,Ward 29(6), Aayakar Bhavan,M.K.Marg, New Marine Lines,Mumbai 400 020 2. The Commissioner ofIncome-tax,Mumbai City- XIII,Aayakar Bhavan,M.K.Marg, New Marine Lines,Mumbai 400 020. 3. Union of IndiaAayakar Bhavan,2nd floor, M.K.Marg,New Marine Lines,Mumbai- 400 020. ...Respondents. WITH WRIT PETITION NO.527 OF 1996 Maker Chambers VI PremisesCo-operative Society Ltd.,Maker Chambers VI,220, Nariman Point,Mumbai 400 021. ...Petitioner. v. 1. The Income-tax Officer,Ward 29(6), Aayakar Bhavan,M.K.Marg, New Marine Lines,Mumbai 400 020 WITH WRIT PETITION NO.526 OF 1996 Mittal Court PremisesCo-operative Society Ltd.,Mittal Court Basement,224, Nariman Point,Mumbai 400 021 ...Petitioner v. 1. The Income-tax Officer,Ward 29(6), Aayakar Bhavan,M.K.Marg, New Marine Lines,Mumbai 400 020 2. The Commissioner ofIncome-tax,Mumbai City- XIII,Aayakar Bhavan,M.K.Marg, New Marine Lines,Mumbai 400 020. 3. Union of IndiaAayakar Bhavan,2nd floor, M.K.Marg,New Marine Lines,Mumbai- 400 020. ...Respondents. WITH WRIT PETITION NO.527 OF 1996 Maker Chambers VI PremisesCo-operative Society Ltd.,Maker Chambers VI,220, Nariman Point,Mumbai 400 021. ...Petitioner. v. 1. The Income-tax Officer,Ward 29(6), Aayakar Bhavan,M.K.Marg, New Marine Lines,Mumbai 400 020 2. The Commissioner ofIncome-tax,Mumbai City- XIII,Aayakar Bhavan,M.K.Marg, New Marine Lines, Mumbai 400 020. 3. Union of IndiaAayakar Bhavan,2nd floor, M.K.Marg,New Marine Lines,Mumbai- 400 020. ...Respondents. WITH WRIT PETITION NO.621 OF 1996 1. Mittal Chamber Owners PremisesCo-operative Society Limited,228, Nariman Point,Bombay 400 021. 2. Shri S.S.Talawdekar, Manager,Mittal Chamber Owners PremisesCo-operative Society Limited,duly authorised, havinghis office at:Mittal Chambers,228, Nariman Point,Bombay 400 021. v. 1. P.V.M. Nair,Income-Tax Officer,Ward 29(6),Aayakar Bhavan,Room No.654,Maharashi Karve Road,Bombay 400 020. 2. Union of India,Aayakar Bhavan,Maharshi Karve Road,Bombay 400 020. ...Respondents. WITH WRIT PETITION NO.443 OF 2001 Mittal Court PremisesCo-operative Society Ltd.,Mittal Court Basement,224, Nariman Point,Mumbai 400 021. ...Petitionerv. 1. The Income-tax Officer,Ward 29(1), Aayakar Bhavan,M.K.Marg, New Marine Lines,Mumbai 400 020 2. The Commissioner ofIncome-tax,Mumbai City- XIII,Aayakar Bhavan,M.K.Marg, New Marine Lines,Mumbai 400 020. 3. Union of IndiaAayakar Bhavan,2nd floor, M.K.Marg,New Marine Lines,Mumbai- 400 020. ...Respondents. Mrs. Vasanti B. Patel , adv. for the Petitioner in Writ Petition Nos.727/94, 728/94, 729/94, 730/94, 731/94, 732/94 and 733/94. Mr. Y.P. Trivedi, Sr.Counsel with Mr.K.B.Bhujle and Mrs.V.B.Patel, advs. for the petitioners in W.P.NOS.526/96, 527/96 621/96 and 443/01. Mr.Vimal Gupta with Mr.Suresh Kumar, Mrs. Anuradha Mane, Mr.P.S.Sahadevan and Mrs.Devki Iyer, advs. for the Revenue in all matters. CORAM: Ferdino I.Rebello & J.H.Bhatia,JJ. JUDGMENT RESERVED ON : 29TH APRIL, 2009. PRONOUNCED ON: 17[th] July, 2009. JUDGMENT: (Per F.I. Rebello, J.) 1In so far as these writ petitions are concerned what is being challenged are the re-opening of the assessments pursuant to the notice issued under Section 148 or notice issued under Section 142(1) as also in one case notice issued under Section 133(6). 2Notices basically have been issued on the ground that the transfer fees received by the petitioners from incoming members was assessable to tax considering the judgment of this Court in the case of C.I.T. v. The Presidency Co-operative Housing Society 216 ITR 321 (Bom). 3we have in the judgment delivered today in Income Tax Appeal No.931 of 2004 and other connected appeals distinguished the same on the ground that the issue of mutuality had not at all been in issue before the learned Bench when it decided the reference. Once we have held the transfer fee even paid by incoming members is not assessable to the tax applying the doctrine of mutuality , the notice issued would be without jurisdiction and consequently will have to be set aside. 4We have also in Income Tax Appeal No.999 of 2004 in the case of Mittal Court Premises v. Income Tax Officer decided on 17.7.2009 have also decided that in respect of non-occupancy charges that is also subject to the principle of mutuality and not subject to tax. 3we have in the judgment delivered today in Income Tax Appeal No.931 of 2004 and other connected appeals distinguished the same on the ground that the issue of mutuality had not at all been in issue before the learned Bench when it decided the reference. Once we have held the transfer fee even paid by incoming members is not assessable to the tax applying the doctrine of mutuality , the notice issued would be without jurisdiction and consequently will have to be set aside. 4We have also in Income Tax Appeal No.999 of 2004 in the case of Mittal Court Premises v. Income Tax Officer decided on 17.7.2009 have also decided that in respect of non-occupancy charges that is also subject to the principle of mutuality and not subject to tax. 5 Rule made absolute in terms of prayer clause (a) in each of the petitions. (Ferdino I. Rebello, J.) (J.H.Bhatia, J.)