The Commissioner Of Income Tax – I, Pune v. National Cooperative Housing Society Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1038 OF 2004ANDINCOME TAX APPEAL NO.1039 OF 2004ANDINCOME TAX APPEAL NO.1046 OF 2004 The Commissioner of Income Tax – I, Pune ..Appellant. Versus National Cooperative Housing Society Limited ..Respondent. Mr.Vimal Gupta for the appellant. Mr.Atul K. Jasani for the respondent. CORAM : V.C. DAGA & J.P. DEVADHAR, JJ. DATE : 12TH AUGUST 2009 P.C. : 1.Heard learned counsel for the revenue and the learned counsel for the respondent – assessee. Perused appeal. This appeal was admitted on the following substantial question of law : “Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the transfer fee received by the assessee society is not chargeable to tax relying on the decision of the Special Bench of the ITAT, Mumbai, in the case of Walkeshwar Triveni Coop Housing Society Limited V/s. ITO (ITA No.4397/Mum/2001 for AY 1997-98) reported in (2003) 80 TTJ (Mum) (SB) 673. 2.Reading of the aforesaid question would unequivocally goes to show that it is in relation to the transfer fee received by the society. The question of chargeability of tax was the subject matter of consideration before the Division Bench of this Hon’ble Court, lead case being Income Tax Appeal No.931 of 2004 (Sindh Cooperative Housing Society V/s. ITO), wherein the issue was considered in detail and the Division Bench of this Court was pleased to record a finding that the transfer fee received by the Society was not chargeable to tax on the principles of mutuality. Since the issue raised in these appeals is squarely covered by the Division Bench of this Court, the appeals are liable to be dismissed for the reasons recorded therein. The question is accordingly answered in favour of the assessee and against the revenue. 3.All the appeals are thus dismissed with no order as to costs. (J.P. Devadhar, J.) (V.C. Daga, J.)