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TMI Blog2009 (7) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 17-7-2009 - FERDINO I. REBELLO and BHATIA J. H. JJ. Y.P. Trivedi with K.B. Bhujile and Mrs. V.B. Patel for the appellant. Vimal Gupta with Suresh Kumar, Mrs.Anuradha Mane, P.S. Sahadevan and Mrs. Devki Iyer for the respondent. Judgment: Ferdino I. Rebello J .- In these appeals admit on the following questions: "(a) Whether the hon'ble Tribunal erred in holding that the contribution to common amenity fund/repairs and welfare fund being the first contribution made by the existing/new member is transfer fee as in the case of Walkeshwar Triveni Co-operative Housing Society Ltd. v. ITO [2004] 267 ITR (AT) 86 (Bom) [SB]? (b) Whether, on the facts and in the circumstances of the case, the hon'ble Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the aforesaid charges. It is expressly made clear that recovery of additional charges as aforesaid shall not deemed to be grant of permission." We may also quote bye-laws D.3.5 and D. 3.3 which reads as under: "D.3.5 A member desiring to purchase office premises shall contribute to the society for common amenity fund/repairs and welfare fund sum or sums as may be prescribed by the managing committee from time to time for offices/godowns etc. according to the area subject to ratification by the general body meeting." "D.3.3. A licensee or a care-taker, who has been allowed temporary use of any residential and or non-residential office premises by the society may also be admitted as nominal member of the society on payment of Rs. 10 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the separate judgment today, we have set out the various facts and consequently, the Government notifications involved as also the provisions of the Act and the Rules and as such, it is not necessary to refer to them once again. Suffice it to say that the notification issued by the State of Maharashtra putting restrictions on the amount of transfer fee when the member desires to transfer his shares or occupancy rights are only in respect of housing residential societies. In the instant case, the appellants before us are not housing residential societies and consequently, those notifications would not be applicable. Having said that, we may note again that as an illustration in so far as Maker Chambers are concerned, the main object is to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. of the service charges (excluded Municipal Corporation/Nagar Palika taxes). The Tribunal found that the non-occupancy charges collected by the assessee-society are in excess of the limits laid down by the aforesaid notification. It was contended before the Tribunal that the said notification was made effective from August 1, 2001, and hence, would not be applicable to the assessment years under the appeals. It had been further contended that the society had collected non-occupancy charges strictly in terms of the notification dated March 9, 1995, which was in force during the previous years relevant to the assessment years under appeal. This contention was rejected relying upon the commentary by Mahendra C. Jain and H. M. Bhatt on the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould apply however, not applied in the case of incoming members. We have referred to the bye-laws of both the Mittal Court Premises Co-operative Society Ltd. and Maker Chambers-III Premises Co-operative Society Ltd. The bye-laws are nothing but the contract between the society and the member. Under these bye-laws, it is the member who has to make the payment. Any inter se arrangement between the incoming members and the transferee is irrelevant in so far as the society is concerned. There is an agreement by which the amount is paid by the transferee. In so far as the society is concerned, even if receipt is issued in the name of transferee it is in the nature of admission fee which could be appropriated, only on the transferee being admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... {See Sind Co-operative Housing Society v. ITO [2007] 317 ITR 47 (Bom).} must also apply. There is no element of profiteering. The bye-laws thereunder provides for the same. We may here point out that the matter had been remanded by the Tribunal. The Tribunal had observed that the Assessing Officer to treat the non-occupancy charges received by the assessee-society which is a premises society over and above the 10 per cent. of the maintenance charges as non-taxable in its hands as the same is governed by the principle of mutuality. 10. Though in the present appeal, the learned counsel for the assessee/appellants had not contested the order of remand nor the counsel appearing in the matters, in appeals arising from Sind Co-operative Housing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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