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TMI Blog2012 (10) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... f mutuality and hence, TDR premium received by the Society is not taxable, without appreciating that the TDR premium payment is made by only those members availing the additional FSI?" 2. In the present case, the facts are not in dispute. The assessee is a Co-operative Housing Society formed of plot owners, who had obtained a lease of land from the Maharashtra Housing Board. The Society in turn entered into sub lease agreements with its members. The Society looks after the maintenance and infrastructure. The Society passed a resolution by which it resolved that if any member desires to avail of the benefit of Transferable Development Rights (TDR) for carrying out construction or additional construction on his/her plot, the member should ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose members who are desirous of availing of additional FSI. In the order for Assessment Year 2002-03, the Tribunal also relied upon its decision in the case of the Society for Assessment Years 1999-00 to 2001-02. 4. The admitted facts would indicate that the TDR premium is liable to be paid by a member of the Society who desires to utilize additional FSI in the form of Transferable Development Rights. The principle of mutuality would clearly apply to a situation as to the present. In the context of the payment of non-occupancy charges by a member of a Co-operative Housing Society to the Society, a Division Bench of this Court held in Mittal Court Premises Co-operative Society Ltd. v. ITO [2009] 184 Taxman 292/[2010] 320 ITR 414 (Bom.) tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s processed under Section 143(1). Thereafter, the assessment was reopened by a notice under Section 148. During the course of reassessment proceedings, the assessee contended that the TDR amount was not taxable on the principles of mutuality. The Assessing Officer rejected the contention of the assessee and held that the expenses claimed were not related to the transfer fees and were hence not allowable. The Assessing Officer computed the income chargeable to tax. The CIT(A) affirmed the reassessment order and held that once the assessee voluntarily offered TDR premium to tax, it was not open to the assessee to contend in the reassessment that it was not taxable by applying the principles of mutuality. On appeal, the Tribunal held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y applying the principles of mutuality in the reassessment proceedings did not arise at all. It was only the expenditure claimed to have been incurred by the assessee, which was disallowed in the reassessment order which was required to be considered by the Income Tax Appellate Tribunal. The order of remand passed by the Division Bench would, therefore, make it clear that the issue of mutuality has not been decided and a remand was necessitated for other reasons. The order for Assessment Year 2000-01 which was passed on the same day in Income Tax Appeal 2275 of 2009, followed the earlier decision. 6. For the reasons that we have indicated earlier, we are of the view that in the present case, the consideration has flowed from the members of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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