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TMI Blog2014 (12) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... tive Housing Society [2009 (7) TMI 15 - BOMBAY HIGH COURT]. The attempt of the Revenue therefore is nothing but overcoming the binding judgment of this Court. It is a typical relationship between the member of the Co-operative Society and particularly a Housing Society and the Society which is a body Corporate and a legal entity by itself that is forming the basis of the principle laid down by the Division Bench - Co-operative movement is a socio economic and a moral movement - It has now been recognized by Article 43A of the Constitution of India - It is to foster and encourage the spirit of brotherhood and co-operation that the Government encourages formation of Co-operative Societies - The members may be owning individually the flats or immovable properties but enjoying, in common, the amenities, advantages and benefits. The Society as a legal entity owns the building but the amenities are provided and that is how the terms "flat" and the "housing society" are defined in the statute in question - following the decision in Sind Coop. Hsg. Society Versus Income Tax Officer [2009 (7) TMI 15 - BOMBAY HIGH COURT] - there is substance in the argument that the AO had before him the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Housing Society (supra) has admitted three Appeals on 18th February, 2013 and which are raising identical question. Therefore, the principle of mutuality which has been invoked and applied cannot be straightaway applicable. The Appeal, therefore, deserves to be admitted. 4. On the other hand, Mr. Irani appearing on behalf of the Respondent relied upon the order passed by this Court in the case of this very Society, namely Income Tax Appeal No.1453 of 2007 decided on 3rd August, 2010. Mr. Irani would submit that merely because the question as framed by the Tribunal and based on the ground raised by the Revenue does not bifurcate the amount of transfer fee and contribution to building heavy repair fund does not mean that the judgment in the case of Sind Co-operative Housing Society (supra) will not bind this Court. That squarely binds this Court and therefore, this Appeal does not raise any substantial question of law, it deserves to be dismissed. 5. He also relies upon an order passed on 11th October, 2010 by another Division Bench of this Court in the case of this very Assessee being Income Tax Appeal (Lodging) No.1906 of 2010. There the Revenue raised identical question b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... First Appellate Authority. 8. We find that when the Revenue approached the Tribunal, in its grounds of Appeal, it raised the following ground: The Ld. CIT (A) erred in deleting the addition of ₹ 39,68,000/- made on account of contribution to heavy repair fund following the decision of Hon'ble High Court of Bombay in the case of Sind Cooperative Housing Society Ltd., wherein it has been held that the said contributions made by the members of the society are exempt from taxation under the principle of mutuality. The decision has not been accepted by the Department and the issue is sub-judice. 9. Upon perusal of this question itself, it is evident that the Revenue was of the opinion that a judgment delivered by the Division Bench of this Court would come in its way and the argument, therefore, was that the Revenue has not accepted this judgment and the principles laid down therein. When such was the position brought to the notice of the Tribunal, then natural response of the Tribunal was that a judgment of the jurisdictional High Court is sought to be distinguished. If it is sought to be distinguished then the distinguishing features should be pointed out and by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked by the Counsel for the Revenue. The Revenue seems to be of the view that a Co-operative Housing Society makes profit, if it receives something beyond this amount of ₹ 25,000/-. There has to be material brought and which will have a definite bearing on this issue. If the amount is received on account of transfer of a flat and which is not restricted to ₹ 25,000/- but much more, then different consideration may apply. However, in the present case, what has been argued and vehemently is the amount was received by the Society when the flat and the garage were transferred. Therefore, it must be presumed to be nothing but transfer fees. It may have been credited to the fund and with a view to demonstrate that it is nothing but a voluntarily contribution or donation to the Society, but still it constitutes its income. However, for rendering such a conclusive finding there has to be material brought by the Revenue on record. Beyond urging that it has been received at the time of a transfer of the flat and credited to such a fund will not be enough to displace the principle laid down in the decision of Sind Cooperative Housing Society. The attempt of the Revenue therefore is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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