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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 ..... ecting the departmental appeal in accepting the Assessee's plea that the contribution of Rs. 39,68,000/- paid towards 'heavy repair fund' is covered by the principle of mutuality and is not chargeable to tax." 3. Mr. Malhotra complains that the Tribunal failed to notice the distinguishing features from the judgment of this Court in the case of Sind Co-operative Housing Society vs. Income-Tax Officer reported in (2009) 317 ITR 47. The Tribunal has applied and followed this judgment without adverting to the facts and circumstances therein and equally of the Assessee's case. Mr. Malhotra invites our attention to the order passed by the Assessing Officer and submits that the Assessing Officer has not committed any error in hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avy 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 but this Court held that the issue is answered already in favour of the Assessee and against the Revenue by the Division Bench Judgment in Sind Co-operative Housing Society (supra). For such reasons and in the case of this very Assessee this Court havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March, 2011. He relied upon the judgment of the Division Bench in Sind Co-operative Housing Society (supra). What the Commissioner held in this case by relying upon all the orders of this Court even in the case of this very Assessee that the dispute raised by the Revenue for three Assessment Years 1999-2000, 2001-2002, 2003-2004 have been subject matter of legal proceedings. The same have been decided in favour of the Assessee and against the Revenue following the Division Bench judgment in the case of Sind Co-operative Housing Society vs. Income Tax Officer. Therefore, the order of the Assessing Officer was set aside by the First Appellate Authority. 8. We find that when the Revenue approached the Tribunal, in its grounds of Appeal, it ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision Bench in Sind Co-operative Housing Society (supra) was not concerned with the legal effect of Government Notification dated 9th August, 2001. That placed a cap or outer limit of Rs. 25,000/- on receipt of transfer fee and occasioned by transfer of a flat. That amount has to be received and retained by the Society under that head. The submission is that the Division Bench has clarified the matter in the judgment itself. In that regard our attention is invited to para 43 and preceding paragraphs of the report. Mr. Malhotra would submit that charging of transfer fees as per bye laws has no element of trading or commerciality, that is the principle on which the Division Bench proceeded. It also proceeded by holding that the contribution c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received on account of transfer of a flat and which is not restricted to Rs. 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ratio of this judgment, dismissed the Revenue's Appeal and confirmed the Commissioner's finding. The concurrent findings, therefore, in this case are in consonance with the factual materials brought on record. There is substance in the argument of Mr. Irani that the Assessing Officer had before him the material in the form of the bye-laws of the Society. The bye- laws also are in consonance with the Government Resolution and stipulate a sum of Rs. 25,000/- towards transfer fees. The Assessee in this case is presumed to have received nothing but transfer fees and it is that underlying presumption which has prevailed upon the Assessing Officer to take a particular view. 12. We find that the Assessing Officer has been therefore, ri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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