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TMI Blog2016 (6) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... Common Amenity Fund, to our mind, the issue stands concluded in favour of the respondent-assessee and against the revenue by the decision of this Court in Darbhanga Mansion CHS Ltd [2014 (12) TMI 1112 - BOMBAY HIGH COURT ] - Income Tax Appeal No. 7, 16, 20, 22, 317, 617 of 2014 - - - Dated:- 15-6-2016 - M. S. Sanklecha And A. K. Menon, JJ. For the Petitioner : Mr. A.R. Malhotra with Mr. N.A. Kazi For the Respondent : Mr. F.V. Irani with Mr. Atul Jasani ORDER P. C. 1. This Appeal under Section 260-A of the Income Tax Act, 1961 (the Act) challenges the order dated 22nd May, 2013 passed by the Income Tax Appellate Tribunal (the Tribunal). The impugned order is in respect of Assessment Years 2001-02, 2002-03, 2004-05, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts during the previous year relevant to the assessment year shown as Common Amenities Fund. The Assessing Officer called upon the respondent-assessee to explain the sources of the above fund. The respondent society interalia pointed out that it is received from its members. On examination of the response, the Assessing Officer held that the above sum which was received as transfer fees had to be credited to the Income and Expenditure Account and offered to tax as the principle of mutuality will not apply to transfer fees. The Assessing Officer in the Assessment order while bringing to tax the contribution made to the Common Amenity Fund records as under : 17. Accordingly, the transfer fees received from the outgoing members is added t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ------------------- Rs.35,11,741/- Rs.35,11,741/- Less : Deduction U/s.80-P ₹ 50,000/- Total Income Rs.34,61,741/- Rounded off to Rs.34,61,741/- (b) Aggrieved by the Assessment order the respondentassessee preferred an appeal to the Commissioner of Income Tax (Appeals) ( CIT (A) ). In its memo of appeal, the ground taken by the assessee is that the amount received as contribution to the common amenity fund was incorrectly brought to tax even though it is excluded on the principle of mutuality. The CIT (A) while allowing the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent-assessee's case before the authority that the amounts credited to the common amenity fund was payable prior to the transfer of the premium to the society, thus covered by the principle of mutuality. Therefore it is transfer fee. It is further submitted that in view of bye law 3.5 of the respondent-assessee's bye laws, in case a member desires to transfer a flat, then he has to contribute to the Common Amenity Fund. Lastly, it is submitted that in the present case unlike in Darbhanga Mansion CHS Ltd. (supra) the payment made to the society in terms of bye law 3.5 as reproduced above, was in fact a transfer fee and nothing else. This is so as a member could not sell his/her flat without making contribution to Common Amenity Fund. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though the contribution made to repair fund or general amenity fund may have occasioned by transfer of a flat and garage, yet the remittance would not be covered by the cap or restriction placed vide the Notification on the quantum of transfer fees. Therefore, we find that in the present facts also though the revenue seeks to contend that contribution to Common Amenity Fund is transfer fees and the Assessing Officer in his order added the amount to the respondent-assessee's income on the ground that it is contribution received from members towards Common Amenity Fund, to our mind, the issue stands concluded in favour of the respondent-assessee and against the revenue by the decision of this Court in Darbhanga Mansion CHS Ltd. (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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