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TMI Blog2013 (1) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... rities are, The respondent co-op. Housing Society's Building was constructed in 1971 on a plot of Land (situate at Derasar Lane, Ghatkopar (E), Mumbai - 400 077, admeasuring about 2526.10 sq. meters. At the time of construction in 1971, all the permissible F.S.I. was fully consumed and no F.S.I. was left out. The F.S.I. rules were relaxed in 1991 by the Municipal Corporation and the Respondent Co-op. Housing Society received free of cost, some more F.S.I. which was sold by the Respondent Society to the Developers M/s Mohta Capital Services Ltd. The T.D.R. was procured by the Developers at their own cost and this fact is duly mentioned at the last but one para (Para 8) of the Learned C.I.T.(A)'s order dated 12.03.2010. In view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l's order in the matter of Maheshwar Prakash -2 CHS v/s I.T.O. 19(2)-4. The Hon'ble Income Tax Tribunal has, held on 14.5.2010 in the case of I.T.O. vs. Shri Ram Kumar Malhotra in ITA no. 4843/Mum/2009 that the ratio of the decisions of the Tribunal in the case of New Shailaja Co- operative Housing Society Ltd. vs. ITO, (2009 TIOL 58 ITAT-Mum), ITO vs. Lotia Court Co-op. Hsg. Soc. Ltd., (2008 TIOL 404 ITAT -Mum), Jethalal D. Mehta vs. Dy. CIT, (2 SOT 422) (Mum.)) and Maheshwar Prakash 2 CHS vs. ITO, 20 DTR 269 (Mum.) held that the CIT(A) was right in holding that the gain arising on transfer of FSI/TDR is chargeable to tax under the gain arising on transfer of FSI/TDR is chargeable to tax under the head 'capital gain' a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apital Services Pvt. Ltd. duly registered by the Stamp Duty Authorities on 8.11.2004 vide No. 976/04. The appellant has argued that his case is squarely covered by the decision of Hon'ble ITAT 'B' Bench Mumbai in the case of Maheshwar Prakash 2 CHS Ltd. Vs. ITO19(2)-4 and requested that appeal is decided in its favour. In the case of Maheshwar Prakash 2 CHS Ltd., the Hon'ble Tribunal has held as under :- In the present case, the assessee society acquired the right to construct the additional floors by virtue of DCR 1991 which could not be available to assessee on expenditure of money. Prior to DCR 1991, no society had any right to construct the additional floors. So it was not a tradable commodity. Suddenly, by virtue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax, we need not adjudicate the other issues raised by the assessee. I have carefully considered the order of Assessing Officer and the submission made by the appellant. I find that the case of the appellant is squarely covered by the decision of Hon'ble ITAT 'B' Bench, Mumbai in the case of Maheshwar Prakash 2 CHS Ltd. Vs. ITO 19(2)-4, since in the instant case, the appellant has only sold the FSI to the developers as evident from the development agreement submitted and the developer has loaded TDR bought from elsewhere on the said FSI for further development. Clause 3 of the above mentioned agreement states this fact which has not been doubted by the Assessing Officer. FSI as such, sold has no cost of acquisition and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again, before the ITAT. 5. At the time of hearing, the AR pointed out that the impugned issue is now covered by the decision of the coordinate Bench in the assessee's own case, as reproduced in the above para. Since the issue has been decided by the coordinate Bench, in the assessee own case and other decisions, as pointed out therein, therefore, respectfully following the same, and since there is no deviation of the facts, we do not find any reason to deviate from the view taken by the coordinate Benches, in the assessee's own case and other decisions referred therein. 6. In the result the appeal filed by the department is dismissed. Order pronounced in the open Court on 23rd January, 2013. - - TaxTMI - TMITax - Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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