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TMI Blog2017 (5) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... 8223; without appreciating the fact that any amount charged in excess of Rs. 25,000/- for each transfer is in contravention of the Notification of Government of Maharashtra, 2001 and the excess amount will be liable to tax and will not be covered under the concept of Mutuality. 2. On the facts and circumstances of the case ld CIT (A) erred in holding that the receipt of Rs. 40,50,000/- in nature of repair and maintenance and lift fund are not in nature of transfer fees. 3. On the facts and circumstances of the case and in law, the Ld CIT (A) erred i not appreciating the fact that concept of mutuality is not applicable in case of cooperative society as held by Hon‟ble ITAT in case of Hatkesh Cooperative Housing Society (ITA Nos. 49 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, for which the Entrance Fee of Rs. 100/-, Transfer Charges of Rs. 500/-, & Transfer Fee of Rs. 25,000/-, aggregating to Rs. 25,600/- was paid by the purchaser of the flat. From the details submitted, it was noted by the AO that during the year, the assessee had received transfer fees from following members which was claimed as voluntary contribution: (i) Mrs. Indrani Choksi of Rs. 9,90,0001- & (ii) Mr. Pascal Postel of Rs. 20,60,000/- towards Repairs & Maintenance Fund, and (iii) M/s Thakkars Investment Pvt. Ltd. of Rs. 10,00,0001- Total Rs.40,50,000/- 4. According to AO, the aggregate sum of Rs. 40,50,0001- as outlined above represented Transfer Fees in excess of limit prescribed by the Notification of Govt. of Maharashtra i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epairs & Maintenance Fund / Members Lift Fund, which is taxable income as it does not constitute the income from the principle of mutuality and accordingly the Assessing Officer brought this income to tax under the head 'Income from Other Sources'. On the other hand the AR of the appellant has contended that these incomes are voluntary contribution received from members of the society for the common purpose of the society and thus covered under the principle of mutuality. 13. The AR has also contended that the issue already stands covered in favour the appellant by the order of the CIT(A) in its own case for A.Y. 2009-10 on identical facts. In support of the above arguments the AR has placed on record the appellate order of the CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscussed in the General Body and was ratified by the members wherein it was decided that minimum contribution of Rs. 30,000/- for two bed room flat and Rs. 50,000/- for three bed room flat would be taken from outgoing/ incoming members, and there was no maximum limit imposed. Thus, the contributions had been received by the society in view of the authority given by the General Body and were according to Bye-laws of the society. iv) The contribution had not been received from incoming member on the condition of providing membership. i) In the case of Sind Co-op. Housing Society vs. ITO (2009) 317 ITR 47 (Bom.), it was held that "If an amount is received more than what is chargeable under the bye-laws or Government directions, the society ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce not taxable. Accordingly, the addition made by assessing officer was deleted. 15. I find that in the assessment year under consideration also, the appellant has received only Rs. 25,0001- as Transfer Fees on sale of the flat. The balance contributions are received towards Repairs & Maintenance Fund Members Lift fund etc., and such funds received are used for betterment of society for common benefit. The appellant society has in fact incurred expenses of Rs. 18,49,055/- from "Repairs & Maintenance Fund" during the year. The payment of voluntary contributions by incoming / outgoing members is not a pre-condition for transfer of flats but are collected on voluntary basis. In these circumstances, since the facts of the case are identical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the society on account of Repairs & Maintenance Fund Members Lift fund and transfer fee, is held to be covered under the principle of mutuality. Accordingly, the addition made of Rs. 40,50,0001- as income from other sources is hereby deleted. Therefore, the grounds of appeal of the appellant are allow." 6. Aggrieved with the above decision of the CIT (A), Revenue is in appeal before the Tribunal. 7. Before us, Ld AR relied heavily on the order of the CIT (A) and reiterated the submissions made before the lower authorities. 8. On the other hand, Ld DR for the Revenue relied on the order of the AO dutifully. 9. We have heard both the parties and perused the orders of the Revenue Authorities as well as the relevant material placed be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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