9911796707
TMI Blog2024 (12) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... as prima facie occurs, it is opined that the following questions of law arise: - (i) Whether the Tribunal was correct in having declined the application of doctrine of mutuality on the transactions entered into by the appellant? (ii) Whether the appreciation of facts by the Tribunal was correct and was it not perverse since the findings were on mere surmises and conjectures? (iii) Whether the Tribunal was correct in having determined a proportion of members to decline application of the doctrine of mutuality with respect to certain transactions, on the finding that certain category of members did not have any control over the affairs of the club and thus could not be included within the ambit of doctrine of mutuality ? The Tribunal is direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the application for review under Section 47 of the Act of 1981 was considered by the Tribunal and rejected. Section 47 of the Act of 1981, confers the power on the Tribunal to review its own order, if found necessary, on account of a mistake which is apparent from the record. The appellant-assessee had filed the above review application on various grounds; viz: (i), that the Tribunal failed to consider the order of assessment, as confirmed by the learned Commissioner, on its own basis; (ii) that the Tribunal built a new case to support the levy of tax and penalty, (iii) that the Tribunal erred insofar as rejection of the claim of mutuality and (iv) the Tribunal committed a glaring error in ignoring the implication of specific clauses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... None of the points on which the demand was raised, were proposed in the notice. 5. Further, it is pointed out that the Tribunal had created an artificial division of the sale of food and beverages made to the permanent members, temporary members, honorary members, lady members and guest members. Even the Assessing Officer had not made an enquiry into the proportion at which such sale was made to the various category of members and the Tribunal merely based on surmises and conjectures took a ratio of 3:1 as against the honorary members and permanent members, which cannot be sustained. The learned Counsel for the petitioner argues that the Tribunal also erred in rejecting the claim of principles of mutuality ; that could be applied to the sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e qua non for the application of principles of mutuality would get ruptured. At the risk of the repetition, we have to reiterate that this is in the context of levy of income tax. 8. More apposite would be the judgment of the Hon'ble Supreme Court in Calcutta Club Ltd. (supra), wherein the doctrine of mutuality was applied when persons carrying on a certain activity, in a manner, indicating absolute identity between contributors and participators. This identity according to the learned Judges would not be snapped because the surplus that arises from the common fund is not distributed among members. What was emphasized was that, while applying the doctrine there is no sale transaction between an incorporated legal entity in the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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