2013 (12) TMI 1302 - AT - Income Tax

Tribunal rules in favor of assessee, exempts share transfer fees, nominee charges under mutuality principle

The Tribunal upheld the CIT (A)'s decision in favor of the assessee in both the Revenue appeal and the Cross Objection. It ruled that share transfer fees, ... Taxability of amount collected from members of Housing Society - Exemption of share transfer fee, nominee occupancy charges and non-refundable security deposit - Held that:- Following assessee's own case for the A.Y. 2007-08 - All these itmes whether received from out coming or incoming members is not liable to tax because of principle of mutuality - Decided against Revenue. Interest Income - Held that:- The principle of mutuality relates to the notion that a person cannot make a profit from himself - The concept of mutuality has been extended to defined groups of people who contribute to a common fund, controlled by the group, for a common benefit - Any amount surplus to that needed to pursue the common purpose is said to be simply an increase of the common fund and as such neither considered income nor taxable - The issue was restored for adjudication. Issues:1. Appeal by Revenue regarding share transfer fees, nominee occupancy charges, and security deposits.2. Cross Objection by assessee on nominee occupancy charges and interest income inclusion.Revenue Appeal:The Revenue appealed against the CIT (A)'s decision on the share transfer fees, nominee occupancy charges, and security deposits. The Tribunal noted that similar issues were previously decided in favor of the assessee. The Tribunal referred to a previous order where it was held that transfer fees, security deposits, and nominee occupancy charges were exempt from tax due to the principle of mutuality. The Tribunal upheld the CIT (A)'s decision, dismissing the Revenue's appeal.Cross Objection by Assessee:The assessee raised a Cross Objection against the inclusion of interest income and nominee occupancy charges. The Tribunal addressed the issue of interest income, where the AO had taxed it, contrary to the principle of mutuality. The assessee cited the Bangalore Club case, emphasizing the principle that surplus funds for a common purpose are not considered income. The Tribunal remitted the issue back to the AO for fresh adjudication based on the Bangalore Club judgment. The Cross Objection was partly allowed for statistical purposes.In conclusion, the Tribunal decided in favor of the assessee in both the Revenue appeal and the Cross Objection, emphasizing the application of the principle of mutuality in exempting certain charges and income from taxation. The judgments were based on previous decisions and legal principles, providing a comprehensive analysis of the issues raised by both parties.