2017 (8) TMI 181

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.... the following Grounds of appeal:- "1. The Learned Commissioner of Income Tax (Appeals) erred in confirming the Order u/s 143(3) of the I.T. Act, 1961 of the Assessing Officer charging to tax contribution of Rs. 47,65,000/- received from members, incidental to the sale of Plot ("Transfer Fees") which was exempt on the Principal of Mutuality. 2. Without prejudice and in the alternative Learned Commissioner of Income Tax (Appeals) erred in confirming the Order u/s. 143(3) of the Act of the Assessing Officer denying deduction u/s 80P(2)(c) and 80P(2)(d) of the Act." 3. The appellant before us is a co-operative housing society and the only dispute is with regard to the action of the income-tax authorities in denying the exemption claimed....

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.... Housing Society (supra). The CIT(A) disagreed with the stand of the assessee and has instead upheld the action of Assessing Officer by noticing that the Mumbai Bench of the Tribunal in a subsequent decision dated 4.9.2013 in the case of Hatkesh Co-op. Housing Society Ltd. in ITA No. 494-500/Mum/2011 has taken a view that income of the impugned nature does not qualify for exemption under the principles of mutuality. Accordingly, the CIT(A) has confirmed the assessment made by the Assessing Officer. 5. Before us, the learned representative for the assessee vehemently supported the stand of assessee based on the decision of the coordinate Bench of the Tribunal in assessee's own case dated 22.2.2012 (supra). Insofar as the reliance placed by ....

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....ociety Ltd. (supra), as observed by the Hon'ble Bombay High Court, a similar situation had arisen albeit at the level of the Tribunal. In that case too, the subsequent Bench of the Tribunal did not follow the earlier decision of the Tribunal in the assessee's own case. This approach has been negated by the Hon'ble High Court, and the following discussion in the order of the Hon'ble Bombay High Court is worthy of notice in this regard :- 4. We find that the impugned order makes reference to the appellant's submission that the issue arising in the appeal before it is covered by the order of a Coordinate Bench of the Tribunal dated 24 June 2011 in its own case in respect of Assessment Years 2003-04 2004-05 and 2005-06. The or....

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....nt. If the earlier order does not fall within the exception which affects its binding character before a coordinate bench of the Tribunal, then it has to follow it. However, if the Tribunal has a view different then the view taken by its Coordinate Bench on an identical issue, then the order taking such a different view must record its reasons as to why it does not follow the earlier order of the Tribunal on an identical issue, which could only be on one of the well settled exceptions which affect the binding nature of the earlier order. It could also depart from the earlier view of the Tribunal if there is difference in facts from the earlier order of Coordinate Bench but the same must be recorded in the order. The impugned order is blissf....