TaxTMI 
TaxTMI 
2021 (4) TMI 1077
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.... 2008-2009 is narrated below. The assessee is a co-operative society formed in the year 1974 by the employees of Vijaya Bank. The main object of the assessee-society is buying of land and developing the same into sites to allot them to its members at a reasonable price. It is a non-profit making organization. For the assessment year 2008-2009, the return of income was filed on 30.09.2008 and the assessment u/s 143(3) was completed on 30.09.2010. Subsequently, the case was reopened by issuance of notice u/s 148 of the I.T.Act. 5. During the course of reassessment proceedings, the Assessing Officer noticed that the assessee had offered interest income of Rs. 4,98,19,140 earned on deposits and claimed interest expenditure of Rs. 36,385 as interest paid to members on withdrawal of site advance and Rs. 4,00,37,240 as interest payment to the members. The assessee was asked to explain the details of the interest expenditure paid to the members amounting to Rs. 4,00,37,240. The assessee submitted that the interest expenditure claimed is purely compensatory in nature for delay in allotment of sites to its members. It was further stated that the project of creation of layout at Bangalore- M....
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....n the following decisions: (a) Madras Cricket Club (2011) 334 ITR 238 (Mad.) (b) Madras Gymkhana Club (2010) 324 ITR 348 (Mad.) (c) Bangalore Club (2013) 350 ITR 509 (SC) 7. The A.O. had made similar additions for the other assessment years, as well. 8. Aggrieved by the additions made by the Assessing Officer for assessment years 2007-2008 to 2009-2010, 2011-2012 to 2014-2015, the assessee preferred appeals to the first appellate authority on legal issue of reopening of assessment as well as on merits. In the course of appellate proceedings, the assessee also filed additional grounds concerning the validity of assessment order passed in the status of a mutual society. On the legal issue the CIT(A) held that the assessee had participated in the assessment proceedings, therefore, the validity of reopening of assessment is to be upheld. As regards the issue on merits, the CIT(A) had listed out the issues for adjudication as under:- (a) Whether the nature of activity resulting in surplus of the income over expenditure of the society, consisting of its members with the object of "acquiring / development of land for allotment" to its members, could be said to be engaged in the ....
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....residential sites by developing infrastructure such as roads, streetlights, providing water supply, drainage and allot the same to its members on a no profit no loss basis. The assessee had undertaken a project for creation of layouts at Bangalore-Mysore High Court in the year 2005. At the time of starting of the project, the members of the assessee-society were informed that the site shall be handed over to them within a period of 12 months. As there was delay in implementation of the project, the unutilized funds or idle funds from out of advances collected towards allotment of sites from members were deposited in fixed deposits. The interest earned from the same was offered to tax by the assessee. Therefore, there is no dispute with regard to the taxability of the interest income earned. 12.1 However, since the project was delayed for more than one year, the members expressed anxiety that advances paid by them which are yet to be spent on the project is utilized by the assessee in making FD's and earning interest. Therefore, the members stated that interest earned should be rightfully belonging to the members. The members unanimously opined that they need to be compensated on ....
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....emption under the concept of mutuality for any of its income. The returns of income have been filed for all the relevant assessment years, like any other commercial undertaking. The Assessing Officer was of the view that the assessee is a mutually benefit society and surplus, if any, from its activities with its members is exempt from tax. Further, the Assessing Officer held that non-mutual income arising from sources other than members is liable to be taxed. Thereby the A.O. held that surplus as reflected in the income and expenditure account is to be ignored and gross income of the interest are liable to taxed. We are of the view that the A.O. cannot on his own decide to grant the benefit of mutuality when it is not claimed by the assessee. The Assessing Officer's cannot force the assessee to follow a method detrimental to the assessee, more so, when alternative method is not prohibited by law. In the facts of the given case the assessee is not entitled to claim the status of mutual society because there is taint of commerciality in the activities, which we shall discuss in the succeeding paragraphs. The Hon'ble Apex Court in the case of Kumbakonam Mutual Benefit Fund Limited rep....
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....st revenue is the matching principle." 12.6 The above proposition further draws strength from the judgment of the Hon'ble Apex Court in the case of CIT v. Lakshmi Machine Works reported in 290 ITR 667 (SC), wherein the Hon'ble Supreme Court had held as follows:- "The tax under the Act is upon income, profits and gains. It is not a tax on gross receipts. Under section 2(24) the word `income' includes profits and gains. The charge is not on gross receipts but on profits and gains properly so-called. Gross receipts or sale proceeds, however, include profits. However, subject to special requirements of the income tax, profits have got to be assessed provided they are real profits. Such profits have to be got to be ascertained on ordinary principles of commercial trading and accounting. However, the income-tax has laid down certain rules to be applied in deciding how the tax should be assessed and even if the result is to tax as profits what cannot be construed as profits, still the requirements of the income-tax must be complied with. Where a deduction is necessary in order to ascertain the profits and gains, such deductions should be allowed. Profits should be computed after deduct....