Pramod Kumar, A.M.

1. By way of these appeals, the Assessing Officer has called into question correctness of CIT(A)s separate orders, in the matter of assessment under Section 144 of the Income tax Act, 1961, for the assessment years 2002-03, 2004-05 and 2006-07m respectively. Since common ground raised in all these appeals, they were heard together and are disposed of by this common order for the sake of convenience.

2. Despite service of notice, No. one appeared on behalf of the Respondent Assessee.

We, therefore, proceed to decide the appeal of the revenue exparte after hearing learned Departmental Representative and on the basis of material available on record.

3. Ground No. 1 common to all the appeals, reads as under:

The ld CIT(A) erred in deleting the addition on account of transfer fees of Rs. 28,24,102, Rs. 35,18,603 and Rs. 20,79,500 in AY. 2002-03, 2004-05 and 2006-07, following the decision of Honble High Court of Bombay in the case of Shyam CHS and Suprabhat CHS, wherein, it has been held that all amounts received by the CHS on the grounds of transfer charges are exempt under the principle of mutuality. The decision has not been accepted by the Department and the issue is sub-judice.

4. Having heard learned Departmental Representative, we find that this issue is squarely covered by the judgment of Honble Bombay High Court in the case of M/s. Shyam CHS and Suprabhat, CHS, order dated 1.10.2009, wherein, it has been held that all amounts received by the Co-operative Housing Society on the grounds of transfer charges are exempt under the principle of mutuality. Similar view has also been taken in the case of Mittal Court Premises Co-operative Society Ltd. v. Incometax Officer. : 320 ITR 414 (Bom). We also find that the CIT(A) has followed the decision of Honble Bombay High Court in the case of M/s. Shyam CHS and Suprabhat, CHS(SUPRA) for allowing the transfer fees claimed by the Assessee. We, therefore, uphold the same.

5. Ground No. 1 is dismissed.

6. In Ground No. 2 in all the appeals, the Assessing Officer is aggrieved by the deletion of addition of the amount received from parties on account of general maintenance, misc. income, change of user charge, lift charges, advertisement and car parking charges, treating these amount exempt under the principle of mutuality.

7. Having heard learned Departmental Representative, we find that these contributions from the members of the society were incurred for regular maintenance and upkeep of the building. Therefore, these are covered under the principle of mutuality. The CIT(A) following the decisions of his predecessors from the assessment years 1995-96 to 2000-2001 and also the decisions of various Courts on the subject, has deleted the addition made by the Assessing Officer. We are in agreement with the CIT(A) and decline to interfere.

8. Ground No. 2 is thus dismissed.

9. In Ground No. 3 in all the assessment years, the Assessing Officer is aggrieved by the decision of the CIT(A) in deleting the addition on account of non-occupancy charges.

10. Having heard learned Departmental Representative, we find this issue is squarely covered by the Honble Bombay High Courts judgment in the case of Mittal Court Premises Co-operative Society Ltd. v. Income-tax Officer. : 320 ITR 414 (Bom), wherein, it has been held that non-occupancy charges were not taxable. This view has also been taken by the various coordinate Benches of this Tribunal. In view of this, since the CIT(A) has deleted the addition following the various decisions of the Tribunal, we decline to interfere and uphold the same.

11. Ground No. 3 is thus dismissed.

12. In Ground No. 4 for the assessment year 2002-03 and 2004-05, the Assessing Officer has raised the following grievance:

The ld CIT(A) erred in deleting the addition of`.37,89,635 for A.Y. 2002-03 and 8,41,863 for A.Y. 2004-05 on account of interest received from bank, treating interest received from Co-operative Banks are exempt Under Section 80P(2)(c) of the I.T. Act, 1961 without appreciating the fact that the Assessee has not filed any details.

13. Having heard the learned Departmental Representative, we find from the details of investments of the Assessee, all the interest income is from co-operative bank and not from non-cooperative bank. Therefore, they are exempt under Section 80P(2)(c). In the impugned order, the CIT(A) has directed the AO to verify whether the contention of the Assessee is correct that all the fixed deposits in the cooperative bank and allow the deduction under Section 80P(2)(c). Therefore, we do not find any infirmity in his order to interfere and, accordingly, uphold the same.

14. Ground No. 4 in both the years is dismissed.

15. In the result, all the appeals are dismissed.

16. Pronounced in the open court on 26th August, 2011