This judgement has potential of generating huge revenue for the department. Department has to gather information about these kinds of assessee and reopen their old cases as per the period available.There are many such clubs in India who are claiming exemption on principle of mutuality. Most of institutions have huge investments which have resulted in substantial interest income for these kinds of clubs.
M/s Bangalore Club vs. CIT (Supreme Court)
January 15th, 2013
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Interest earned by a mutual association from deposits placed with member banks is not exempt on the ground of "mutuality"
The assessee, a mutual association, claimed that the interest earned by it on fixed deposits kept with the bank (which was a corporate member) was not taxable on the basis of mutuality. The AO rejected the claim though the CIT(A) and Tribunal upheld the claim. The High Court reversed the Tribunal and upheld the stand of the AO. On appeal by the assessee to the Supreme Court, HELD dismissing the appeal:
For a receipt to be exempt on the principles of Mutuality, three conditions have to be satisfied. The first is that there must be a complete identity between the contributors and participators. The second is that the actions of the participators and contributors must be in furtherance of the mandate of the association. The third is that there must be no scope of profiteering by the contributors from a fund made by them which could only be expended or returned to themselves. On facts, though the interest was earned from banks which were corporate members of the club, it was not exempt on the ground of mutuality because (i) the arrangement lacks a complete identity between the contributors and participators. With the funds of the club, member banks engaged in commercial operations with third parties outside of the mutuality, rupturing the 'privity of mutuality', and consequently, violating the one to one identity between the contributors and participators, (ii) the surplus funds were not used in furtherance of the object of the club but were taken out of mutuality when the member banks placed the same at the disposal of third parties, thus, initiating an independent contract between the bank and the clients of the bank, a third party, not privy to the mutuality & (iii) The Banks generated revenue by paying a lower rate of interest to the assessee-club and loaning the funds to third parties. The interest accrued on the surplus deposited by the club like in the case of any other deposit made by an account holder with the bank. A façade of a club cannot be constructed over commercial transactions to avoid liability to tax. Such setups cannot be permitted to claim double benefit of mutuality.
Note: This impliedly approves Common Effluent Treatment Plant 328 ITR 362 (Bom) & Wellington Gymkhana Club 46 DTR 22 (Mad) while impliedly reversing Delhi Gymkhana Club 339 ITR 525 (Del)
----- Forwarded Message -----
From: CA. V.M.V.SUBBA RAO <vmvsrao@gmail.com>
To: Kanigalla <kanigalla@hotmail.com>
Sent: Friday, 18 January 2013 5:42 AM
Subject: Issues relating to export of computer software-Direct tax benefits- Clarification
From: CA. V.M.V.SUBBA RAO <vmvsrao@gmail.com>
To: Kanigalla <kanigalla@hotmail.com>
Sent: Friday, 18 January 2013 5:42 AM
Subject: Issues relating to export of computer software-Direct tax benefits- Clarification
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