ACIT 18(1), MUMBAI V. HRISHIKESH CO OPERATIVE SOCIETY LTD, MUMBAI

ITA 2489/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 101207 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2009-2010
• Appeal Filed On: 11-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARI S RAHEJA
• Assessee Lawyers: K MOHANDA S

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN , AM AND PAWAN SINGH , JM ./ I.T.A. NO . 2 489 / MUM/20 1 4 ( / ASSESSMENT YEA R : 200 9 - 10 ) ASSTT . COMMISSIO NER OF INCOME TAX - 18(1), ROOM NO. 116 , 1ST FLOOR, PIRAMAL CHAMBERS , PAREL , MUMBAI - 4000 12 . / VS. HRISHIKESH CO - OPERATIVE HOUSING SOCIETY LIMITED., HRISHIKESH APARTMENT, VEER SAVARKAR MARG, PRABHADEVI, MUMBAI - 400028 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AAAAHO530K / APPELLANT BY SHRI K. MOHANDAS / R EVENUE BY SHRI HARI S RAHEJA / DATE OF HEARING : 6 .10. 201 5 / DATE OF PRONOUNCEMENT: 6 .10. 201 5 / O R D E R P ER B R BASKARAN, AM : THE REVENUE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 28 - 01 - 2014 PASSED BY LD CIT(A) - 29, MUMBAI FOR ASSESSMENT YEAR 2009 - 10, WHEREIN HE HAS H ELD THAT THE RENT RECEIVED FOR LETTING OUT OPEN SPACES/COMPOUND WALL FOR PUTTING UP HOARDINGS IS ASSESSABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE FACTS ARE THAT THE ASSESSEE HAS ENTERED INTO AN AGR EEMENT WITH M/S SHREE SWAMI SAMRATH ADVERTISING FOR PUTTING UP HOARDING STRUCTURES ON THE COMPOUND WALL AND OPEN SPACES WITHIN ITS PREMISES UPON RECEIPT OF RENT. THE ASSESSEE OFFERED THE RENTAL INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY. ITA NO. 2489 / MUM/20 1 4 2 HOWEVER, T HE ASSESSING OFFICER ASSESSED THE SAME UNDER THE HEAD INCOME FROM OTHER SOURCES. IN THE APPELLATE PROCEEDINGS, THE LD CIT(A) REVERSED THE ORDER OF THE AO AND HELD THAT THE INCOME RECEIVED BY THE ASSESSEE IS ASSESSABLE AS INCOME FROM HOUSE PROPERTY. AGGRI EVED, THE REVENUE HAS FILED THIS APPEAL BEFORE US. 3. AT THE TIME OF HEARING, THE LD A.R SUBMITTED THAT THE ISSUE UNDER CONSIDERATION IS COVERED BY THE DECISION OF HONBLE JURISDICTIONAL BOMBAY HIGH COURT RENDERED IN THE CASE OF THE CIT VS. BALAJI BHA WAN OWNERS PREMISES CO - OP SOC. LTD (ITA NO.3183 OF 2010 DATED 16 - 08 - 2011) AND ALSO BY THE DECISION RENDERED BY THE CO - ORDINATE BENCH OF TRIBUNAL IN THE CASE OF MEHERABAD CO - OP HSG. SOC. LTD VS. THE ITO (ITA NO.4370/MUM/2011 DATED 13 - 06 - 2012). IN BOTH THES E CASES, THE RENT RECEIVED FOR ALLOWING INSTALLATION OF COMMUNICATION TOWERS ON THE TERRACE OF THE BUILDING WAS HELD TO BE ASSESSABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 4. THE LD D.R SUBMITTED THAT THE ABOVE SAID CASES ARE DISTINGUISHABLE ON F ACTS, I.E., ACCORDING TO LD D.R, THE ASSESSEE HAS RECEIVED THE RENT FOR ALLOWING INSTALLATION OF HOARDING BOARDS ON THE COMPOUND WALL AND IN THE OPEN AREA OF THE BUILDING, WHERE AS IN THE ABOVE CITED CASES, THE RENTAL INCOME WAS RECEIVED FOR INSTALLING MOB ILE COMMUNICATION TOWERS ON THE TERRACE OF THE BUILDING. 5. IN OUR VIEW, THE DISTINGUISHING FEATURES BROUGHT OUT BY LD D.R DO NOT MAKE ANY DIFFERENCE. A PERUSAL OF SEC. 22 OF THE ACT WOULD SHOW THAT THE ANNUAL VALUE OF PROPERTY CONSISTING OF ANY BUI LDINGS OR LANDS APPURTENANT THERETO .... ARE CHARGEABLE TO INCOME TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE HOARDINGS HAVE BEEN INSTALLED ON THE COMPOUND WALL AND THE ITA NO. 2489 / MUM/20 1 4 3 OPEN AREA OF THE BUILDING, WHICH FALLS IN THE CATEGORY OF LANDS APPURTENANT TO THE BUILDING. WE NOTICE THAT THE LD CIT(A) HAS FOLLOWED FOLLOWING DECISIONS RENDERED BY THE CO - ORDINATE BENCHES OF TRIBUNAL, WHEREIN IT HAS BEEN HELD THAT THE LETTING OUT OF THE TERRACE SPACE FOR PUTT ING UP NEON SIGNS AND HOARDINGS WOULD CONSTITUTE INCOME FROM HOUSE PROPERTY: - (A) TIRUPATI MAHALAXMI CO - OP HOUSING SOCIETY (ITA NO.3846/MUM/2010 DATED 30 - 08 - 2011) (B) KAMLESH REAL ESTATES PVT LTD VS. AO (ITA NO.1451/M/2010 DATED 20 - 04 - 2011 ) IN THE CASE OF KAMLESH REAL ESTATES PVT LTD, THE TRIBUNAL HAS NOTED THE FACT THAT THE RENTAL INCOME IS DERIVED ON LETTING OUT THE TERRACE SPACE AND NOT FOR LETTING OUT THE HOARDINGS OR TOWERS. 6. IN THE INSTANT CASE ALSO, THE ASSESSEE HAS LET OUT THE LAND APPURTENANT TO THE BUILDING AND ALSO A PART OF COMPOUND WALL AND HAS EARNED RENTAL INCOME. HENCE, WE ARE OF THE VIEW THAT THE LD CIT(A) WAS JUSTIFIED IN HOLDING THAT THE RENTAL INCOME RECEIVED BY THE ASSESSEE IS ASSESSABLE AS INCOME FROM HOUSE PROPER TY BY FOLLOWING THE DECISION RENDERED BY THE CO - ORDINATE BENCHES OF THE TRIBUNAL, REFERRED SUPRA. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. PRONOUNCED ACCORDINGLY ON 6TH OCTOBER, 2 015. 6TH OCTOBER, 2 015 SD SD ( PAWAN SINGH ) ( B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 6TH OCTOBER, 2 015. . . ./ SRL , SR. PS ITA NO. 2489 / MUM/20 1 4 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI