ACIT 12(3), MUMBAI V. DALAMAL HOUSE COMMERCIAL COMPLEX PREMISES CO OP SOC LTD, MUMBAI

ITA 4399/MUM/2012

• Counselvise Citation: 439919914 RSA 2012
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 29-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 29-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J K GARG
• Section: 56

Judgement Text

, MH MHMH MH INCOME TAX APPELLATE TRIBUNAL,MUMBAI - D BENCH. . .. . , !' !' !' !' # # # # $%&' $%&' $%&' $%&' , % % % % () () () () BEFORE S/SH.D.MANMOHAN,VICE-PRESIDENT & RAJENDR A,ACCOUNTANT MEMBER ./ ././ ./ ITA NO.4399/MUM/2012 , + + + +/ // / ASSESSMENT YEAR-2008-09 ASST. COMMISSIONER OF INCOME TAX- 12(2),R.NO. 137, 1 ST FLOOR, AAYAKAR BHAVAN, MUMBAI. MUMBAI- 400 020 VS. M/S. DALAMAL HOUSE, COMMERCIAL COMPLEX PREMISES C0OP. SOC. LTD., 206 DALAMAL HOUSE, NARIMAN POINT, MUMBAI- 400 021 PAN: AAATD0718B ( ,- / // / APPELLANT ) ( ./,- / RESPONDENT ) ,- ,- ,- ,- 0 0 0 0 % %% % / APPELLANT BY : SHRI J.K. GARG. ./,- 1 0 % / RESPONDENT BY : NONE 1 11 1 2 2 2 2 / DATE OF HEARING : 29/08/2013 3+ 1 2 / DATE OF PRONOUNCEMENT : 04/09/2013 , 1961 1 11 1 254(1) % %% % &242 &242 &242 &242 (%5 (%5 (%5 (%5 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, A.M: CHALLENGING THE ORDER DT.04-04-2012 OF THE CIT(A)-2 3, MUMBAI ASSESSING OFFICER(AO) HAS RAISED FOLLOWING GROUNDS OF APPEAL: (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) RIGHT IN HOLDING RECEIPTS AS INCOME TAXABLE UNDE3R INCOME FROM HOUSE PROPERTY INST EAD OF INCOME FROM OTHER SOURCES (2) THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND(S) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. (3) THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NE W GROUND, WHICH MAY BE NECESSARY. 2. THE ONLY EFFECTIVE GROUND IS ABOUT TAXABILITY OF IN COME UNDER THE HEAD INCOME FROM HOUSE PROPERTY/INCOME FROM OTHER SOURCES. DURING THE ASS ESSMENT PROCEEDINGS, AO FOUND THAT ASSESSEE HAD ALLOWED TO USE THE TERRACE OF THE BUIL DING AND HAD RECEIVED RENT OF RS. 19.40 LACS DURING THE ASSESSMENT YEAR UNDER CONSIDERATION, THA T IT HAD DECLARED THE INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY, THAT IT DEDUCTED 30% OF THE RECEIPT FOR REPAIR AND COLLECTION. AFTER GOING THROUGH THE AGREEMENTS ENTERED INTO BET WEEN THE ASSESSEE-HOUSING-SOCIETY AND THE COMPANIES WHO WERE USING THE TERRACE, AO HELD THAT REPAIR EXPENSES WERE TO BE BORNE BY THE COMPANIES, THAT THERE WAS NO NECESSITY FOR MAKING C OLLECTION CHARGES. FINALLY, HE HELD THAT AMOUNT RECEIVED BY THE ASSESSEE HAD TO BE TAXED U/S . 56 OF THE ACT UNDER THE HEAD INCOME FROM OTHER SOURCES. 2.1 .ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPE LLATE AUTHORITY(FAA). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND MATERIAL ON REC ORD, HE HELD THAT ISSUE OF USE OF TERRACE AND RESULTANT INCOME HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN THE CASE OF M/S. MAHALAXMI SHEELA PREMISES HOUSING SOCIETY LTD. BY THE ITAT BE NCH OF MUMBAI VIDE ITS ORDER DATED 30.08.2011 (ITA NO. 784-786/MUM/2010- AYS 2000-2001 -02 & 2002-03. 2.3 .BEFORE US, DEPARTMENTAL REPRESENTATIVE(DR) SUPPORT ED THE ORDER OF THE AO. 2.4 .WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL ON RECORD.WE FIND THAT IN THE CASE OF M/S. MAHALAXMI SHEELA PREMISES HOUSING SOCI ETY LTD. (SUPRA) TRIBUNAL HAS DEALT THE 2 ITA NO. 4399/MUM/2012(AY-2008-09) M/S. DALAMAL HOUS E SAME ISSUE. IN THAT CASE INCOME WAS RECEIVED BY THE ASSESSEE ON A LEASE OF A PORTION OF TERRACE OF THE BUILDING FOR THE PURPOSE OF FIXING OF HOARDING, NEON SIGN, ETC. AO ASSESSED THE INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES ON THE GROUND THAT THE AMOUNT RECEIVED BY THE ASSESSEE WAS NOT FOR LETTING OF A BUILDING/TERRACE THERETO BUT ON ACCOUNT OF ALLOWING TO DISPLAY THE ADVERTISEMENT OF NEON SIGN. AFTER CONSIDERING THE F ACTS OF THE CASE, TRIBUNAL DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. WE FIND THAT FAA HAS GIVEN A CATEGORICAL FINDING THAT FACTS OF THE PRESENT CASE WERE SIMILAR TO THE FACTS OF THE CASE OF M/S. MAHALAXMI SHEELA PREMISES HOUSING SOCIETY LTD.(SUPRA). AS THE FAA HAS FOLLOWED THE ORDER OF T HE JURISDICTIONAL ITAT, SO WE DO NOT FEEL IT NECESSARY TO INTERFERE WITH THE ORDERS PASSED BY HI M. THEREFORE, UPHOLDING THE ORDER OF THE FAA, WE DECIDE EFFECTIVE GROUND OF APPEAL FILED BY THE A O AGAINST HIM. AS A RESULT APPEAL FILED BY THE AO STAND DISMISSED. 6 )7 62 VF/KDKJH 8 ( 9 6$ 1 $ 2 :. ORDER PRONOUNCED IN THE O PEN COURT ON 04 TH SEPTEMBER, 2013 (%5 1 3+ % & ; <( 4 , FLRECJ 2013 1 4 = SD/- SD/- ( . / D. MANMOHAN ) ( $%&' $%&' $%&' $%&' / RAJENDRA) !' !' !' !' / VICE-PRESIDENT % % % % () () () () /ACCOUNTANT MEMBER / MUMBAI, <( /DATE: 04.09 . 2013 SK (%5 (%5 (%5 (%5 1 11 1 .2> .2> .2> .2> ?%>+2 ?%>+2 ?%>+2 ?%>+2 / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / ,- 2. RESPONDENT / ./,- 3. THE CONCERNED CIT(A)/ @ A , 4. THE CONCERNED CIT / @ A 5. DR D BENCH, ITAT, MUMBAI / >B 4 .2 MH . , . . & . 6. GUARD FILE/ 4 C / >2 .2 //TRUE COPY// (%5 / BY ORDER, / $ DY./ASST. REGISTRAR , /ITAT, MUMBAI