ITO 15(1)(1), MUMBAI V. WOODEN BOXES MANUFACTURERS CO OP INDL ESTATE LTD, MUMBAI

ITA 64/MUM/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8198 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 26-08-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 03-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARMINDER
• Assessee Lawyers: HARSHAVARDHANA DATAR; PRAVIN SURVE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 64MUM/2013 ASSESSMENT YEAR: 2009-10 ITO-15(1)(1) MUMBAI VS. M/S. WOODEN BOXES MANUFACTURERS CO.OP INDL. ESTATE LTD. 405-408 HIND RAJASTHN CENTRE, D.S. PHALKE ROAD, DADAR (E), MUMBAI- 14 PAN: AAAAW 0647 G (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI HARSHAVARDHANA DATAR & PRAVIN SURVE REVENUE BY : SMT. PARMINDER DATE OF HEARING : 26.08.2014 DATE OF PRONOUNCEMENT : 26.08.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF THE LD.CIT(A) -26, MUMBAI DATED 12.10.2012 FOR THE ASSE SSMENT YEAR 2009-10. 2. THE FIRST ISSUE ARISING OUT OF THIS APPEAL IS PERTAINING TO THE DE CISION OF THE LD.CIT(A) IN DIRECTING THE AO TO ASSESS THE RECEIPT S FROM LETTING OUT TERRACE FOR INSTALLATION OF MOBILE TOWER UNDER THE HEAD INCOME FROM HOUSE PROPERTY AGAINST THE SAME ASSESSED BY THE AO UNDER THE HEAD INCOME FROM OTHER SOURCES. DURING THE COURSE OF THE ASSESSMENT PROCEEDING, THE AO OBSERVE D THAT AS PER THE RENT AGREEMENT SUBMITTED BY THE ASSESSEE, THE ASSESSEE H AD GIVEN 350 SQ.FT. OF THE TERRACE AREA ON RENT FOR ERECTION AND INSTALLATION OF AN ANTENNA/TOWER AND BTS EQUIPMENT ETC. OF M/S. RELIANCE COMMUNICATION LTD. THE ASSESSEE HAD CLAIMED THE RECEIPTS UNDER THE HEAD INCOME FROM HOUSE PROPERTY . HOWEVER, THE AO HELD THE SAME AS INCOME FROM OTHER SOURCES. ON APPEAL, THE LD.CIT(A) BY RELYING ON VARIOUS DECISIONS OF THE TRIBUNAL IN THE CASES OF JAI GIRNAR CO-OP. SOCIETY LTD. VS. ITO ITA NO. 91/M/04 ORDER DATED 06.07.2006, ITO VS. CUFFE P ARADE SAINARA PREMISES CO-OP. ITA NO. 64MUM/2013 M/S. WOODEN BOXES MANUFACTURERS CO.OP INDL. ESTATE LTD. ASSESSMENT YEAR: 2009-10 2 SOC. LTD. ITA NO. 7225/M/2005 ORDER DATED 28.04.200 8, TAPASAYA CO-OP. HSG. SOC. LTD. VS. ITO ITA NO. 2570/M/2009 ORDER DATED 15.01. 2010, TRUF VIEW CO-OP. SOC. LTD. VS. ITO ITA NO.6545/M/2009 ORDER DATED 23.07.2 010 AND MATRU ASHISH CO-OP. HSG. SOC. LTD. VS. ITO ITA NO. 316/M/2005 ORDER DAT ED 27.08.2010, HAS HELD THE RECEIPT AS INCOME FROM HOUSE PROPERTY. IN VIEW OF THE FACTS THAT THE LD.CIT(A) HAS RIGHTLY RELIED ON THE DECISIONS OF THE TRIBUNAL FOR CONCLUDING THE RECEIPT AS INCOME FORM HOUSE PROPERTY, WE FIND NO JUSTIFIABLE REASON TO INTERFERE WITH THE DECISION OF THE LD.CIT(A) ON THIS COUNT AND HENCE THE SAME IS U PHELD. 3. THE SECOND ISSUE RAISED BY THE REVENUE PERTAINS TO THE DECISION OF THE LD.CIT(A) DIRECTING THE AO TO DELETE THE ADDITION O F PENAL INTEREST OF RS.11,11,111/- ON THE GROUND OF PRINCIPLE OF MUTUALITY. THE LD.CIT (A) DELETED THE IMPUGNED ADDITION MADE BY THE AO ON THE GROUND THAT THE PENA L INTEREST ON DUES OF THE MEMBER HAS BEEN GENERATED FROM THE MEMBERS ONLY AND THEREFORE IT IS COVERED BY THE CONCEPT OF MUTUALITY AND HENCE THE SAME IS EXEM PT FROM TAXATION. IN VIEW OF THE FACT THAT THE LD.CIT(A) HAS RIGHTLY FOLLOWED THE PR INCIPLE OF MUTUALITY FOR DELETING THE IMPUGNED ADDITION, WE DO NOT FIND ANY INFIRMITY IN THE SAID DECISION OF THE LD.CIT(A) ON THIS COUNT AND THE SAME IS THEREFORE UPHELD. 4. THE THIRD ISSUE RAISED BY THE REVENUE RELATES TO THE DECISION OF T HE LD.CIT(A) IN DIRECTING THE AO TO ALLOW THE DEDUCTIO N U/S 80P ON INTEREST ON FIXED DEPOSIT AT RS.27,14,136/-. ON THIS ISSUE, THE LD.CI T(A), WHILE HOLDING THAT THE INTEREST ON FD OF THE ASSESSEE IS TO BE TREATED UND ER THE HEAD INCOME FROM OTHER SOURCES AS OBSERVED BY THE AO, BUT SINCE THE INTER EST HAS BEEN RECEIVED FROM CO- OP. BANKS, IT IS ENTITLED FOR EXEMPTION U/S 80P OF THE INCOME-TAX ACT. SINCE THE LD.CIT(A) HAS CORRECTLY HELD THAT THE ASSESSEE IS E NTITLED FOR EXEMPTION U/S 80P OF THE ACT, THE DECISION OF THE LD.CIT(A) ON THIS COUN T DESERVES TO BE UPHELD. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH DAY OF AUGUST, 2014. SD/- SD/- (N.K. BILLAIYA) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 26.08.2014 *SRIVASTAVA ITA NO. 64MUM/2013 M/S. WOODEN BOXES MANUFACTURERS CO.OP INDL. ESTATE LTD. ASSESSMENT YEAR: 2009-10 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR G BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.