SULAKSHANA SECURITIES LTD, MUMBAI V. ITO 1(3)(2), MUMBAI

ITA 6427/MUM/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0639 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 31-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E , MUMBAI BEFORE SHRI R.C. SHARMA , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 6427/M/2013 ASSESSMENT YEAR: 2009 - 10 M/S. SULAKSHANA SECURITIES LTD., 4 TH FLOOR, MAFATLAL HOUSE, H.T. PAREKH MARG, BACKBAY RECLAMATION, MUMBAI 400 020 PAN: AABCS 1783 L VS. INCOME TAX OFFICER - 1(3)(2), ROOM NO.541, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : MS. AARTIVISANJI, A.R. REVENUE BY : SHRI NEIL PHILIP, D.R. DATE OF HEARING : 23.03. 201 5 DATE OF PRONOUNCEMENT : 27.05. 2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAIN ST THE ORDER DATED 20.08.2013 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [(HEREINAFTER REFERRED TO AS CIT(A)] RELEVANT TO ASSESSMENT YEAR 2009 - 10. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: ITA NO.6427/M/2013 M/S. SULAKSHANA SECURITIES LTD. 2 2. THE BRIEF FACTS OF THE CASE ARE THAT FOR THE RELEVANT ASSESSMENT YEAR THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) ASSESSED THE INCOME FROM AIR CONDITIONING AND OTHER CHARGES OF RS.14,97,652/ - AS INCOME FROM HOUSE PROPERTY AND ALLOWED DEDUCTION U/S. 24(A) ONLY. ACCORDING T O THE AO, AIR CONDITIONING AND OTHER CHARGES COULD NOT BE SEPARATED FROM THE PROPERTY LET OUT BEING PART AND PARCEL OF THE HOUSE PROPERTY, THEREFORE SUCH INCOME SHOWN BY THE ASSESSEE WA S TO BE ASSESSED AS INCOME FROM HOUSE PROPERTY. THUS, HE ASSESSED THE INCOME FROM AIR CONDITIONING AND OTHER CHARGES AS INCOME FROM HOUSE PROPERTY. 3. IN FIRST APPEAL, THE LD. CIT(A) OBSERVED THAT THE IDENTICAL ISSUE HAD COME UP FOR CONSIDERATION BEFORE THE LD. CIT(A) IN EARLIER ASSESSMENT YEARS I.E. A.Y. 2006 - 07 AND A.Y. 2008 - 09. HE FURTHER OBSERVED THAT THERE WAS NO CHANGE IN THE FACTS FOR THE YEAR UNDER CONSIDERATION. HE, THEREFORE, RELYING UPON AND FOLLOWING THE DECISION OF HIS PREDECESSOR CIT(A) IN RELATION TO EARLIER ASSESSMENT YEAR, DIRECTED THE AO TO FOLLOW THE D IRECTIONS GIVEN BY THE CIT(A) IN RELATION TO A.Y. 2006 - 07 FOR THIS YEAR ALSO AND DETERMINE THE AIR CONDITIONING AND OTHER CHARGES AS INCOME FROM OTHER SOURCES AND ALLOW ONLY ITA NO.6427/M/2013 M/S. SULAKSHANA SECURITIES LTD. 3 ELECTRICITY EXPENSES FOR RUNNING OF AIR CONDITIONERS AFTER RE - VERIFICATION. HE FU RTHER HELD THAT OTHER EXPENDITURE WOULD NOT BE ALLOWABLE TO BE SET OFF AGAINST THE INCOME FROM OTHER SOURCES. 4. BEFORE US, AT THE OUTSET, THE LD. A.R. OF THE ASSESSEE HAS STATED THAT THE ISSUE FOR THE EARLIER ASSESSMENT YEAR 2006 - 07 HAD TRAVELLED UP TO THE LEVEL OF TRIBUNAL . WE HAVE PERUSED THE TRIBUNALS ORDER FOR THE ASSESSMENT YEAR I.E. A.Y. 2006 - 07 PASSED IN ITA NO.7271/M/2011 DATED 11.04.2014. WE FIND THAT THE TRIBUNAL, WHILE ADJUDICATING THE IDENTICAL ISSUE FOR A.Y. 2006 - 07, HAS RESTORED THE MAT TER TO THE FILE OF THE AO OBSERVING AS UNDER: 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. INSOFAR AS THE ISSUE, WHETHER RECEIPT FROM AIR CONDITIONING AND OTHER CHARGES ARE TO BE ASSESSED UNDER THE H EAD 'INCOME FROM OTHER SOURCES' OR UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' IS CONCERNED, THE SAME HAS BEEN SETTLED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE IN ASSESSEE'S OWN CASE, BY HOLDING THAT SUCH RECEIPTS ARE TO BE ASSESSED UNDER THE HEAD 'INCOME FROM OTHER SOURCES', WHICH HAS BEEN ACCEPTED BY THE LEARNED COMMISSIONER (APPEALS) ALSO. HOWEVER, THE LEARNED COMMISSIONER (APPEALS), WITHOUT ANALYSING THE NATURE OF EXPENDITURE INCURRED BY THE ASSESSEE IN RELATION TO MAFATLAL CENTRE BUILDING, HAS SIMPLY DIRECTED THE ASSESSING OFFICER TO ALLOW ELECTRICITY CHARGES ONLY. SUCH A DIRECTION IS WHOLLY MISCONCEIVED AS ALL THE NECESSARY EXPENDITURES WHICH ARE ATTRIBUTABLE TO THE EARNING OF THE RECEIPTS WHICH ARE SHOWN UNDER THE HEAD 'INCOME FROM OTHER SOURCES' HAS TO BE CONSIDERED UNDER SECTION 57(III). THE TRIBUNAL ALSO GAVE SIMILAR DIRECTIONS TO THE ASSESSING OFFICER TO ALLOW THE EXPENDITURE AFTER EXAMINING THE SAME UNDER SECTION 57. IN THIS YEAR ALSO, CONSISTENT WITH THE STAND TAKEN BY THE TRIBUNAL, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS) AND RESTORE BACK THE ISSUE TO THE FILE OF THE ASSESSING OFFICER AND DIRECT HIM TO CONSIDER THE EXPENSES AS SHOWN BY THE ASSESSEE AND TO SEE ITS DEDUCTIBILITY UNDER SECTION 57 OF THE ACT. THUS , THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. SINCE TH E FACTS ARE IDENTICAL AND THE LD. CIT(A) IN THE IMPUGNED ORDER HAD ALSO FOLLOWED THE DECISION OF HIS PREDECESSOR RELEVANT TO A.Y. 2006 - 07, HENCE IN VIEW OF THE FACT THA T THE ISSUE HAS BEEN CONSIDERED AND RESTORED BY THE ITA NO.6427/M/2013 M/S. SULAKSHANA SECURITIES LTD. 4 TRIBUNAL TO THE FILE OF THE AO FOR A.Y. 2006 - 07, WE ACCORDINGLY SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND RESTORE THE ISSUE TO THE FILE OF THE AO IN TERMS OF THE DIRECTION GIVEN BY THE TRIBUNAL O N IDENTICAL FACTS IN EARLIER ASSESSMENT YEAR 2006 - 07 AND DIRECT THE AO TO DECIDE IT ACCORDINGLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27.05. 201 5 . SD/ - SD/ - ( R.C. SHARMA ) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 27.05.2015 . * KISHORE , SR. P.S. COPY TO: THE APPELLANT THE RE SPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.