DCIT 13(2), MUMBAI V. NIRMALA ZAVERCHAND SHAH, MUMBAI

ITA 6880/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2967 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 21-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 27-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.6880/MUM/2013 ASSESSMENT YEAR 2002-03 THE DEPUTY COMMISSIONER OF INCOME TAX-13(2), ROOM NO.421, 4 TH FLOOR, AAYAKAR BHANVA, M.K.ROAD MUMBAI-400020 / VS. SMT. NIRMALA ZAVERCHAND SHAH, 41/45, DEVAJI RATANSEY MARG, DANA BUNDER, MUMBAI-400009 ( / REVENUE) ( !'# $ /ASSESSEE) PAN. NO. AAIPS0872Q / REVENUE BY SHRI VIJAY KUMAR SONI !'# $ / ASSESSEE BY NONE % & $ ' / DATE OF HEARING : 21/10/2015 & $ ' / DATE OF ORDER: 05/11/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 01/08/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED IN THIS APPEAL PERTAINS TO T REATING AMENITY CHARGES OF RS.53,42,136/- AS INCOME FROM HO USE PROPERTY AND THEREBY ALLOWING DEDUCTION AT RS.16,02 ,641/- U/S 24 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). NIRMALA ZAVERCHAND SHAH ITA NO.6880/MUM/2013 2 2. DURING HEARING OF THIS APPEAL, THE LD. DR, SHRI VIJAY KUMAR SONI, ADVANCED HIS ARGUMENTS WHICH ARE IDENTI CAL TO THE GROUND RAISED, BY DEFENDING THE ASSESSMENT ORDE R. NONE WAS PRESENT FOR THE ASSESSEE, IN SPITE OF ISSUANCE OF REGISTERED AD NOTICE, THEREFORE, WE HAVE NO OPTION BUT TO PROCEED EX-PARTY, QUA THE ASSESSEE, AND TEND TO DIS POSE OF THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RE CORD. 2.1. WE HAVE CONSIDERED THE SUBMISSIONS ADVANCED B Y LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD . THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE RECEIVED THE AMOUNT OF RS.78,81,840/- BY WAY OF RENT AND RS.53,42,136/- OU T OF AMENITIES. THE ASSESSEE, THEREBY, SHOWED RENTAL IN COME OF RS.1,32,23,976/-. THE ASSESSING OFFICER WAS OF THE VIEW, THAT THE AMOUNT RECEIVED BY WAY OF AMENITIES CANNOT BE T REATED AS INCOME FROM HOUSE PROPERTY AND THEREBY HE TREATED T HE SAME AS INCOME FROM OTHER SOURCES/BUSINESS INCOME. THE ASSESSING OFFICER DISALLOWED THE CLAIMED STANDARD D EDUCTION AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 2.2. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INC OME TAX (APPEALS), THE STAND OF THE ASSESSEE WAS FOUND CONVINCING, THEREFORE, THE ISSUE WAS DECIDED IN FAV OUR OF THE ASSESSEE. THE REVENUE IS AGGRIEVED AND IS IN APPEAL BEFORE THIS TRIBUNAL. 2.3. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, NIRMALA ZAVERCHAND SHAH ITA NO.6880/MUM/2013 3 ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, WE NOTE THAT THE AMENIT IES AVAILABLE IN THE BUILDING WAS RCC FRAME STRUCTURE, MARVEL/GRANITE IN THE COMMON AREAS, LOBBIES, ETC, K OTAH IN STAIRCASES, TWO ELEVATORS, CONTROL ROOM: CCTV IN CO MMON AREAS, WATER SUPPLY, ELECTRICITY, AHU ROOM AND FIRE CONTROL SYSTEM. IF THE NATURE OF THESE AMENITIES ARE ANALYZ ED, THESE ARE CLEARLY PART AND PARTIAL OF THE BUILDING. BOTH THE AGREEMENTS OF LEAVE AND LICENCE AND OTHER FOR AMEN ITIES ARE COMPOSITE ONE AND ONE CANNOT BE ENFORCED WITHOUT TH E OTHER. THESE ARE THE BASIC AGREEMENT AND ARE INTEGRAL PART TO USE OF LICENCE PREMISES AND THEIR USES COEXTENSIVE/COTERMI NOUS, THEREFORE, THESE CANNOT BE SEGREGATED, THUS, THE CH ARGES FOR AMENITIES WERE RIGHTLY HELD TO BE INCOME FROM HOUSE PROPERTY, THUS, THE CLAIMED DEDUCTION IS ALSO ALLOW ABLE, THEREFORE, WE AFFIRM THE STAND OF THE LD. COMMISSIO NER OF INCOME TAX (APPEALS). FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 21/10/2015. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % MUMBAI; ( DATED : 05/11/2015 F{X~{T? P.S/. . . NIRMALA ZAVERCHAND SHAH ITA NO.6880/MUM/2013 4 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 1$ ( *+ ) / THE CIT, MUMBAI. 4. 1$ / CIT(A)- , MUMBAI 5. 34 .$ ! , *+' *! 5 , % / DR, ITAT, MUMBAI 6. 6' 7% / GUARD FILE. / BY ORDER, /3+$ .$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI.