J.K. INVESTORS ( BOMBAY) LTD, MUMBAI V. ADDL CIT RG 2(2), MUMBAI

ITA 7472/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78986 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 30-04-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 17-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, , INCOME TAX APPELLATE TRIBUNAL MUMBAI - J BENCH MUMBAI , , / , BEFORE S/SH. VIJAY PAL RAO, JUDICIAL MEM BER & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO. 7472/MUM/2012, ! ! ! ! ' ' ' ' / ASSESSMENT YEAR2009-10 J.K. INVESTORS (BOMBAY) LTD., NEW HIND HOUSE, 3 NAROTTAM MORARJEE MARG, BALLARD ESTATE, MUMBAI-400001 VS. ADDL CIT RG 2(2), AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 PAN: AAACJ2089D /. ITA NO. 711/MUM/2013, ! ! ! ! ' ' ' ' / ASSESSMENT YEAR2009-10 DCIT 2(2), R.NO. 545, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 VS. J.K. INVESTORS (BOMBAY) LTD., NEW HIND HOUSE, NAROTTAM MORARJEE MARG, BALLARD ESTATE, MUMBAI-400001 PAN: AAAPJ5006B ( #$ / APPELLANT) ( %&#$ / RESPONDENT) #$ ' / ASSESSEE BY : SHRI NITESH JOSHI %&#$ ( ' / REVENUE BY : SHRI MAURYA PRATAP ! ! ! ! ( (( ( )* )* )* )* / DATE OF HEARING :29-05-2014 +,' ( )* / DATE OF PRONOUNCEMENT : 29- 05- 2014 ! ! ! ! , 1961 ( (( ( 254 )1( )-) )-) )-) )-) . . . . ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) ! ! ! ! PER RAJENDRA,A.M: CHALLENGING THE ORDER DT.31.10.2012 OF THE CIT(A)-5 ,MUMBAI,ASSESSEE-COMPANY AND THE AO HAS FILED CROSS APPEALS FOR THE YEAR UNDER CONSIDERATIO N.ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1.(A)THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) ERRED IN UPHOLDING THE ACTION OF ASSESSING OFFICER IN DISALLOWING A SUM OF RS. 15,51 ,248/-, BEING REIMBURSEMENT OF PROFESSIONAL FEES PAID TO MR. DINESH KUMAR BY RAYMOND LTD UNDER SECTION 40(A)(IA) OF THE ACT ON THE GROUND THAT THE APPELLANT FAILED TO DEDUCT TAX AT SOURCE. (B)THE APPELLANT SUBMITS THAT AT THE TIME OF PAYMEN T OF PROFESSIONAL FEES TO MR. DINESH KURNAR BY RAYMOND LTD, RAYMOND LTD HAD DEDUCTED TAX ON THE SA ME AND DEPOSITED THE SAME TO THE CREDIT OF 2 ITA NOS. 7472/MUM/2012 & 711/MUM/2013 J.K. INVESTORS (BOMBAY) LTD. CENTRAL GOVERNMENT. THE APPELLANT SUBMITS THAT THE PAYMENT MADE TO RAYMOND LTD IS IN THE NATURE OF REIMBURSEMENT OF PROFESSIONAL FEES PAID B Y RAYMOND LTD.TO MR. DINESH KUMAR AND DEDUCTION OF TAX AT SOURCE ON SUCH REIMBURSEMENTS W OULD LEAD TO DOUBLE DEDUCTION OF TAX ON THE SAME AMOUNT. (C)WITHOUT PREJUDICE TO WHAT IS STATED ABOVE, THE A PPELLANT SUBMITS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THE F ACT THAT ABOVE PAYMENTS ARE MERE REIMBURSEMENTS OF ACTUAL EXPENSES PAID BY RAYMOND L TD AND INVOLVE NO ELEMENT OF PROFIT. THERE IS NO INCOME ACCRUAL IN THE HANDS OF RAYMOND LTD AND T HUS THE APPELLANT IS NOT REQUIRED TO DEDUCT TAX AT SOURCE. 2.THE APPELLANT SUBMITS THAT THE ASSESSING OFFICER BE DIRECTED TO (I)TO DELETE THE DISALLOWANCE OF RS. 15,51,248/- BE ING REIMBURSEMENT OF PROFESSIONAL FEES PAID TO MR. DINESH KUMAR BY RAYMOND LTD BY APPLYING PROVISI ONS OF SECTION 40(A)(IA) OF THE ACT; (II)WITHOUT PREJUDICE TO WHAT IS STATED ABOVE, THE APPELLANT SUBMITS THAT THE PAYMENTS ARE MERE REIMBURSEMENTS OF ACTUAL EXPENSES PAID BY RAYMOND L TD AND INVOLVE NO ELEMENT OF PROFIT. 3.THE APPELLANT CRAVES LIBERTY TO ADD, TO ALTER AND /OR AMEND THE GROUNDS OF APPEAL AS AND WHEN GIVEN. GROUNDS OF APPEAL FILED BY THE AO READ AS UNDER: 1.THE ORDER OF THE CIT(A) IS OPPOSED TO LAW AND FAC TS OF THE CASE. 2.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN BRINGING THE RECEIPT RELATING TO SERVICE CHARGES UN DER THE HEAD INCOME FROM HOUSE PROPERTY THEREBY IGNORING THE FACT THAT THESE RECEIPT ARE DI STINCT FROM LEASE RENT AND WERE CORRECTLY BROUGHT TO TAX UNDER THE HEAD INCOME FROM OTHER SOU RCES. 3.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN SETTING ASIDE THE ISSUE RELATING TO TAXATION OF RENTAL INCO ME FROM BHANDUP WAREHOUSE IN CONTRAVENTION OF THE LEGAL PROVISIONS AS WITH EFFECT FROM 1.06.2001, THE POWER TO SET ASIDE AN ORDER OR AN ISSUE IS NOT THERE WITH LD. C.I.T. (APPEAL). 4.FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, THE DECISION OF THE CIT(A) MAY BE SET ASIDE AND THAT OF THE AO RESTORED. 3 ITA NOS. 7472/MUM/2012 & 711/MUM/2013 J.K. INVESTORS (BOMBAY) LTD. 2.ASSESSEE-COMPANY,ENGAGED IN THE BUSINESS OF TRADI NG IN TEXTILE FABRIC AND HOSIERY,FILED ITS RETURN OF INCOME ON 24.09.2008DECLARING INCOME OF RS. 27. 40 CRORES.AO FINALISED THE ASSESSMENT U/S.143(3)OF THE ACT ON 28.12.11DETERMINING THE INC OME OF THE ASSESSEE AT RS. 29.65 CRORES. EFFECTIVE GROUND OF APPEAL FILED BY THE ASSESSEE IS ABOUT DISALLOWANCE OF RS. 15.51 LAKHS; BEING REIMBURSEMENT OF PROFESSIONAL FEES PAID TO ONE DINE SH KUMAR BY RAYMOND LTD.(RL); MADE U/S. 40(A)(IA) OF THE ACT ON THE GROUND THAT ASSESSEE HA D FAILED TO DEDUCT TDS.DURING THE ASSESSMENT PROCEEDINGS,AO FOUND THAT ASSESSEE-COMPANY HAD MADE PAYMENT OF RS. 18.92 LAKHS FOR PROFESS - IONAL FEES.HE ASKED THE ASSESSEE AS TO WHETHER ANY TDS WAS DEDUCTED ON THE SAID PAYMENT AND IF NOT WHY THE SAME SHOULD BE DISALLOWED U/S. 40(A)(IA ) OF THE ACT.AFTER CONSIDERING THE LETTER OF THE ASSESSEE,DATED 06.12.2010,THE AO HELD THAT CONTENTI ONS OF THE ASSESSEE WERE NOT ACCEPTABLE,THAT IT HAD RECEIVED PROFESSIONAL SERVICES FROM RL AND PAYM ENT HAD ALSO BEEN MADE TO RL AND NOT TO DINESH KUMAR, THAT WHATEVER AMOUNT RL HAD DEDUCTED FROM DINESH KUMAR ON PAYMENTS MADE TO HIM WAS NOT RELEVANT WHILE EXAMINING DEDUCTIBILITY IN THE HANDS OF THE ASSESSEE, THAT IT WAS THE RESPONSIBILITY OF THE ASSESSEE TO DEDUCT TDS ON PAY MENT MADE TO RL FOR GETTING PROFESSIONAL SERVICES.FINALLY, HE HELD THAT ASSESSEE HAD FAILED TO DEDUCT TAX FOR THE PROFESSIONAL FEES PAID TO RL.THAT THE SAID AMOUNT WAS TO BE DISALLOWED IN TER MS OF SECTION 40(A) (IA)OF THE ACT. 3. ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPEL LATE AUTHORITY (FAA),WHO CONFIRMED THE ORDER OF THE AO.BEFORE US, AR OF THE ASSESSEE CONTE NDED THAT SIMILAR ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL FOR TH E AY 2008-09 (ITA NO. 7858/MUM/2011 DATED 13.03.13).DR LEFT THE MATTER TO THE DISCRETION OF T HE ASSESSEE. WE FIND THAT WHILE DECIDING THE APPEAL FOR THE AY 2008-09, TRIBUNAL HAS HELD AS UND ER: 19.GROUND NO.2 PERTAINS TO DISALLOWANCE OF RS.18,9 2,784/-UNDER SECTION 40(A)(IA) OF THE INCOME TAX ACT. 20.FROM THE FACTS AS SUBMITTED BY THE AR, IT IS UND ERSTOOD THAT AN EX-EMPLOYEE OF RAYMOND LTD RENDERED SERVICES TO ASSESSEE TO WHOM RAYMOND LTD P AID PROFESSIONAL FEE. THESE PAYMENTS WERE SOUGHT TO BE REIMBURSED BY RAYMOND LTD. FROM THE AS SESSEE BY RAISING DEBIT NOTES AGAINST THE 4 ITA NOS. 7472/MUM/2012 & 711/MUM/2013 J.K. INVESTORS (BOMBAY) LTD. ASSESSEE, WHICH WAS PAID TO RAYMOND LTD. AS AND WHE N THE DEBIT NOTES WERE RAISED ON THE ASSESSEE. 21.THESE FACTS WERE SUBMITTED BEFORE THE REVENUE AU THORITIES,WHO REJECTED THE SAME AND HELD THEM TO BE PAYMENT IN LIEU OF PROFESSION FEE AND INVOKED SECTION 40(A)(IA),BECAUSE ACCORDING TO SECTION 194J, THE ASSESSEE WAS REQUIRED TO DEDUCT TAX AT SO URCE. 22.BEFORE US, THE AR PRODUCED THE COMPLETE SET OF T DS CERTIFICATES ISSUED BY RAYMOND LTD. TO MR. DINESH KUMAR AND COMPLETE SET OF DEBIT NOTES RAISED BY RAYMOND LTD. ON THE ASSESSEE, 23.ON GOING THROUGH ALL THE DOCUMENTS,WHOSE EXISTEN CE AND SUBMISSION BEFORE THE REVENUE AUTHORITIES WAS NOT QUESTIONED BY THE DR,WE ARE OF THE VIEW THAT THIS IS A CASE OF REIMBURSEMENT OF AMOUNT PAID TO RAYMOND LTD.WHO MADE PAYMENT TO MR. DINESH KUMAR,WHICH HAS NO INCOME ELEMENT IN SO FAR AS THE RECIPIENT, I.E. RAYMOND LT D. IS CONCERNED.TDS PROVISIONS CAN ONLY BE INVOKED IF A RECEIPT BY THE RECIPIENT FROM THE PAYE R HAS AN ELEMENT OF GENERATION OF INCOME. IF THE ELEMENT OF INCOME CANNOT BE ESTABLISHED, IN OUR CON SIDERED OPINION PROVISIONS OF SECTION 40(A)(IA)CANNOT BE INVOKED ON THIS ISSUE AND DIRECT THE AO TO DELETE, THE ADDITION.GROUND NO.2 IS,THEREFORE,ALLOWED. RESPECTFULLY,FOLLOWING THE ORDER OF THE CO-ORDINATE BENCH,WE DECIDE THE EFFECTIVE GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE. ITA NO. 711/MUM/2013 4. FIRST GROUND OF APPEAL IS ABOUT TAXING THE SERVICE CHARGES INCOME UNDER THE HEAD HOUSE PROPERTY INCOME INSTEAD OF TREATING THE SAME INCOME FROM OTHER SOURCES.DURING THE ASSESSMENT PROCEEDINGS,AO FOUND THAT ASSESSEE HAD BEEN DECLARI NG THE RECEIPT OF SERVICE CHARGES FROM ITS PROPERTY AT MAHINDRA TOWER AT MUMBAI UNDER THE HEAD INCOME FROM HOUSE PROPERTY,THAT FOR THE YEAR UNDER APPEAL IT HAD COMPUTED HOUSE PROPERTY IN COME AT RS. 6.15 CRORES,THAT THE ASSESSEE HAD CLAIMED SERVICE CHARGES AS INCOME FROM HOUSE PR OPERTY.FOLLOWING THE ORDER FOR THE AY 2001- 02,AO HELD THAT SERVICE CHARGES RECEIVED BY THE ASS ESSEE WERE TO BE ASSESSED AS INCOME FROM OTHER SOURCES.IN THE APPELLATE PROCEEDINGS,FAA DELE TED THE ADDITION MADE BY THE AO AND HELD THAT INCOME RECEIVED BY THE ASSESSEE ON ACCOUNT OF ENMITIES AND FACILITIES HAS TO BE ASSESSED UNDER 5 ITA NOS. 7472/MUM/2012 & 711/MUM/2013 J.K. INVESTORS (BOMBAY) LTD. THE HEAD INCOME FROM HOUSE PROPERTY. HE RELIED UPON THE ORDER OF THE TRIBUNAL DELIVERED IN THE ASSESSEES OWN CASE FOR THE AY 2006-07. BEFORE US,DR STATED THAT MATTER COULD BE DECIDED ON MERITS.AR SUBMITTED THAT HONBLE JURISDIC - TIONAL HIGH COURT HAD DECIDED THE ISSUE IN FAVOUR O F THE ASSESSEE VIDE ITS ORDER DATED 25.07.2012 (25 TAXMANN.COM 12). WE HAVE CONSIDERED THE MATERIAL AVAILABLE ON RECORD .WE FIND THAT WHILE DECIDING THE APPEAL FOR THE YEAR 2008-09 FILED BY THE ASSESSEE,TRIBUNAL HAS DECIDED THE IDENTICAL ISSUE AS UNDER,AFTER NARRATING THE FACTS: 36.THE ONLY ISSUE INVOLVED IS HOLDING THE C OMPENSATION RECEIVED ON AMENITIES PROVIDED AS INCOME FROM OTHER SOURCES INSTEAD OF INCOME F ROM HOUSE PROPERTY, AS CLAIMED BY THE ASSESSEE.THE FACTS AND THE CONCLUSION, AS FOUND RE CORDED IN THE ORDER ARE: (A) THE APPELLANT IS OWNER OF PROPERTY AT M AHINDRA TOWERS(2ND AND 3RD FLOOR). THE APPELLANT ENTERED INTO AGREEMENT WITH RAYMOND LIMITED TO LEASE THE PREMISES AT A MONTHLY LEASE RENT OF RS.41,06,080/- TOGETHER WITH A MONT HLY COMPENSATION OF `10,26,520/- FOR USE OF AMENITIES AND FACILITIES. COPIES OF THE AGREE MENTS ARE ENCLOSED ALONG WITH THIS APPEAL AND MARKED COLLECTIVELY AS ANNEXURE 'A'.DURING THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR UNDER APPEAL, THE APPELLANT RECEIVED A SUM OF RS. 6,15,91,200/- AS INCOME FROM LETTING OUT OF THE AFORESAID PROPERTY. THE APPELLANT OFFERED THE SAME FOR TAX UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY'. HOWEVER, THE ASSESSING OFFICER TR EATED THE COMPENSATION RECEIVED BY THE APPELLANT AMOUNTING TO RS.1,23,18,240/- FOR USE OF AMENITIES AS SERVICES CHARGES RECEIVED IN RESPECT OF SERVICES RENDERED IN PROVIDING ELE CTRICITY, USE OF LIFTS, SUPPLY OF WATER MAINTENANCE OF STAIR CASE, ETC AND ASSESSED T HE SAME UNDER THE HEAD 'INCOME FROM OTHER SOURCES'.THE ASSESSING OFFICER RELIED ON THE D ECISION IN THE CASE OF CIT V. MODEL MFG. CO. PVT. LTD. (1989) 175 ITR 374 (CAL.). ACCOR DINGLY, THE ASSESSING OFFICER REDUCED THE DEDUCTION UNDER SECTION 24 OF THE ACT BY A SUM OF ` 36,95,472/-. THE APPELLANT SUBMITS THAT IT HAS NOT RENDERED ANY SERVICES OF THE AFORESAI D NATURE TO RAYMOND LIMITED.THE APPELLANT HAS ENTERED INTO AGREEMENT WITH RAYMOND LIMITED FOR R ECEIVING COMPENSATION OF USE OF VARIOUS 6 ITA NOS. 7472/MUM/2012 & 711/MUM/2013 J.K. INVESTORS (BOMBAY) LTD. AMENITIES AND FACILITIES PROVIDED BY THE BUIL DER. THE BUILDING IS CONSTRUCTED BY MAHINDRA & MAHINDRA LTD.THE APPELLANT SUBMITS THAT THE BUI LDING IS A MULTI STORIED COMMERCIAL PREMISES HAVING LIFT, CENTRAL AIR-CONDITIONING, SUPPLY O F WATER & ELECTRICITY, GARDEN, SECURITY, DRAINAGE ETC. FACILITIES. THE AFORESAID FACILITIES ARE PROVIDED BY THE BUILDER I.E. MAHINDRA AND MAHINDRA LIMITED AND NOT BY THE APPELLANT.THE AFORESAID SERVICES ARE PROVIDED TO ALL THE TENANTS OF THE BUILDING BY THE BUILDER. THE APPELLA NT, THEREFORE, SUBMITS THAT THESE SERVICES ARE A PART AND PARCEL OF THE LET OUT OF THE PREMISES. TH E APPELLANT SUBMITS THAT THE DECISION RELIED ON BY THE ASSESSING OFFICER IS NOT APPLICABLE TO THE CASE OF THE APPELLANT.IN THE SAID CASE THE LESSOR OF THE BUILDING WAS RENDERING VARIOUS SERVI CES SUCH AS USE OF LIFTS, SUPPLY OF WATER ETC. IT IS IN THIS CONTEXT THE COURT HAS HELD THAT INCOME FROM RENDERING OF SUCH SERVICES SHOULD BE TREATED AS 'INCOME FROM OTHER SOURCES'. HOWEVE R IN THE CASE OF THE APPELLANT, THE SERVICES ARE PROVIDED BY THE BUILDER OF THE PREMISES AND THE APPELLANT IS ONLY RECEIVING COMPENSATION FROM RAYMOND LIMITED FOR USE OF THOSE AMENITI ES AND FACILITIES PROVIDED BY THE BUILDER. THE APPELLANT FURTHER SUBMITS THAT RAYMOND LIM ITED HAS DEDUCTED TAX AT SOURCE ON THE ENTIRE AMOUNT INCLUDING THE COMPENSATION PAID TO THE APPELLANT UNDER SECTION 1941 OF THE ACT (RELATING TO PAYMENTS IN THE NATURE OF R ENT.) THE APPELLANT REITERATES THAT THE ABOVE FACILITIES ARE PART AND PARCEL OF THE PREMISE S LET OUT BY THE APPELLANT AND NO SEPARATE SERVICES ARE RENDERED BY THE APPELLANT AND TH E ASSESSING OFFICER OUGHT TO HAVE TREATED THE SAME AS INCOME FROM HOUSE PROPERTY. THE APPELLANT SUBMITS THAT THE BOMBAY HIGH COURT IN THE CASE OF BHAKTAUIAR CONSTRUCTIONS PVT LTD (198 6) 162 ITR 452 (BOM) HAS HELD THAT WHERE THE BUILDING WAS LET OUT TO TENANTS UNDER LE ASE AGREEMENTS AND THE TENANTS WERE PROVIDED WITH AIR- CONDITIONING FACILITIES, THERE WAS NO L ETTING OF INSTALLATION OF AIR-CONDITIONING PLANT.THEREFORE, THERE WAS NO LETTING OF INST ALLATION OF AIRCONDITIONING PLANT. THEREFORE, TH ERE WAS NO INSEPARABLE LETTING OF THE MACHINERY S O AS TO BRING THE CASE UNDER SECTION 56(2)(III). THE COURT HELD THAT THE INCOME W AS TAXABLE UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY'. SIMILAR IS THE CASE OF THE APPELLA NT WHERE THERE IS NOT SEPARATE LETTING OF TH E AMENITIES AND FACILITIES BY THE APPELLANT. IN FACT THE FACILITIES ARE PROVIDED BY THE BUIL DER THEMSELVES WHICH ARE A PART OF THE PREMISES LET OUT. ACCORDINGLY, THE COMPENSATION RECEIVED 7 ITA NOS. 7472/MUM/2012 & 711/MUM/2013 J.K. INVESTORS (BOMBAY) LTD. FROM THE USE SUCH FACILITIES PARTAKES THE CHARA CTER OF INCOME FROM LETTING OUT OF PROPERTY AND THEREFORE TAXABLE AS INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THE APPELLANT SUBMITS THAT ON THE SIMILAR FACTS THE LEARNED CIT(A) HAS ALLOWED APPELLANT'S APPEAL FOR A Y 2000-01,2001-02, 2002-03, 2004-05, 2005-06, 200 6-07 AND 2007-08. COPIES OF THE SAME ARE ENCLOSED ALONG WITH THIS APPEAL AND MARKED AS ANNEXURE 'B' TO 'B6'. THE INCOME-TAX APPELLATE TRIBUNAL IN A. Y. 2000-01, A. Y. 2001-02, A. Y. 2002-03 AND A. Y. 2004-05 IN APPELLANT'S CASE VIDE ITS ORDER DATED 5TH JAN UARY, 2007, 101H DECEMBER, 2007,12 TH DECEMBER, 2008, 9 TH SEPTEMBER 2010 RESPECTIVELY, HAS UPHELD THE S AID ORDER OF THE CIT(A). COPIES OF THE SAME ARE ENCLOSED ALONG WITH THIS AP PEAL AND MARKED AS ANNEXURE 'C' TO 'C3'. ACCORDINGLY, THE ASSESSING OFFICER BE DIRECTED TO ASSESS THE COMPENSATION RECEIVED AS 'INCOME FROM HOUSE PROPERTY' AND ACCORDINGLY G RANT ADDITIONAL DEDUCTION UNDER SECTION 24 OF THE ACT TO THE EXTENT OF RS.36,95,472/-. 37. THE DR RELIED ON ORDER OF AO WHERE AS AR REITERATED THE SUBMISSIONS MADE BEFORE THE REVENUE AUTHORITIES AND RELIED ON THE DECISION OF THE CIT(A). 38.AFTER GOING THROUGH THE ENTIRE FACTS, WE FIND THAT THE ISSUE STANDS COVERED IN THE ASSESSEE'S OWN CASES BY THE COORDINATE BENCH DECISI ONS, IN ITA NO. 6967 & 6623/ MUM /2003 AND ITA NO. 822/MUM/2007 AND ITA NO. 9545/MUM/200 4. 39. RESPECTFULLY FOLLOWING THE DECISIONS OF TH E ASSESSEE'S OWN CASES AS MENTIONED ABOVE AND PLACING RELIANCE ON THE DECISION OF BHAKTAWAR CONSTRUCTIONS PVT. LTD.,REPORTED IN 162 ITR 452(BOM),WE UPHOLD THE OBSERVATIONS OF THE CIT(A) A ND REJECT THE APPEAL FILED BY THE DEPARTMENT.WE, THEREFORE,DISMISS THE APPEAL FILE D BY THE DEPARTMENT. RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL FO R THE YEAR 2008-09(SUPRA),WE DECIDE GROUND NO.1 AGAINST THE AO. 5. NEXT GROUND OF APPEAL IS ABOUT SETTING ASIDE THE IS SUE RELATING TO TAXATION OF RENTAL INCOME FROM BHANDUP WAREHOUSE.WHILE COMPLETING THE ASSESSMENT, AO COMPUTED THE LEASE RENT FOR BHANDUP WAREHOUSE UNDER THE HEAD INCOME FROM HOUSE PROPERTY .BEFORE THE FAA IT WAS CONTENDED THAT THERE WAS NO DISCUSSION ABOUT THE RENTAL INCOME FRO M BHANDUP WAREHOUSING IN THE ASSESSMENT 8 ITA NOS. 7472/MUM/2012 & 711/MUM/2013 J.K. INVESTORS (BOMBAY) LTD. ORDER,THAT DURING THE YEAR ASSESSEE HAD NOT RECEIVE D ANY RENT FROM THE SAID WAREHOUSE, THAT IT WAS BEING USED FOR STORAGE OF ITS OWN GOODS. FAA DIRECT ED THE AO TO VERIFY THE FACTS AND TO DELETE THE ADDITION, IF THE FACTS STATED BY THE ASSESSEE WERE FOUND TO BE CORRECT. 6. BEFORE US,DR COULD NOT EXPLAIN THAT IN THE GROUNDS OF APPEAL, WHY IT WAS MENTIONED THAT THE FAA HAD SET-ASIDE THE ORDER. WE FIND THAT FAA HAD G IVEN ONLY A DIRECTION TO VERIFY THE FACTS ABOUT RECEIPT OF RENT.HIS DIRECTIONS CANNOT BE TERM E AS SETTING ASIDE OF THE ORDER.NO PREJUDICE WAS CAUSED TO THE DEPARTMENT BY THE ORDER OF THE FAA.CO NSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE OPINION THAT AO SHOULD PASS SPE AKING ORDER IN THIS REGARD,IF HE HAS NOT PASSED ANY ORDER IN PURSUANCE OF THE ORDER OF THE FAA.WE D ISMISS SECOND GROUND OF APPEAL FILED BY THE AO. AS A RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWE D AND THE APPEAL OF THE AO STANDS DISMISSED. 0)1 !2) ( 3 ( ) 45 6 !2) * ( - ! 3 ( ) 45 . ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH MAY,2014. . ( +,' 7 8! 29 EBZ EBZEBZ EBZ , 2014 , ( - : SD/- SD/- ( / VIJAY PAL RAO ) ( / RAJENDRA ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER / MUMBAI, 8! /DATE: 29.05.2014 SK . . . . ( (( ( %) %) %) %) ; ') ; ') ; ') ; ') / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / #$ 2. RESPONDENT / %&#$ 3. THE CONCERNED CIT (A) / < = , 4. THE CONCERNED CIT / < = 5. DR J BENCH, ITAT, MUMBAI / >- %)! , . . . 6. GUARD FILE/ - 0 &) &) &) &) %) %)%) %) //TRUE COPY// .! / BY ORDER, ? / 4 DY./ASST. REGISTRAR , /ITAT, MUMBAI