Karattupalayam Perumalsamy Chinnasamy, CHENNAI V. ACIT, CHENNAI

ITA 88/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7932 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 29-11-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 18-01-2016
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVASANJCIT
• Assessee Lawyers: A SATHYA SEELAN
• Section: 147; 27

Judgement Text

, C/ SMC , IN THE INCOME TAX APPELLATE TRIBUNAL C/SMC BENCH, CHENNAI . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ./ I.T.A.NO.88 /MDS./2016 ( / ASSESSMENT YEAR :2006-07) SHRI KARATHUPPALAYAM & CHINNASAMY, NO.346,1 ST SOUTH MAIN ROAD, KAPALEESWARA NAGAR, CHENNAI 600 041. VS. THE ACIT, NON-CORPORATE WAD 19(1), CHENNAI. PAN AACPC 5009 M ( / APPELLANT ) ( / RESPONDENT ) ! ' # / APPELLANT BY : MR.A.SATHYA SEELAN,ADVOCATE $% ! ' # / RESPONDENT BY : MR.SHIVA SRINIVASAN,JCIT, D.R & ' ' ( ) / DATE OF HEARING : 29.11.2016 *+ ' ( ) /DATE OF PRONOUNCEMENT : 29.11.2016 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE, AGGRIEVED B Y THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-14, CHENN AI DATED ITA NO.88/MDS/2016 2 19.10.2015 PASSED UNDER SEC.143(3) READ WITH SECTIO N 147 OF THE ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE IS AN INDIVIDUAL, DRAWING PENSION FROM THE GOVERNMENT OF TAMILNADU AND DRIVING RENT FROM HOUSE PROPERTY. THE ASSESSEE FILE D HIS RETURN OF INCOME FOR ASSESSMENT YEAR UNDER CONSIDERATION ON 2 4.07.2006 AND THE RETURN WAS PROCESSED U/S.143(1) ON 19.03.2007 A ND RESULTING A REFUND OF ` 42,650/-. AFTER THAT THERE WAS A MISTAKE OF EXCESS CLAIM OF TDS HAD BEEN GIVEN TO THE ASSESSEE INSTEAD OF CRED IT TO BE GIVEN FOR 12 MONTHS, IT WAS GIVEN FOR 13 MONTHS. HENCE, THE M ISTAKE WAS RECTIFIED BY THE ORDER U/S.154 AND RESULTING A REFU ND OF ` 40,438/-. SUBSEQUENTLY, THE ASSESSMENT WAS REOPENED BY ISSUE OF NOTICE U/S.148 OF THE ACT DATED 12.02.2009 AND THE ASSESSM ENT WAS COMPLETED ON 18.12.2009. THE AO TREATED THE RENTA L INCOME DERIVED FROM THE LAND LET OUT TO M/S.BARAKHAMB SALES AND SE RVICES LTD FOR ERECTION OF ITS CELL SITE FOR SETTING UP ITS BASE S TATION AS INCOME FROM OTHER SOURCES AND DETERMINED A SUM OF ` 50,985/- AS TOTAL TAX PAYABLE. AGGRIEVED, THE ASSESSEE IS WENT IN APPEAL BEFORE CIT(A). ITA NO.88/MDS/2016 3 THE LD.CIT(A) CONFIRMED THE ACTION OF AO . AGGRIEV ED, THE ASSESSEE IS IN APPEAL BEFORE US. 3. AT THE OUTSET, THE LD.A.R WAS NOT PRESSED THE G ROUND NO.2 REGARDING CLAIM OF DEDUCTION TWICE U/S.24(A) OF THE ACT. ACCORDINGLY, THIS GROUND IS DISMISSED AS NOT PRESSED. 4. THE NEXT GROUND IS WITH REGARD TO TREATMENT OF INCOME FROM LETTING OUT CELL SITE FOR SETTING UP BASE STATION A S INCOME FROM OTHER SOURCES INSTEAD OF TREATING THE SAME AS INCOME FR OM HOUSE PROPERTY. 5. AFTER HEARING BOTH THE SIDES, WE ARE OF TH E OPINION THAT SIMILAR ISSUE CAME BEFORE THIS TRIBUNAL FOR OUR CONSIDERAT ION IN THE CASE OF COROMANDEL TOWERS OWNERS ASSOCIATION VS. ITO IN I.T.A.NOS.1776,1777,1778 & 1779/MDS./2016 FOR ASSES SMENT YEARS :2003-04, 2004-05,2005-06 & 2006-07 VIDE ORDER DATE D 24.11.2016, THE TRIBUNAL HELD AS UNDER:- WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MAT ERIAL ON RECORD. IN THIS CASE, ASSESSEE HAS DERIVED RENTAL INCOME FROM EXPLOITING PROPERTY OWNED BY THE ASSESSEE AND IT CANNOT BE SAID THAT AS SESSEE DID ANY BUSINESS BY LETTING OUT ANY BUSINESS ASSETS. HENCE, THE INCOME DERIVED BY EXPLOITING THE HOUSE PROPERTY TO BE CONSIDERED A S INCOME FROM HOUSE PROPERTY U/S.22 OF THE ACT. CONSEQUENTLY, THE ASSES SEE IS ENTITLED FOR DEDUCTION AS PRESCRIBED UNDER SECTIONS 22 TO 27 OF THE ACT. FURTHER, THE ITA NO.88/MDS/2016 4 ABOVE OUR VIEW IS FORTIFIED BY THE DECISION OF DELH I HIGH COURT IN THE CASE OF M/S.NIAGARA HOTELS AND BUILDERS PVT LTD., REPORT ED IN 286 CTR 94 WHEREIN IT WAS HELD THAT INCOME DERIVED FROM EXPLOI TATION OF SPACE IN TERRACE FLOOR BY LETTING OUT SPACE FOR MOUNTING A T OWER/MAST AND ANTENNA AND GENERATOR SET FOR INSTALLATION OF RADIO TRUNKIN G RELATED EQUIPMENT ON RENTAL BASIS, IS TO BE ASSESSED UNDER THE HEAD INC OME FROM HOUSE PROPERTY. ACCORDINGLY, THIS ISSUE IS REMITTED TO THE FILE OF AO FOR FRESH CONSIDERATION TO DECIDE AS PER ABOVE. IN VIEW OF THE ORDER OF TRIBUNAL OF SMC BENCH, WE ARE INCLINED TO HOLD THAT INCOME EARNED FROM THE ASSESSEE BY LETTIN G OUT FOR ERECTION OF SITE FOR SETTING UP THE STATION AS INCOME HOUSE PROPERTY. ACCORDINGLY, THE ASSESSEE IS ENTITLED FOR CONSEQUEN T DEDUCTION FROM SECTIONS 22 TO 27 OF THE ACT. ACCORDINGLY, THIS IS SUE IS REMITTED BACK TO THE FILE OF AO FOR FRESH CONSIDERATION TO DECIDE AS PER ABOVE. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 29 TH NOVEMBER, 2016 AT CHENNAI. SD/- ( ) ( CHANDRA POOJARI ) /ACCOUNTANT MEMBER CHENNAI, DATED THE 29 TH NOVEMBER, 2016. K S SUNDARAM. , ' $(-. /.( / COPY TO: 1 . ! / APPELLANT 3. & 0( () / CIT(A) 5. .3 4 $(5 / DR 2. $% ! / RESPONDENT 4. & 0( / CIT 6. 4 6 7 ' / GF