M/s. MATRU ASHISH CO-OP. HSG. SOC. LTD., MUMBAI v. ITO - 16(2)(1), MUMBAI

ITA 5834/MUM/2006 | 2003-2004
Pronouncement Date: 25-03-2011 | Result: Allowed

Appeal Details

RSA Number 583419914 RSA 2006
Assessee PAN AAAAM2348A
Bench Mumbai
Appeal Number ITA 5834/MUM/2006
Duration Of Justice 4 year(s) 4 month(s) 16 day(s)
Appellant M/s. MATRU ASHISH CO-OP. HSG. SOC. LTD., MUMBAI
Respondent ITO - 16(2)(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 25-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 25-03-2011
Date Of Final Hearing 17-03-2011
Next Hearing Date 17-03-2011
Assessment Year 2003-2004
Appeal Filed On 08-11-2006
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B MUMBAI BEFORE SHRI R.S. SYAL (AM) AND SMT. ASHA VIJAYARAGH AVAN (JM) ITA NO. 5834/MUM/2006 ASSESSMENT YEAR-2003-04 MATRU ASHISH CO. OP. HSG. SOC. LTD. 39 NEPEAN SEA ROAD MALABAR HILL MUMBAI-400 036 PAN-AAAAM 2348A VS. THE ITO - 16(2)(1) MATRU MANDIR NANA CHOWK OPP. BHATIA HOSPITAL MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI VIPUL B. JOSHI & SHRI SAMEER G. DALAL RESPONDENT BY: SHRI SURENDRA KUMAR O R D E R PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 31.8.2006 PASSED BY THE LD. CIT(A)-XVI FOR TH E ASSESSMENT YEAR 2003-04. 2. GROUND NO. 1 RELATES TO ADDITION OF RS. 5 83 400 /- WHICH WAS CREDITED TO ASSESSEES COMMON AMENITY FUND ACCOUNT. THIS AMOUNT WAS RECEIVED AS PER FOLLOWING DETAILS: FLAT NO. NAME OF TRANSFEROR AMOUNT (RS.) DATE OF RECEIPT DATE OF TRANSFER OF FLAT/PREMISES A-1/11TH SHRI P.J. SHEWANI 300 200 21.5.2002 11.7.2 002 SHOP-12 D.K. THAKKAR & DD.D. THAKKAR 168 400 14.10.2002 1.11.2002 B-4/10 TH KUMAR M. SHAH 114 800 29.10.2002 1.11.2002 TOTAL 583 400 ITA NO. 5834/M/06 2 3. BEFORE THE ASSESSING OFFICER THE ASSESSEE CLAIM ED THAT THE RECEIPTS FROM THE THREE TRANSFERORS AS ABOVE WERE EXEMPT FRO M INCOME TAX ON THE GROUND OF MUTUALITY AND ON THE BASIS OF DECISION I N THE CASE OF WALKESHWAR TRIVENI CO.OP.HSG. SOC. LTD VS ITO 88 IT D 159 (MUM)(SB). THE AO DID NOT ACCEPT ASSESSEES CONTENTION AND HEL D THAT THE CONTRIBUTION RECEIVED FROM THE MEMBERS ON ACCOUNT O F TRANSFER OF FLAT/SHOP CREDITED TO COMMON AMENITIES FUND AND PRE MIUM ON TRANSFER OF FLATS WERE NOT EXEMPT FROM TAX. ACCORDINGLY TH E AO TAXED THE ENTIRE AMOUNT OF TRANSFER FEE AND CONTRIBUTION TO COMMON A MENITIES FUNDS AS INCOME OF THE ASSESSEE AS BUSINESS INCOME. THE AO RELIED ON VARIOUS CASE LAWS. 4. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE T HE LD. CIT(A) AND SUBMITTED AS FOLLOWS: THE ASSESSEE HAS DISPUTED THE ADDITION OF TRANSFER FEE AND CONTRIBUTION TO COMMON AMENITIES FUND AS ITS INCOME . IT IS CONTENDED THAT THE ENTIRE AMOUNT OF TRANSFER FEE WA S RECEIVED FROM OUTGOING MEMBERS WHO WERE MEMBERS OF THE SOCIETY AT THE TIME OF PAYMENT MADE BY THEM. AS SUCH THOSE RECEIPTS FROM THEM WERE EXEMPT FROM TAX UNDER THE PRINCIPLES OF MUTUALITY. THE APPELLANT PLACED RELIANCE ON THE DECISIONS IN THE CASE OF APS ARA CO. OP. HSG. SOC. LTD. 204 ITR 662 (CAL) AND ADARSH CO. OP. HSG. SOC. LTD (1995) 213 ITR 677 (GUJ). FURTHER THE APPELLANT POINTED OUT THAT IN THE CASE OF WALKESHWAR TRIVENI CITED SUPRA IT WAS HEL D THAT TRANSFER FEE RECEIPT FROM TRANSFEROR WAS NOT EXIGIBLE TO TA X AS SUCH RECEIPT SATISFIED THE TEST OF MUTUALITY. THE TRIBUNAL HOW EVER DID NOT DECIDE ISSUE OF TAXABILITY OF ANY AMOUNT IN EXCESS OF RS. 25 000/- AS IN THE SAME CASE THE AMOUNT INVOLVED WAS EXACTLY RS. 25 000/-. HENCE THE REMARK OF THE TRIBUNAL REGARDING THE NATU RE OF THE PREMIUM ON TRANSFER IN GENERAL AMOUNT RECEIVED BY T HE SOCIETIES IN EXCESS OF RS. 25 000/- WAS A PASSING REMARK ONLY ON WHICH THE AO HAD RELIED UPON AND THE SAME COULD NOT BE CONSIDERE D AS A BINDING RATIO LAID DOWN BY THE SPECIAL BENCH. THE APPELLAN T CLARIFIED THAT THE TRANSFER FEE AND CONTRIBUTION TO COMMON AMENITY FUND WERE RECEIVED FROM THE MEMBERS BEFORE ACTUAL TRANSFER OF SHARES/PREMISES FROM THEIR NAME TO THE NAME OF TRAN SFEREES. ITA NO. 5834/M/06 3 5. THE LD. CIT(A) DISCUSSED THIS ISSUE AT PARA 2.3 OF HIS ORDER AND HELD AS UNDER: IN VIEW OF THE AFORESAID DISCUSSION SIT IS HELD TH AT RECEIPT OF TRANSFER FEE AND CONTRIBUTION TO COMMON AMENITY FUN D IN EXCESS OF RS. 50/- AND RS. 25 000/- RESPECTIVELY ARE NOT COVE RED BY THE PRINCIPLES OF MUTUALITY AND ACCORDINGLY WERE RIGHTL Y HELD AS TAXABLE AND TAXED AS BUSINESS INCOME OF THE APPELLANT-SOCIE TY. HOWEVER THE AO IS DIRECTED TO REDUCE THE ADDITION AS PER TH E FINDINGS ABOVE. CONSEQUENTLY THIS ISSUE IS PARTLY ALLOWED. 6. AGGRIEVED ASSESSEE IS IN APPEAL BEFORE US. WE F IND THAT THIS ISSUE IS COVERED BY THE DECISION IN ASSESSEES OWN CASE FOR THE A.Y. 2004-05 IN ITA NO. 687/M/2010 WHEREIN IT HAS BEEN HELD AS FOLL OWS: THE FIRST ISSUE IS REGARDING THE TRANSFER CHARGES RECEIVED BY THE ASSESSEE HOUSING SOCIETY. WE HAVE HEARD THE PA RTIES. NOW THIS ISSUE IS SQUARELY STANDS COVERED IN FAVOUR OF THE A SSESSEE IN THE CASE OF SIND CO. OP. HSG. SOC. VS ITO 317 ITR 47 (B OM) AS WELL AS MITTAL COURT PREMISES HSG. CHS SOC. LTD. VS ITO 184 TAXMAN 292 (BOM). WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) ON THIS ISSUE ACCORDINGLY GROUND NO. 1 IS DISMISSED. RESPECTFULLY FOLLOWING THE SAME WE ALLOW THE ASSES SEES APPEAL ON THIS ISSUE. 7. THE SECOND GROUND RELATES TO ADDITION OF RS. 1 5 1 000/- RECEIVED DONATION TOWARDS A GET-TOGETHER FUNCTION OF THE AS SESSEE-SOCIETY. THE ASSESSEE HAD DISCLOSED RECEIPT OF RS. 51 000/- AND RS. 1 00 000/- FROM TWO MEMBERS WHO PURCHASED TWO FLATS IN THE BUILDING OF THE ASSESSEE- SOCIETY DURING THE RELEVANT PREVIOUS YEAR. IT WAS CONTENDED THAT THESE AMOUNTS WERE RECEIVED AS DONATION FOR PARTLY SPONSO RING THE GET TOGETHER FUNCTION OF THE SOCIETY. THESE AMOUNTS WERE CREDIT ED TO COMMON AMENITY FUND. THE ASSESSEE CLAIMED THAT THE AFORES AID DONATIONS WERE COVERED BY THE PRINCIPLES OF MUTUALITY AND HENCE NO T TAXABLE. THE AO HELD THAT THE ASSESSEE HAD RECEIVED THE DONATIONS F OR GET-TOGETHER ITA NO. 5834/M/06 4 FUNCTION OF THE APPELLANT-SOCIETY ONLY FROM TWO INC OMING MEMBERS AND NOT FROM OTHER MEMBERS. HENCE THE AO HELD THAT PRI NCIPLES OF MUTUALITY DID NOT COVER THE AFORESAID CONTRIBUTION AND THEREF ORE THOSE WERE TAXABLE. THE AO PLACED RELIANCE ON THE FOLLOWING D ECISIONS: 1) REGENT CHAMBERS PREMISES CO.OP.SOC.LTD. VS ITO 82 I TD 13(MUM) 2) CIT VS KUMBAKONAM MUTUAL BENEFIT FUND LTD. 55 ITR 2 41(SC) 8. AGGRIEVED ASSESSEE IS IN APPEAL BEFORE THE LD. C IT(A) AND SUBMITTED AS FOLLOWS: THE ASSESSEE SUBMITTED THAT THE AO HAD OVERLOOKED THE ISSUE OF A CIRCULAR REQUESTING ITS MEMBERS FOR VOLUNTARY CONTR IBUTION FOR SPONSORING A DINNER AND GET-TOGETHER FUNCTION. IT HAD SPENT RS. 1 73 781/- AND HAD RECEIVED THE AFORESAID AMOUNT FROM THE EXISTING MEM BERS. THE ASSESSEE FURTHER ARGUED THAT THE SAID CONTRIBUTIONS WERE COV ERED BY THE PRINCIPLES OF MUTUALITY. 9. THE LD. CIT(A) HELD AS FOLLOWS: IT IS FOUND THAT THE ASSESSEE DID NOT RECEIVE ANY DONATION OF THE AFORESAID NATURE FROM OTHER MEMBERS EXCEPT FROM THE MEMBERS WHO PURCHASED FLATS IN ITS BUILDING. THE CONTRIBUT IONS WERE COLLECTED FROM THE NEWLY MEMBERS WHICH CLEARLY ESTABLISH A NE XUS BETWEEN TRANSFER OF THE FLATS IN THEIR NAME AND THE CONTRIB UTIONS GIVEN BY THEM AS DONATION. THEREFORE THE AFORESAID AMOUNTS WERE NOT COVERED BY THE PRINCIPLES OF MUTUALITY EVEN IF RECE IVED FROM PERSONS WHO WERE MEMBERS AT THE TIME OF MAKING SUCH CONTRIB UTION. ACCORDINGLY ADDITION OF THE SAID AMOUNTS AS INCOME OF THE APPELLANT IS CONFIRMED. GROUND NO. 2 IS ACCORDINGLY REJECTED 10. AGGRIEVED ASSESSEE IS IN APPEAL BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT AT PAGES 12 OF THE PAPER BOOK WHEREIN THE INVITATION FOR GET TOGETHER FUNCTION HAS BEEN PRODU CED. ITA NO. 5834/M/06 5 11. THE LD. DR ON THE OTHER HAND POINTED OUT THAT I T HAS TO BE VERIFIED WHETHER THE BYE-LAWS PERMIT THE CONTRIBUTION TO SUC H EVENTS. THE LD. COUNSEL FOR THE ASSESSEE REPLIED THAT THERE WERE NO GUIDELINES OF BYE-LAW WITH RESPECT TO THE SAME AND APPLYING THE PRINCIPL ES OF MUTUALITY THE GET TOGETHER BEING FOR THE MUTUAL BENEFIT OF THE ME MBER THE EXPENSES CONNECTED WITH THE EVENT IS TO BE ALLOWED. IN THE C ASE OF CIT VS KUMBAKONAM MUTUAL FUND LTD. 53 ITR 241 THE HONBLE APEX COURT HELD THAT THE ESSENCE OF MUTUALITY LIES IN THE RE TURN OF WHAT ONE HAS CONTRIBUTED TO A COMMON FUND AND UNLESS THERE WAS SUCH COMPLETE IDENTITY BETWEEN THE CONTRIBUTORS AND THE PARTICIPA TORS IN A COMMON FUND THE PRINCIPLE OF MUTUALITY AND EXEMPTION ON T HAT GROUND WOULD NOT BE ATTRACTED. 12. IN THIS CASE MEMBERS HAVE PARTICIPATED IN THE E VENT AND CONTRIBUTED FOR THAT PURPOSE. HENCE WE ARE OF THE OPINION THAT THE SAME IS ALLOWABLE ON THE PRINCIPLES OF MUTUALITY. 13. GROUND NO. 3 RELATES TO ADDITION OF RS. 3 41 78 8/- RECEIVED AS NON- OCCUPANCY CHARGES. THE AO HELD THAT THE NON-OCCUPA NCY CHARGES WERE NOT VOLUNTARY ITS COLLECTION WAS GOVERNED BY PROFI T MOTIVE AND THE CONTRIBUTORS WERE NOT PARTICIPATORS; THEREBY NOT SA TISFYING THE IDENTITY BETWEEN THE CONTRIBUTORS AND PARTICIPATORS UNDER TH E PRINCIPLES OF MUTUALITY. HENCE HE ADDED THE SAID AMOUNT AS ASSES SEES BUSINESS INCOME. 14. AGGRIEVED ASSESSEE IS IN APPEAL BEFORE THE LD. CIT(A) AND SUBMITTED THAT THE CHARGES WERE RECOVERED FROM EXIS TING MEMBERS OF THE SOCIETY WHO HAD LET OUT THEIR FLATS TO OUTSIDES. S INCE THE CHARGES WERE COLLECTED FROM THE MEMBERS OF THE SOCIETY AND WAS U SED FOR PROVIDING COMMON FACILITIES LIKE SECURITY LIGHT CLEANING ET C. THE SAID RECEIPTS COULD NOT BE CONSIDERED AS INCOME OF THE APPELLANT-SOCIET Y. ITA NO. 5834/M/06 6 15. THE LD. CIT(A) HELD AS FOLLOWS: AS REGARDS NON-0CCUPANCY CHARGES IT IS FOUND THAT THE MAHARASHTRA STATE GOVT. HAS ISSUED NOTIFICATION NO. SYG- 1094/15165/P. NO. 217/14-C DT. 1.8.2001 WHICH PROV IDES THAT A SOCIETY SHOULD NOT COLLECT THE NON-OCCUPANCY IN EXC ESS OF 10% OF THE SERVICE CHARGES (EXCLUDING MUNICIPAL CORPN/NAGARPAL IKA TAXES). THE SAID NOTIFICATION HAS COME INTO EFFECT SINCE 1.8.20 01. IT IS NOT KNOWN WHETHER THE APPELLANT HAD COLLECTED NON-OCCUPANCY C HARGES IN EXCESS OF THE LIMIT SO FIXED. IN WALKESHWAR TRIVEN I CASE IT HAS BEEN HELD THAT AMOUNT COLLECTED IN EXCESS OF LIMIT FIXED WITH REGARD TO PREMIUM ON TRANSFER WOULD CONTAIN PROFIT MOTIVE. I N THIS CONTEXT IT IS RELEVANT TO MENTION HERE THAT THE HONBLE BOMBAY HI GH COURT HAS UPHELD THE SAID STATE GOVT. CIRCULAR FIXING THE CE ILING FOR THE NON- OCCUPANCY AT 10% OF MAINTENANCE DUES IN THE CASE OF SUNANDA RANGNEKAR VS RAHUL APARTMENT (THE HINDUSTAN TIMES MUMBAI EDITION DT. 23.3.2006 PAGE 1). IN VIEW OF ABOVE LEGAL POSITION THE AO IS DIRECTED TO VERIFY THE DETAILS AND EVIDENCES OF NON OCCUPANCY CHARGES COLLECTED BY THE APPELLANT EXCLUDE THE AMO UNT AS PER THE ABOVE DIRECTIVE OF THE STATE GOVT. AND TAX THE BALA NCE. SUBJECT TO THIS THE GROUND NO. 3 IS PARTLY ALLOWED. 16. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE US. WE FIND THAT THIS ISSUE IS COVERED BY THE DECISION IN ASSESSEES OWN CASE FOR THE A.Y. 2004-05 IN ITA NO. 687/M/10 WHEREIN IT HAS BEEN HEL D AS FOLLOWS: THE ISSUE IS IN RESPECT OF THE TREATMENT OF NON-OC CUPANCY CHARGES COLLECTED FROM THE MEMBERS. WE HAVE HEARD THE PARTIES. NOW THIS ISSUE IS ALSO COVERED IN FAVOUR OF THE AS SESSEE ON THE PRINCIPLE OF MUTUALITY BY THE DECISION OF THE JURI SDICTIONAL HIGH COURT IN THE CASE OF MITTAL COURT PREMISES CHS LTD . VS ITO 184 TAXMAN 292 (BOM). THE DECISION OF THE HONBLE JURI SDICTIONAL HIGH COURT IN THE CASE OF MITTAL COURT PREMISES CHS LTD. (SUPRA) HAS BEEN FOLLOWED BY THE OTHER CO-ORDINATE BENCHES IN THE FO LLOWING CASES: I) ITO VS M/S. GRAND PARADI CHS LTD. ITA NO. 521/M/10 ORDER DT. 27.8.2010 II) ITO VS SHYAM CO. OP. HSG. SOC. ITA NO. 6549/M/09 O RDER DT. 31.8.2010 ITA NO. 5834/M/06 7 AS THIS ISSUE STANDS COVERED IN FAVOUR OF THE ASSE SSEE WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT( A). AS THE SAME IS CONFIRMED ON THIS ISSUE GROUND NO. 2 IS DI SMISSED. RESPECTFULLY FOLLOWING THE SAME WE ALLOW THE ASSE SSEES APPEAL ON THIS ISSUE. 17. GROUND NO. 4 RELATES TO ADDITION OF RS. 2 13 46 6/- AS INCOME FROM OTHER SOURCES. THE AO FOUND THAT THE ASSESSEE HAD DISCLOSED RECEIPT OF RS. 2 13 466/- AS COMPENSATION FOR LETTING OUT THE TERRACE SPACE TO M/S. RELIANCE TELECOM FOR INSTALLATION OF TELECOMMUNICAT ION EQUIPMENT THERE. THE ASSESSEE DID NOT SUBMIT COPY OF THE AGREEMENT B EFORE THE AO BUT CLAIMED THAT THE COMPENSATION RECEIVED FROM THE AFO RESAID COMPANY WAS CHARGEABLE TO TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY. AS IN THE CASE OF SEVERAL SUCH ASSESSES THE AO FOUND THAT CO MPENSATION RECEIVED FOR LETTING OUT OF TERRACE SPACE TO TELECOM COMPANI ES WAS NOT RENT FOR LETTING OUT OF THE PROPERTY BUT IT WAS COMPENSATIO N FOR USE OF SMALL PORTION OF THE TERRACE. ACCORDINGLY HE ASSESSED T HE SAID RECEIPT AS INCOME FROM OTHER SOURCES AND IN THIS REGARD AO PLA CED RELIANCE ON THE ORDER OF THE CIT(A) DT. 22.11.2005 IN THE CASE OF M /S. MAZDA MANSION CHS LTD. FOR A.Y. 2000-01. THE AO DID NOT ALLOW AN Y DEDUCTION FROM THE AFORESAID AMOUNT THOUGH THE ASSESSEE HAD CLAIMED D EDUCTION U/S. 24 WHILE OFFERING THE ENTIRE AMOUNT OF ABOVE MENTIONED RECEIPTS TO TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 18. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AND SUBMITTED THAT THE RECEIPTS WERE RIGHTLY OFFERED TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES. THE ASSESSEE RELIED O N THE DECISION IN THE CASE OF S. SOHAN SINGH VS ITO 16 ITD 272 (DEL.) TO ARGUE THAT THE TERRACE CONSTITUTED AN INTEGRAL PART OF THE BUILDING AND TH EREFORE INCOME FROM LETTING OUT OF PART OF TERRACE WAS ASSESSABLE TO TA X AS PER PROVISIONS OF SEC. 22. THE ASSESSEE ALSO PLACED RELIANCE ON THE DECISION OF THE ITAT ITA NO. 5834/M/06 8 SMC MUMBAI IN ITA NO. 91/M/04 A.Y. 2001-02 IN THE C ASE OF JAI GIRNAR PREMISES CO. OP. SOC. LTD. VS ITO DT. 6.7.2004. IN THIS CASE IT WAS HELD THAT INCOME RECEIVED BY A CO. OP. HSG. SOC. BY LETT ING OUT A PART OF ITS TERRACE PREMISES TO A TELECOM COMPANY FOR INSTALLAT ION OF ANTENNAE WAS CHARGEABLE UNDER THE HEAD INCOME FROM HOUSE PROPER TY. 19. THE LD. CIT(A) HELD AS FOLLOWS: SUBMISSIONS OF THE APPELLANT AND AVAILABLE FACTS H AVE BEEN CAREFULLY CONSIDERED. THE APPELLANT DID NOT SUBMIT COPY OF THE AGREEMENT IT HAD EXECUTED WITH THE AFORESAID COMPA NY IN CONNECTION WITH LETTING OUT OF THE TERRACE SPACE. FOR ANY INCOME TO BE ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROP ERTY IT IS NECESSARY TO ESTABLISH THAT THE PROPERTY IS OWNED B Y THE SAID PERSON. IN THE INSTANT CASE THERE IS NO MATERIAL TO PROVE THAT TH E APPELLANT CO-OPERATIVE SOCIETY WAS THE OWNER OF THE BUILDING TERRACE SPACE OF WHICH WAS LET OUT. SECONDLY THE COMPENSA TION RECEIVED FOR LETTING OUT OF TERRACE SPACE CANNOT BE CONSIDERED F OR THE PURPOSES OF DETERMINATION OF ANNUAL VALUE OF THE PROPERTY U/S. 22 OF THE I.T. ACT 1961 AS NORMALLY TENANCY RIGHT IS NOT CREATED UNDER AGREEMENTS EXECUTED WITH TELECOM COMPANIES. WHAT THE APPELLAN T HAD RECEIVED FROM THE AFORESAID TELECOM COMPANY WAS IN THE NATUR E OF COMPENSATION FOR USE OF TERRACE SPACE OF THE BUILDI NG BUT WAS NOT RENT IN THE NORMAL SENSE. THEREFORE THE AO WAS JU STIFIED IN ASSESSING THE RECEIPTS FROM THE AFORESAID COMPANY A S INCOME FROM OTHER SOURCES AS AGAINST INCOME FROM HOUSE PROPERTY CLAIMED BY THE APPELLANT. CONSEQUENTLY THE ACTION OF THE AO IS C ONFIRMED AND GROUND NO. 4 IS REJECTED. 20. AGGRIEVED ASSESSEE IS IN APPEAL BEFORE US. WE FIND THAT THIS ISSUE IS COVERED BY ASSESSEES OWN CASE FOR THE A.Y 2004- 05 IN ITA NO. 316/M/10 WHEREIN IT HAS BEEN HELD AS FOLLOWS: HAVING CAREFULLY HEARD THE SUBMISSION OF THE LD. D R AND PERUSING THE MATERIAL AVAILABLE ON RECORD WE FIND THAT THE F ACTS ARE NOT IN DISPUTE. WE FURTHER FIND THAT THE ISSUE IS COVERED AGAINST T HE REVENUE AND IN FAVOUR OF THE ASSESSEE BY THE ORDERS OF THE TRIBUNAL. IN T HE CASE OF SHARDA CHAMBER PREMISES VS. ITO IN ITA NO.1234/M/08 DATED 1.9.2009 FOR ASSESSMENT YEAR 2003-04 IN WHICH JM WAS ONE OF THE PARTY ON THE ITA NO. 5834/M/06 9 SIMILAR FACTS THE TRIBUNAL AFTER CONSIDERING THE D ECISION IN ITO VS. CUFFE PARADE SAINARA PREMISES CO-OPERATIVE SOCIETY LTD. 7 225/MUM/05 DATED 28 TH APRIL 2008 FOR ASSESSMENT YEAR 2002-03 AND ALSO TH E DECISION IN THE CASE OF S. SOHAN VS. ITO (1986) 16 ITD272 SUPRA HAS HELD VIDE PARA 6 AND 7 OF ITS ORDER DATED 1.9.2009 AS UNDER : 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND M ERIT IN THE PLEA OF THE LD.COUNSEL FOR THE ASSESSEE THAT IN THE CASE OF M/S . DALAMAL HOUSE COMMERCIAL COMPLEX-PREMISES CO-OPERATIVESOCIETY LTD . THE TRIBUNAL WHILE ADMITTING THE ADDITIONAL GROUND BEING A LEGAL ISSUE HAS ALSO HELD THAT THE LETTING OUT OF THE TERRACE ERECTION OF AN TENNA AND INCOME DERIVED FROM LETTING OUT HAS TO BE TAXED AS INCOME FROM HO USE PROPERTY AND NOT AS INCOME FROM OTHER SOURCES. THE TRIBUNAL WHILE DECIDING THE ISSUE HAS FOLLOWED THE ORDER OF THE TRIBUNAL IN THE CASE OF M /S. CUFFE PARADE SAINARA PREMISES CO-OP. SOCIETY LTD. SUPRA. 7. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BRO UGHT ON RECORD BY THE REVENUE WE RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL (SUPRA) AND KEEPING IN VIEW THE CONSISTENCY WHILE ADMITTING THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE HOLD THAT THE LETTING OUT OF TERRACE HAS TO BE ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY AS AGAINST INCOME FROM OTHER SOURCES ASSESSED BY THE ASSESSI NG OFFICER AND ALSO ALLOWED DEDUCTION PROVIDED U/S.24 OF THE ACT AND AC CORDINGLY THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE IS ALLOWED. RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL SU PRA WE ARE OF THE VIEW THAT THE LETTING OUT OF THE TERRACE HAS TO BE ASSES SED UNDER THE HEAD INCOME FROM HOUSE PROPERTY SUBJECT TO DEDUCTION U/S .24 OF THEACT AS AGAINST INCOME FROM OTHER SOURCES ASSESSED BY THE A SSESSING OFFICER. WE HOLD AND ORDER ACCORDINGLY. THE GROUND TAKEN BY THE ASSESSEE IS THEREFORE ALLOWED. 21. RESPECTFULLY FOLLOWING THE SAME WE ALLOW THE ASSES SEES APPEAL ON THIS ISSUE. 22. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 25 TH DAY OF MARCH 2011 SD/- SD/- (R.S. SYAL) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED 25 TH MARCH 2011 RJ ITA NO. 5834/M/06 10 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR B BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR I.T.A.T MUMBAI ITA NO. 5834/M/06 11 DATE INITIALS 1 DRAFT DICTATED ON: 2 2 . 0 3 .201 1 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 2 3 .0 3 .2011 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK: DATE ON WHICH FILE GOES TO AR _________ ______ 10 . DATE OF DISPATCH OF ORDER: _________ ______