MEHERABAD COOP. HSG. SOCL.LTD, MUMBAI v. ITO 16(2)(1), MUMBAI

ITA 6102/MUM/2009 | 2003-2004
Pronouncement Date: 21-12-2011 | Result: Partly Allowed

Appeal Details

RSA Number 610219914 RSA 2009
Assessee PAN AAAAM1739M
Bench Mumbai
Appeal Number ITA 6102/MUM/2009
Duration Of Justice 2 year(s) 1 month(s) 2 day(s)
Appellant MEHERABAD COOP. HSG. SOCL.LTD, MUMBAI
Respondent ITO 16(2)(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 21-12-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted G
Tribunal Order Date 21-12-2011
Date Of Final Hearing 12-12-2011
Next Hearing Date 12-12-2011
Assessment Year 2003-2004
Appeal Filed On 19-11-2009
Judgment Text
1 MEHERBAD COOP. HSG SOC LTD IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI G BENCH MUMBAI BENCHES MUMBAI BEFORE SHRI T R SOOD AM & SHRI VIJAY PAL RAO JM ITA NO. 6102/MUM/2009 (ASST YEAR 2003-04) MEHERBAD COOP. HSG SOC LTD MEHERBAD 1/594 BHULALBHAI DESAI ROAD MUMBAI 26 VS THE INCOME TAX OFFICER 16(2)(1) MUMBAI (APPELLANT) (RESPONDENT) PAN NO. AAAAM1739M ASSESSEE BY SH D C JAIN REVENUE BY SH P K B MENON DT.OF HEARING 12.12.2011 DT OF PRONOUNCEMENT 21 ST DEC 2011 ORDER PER VIJAY PAL RAO JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(A) FOR THE AY 2003-04. 2 THERE IS A DELAY OF 1167 DAYS IN FILING THE PRESE NT APPEAL. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY A LONG WITH AN AFFIDAVIT OF THE SECRETARY OF THE ASSESSEE COOPERATIVE SOCIETY. 3 WE HAVE HEARD THE LD AR OF THE ASSESSEE AS WELL A S THE LD DR ON THE POINT OF CONDONATION OF DELAY AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE MAIN CONTENTION OF THE LD AR OF THE ASSESSEE FOR EX PLAINING THE CAUSE OF DELAY IS THAT THE CIT(A) PASSED AN ORDER ON 31.7.2006 EX-PAR TE. THEREAFTER THE ASSESSEE FILED A PETITION U/S 154 OF THE I T ACT ON 25.9.200 6 AND FINALLY THE CIT(A) HAS PASSED THE ORDER ON 17.7.2009 U/S 154 WHICH WAS REC EIVED BY THE ASSESSEE ON 2 MEHERBAD COOP. HSG SOC LTD 24.9.2009. THUS THE PRESENT APPEAL FILED BY THE AS SESSEE IS WITHIN THE PERIOD OF LIMITATION FROM THE DATE WHEN THE ASSESSEE RECEIVED THE ORDER PASSED BY THE CIT(A) U/S 154. HE HAS FURTHER SUBMITTED THAT THE TIME TAKEN IN THE PROCEEDINGS FOR PERUSING THE PETITION U/S 154 SHOULD BE EXCLUDE D WHILE COMPUTING THE LIMITATION FOR FILING THE APPEAL. THUS THE LD AR P LEATED THAT THE DELAY IN FILING THE APPEAL IS NEITHER INTENTIONAL NOR WILFUL BUT DUE TO CIRCUMSTANCES AS EXPLAINED AND SINCE THE PETITION U/S 154 WAS FINALLY DISPOSE D OFF VIDE ORDER DATED 17.7.2009 WHICH WAS RECEIVED BY THE ASSESSEE ON 2 9.9.2009 THE DELAY IS DUE TO TIME CONSUMED IN 154 PROCEEDINGS. HE HAS RELIED UPO N THE DECISION OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF SUBHAS H MALIK VS CIT & ANOTHER REPORTED IN 325 ITR 243(ALLD) AND SUBMITTED THAT TH E HONBLE HIGH COURT HAS HELD THAT THE ASSESSEE SHOWED JUST AND SUFFICIENT CAUSE FOR DELAY IN FILING THE APPEAL WHEN PROCEEDINGS U/S 154 TOOK A LONG TIME WHICH RES ULTED IN THE DELAY IN FILING THE APPEAL. 3.1 THE LD DR ON THE OTHER HAND HAS VEHEMENTLY OPPO SED TO THE CONDONATION OF DELAY AND SUBMITTED THAT WHEN THE ASSESSEE RECEI VED THE ORIGINAL ORDER OF THE CIT(A) THEN THE APPEAL SHOULD HAVE BEEN FILED WITH IN THE LIMITATION WITHOUT WAITING FOR DISPOSAL OF THE PETITION U/S 154. 4 WE HAVE CONSIDERED THE RIVAL CONTENTION AS WELL A S THE RELEVANT MATERIAL ON RECORD. THE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER DATED 9.1.2006 WAS DECIDED BY THE CIT(A) ON 31.7.2006. NO BODY APPEARED ON BEHALF OF THE ASSESSEE AND SOUGHT ADJOURNMENT OF THE HEARI NG BEFORE THE CIT(A) WHICH WAS DECLINED BY THE CIT(A) AND THE APPEAL WAS DECID ED EX-PARTE ON THE BASIS OF THE ASSESSMENT RECORDS AVAILABLE. THEREAFTER THE A SSESSEE FILED PETITION U/S 154 ON 25.9.2006 ALONG WITH CERTAIN DOCUMENTS IN SUPPOR T OF ITS CASE. THE SAID PETITION WAS FINALLY DISMISSED BY THE CIT(A) ON 17. 7.2009 WHICH WAS RECEIVED BY 3 MEHERBAD COOP. HSG SOC LTD THE ASSESSEE ON 24.9.2009. THUS IT IS CLEAR THAT T HE PROCEEDINGS U/S 154 TOOK A LONG TIME FROM 25.9.2006 TO 17.7.2009 AND HAS CAUSE D THE DELAY IN FILING THE PRESENT APPEAL. IT IS EVIDENT FROM THE PETITION THA T THE ASSESSEE PRAYED IN THE PETITION U/S 154 FOR CONSIDERATION OF THE RELEVANT MATERIAL AND ALLOW THE APPEAL OF THE ASSESSEE. THEREFORE IT APPEARS THAT THE ASSESS EE WAS UNDER BONAFIDE BELIEF OF GETTING RELIEF IN THE PROCEEDINGS U/S 154. THERE FORE THE TIME TAKEN IN THE PROCEEDINGS OF SEC. 154 OF THE I T ACT IN OUR OPIN ION SHOULD BE EXCLUDED FOR COMPUTING THE LIMITATION IN FILING THE APPEAL. 4.1 EVEN OTHERWISE WHEN THE RECTIFICATION SOUGHT BY THE ASSESSEE U/S 154 WAS GOING TO EFFECT THE MAIN ORDER OF THE CIT(A) AND TH EREFORE WHEN THE OUTCOME OF THE PETITION FILED U/S 154 WAS LIKELY TO EFFECT THE MAIN ORDER PASSED BY THE CIT(A) THEN IT CANNOT BE SAID THAT THE DELAY ON TH E PART OF THE ASSESSEE TO FILE THE APPEAL ONLY AFTER THE DISPOSAL OF THE PETITION U/S 154 IS DELIBERATE OR HAVING ANY UNDERHAND MOTIVE. 5 IT IS SETTLED PROPOSITION OF LAW THAT WHILE DE CIDING THE CONDONATION OF DELAY THE COURT SHOULD TAKE A LENIENT VIEW. HOWEVE R IT IS ALWAYS A QUESTION WHETHER IT WAS BONAFIDE OR A DEVICE TO COVER UP ULT ERIOR PURPOSE OR ATTEMPT TO SAVE THE LIMITATION IN UNDERHAND WAY. WHILE CONSTR UING THE SUFFICIENT CAUSE THE COURT SHOULD BE LENIENT ON SUCH MATTERS BUT A LITIG ANT DOES NOT STAND THE BENEFIT BY FILING THE APPEAL BELATED STAGE. WHENEVER SUBSTA NTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE OPPOSED TO EACH OTHER CAUSE OF S UBSTANTIAL JUSTICE HAS TO BE PREFERRED AND JUSTICE-ORIENTED APPROACH HAS TO BE T AKEN WHILE DECIDING THE MATTER OF CONDONATION OF DELAY. WHEN THE REASONS E XPLAINED BY THE ASSESSEE ARE NOT FOUND AS MALAFIDE OR A DEVICE TO COVER UP ULTERIOR PURPOSES THEN A LIBERAL APPROACH HAS TO BE TAKEN FOR CONSIDERING TH E SUFFICIENCY OF CAUSE. 4 MEHERBAD COOP. HSG SOC LTD 5 IN THE CASE OF (SUPRA) THE HONBLE ALLAHABAD HI GH COURT IN THE SIMILAR CIRCUMSTANCES HAS HELD IN PARA 21 TO 24 AS UNDER: IT HAS BEEN CONSISTENTLY HELD BY THE APEX COURT TH AT IN MATTER OF CONDONATION OF DELAY A LIBERAL AND PRAGMATIC VIEW S HOULD BE TAKEN. THE APEX COURT IN RAMJI DASS V. MOHAN SINGH [1978 ] ARC 496 HAS HELD THAT AS FAR AS POSSIBLE THE COURT S DISCRET ION SHOULD BE EXERCISED IN FAVOUR OF THE HEARING AND NOT TO SHU T OUT HEARING. THUS WHILE DECIDING SUCH AN APPLICATION A JUSTICE ORIENTED APPROACH IS REQUIRED TO BE ADOPTED. THE APPELLANT HAS SHOWN JUST AND SUFFICIENT CAUSE F OR THE DELAY IN FILING THE APPEAL IT CANNOT BE SAID THAT THE DEL AY IS MALAFIDE OR INTENTIONAL. IN THE RESULT THE APPEAL IS ALLOWED THE ORDER OF T HE TRIBUNAL DATED JULY 8 2005 IS SET ASIDE. THE MATTER IS REMANDED TO THE TRIBUNAL TO DECIDE THE APPEAL ON THE MERITS OF THE CASE AFTER G IVING AN OPPORTUNITY OF HEARING TO THE APPELLANT IN ACCORDAN CE WITH LAW. 5.1 ACCORDINGLY IN VIEW OF THE FACTS AND CIRCUMSTA NCES OF THE CASE AND IN THE INTEREST OF JUSTICE WE CONDONE THE DELAY OF 1167 D AYS IN FILING THE APPEAL. 6 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL: (1) UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN PASSI NG THE ORDER WITHOUT PROVIDING REASONABLE OPPORTUNITY TO SUBMIT EVIDENCES IN SUPPORT OF THE SUBMISSIONS. (2) UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFI RMING THE INCOME ASSESSED BY THE ASSESSING OFFICER AT RS. 6 9 5 700/- AS INCOME FROM OTHER SOURCES CONSEQUENTLY DENIED THE DEDUCTION U/S 24(A) OF I. T. ACT WHEREAS THE APPELLANTS DECLARED AS INCOME FROM HOUSE PROPERTY AT RS. 6 95 700/- AND CLAIMED DEDUCT ION U/S 24(A) OF THE I. T. ACT I.E 30% TOWARDS REPAIRS AT RS. 2 08 7 10/- STATING THAT THE ASSESSEE COULD NOT PROVE THAT IT WAS THE OWNER OF THE BUILDING. (3) UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFI RMING THE DISALLOWANCE OF RS.7 30 03 1/- BY THE ASSESSING OFF ICER TREATING THE EXPENSE NOT COVERED BY THE PRINCIPLES OF MUTUALITY. 5 MEHERBAD COOP. HSG SOC LTD 7 GROUND NOS 1 & 2 REGARDING INCOME FROM LEASING OU T THE TERRACE AS INCOME FROM OTHER SOURCES INSTEAD OF ADMITTED BY TH E ASSESSEE AS INCOME FROM HOUSE PROPERTY. 7.1 THE ASSESSEE ENTERED INTO AN AGREEMENT OF LEASE AND LICENSE WITH BPL MOBILE COMMUNICATIONS LTD PERMITTING THE LATTER TO USE AND OCCUPY 200 SQ.FT OF ITS TERRACE FOR THE PURPOSE OF INSTALLATION OF ANTE NNA MICROWAVE TOWER ETC. THE ASSESSEE WAS TO RECEIVE LICENSE FEE OF ` 10 000/- P ER MONTH IN ADVANCE AND ALSO TO RECEIVE A SECURITY DEPOSIT OF `. 3 LACS. BY ANOT HER AGREEMENT THE ASSESSEE AGREED TO GRANT THE LICENSEE CERTAIN AMENITIES AND FACILITIES FOR FULL AND EFFECTIVE USE AND ENJOYMENT OF THE SAID PREMISES AND EQUIPMEN TS INSTALLED THEREIN AGAINST LICENSE FEE OF ` 25 000/- PER MONTH. THE AS SESSEE OFFERED THE SAID INCOME AS INCOME FROM HOUSE PROPERTY WHEREAS THE AS SESSING OFFICER TREATED THE SAME AS INCOME FROM OTHER SOURCES AND ACCORDING LY DISALLOWED 30% OF DEDUCTION U/S 24(A) OF THE ACT. 7.2 ON APPEAL THE CIT(A) DISMISSED THE APPEAL OF T HE ASSESSEE EX-PARTE THOUGH ON MERIT VIDE ORDER DT 31.7.2006. THEREAFTER THE ASSESSEE FILED A PETITION U/S 154 WHICH WAS ALSO DISMISSED BY THE CIT(A) VID E ORDER DT 17.7.2009. 8 WE HAVE HEARD THE RIVAL CONTENTION AS WELL AS PER USED THE RELEVANT MATERIAL ON RECORD. THE LD AR OF THE ASSESSEE HAS S UBMITTED THAT AN IDENTICAL ISSUE HAS BEEN CONSIDERED AND DECIDED BY THE COORDI NATE BENCH OF THE TRIBUNAL IN THE CASE OF M/S MAHALAXMI SHEELA PREDMISES CHS L TD IN ITA NOS.784 TO 786/M/2010 VIDE ORDER DATED 30.8.2011 AND SUBMITTE D THAT THE ISSUE IS NOW COVERED IN FAVOUR OF THE ASSESSEE. 6 MEHERBAD COOP. HSG SOC LTD 8.1 THE LD DR ON THE OTHER HAND HAS SUBMITTED THAT SINCE THE ASSESSEE HAS RECEIVED THE LICENSE FEE NOT FOR IN THE USE OF WHOL E THE PREMISES BUT FOR TERRACE ONLY. FURTHER THE ASSESSEE IS NOT THE OWNER OF THE PREMISES IN QUESTION; THEREFORE THE INCOME ON ACCOUNT OF LICENSE FEE HAS TO BE ASSESSED AS INCOME FROM OTHER SOURCES. HE HAS RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES. 9 HAVING CONSIDERED THE RIVAL CONTENTION AND PERUSA L OF THE RELEVANT MATERIAL ON RECORD WE FIND THAT AN IDENTICAL ISSUE HAS BEEN CONSIDERED AND DECIDED BY THE COORDINATE BENCH OF THE TRIBUNAL WHE RE ONE OF US (JUDICIAL; MEMBER) IS THE PARTY TO THE DECISION IN THE CASE OF M/S MAHALAXMI SHEELA PREMISES CHS LTD (SUPRA) WHEREIN THE ISSUE WAS CONS IDERED AND DECIDED IN PARAS 6 TO 9 AS UNDER: 6. IN BAJAJ BHAVAN OWNERS PREMISES CO. OP. SOCIETY LTD. V/S ITO MUMBAI B BENCH OF THE TRIBUNAL IN ITA NO.5048/MUM ./2004 ASSESSMENT YEAR 2001-02 AND ITA NO.1433/MUM./2007 FOR ASSESSMENT YEAR 2002-03 AND ITA NO.1434/MUM./2007 FOR ASSESSMENT YEAR 2003-04 ORDER DATED NOVEMBER 2009 HAS AT PAGE-16 / / / / PARA-36 BROUGHT OUT THE FACTS AS FOLLOWS: - 36. THE BRIEF FACTS OF THE ABOVE ISSUE ARE THAT IT WAS FOUND BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS ALLO WED M/S. HUTCHISON MAX TELECOM LTD. TO ERECT THE TOWER ON TH EIR TERRACE IN CONSIDERATION OF AN AMOUNT OF 5 93 700 A ND CLAIMED AS INCOME FROM HOUSE PROPERTY SUBJECT TO DE DUCTION UNDER SECTION 24 OF THE ACT. HOWEVER THE ASSESSING OFFICER WHILE OBSERVING THAT THE ASSESSEES SOCIETY HAS NOT PROVIDED ANY HOUSE PROPERTY TO THE COMPANY AND IT IS ONLY TH E OPEN TERRACE WHICH HAS BEEN LET OUT TREATED THE SAME AS ASSESSABLE UNDER THE HEAD INCOME FROM OTHER SOURCES WITHOUT ALLOWING ANY EXPENDITURE IN THIS REGARD. ON APPEAL THE LEARNED CIT(A) WHILE CONFIRMING THE ASSESSING O FFICERS ACTION TREATING THE INCOME FROM OTHER SOURCES DIREC TED THE ASSESSING OFFICER TO ALLOW 20% OF THE GROSS RECEIPT S AS EXPENSES TO EARN SUCH INCOME. 7. THE TRIBUNAL AFTER CONSIDERING RIVAL SUBMISSION S AT PAGES-17 & 18 PARA-39 HELD AS FOLLOWS:- 39. AFTER CAREFULLY HEARING THE SUBMISSIONS OF THE RIVAL 7 MEHERBAD COOP. HSG SOC LTD PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECO RD WE FIND THAT THE FACTS ARE NOT IN DISPUTE. WE FURTHER FIND THAT IN THE CASE OF SHARDA CHAMBER PREMISES V/S ITO IN ITA NO.1234/MUM./2008 DATED 1.9.2009 FORA.Y. 2003-04 IN WHICH JM WAS ONE OF THE PARTY ON THE SIMILAR FACTS THE TRIBUNAL AFTER CONSIDERING THE DECISION IN ITO V/S CUFFE PARADE SAINARA PREMISES CO. OP. SOCIETY LTD. ITA NO.7225/MUM./2005 DATED 28 APRIL 2008 FOR A. Y. 2002-03 AND ALSO THE DECISION IN THE CASE OF S. SOHAN V/S I TO (1986) 16 LTD 272 SUPRA HAS HELD VIDE PARA-6 AND 7 OF ITS ORDER DATED 1.9.2009 AS UNDER: 6WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF TH E RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND MERIT IN THE PLEA OF THE ID. COUNSE L FOR THE ASSESSEE THAT IN THE CASE OF MIS. DALAMAL HOUSE COMMERCIAL COMPLEX PREMISES CO. OP. SOCIETY LTD. THE TRIBUNAL WHILE ADMITTING THE ADDITIONAL GROUND BEING A LEGAL ISSUE HAS ALSO HELD THAT THE LETTING OUT OF THE TERRACE ERECTION OF ANTENNA AND INCOME DERIVED FROM LETTING OUT HAS TO BE TAXED AS INCOME FROM HOUSE 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 IS. 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 T HE 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 ASSESSING OFFICER AND ALSO ALLOW DEDUCTION PROVIDED UNDER SECTION 24 OF THE AC T AND ACCORDINGLY 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 TERR ACE HAS TO BE ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY SUBJECT TO DEDUCTION U/S 24 OF THE ACT AS AGAINST INCOME FROM OTHER SOURCES ASSESSED BY THE ASSESSING OFFICER. WE HOLD AND ORDER ACCORDINGLY. T HE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE ALLOWED . 8. THE HONBLE JURISDICTIONAL HIGH COURT IN INCOME TAX APPEAL NO. 3183 OF 2010 VIDE JUDGMENT DATED 16TH AUGUST 2011 CONFIRMED THE AFORESAID FINDINGS OF THE TRIBUNAL VIDE PARA3 WHICH READS AS FOLLOWS:. 8 MEHERBAD COOP. HSG SOC LTD 3 AS REGARDS QUESTION (C) IS CONCERNED COUNSEL FO R THE REVENUE STATES THAT THE ITAT HAS ALLOWED THE CLAIM OF THE ASSESSEE BY FOLLOWING ITS DECISIONS IN THE CASE OF SHARDA CHAMBER PREMISES V/S ITO AND ITO V/S CUFFEE PARADE SAINARA PREMISES CO. OP. SOCIETY LTD. COUNSEL FOR THE REVEN UE FAIRLY STATES THAT THE APPEALS AGAINST THE SAID DECISIONS HAVE NOT BEEN FILED BY THE REVENUE IN VIEW OF THE SMALLNESS OF THE TAX EFFECT. HOWEVER THE COUNSEL FOR THE REVENUE IS NOT IN A POSITION TO POINT OUT ANY ERROR IN THE ORDERS PASSE D BY THE ITAT. IN THIS VIEW OF THE MATTER WE SEE NO REASON TO ENTERTAIN THE APPEAL ON QUESTION (C). IN THE RESULT THE APPE AL IS DISMISSED WITH NO ORDER AS TO COSTS. 9. KEEPING IN VIEW OF THE AFORESAID BINDING JUDGMEN T OF THE HONBLE JURISDICTIONAL HIGH COURT WE SET ASIDE THE IMPUGNE D ORDER PASSED BY THE COMMISSIONER (APPEALS) AND ALLOW THIS GROUN D RAISED BY THE ASSESSEE DIRECTING THE ASSESSING OFFICER TO ASSESS THE INCOME IN QUESTION UNDER THE HEAD INCOME FROM HOUSE PROPERTY . 10 RESPECTFULLY FOLLOWING THE DECISION OF THE COORD INATE BENCH OF THE TRIBUNAL WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 11 GROUND NO.3 IS REGARDING DISALLOWANCE OF EXPENSE S. 12 WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED T HE RELEVANT MATERIAL ON RECORD. WHEN THE DEDUCTION U/S 24(A) IS ALLOWABLE A T 30% TO THE INCOME FROM HOUSE PROPERTY THEN NO FURTHER DEDUCTION OF EXPEND ITURE AS CLAIMED BY THE ASSESSEE IS ALLOWABLE AGAINST THE SAID INCOME; THER EFORE WE DO NOT FIND ANY MERIT IN THE ISSUE. EVEN OTHERWISE WHEN THE EXPEND ITURE INCURRED BY THE SOCIETY IS ONLY ON BEHALF OF THE MEMBERS AND NO NEXUS OF EX PENDITURE TO THE INCOME IS ESTABLISHED THEN THE CLAIM OF EXPENDITURE CANNOT B E ENTERTAINED. 13 THE ASSESSEE HAS RAISED AN ADDITIONAL GROUND AS UNDER: UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD ASSESSING OFFICER AS WELL AS THE LD CIT(A) ERRED IN NOT CONSI DERING THE INCOME OF RS 695700/- FROM LETTING OUT OF SUITABLE PORTION OF THE BUILDING TO OUTSIDERS FOR COMMERCIAL PURPOSES AND ACCUMULATION OF COMMON 9 MEHERBAD COOP. HSG SOC LTD PROFIT FOR BUILDING UP RESERVE FUND IS FOR MUTUAL CONCERN. THEREFORE IS NOT TAXABLE ON THE PRINCIPLES OF MUTUALITY. 14 IT IS APPARENT FROM THE ADDITIONAL GROUND THAT THIS GROUND IS AN ALTERNATIVE GROUND TO THE MAIN GROUND NOS.1 & 2 OF THE ASSESSEE; THEREFORE IN VIEW OUR FINDINGS ON GROUND NO.1 THE ADDITIONAL GR OUND RAISED BY THE ASSESSEE HAS BECOME INFRUCTUOUS. 15 IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THE 21 ST DAY OF DEC 2011. SD/ SD/ ( T R SOOD ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 21 ST DEC 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR ITAT MUMBAI