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Badrikeshwar Co-Op Hsg Soc, 82, Mumbai Versus Income Tax Officer 14 (1) (3) , Mumbai

2016 (7) TMI 167 - ITAT MUMBAI

Receipt of rental income - “profit and gains of business or profession” OR “income from house property” - Held that:- We have gone through the decision of Mumbai Bench of the Tribunal in the case of Matru Ashish Co-operative Housing Society Ltd (2010 (8) TMI 1035 - ITAT MUMBAI), which is exactly on identical facts decided the issue that the income of the assessee-society is to be assessed as income from house property and not business income. Accordingly, respectfully following the decision of c .....

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parate orders of CIT(A) of the respective date and for the respective assessment years. Since, these appeals pertain to the same assessee, therefore, for the sake of convenience; they are clubbed together, heard together and disposed of in this consolidated order. Appeal wise adjudication is given in the succeeding paragraphs. 2. With regard to the I.T.A. No.5202/Mum/2013, it is noticed that the CIT(A) has dismissed the appeal of the assessee as unadmitted and in-limine for the reason that he ha .....

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CIT(A) should have been filed on or before 13.2.2011. But the appeal was filed only on 21.1.2013 thereby there was a delay of 700 days in filing the appeal before the CIT(A). The assessee rendered the reasons that it is a Co-operative Housing Society and did not have proper understanding about the actual legal position. It was also considered that the housing society s income is not taxable under the principle of mutuality and they came to know after the AO issued notice dated 15.3.2011 u/s 271( .....

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appeal. The CIT(A) has just summarily rejected the reasons given by the assessee. In view of the reasons given by the assessee, we condone the delay caused in filing the appeal before CIT(A) and admit the appeal. Accordingly, restore the appeal to the file of the CIT(A) for adjudication on merits. 4. This appeal of the assessee is allowed for statistical purposes. Now we will deal with I.T.A. No.563/Mum/2013. 5. The only issue in this appeal of the assessee is with regard to the order of CIT(A) .....

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roperty . 6. Briefly stated facts of the case are that the assessee is a Co-operative Housing Society entered into an agreement with BPL Mobile Communication Ltd for installation of telecommunication tower on the terms and conditions laid down in the agreement at an annual rent of ₹ 9,56,211/-. This tower is installed on the terrace of the assessee s building. The AO treated this income as business income. Aggrieved by the order of AO, the assessee preferred an appeal before the CIT(A), wh .....

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e property subject to deduction u/s 24 of the Act as against income from other sources as assessed by the AO. The observation of the Tribunal are as under(para 6 & 7): 6. Having carefully heard the submission of the learned Departmental Representative and perusing the material available on record we find that the facts are not in dispute. We further find that the issue is covered against the Revenue and in favour of the assessee by the orders of the Tribunal. In the case of Sharda Chamber Pr .....

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nsidered the submissions of the rival parties and perused the material available on record. We find merit in the plea of the learned counsel for the assessee that in the case of M/s Dalamal House Commercial Complex-Premises Co-operative 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 ' .....

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ncome from house property' as against 'Income from other sources' assessed by the AO and also allow deduction provided under s. 24 of the Act and accordingly the additional ground taken by the assessee is allowed." Respectfully following the order of the Tribunal (supra), we are of the view that the letting out of the terrace has to be assessed under the head income from house property subject to deduction under s. 24 of the Act as against income from other sources assessed by t .....

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