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TMI Blog2016 (12) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... he year. The Assessing Officer questioned the assessee on this issue and assessee had submitted that even if it had not earned any income, expenses cannot be disallowed. The Assessing Officer noticed that business of the assessee was mentioned as renting of property and so, he concluded that assessee was not carrying out any business activity and disallowed loss so claimed under the head 'Income from business & profession'. The assessee did not make any submissions on this issue before ld. CIT (Appeals) therefore, ld. CIT (Appeals) confirmed the disallowance and dismissed this ground of appeal of the assessee. 5. After hearing rival contentions, we are of the view no interference is called for in the matter. The ld. counsel for the assessee did not raise any specific submissions on this issue and even have not pointed out any material from the Paper Book as to how the assessee would be entitled for claim of deduction on account of loss so claimed. In the absence of any specific submission and production of sufficient material, we are not inclined to interfere with the orders of authorities below. This issue is, therefore, decided against the assessee. Ground No. 6 of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which is summarized below: (i) The land and building were given to the lessee for running a hotel and if modifications or alterations or additions or changes were made by the lessee at its own cost, the appellant was not entitled to any benefits. It has also been submitted that no such disallowance was made in the earlier years. (ii) The constructed portion was reflected in the balance sheet as on 31.01.2007 at Rs. 1.70 crores and property tax had been paid and so the Assessing Officer has wrongly assumed that only land has been leased out. (iii) There is no bar on the claim of depreciation by the lessee in respect of the building constructed afresh and the appellant firm is not claiming any depreciation on its own value of building. (iv) The construction was to revert to the lessor on the expiry of lease. (v) The deduction u/s. 24(a) is statutory and does not depend on the expenses actually incurred. Moreover, the property rented out was not land alone, but it was appurtenant to the then existing structure. (vi) The contract does not transfer the ownership of the building to the lessee during the lease period where the ownership again passes to the lessor on terminat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding and superstructure was given on rent to the tenant. He has submitted that in assessment year 2009-10, the assessee declared rental income in return of income from the same tenanted property and claimed deduction under section 24(a) of the Act @ 30% of the annual value which have been accepted by the Assessing Officer in the order under section 143(3) of the Act dated 13.12.2011, copy of which is filed at page 5 of the Paper Book, however, Assessing Officer has disallowed the interest under section 24(b) of the Income Tax Act. However, the appeal of the assessee on this issue have been allowed by ITAT Chandigarh Bench in the case of Premier Electrical Industries v. ACIT [IT Appeal No. 77 (Chd.) of 2013, dated 30-5-2014] and interest under section 24(b) have been allowed deduction by the Tribunal. 11. The ld. counsel for the assessee submitted that no departmental appeal have been preferred before High Court against the said decision of the Tribunal and despite giving opportunity to the ld. DR to verify this fact, no adverse comments have been offered. He has, therefore, submitted that issue is covered against the Deptt. by order of ITAT in assessment year 2009-10 (supra). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lease does not get renewed, the lessee agrees to hand over land/plots/building along with all construction etc. carried out by the lessee, back to the lessor (assessee) within one month from the expiry of the lease period. According to clause 6.2(b) of the lease deed, on expiry of the term of the lease, the lessee shall within one month hand over peaceful possession of the land/plots and the structure built thereon to the lessor (assessee). 12(i) According to clause 11.4 of the lease deed, upon expiry or termination of the lease, lessee shall, within one month from the expiry of termination of the lease, hand over the land/plots with the building thereon free from any lien or any encumbrance and shall be free to remove its movable assets from the hotel structure or any structure constructed on the land/plot. 13. According to the lease deed also, the lessee (tenant) shall be at liberty to effect and carry out at its cost, construction, renovation, repair etc. of the hotel structure or raise any other construction. The terms of the lease deed between assessee and the tenant, therefore, clearly disclose that the demised property was let out to the tenant for a long period of lease i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue Department. It would, therefore, clearly prove that assessee claimed statutory deduction under section 24(a) of the Act in earlier assessment year which have not been disputed by the Income Tax authorities and when interest was disallowed under section 24(b) of the Act, it was allowed by the Tribunal in the case of the assessee. Therefore, nature of income received by the assessee was clearly held to be 'income from house property' and deduction under section 24 has been allowed. The findings of the Tribunal have reached finality as per submissions of the parties on identical facts. The Assessing Officer cannot be permitted to take different view in subsequent year in appeal on same facts. 14. Hon'ble Punjab & Haryana High Court in the case of Haryana Tourism Corpn. Ltd. (supra) held as under : "The assessee was a public sector undertaking engaged in the business of running tourist complexes, hotels/motels/resorts. It declared rental income of Rs. 1,16,50,981 under the head "Income from house property" after claiming deduction under section 24 of the Income-tax Act, 1961. It claimed that similar deductions were made in the earlier years. An identical issue arose i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying out of any repair in the building. A sum equal to 30% of the annual value is allowable deduction without proving or giving any evidence of any repair etc., therefore, findings of authorities below are wholly in correct and would not hold the orders of the authorities below. The Id. counsel for the assessee also argued that the information received under section 133(6) from the tenant was never supplied or confronted to the assessee. We, after going through the orders of authorities below did not find any whisper in the impugned orders if Assessing Officer has supplied copy of information under section 133(6) of the Act to the assessee before passing any adverse orders against the assessee. Therefore, any material collected at the back of the assessee and not confronted to the assessee ad without calling for comments of the assessee would not be admissible in evidence against the assessee. The assessee, therefore, rightly relied upon decision of the Hon'ble Supreme Court in the case of Kishan Chand Chela Ram (supra). There is no other material brought on record against assessee for disallowing claim under section 24(a) of the Act. 16. Considering the above discussion, we a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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