TMI Blog2017 (12) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... xist in the air. It is part of the building which has been constructed on the land beneath the super-structure. It is, therefore, not correct to hold that the terrace does not have any appurtenant land. Thus decide the issue in favour of the assessee. Disallowance of construction expenses of Vikram Tower - Held that:- In the present case, while deciding the first issue relating to the income received by the assessee from the rent of the same building for which the impugned expenses were incurred on account of repair, we have held in the former part of this order by following the judgment of the Hon’ble Jurisdictional High Court that the income to be held under the head house property and deduction u/s 24(a) of the Act for repairs to be allowed. Since, the repairs & maintenance has already been allowed as per the provision contained in Section 24(a) of the Act. Therefore, no separate deduction can be allowed for repairs & maintenance. Accordingly, we do not see any merit in this ground of the assessee’s appeal. Disallowance of expenditure u/s 14A - Held that:- In the present case, it appears that the calculations made by the assessee for making the disallowance u/s 14A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, amend, vary, withdraw or otherwise modify the grounds mentioned hereinabove at or before the time of hearing. 4. From the above grounds, it is gathered that only grievance of the assessee in this appeal relates to the assessment of the rental income under the head income from house property instead of income from other sources assessed by the AO. 5. Facts of the case in brief are that the assessee e-filed its return of income on 30.09.2010 declaring an income of ₹ 13,01,986/- which was processed u/s 143(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act). Later on, the case was selected for scrutiny. During the course of assessment proceedings, the AO noticed that the assessee had let out First Floor of Vikram Tower to Bank of Baroda and had shown the income under the head income from house property . Besides this the assessee had let out space at the roof for fixing Anentenna, the rental income had been shown under the head house property and a deduction u/s 24(a) of the Act to the tune of ₹ 11,04,250/- had been claimed. The AO asked the assessee to explain as to why the income from letting out the space at the roof may not be ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... storage purposes. 20. Unlike the case of Mukherjee Estate (P.) Ltd. (supra) where no space on the terrace floor was let out (the income generated being restricted to the display of advertisement on the hoardings provided), in the case of the assessee here, the licensee is virtually given exclusivity in utilizing the terrace floor for achieving the objectives set out in the agreement. There is no parallel with the case of National Storage Pvt. Ltd. (supra), where the giving of vault spaces in the building developed was the dominant purpose of the business activity undertaken by the assessee. 21. In the case at hand, the building the top terrace of which is the subject of focal attention here has been developed for its various portions to be sold or let out with no possibility of the terrace floor being subjected to such utilization. The assessee continues to be the owner of the terrace floor. It has conceivably no other purpose to be served by such property as is held on the terrace floor, except the exploitation of the licensed space for gaining the income that cannot be treated as either income from business or income from other sources. The income was thus rightly ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be held under the head house property and deduction u/s 24(a) of the Act for repairs to be allowed. Since, the repairs maintenance has already been allowed as per the provision contained in Section 24(a) of the Act. Therefore, no separate deduction can be allowed for repairs maintenance. Accordingly, we do not see any merit in this ground of the assessee s appeal. 16. The issue involved in Ground Nos. 1, 1.1 2 in ITA No. 1729/Del/2014 for the assessment years 2004-05 and Ground Nos. 1 1.1 in ITA No. 2160/Del/2014 for the assessment year 2009-10 is similar to the Ground Nos. 1 1.1 in ITA No. 5937/Del/2013 for the assessment year 2010-11 which we have already adjudicated in the former part of this order. Therefore, our findings given therein shall apply mutatis mutandis. 17. Ground No. 3 in the appeals for the assessment years 2004-05 and 2009-10, relates to the levy of interest u/s 234B of the Act. As regards to this ground, it was the common contention of both the parties that it is consequential in nature, we order accordingly. 18. Now the only issue remains to be adjudicated in Ground Nos. 2 to 2.2 in ITA No. 2160/Del/2014 for the assessment year 2009-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income, which does not form part of total income. ( Addition : ₹ 82,750/-) 20. Being aggrieved the assessee carried the matter to the ld. CIT(A) and submitted that the assessee furnished a calculation of disallowance thereby offering disallowance of ₹ 47,767/- by adopting the same method which was accepted by the ITAT for the assessment year 2008-09. The ld. CIT(A) did not find merit in the submissions of the assessee by observing that the res-judicata does not apply to the income tax proceedings and that for the assessment year 2008-09, the method was accepted by the ITAT because disallowance was made mechanically and reasons were not recorded, however, for the year under consideration, the AO followed the procedure laid down by Rule 8D of the Income Tax Rules, 1962 to disallow 1/2% of average value of investment under Clause (iii) of sub-rule (2) of Rule 8D. Therefore, the disallowance of ₹ 82,750/- made by the AO was sustained. 21. Now the assessee is in appeal. The ld. Counsel for the assessee submitted that the AO while computing the value of average investment for the purpose of computing disallowance u/s 14A of the Act had considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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