TaxTMI 
TaxTMI 
2011 (4) TMI 1386
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....treated the rental income as income from other sources. 2.1 The assessee disputed the decision of the AO and submitted before CIT(A) that rental income from letting out of terrace/ parapet walls for putting up hording etc has to be assessed as income from house property. Reliance was placed on the decision of the tribunal in case of Satyam Shivam Sundaram Cooperative Society Ltd. in ITA No.516 to 514 M/2004 and the decision of the tribunal in case of Pinto Park View Cooperative Housing Society Ltd. in ITA Nos.5859-5894/M/2003. In these cases the tribunal had held that rental income from letting out terrace for putting up hoarding and telecom towers will be assessable as income from house property. CIT(A) however, did not accept the contentions raised. He referred to the judgment of Hon'ble High Court of Kolkata in case of Mukherjee Estate P. Ltd. Vs CIT (244 ITR 1) in which it was held that income from letting out floor space and wall space on the roof of the house property to advertising agencies for putting up hoarding, could not be considered as income from house property and the same was assessable as income from other sources. CIT(A) accordingly upheld the view of the AO asse....
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....td. (supra) will not cover the case of the assessee. The case of the assessee is covered by the decisions of the tribunal cited earlier. Therefore respectfully following the said decisions we set aside the order of CIT(A) and allow the claim of the assessee. 3. The second dispute is regarding deduction of maintenance charges of Rs. 44,544/- while computing income from house property. The assessee had incurred the maintenance charges which consisted of electricity charges, lift maintenance charges, watch and ward charges, cleaning charges etc. and the same was claimed as deduction while computing the income from house property. AO disallowed the claim without giving any reasons. The assessee disputed the decision of the AO and submitted before CIT(A) that the maintenance charges were allowable following the decision of the tribunal in case of Sharmila Tagore Vs DCIT (93 TTJ 483) and the decision in case of Verma Family trust (7 ITD 392). CIT(A) however was not convinced by the arguments advanced. It was observed by him that deduction could be allowed only in respect of items of expenditure listed under section 24(1). There was no specific clause for allowing maintenance charges. CI....
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....viced provided by the society. We therefore restore the issue to the file of AO for passing a fresh order after necessary examination in the light of observations made above and after allowing opportunity of hearing to the assessee. 4. The third dispute is regarding nature of income from share transactions. The assessee had earned income of Rs. 14,47,865/- from sale of shares which had been declared by the assessee as short term capital gain. The assessee submitted before the AO that the intention of the assessee was to make investment in shares which had also been declared as investment in the balance sheet. The transactions were also not repetitive and much in quantity. It was accordingly urged that the capital gain income declared should be accepted. AO however did not accept the contentions raised. It was observed by him that the assessee had dealt in shares of 32 companies and there were total of 97 transactions resulting into gain of Rs. 14,47,865/-. AO held that the assessee was regularly purchasing and selling shares with the profit motive. He therefore treated the income as business income. 4.1 In appeal the assessee submitted before CIT(A) that the assessee was in the b....
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....rrowed funds were utilized as was clear from the balance sheet placed at pages 106/107 of the paper book. It was further submitted that the assessee was a builder and not a share trader. It had only invested the surplus funds pending location of another project. The shares it was pointed out ultimately were sold fully in A.Y.2007-08 as was clear from the balance sheet placed at pages 108/109 of the paper book. It was also argued that CIT(A) had given no basis for treating the shares sold within 90 days as trading activity. He also referred to several decisions of the tribunal in which share transactions have been treated as investment activity. In earlier years, it was pointed out, similar transactions had been accepted as investment activities. The Learned DR on the other hand supported the order of CIT(A) and placed reliance on the findings given in the appellate order. 4.3 We have perused the records and considered the matter carefully. The dispute is regarding nature of income earned by the assessee from share transactions. The assessee during the year had entered into sale and purchase transactions in respect of shares of 32 companies involving 97 transactions resulting into ....