2011 (8) TMI 1229

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....ration are common, except variation in figures, for the sake of convenience, these appeals are heard together and are being dispose off by way of this consolidated order. 2. We have heard the learned Counsel, Mr. Hiro Rai, on behalf of the assessee and the learned Departmental Representative, Mr. P.C. Mourya, on behalf of the Revenue. 3. In the appeal for assessment year 2000-01, the sole issue raised by the assessee is, whether the income received by the assessee on lease of a portion of terrace of the building and a wall of the building to one Mrs. Sudha Vora, for the purpose of fixing of hoarding, neon sign, etc., is assessable under the head "Income From Business or Profession" or under the head "Income From Other Sources". The As....

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.....2010; S. Sohan Singh v/s ITO, 16 ITD 272 (Del.); and CIT v/s Bajaj Bhavan Owners Premises Co. Op. Society Ltd., Income Tax Appeal no.3183 of 2010 (Bom.) 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 4th 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 allowed M/s. Hutchison Max Telecom Ltd. to erect the tower on their terrace in consideration of an amount....

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....ailable on record. We find merit in the plea of the ld. counsel for the assessee that in the case of M/s. 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/s. Cuffe Parade Sainara Premises Co. Op. Society Ltd. supra. 7. In the absence of any distinguishing feature brought on record by the revenue, we respectfully following the order of the Tribunal (supra) and keepi....

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....n the orders passed by the ITAT. In this view of the matter, we see no reason to entertain the appeal on question (c). In the result, the appeal is dismissed with no order as to costs." 9. Keeping in view of the aforesaid binding judgment of the Hon'ble Jurisdictional High Court, we set aside the impugned order passed by the Commissioner (Appeals) and allow this ground raised by the assessee directing the Assessing Officer to assess the income in question under the head "Income From House Property". 10. Insofar as other grounds raised by the assessee for assessment year 2000-01, the learned Counsel for the assessee did not wish to press these grounds and, hence, these are dismissed as "not pressed". 11. In the result, assessee'....