TaxTMI 
TaxTMI 
2010 (3) TMI 1234
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....ing the fact that he himself confirmed similar addition in the case of NTS (P) Ltd. for A.Y. 2004-05. 2. That, on the facts and circumstances of the case, the ld. CIT(A) has erred in law as well as on facts in deleting the addition of Rs. 1,65,46,320/- without considering the provisions of the Act which states that where a property or any of its part is let out then if actual rent received or receivable is in excess of the Annual Value of the property, such rent received or receivable will be treated as the Annual Value of the property. 3. That, on the facts and circumstances of the case, the ld. CIT(A) has erred in law as well as on facts in holding that the service charges received by the assessee from the tenants are business income instead of income from house property without considering the fact that such services are inseparable part of tenancy agreement and in absence of any tenant such services will become redundant. 4. That, on the facts and circumstances of the case, the ld. CIT(A) has erred in law as well as on facts in holding that the service charges received by the assessee from the tenants are business income instead of income from house p....
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....vacant during the whole or any part of the previous year and owing to such vacancy the actual rent received or receivable by the owner in respect thereof is less than the sum referred to in clause (a), the amount so received or receivable. The assessee in its submission has relied on the provision of Sec. 23(l)(c) as above. It may be seen that the above provision is applicable when the property is let and was vacant during the whole or any part of the previous year. The Explanation to Sec.23(l) also states that for the purposes of Cl.(b) or Cl.( c) of this sub section the amount of actual rent received or receivable by the owner shall not include, subject to such rules as may be made in this behalf, the amount of rent which the owner cannot realize. "The first two grounds of appeal pertain to vacancy allowance in respect of the second and third floor of the building "Sandhya Deep" under the provisions of section 24 of the Act. It is also urged that Sec.23(1)(a) is a deeming section and in this case the property set apart for letting out and not actually let out all through the year, the annual value of the property which was not let out will be governed b....
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....ed 14.8.2008, which has been upheld by Hon'ble High Court of Calcutta vide its order dated 13.1.2009.. He lastly submitted that the action of the Ld. CIT(A) in this regard may be upheld. 9. We have heard both the submissions and have perused the material available on record. We also find that the issue on hand is squarely covered in favour of the assessee by the order of the Coordinate Bench in the case of DCIT -Vs- M/s. GMMCO Ltd., ITA No. 854/Kol/2008, AY 2005-06 dated 14.8.2008, wherein an identical issue was decided by the Tribunal, which reads as under : "17. Heard both the parties at length, perused the material available on record and on careful perusal of the case laws cited by both the parties, we find force in the contention of the Ld. Counsel for the assessee that the ratio of the decision of ITAT Mumbai Bench reported in 110 ITD 158 (supra) is squarely applicable to the facts of this case. Since the Ld. CIT(A) has given relief to the assessee by following the decision of ITAT Mumbai Bench, we find no infirmity in the order of the Ld. CIT(A). For the sake of brevity the relevant portion of the order of the Ld. CIT(A) is reproduced as under : "7....
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....on by the AO. In view of the above, the addition of Rs. 25,49,040/- made by the AO is hereby ordered to be deleted. Accordingly, ground no. 6 is allowed. In view of the above, we find no infirmity in the order of the Ld. CIT(A) and the same is hereby upheld. Therefore, this ground of the revenue is dismissed." Respectfully following the above order of the Coordinate Bench, which has also been upheld by the Hon'ble jurisdictional High Court vide its order dated 13.1.2009 available in the paper book, we uphold the action of the Ld. CIT(A) and, therefore, the ground of appeal of the revenue is dismissed." Respectfully following the above order of the coordinate Bench, we uphold the order of the C.I.T.(A) on the issue and dismiss grounds No. 1 & 2 of the Revenue's appeal. 6. While pleading on grounds No.3 & 4 above, the Ld. Departmental Representative submitted that although this issue is also covered by the earlier decision of I.T.A.T. in the assessee's own case, as cited by the assessee's ld. A/R, however, in view of decision of Hon'ble Calcutta High Court in the case of Shambhu Investment (P) Ltd. [249 ITR 47], the service charges received from the tena....
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....Reimbursement of electrical expenses 8,12,420 Reimbursement of power utilization charges 18,62,568 44,90,590 (A) 44,90,590 Maintenance expenses Building relating to plant and machinery 15,50,244 Salary and bonus 3,24,342 Contribution to PF, gratuity and others 36,837 Welfare expenses 9,215 3,70,394 Electricity 13,20,527 Repairs to building 1,36,334 General maintenance & establishment (Misc) 6,43,684 24,70,939 (B) 43,91,577 It is seen from the details filed that the assessee alone owns 50% of the total property and the balance 50% is owned by the other co owners of the Birla Group of Companies. It is further seen that the machineries deployed and other expenses incurred for providing services is in relation to earning income from the property. Although separate agreements have been entered into by the assessee with its tenants for providing serv....