AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (4) TMI 619
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....ets, newspaper, magazines, or in any other manner. The AO noted that in the return of income along with income and expenditure account, the assessee had filed the balance-sheet and audit report in Form 10B declaring total income at Rs.2,20,03,230/-. In the assessment order, the AO acknowledges that he had issued notices u/s 142(1) of the Act on 01.02.2019 & 20.08.2019 calling for relevant details and raised queries. And pursuant to which the assessee had filed answers to queries and furnished details as requisitioned by him. After examining the details filed by the assessee, the AO admits to have examined the books of account and he notes that the assessee is engaged in the publication which included publication of newspaper and magazine as well as carried out various commercial activities. According to AO, assessee even though has section 12A registration , it wont be able to enjoy the exemption u/s 11 of the Act because it's case was hit by proviso to section 2(15) of the Act and thus it lost its charitable character within the meaning of section 2(15) and u/s 13(8) of the Act for the assessment year in question and the AO held "therefore reject this claim of the assessee and hol....
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....ent for amenities are co-extensive with the terms of the leave & license agreement. Therefore, it was submitted that the income arising from the said agreement for amenities also forms part of income from house property within the meaning of Section 23 of the Act; and therefore the assessee trust is entitled to deduction u/s 24(a) of the Act on the amount of Rs.2,49,10,751/- which is received by the trust in pursuant to the agreement for amenities and credited in the books of accounts as services charges. And for supporting this averment, furnished copy of agreement for amenities for perusal of Ld. CIT(E) and also drew the attention of Ld. CIT(E) to the decision of this Tribunal in the case of Smt. Nirmala Zaverchand Shah vs DCIT (ITA No. 241/Mum/2019 dated 17.06.2020) wherein the Tribunal following its earlier decision in the said case in ITA No. 6880/Mum/2013 dated 05.11.2015 has held that the when service charges/amenities income are part of the basic agreement and form integral part to use of licence premises and their uses are coextensive/coterminous, then the same cannot be segregated. Thus, the Tribunal held that charges for amenities were rightly held to be income from hous....
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.... has asked assessee trust to file copy of "all quarterly TDS Returns filed in Form 14Q & Form 26Q for the financial year relevant to the assessment year under consideration". And to reconcile all the expenses debited to P & L a/c vis-à-vis applicability of provisions of TDS, the TDS effected, Tax deposited in the Gov. Treasury along with supporting evidence, relevant challan and copy of TDS return as well as directed the assessee to give the following details and furnish documents: - 20. Details of payments made towards reimbursement of expenses in the following format" Name Amount Details of Reimbursement 21. Copy of the last 5 assessment order in your case and if any addition /disallowances were therein or any earlier order what is the present appellate result or has the same reached finality. 22. Ledger accounts of Income and Expenses under the various heads in soft copy in PDF format. File comparison of expenses for current & last year. 23. Trial Balance as on 31.03.2016 & 31.03.2017. Headwise, Partly-wise showing opening balance, Debit, Credit & Closing Balance. 24. Reconcile AIR information/ITS data." 8. Thereafter, the Ld. AR drew our attention to page n....
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....ssue has rightly not given a difficult treatment. Therefore, according to Ld. AR, the Ld. CIT(E) ought not to have interfered with the action of AO even though another view is possible unless the Ld. CIT(E) holds that the view taken by AO is unsustainable in law. So he pleaded that the impugned action of Ld. CIT(E) be quashed. 10. Per contra, the Ld. CIT-DR vehemently opposed the contention of Ld. AR and submitted that AO has not carried out the required verification and examined the character of the "service charges" and if he has done so, the assessee's claim of deduction of 30% for service charges would not have been allowed. So he does not want us to interfere with the action of Ld. CIT(E). 11. We have heard both the parties and perused the records. Since the assessee has challenged the jurisdiction of the Ld. PCIT to pass the impugned order, let us first examine the scope of revisional jurisdiction u/s. 263 of the Act. For that, let us take the guidance of judicial precedence laid down by the Hon'ble Apex Court in Malabar Industries Ltd. vs. CIT [2000] 243 ITR 83(SC) wherein their Lordship have held that twin conditions should be satisfied before jurisdiction u/s 263 of ....
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....or where two views are possible and the Assessing Officer has taken one view with which the Ld. CIT does not agree, it cannot be treated as an order prejudicial to the interest of the revenue unless the view taken by the Assessing Officer is unsustainable in law. 12. In the instant case, it has been brought to our notice that the AO during assessment proceedings has asked specific queries on the details of income from leave & license as well as service charge through notice u/s 142(1) of the Act and assessee's reply dated 11.10.2019 the details are given which is found placed at page 20 and 17 of PB. The copies of notice issued by AO (five (5) notices) replies filed by the assessee are given in the paper book. The details of service charges (amenity charges along with leave & license are available at pages 20 of the paper book. The assessee has specifically stated that the amount of Rs.5,01,87,872/-includes the amenity charges from fourteen (14) tenents. Further, vide letter dated 6th December, 2019, the assessee has again stated that the above said details have been furnished through the earlier letter dated 11.10.2019 and clarified that the AIR statement consists of TDS deducted....
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....t be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualise a case of substitution of the judgment of the Commissioner for that of the Income--tax Officer, who passed the order, unless the decision is held to be erroneous. Cases may be visualised where the Income tax officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income tax officer. That would not vest the Commissioner with power to examine the accounts and determine the income himself at a higher figure. It is because the Income tax officer has exercised the quasi judicial power vested in him in accordance with law and arrived at a conclusion and such a conclusion cannot be termed to be erroneous simply be....
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.... or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question...." Similar view has been expressed by Hon'ble Madras High Court in the case of CIT Vs. Amalgamations Ltd (238 ITR 963). 16. The law as laid down by the Hon'ble High Courts makes it clear that when the AO has conducted enquiry on an issue, then the Ld Pr. CIT/Ld. CIT(E) before holding an order to be erroneous, should conduct necessary enquiries or verification in order to show that the finding given by the AO on that issue is erroneous/unsustainable in law. 17. Now we have to examine whether the view taken by AO in the facts and circumstances of the case, is a plausible view. In this context, we note that the assessee has been consistently claiming the leave & licence fee along with amenity charges under the head "Income from house property" and was allowed standard deduction in earlier & subsequent assessment years. So assessee on the principle of consistency, justifies the action of AO to have followed his predecessor action since there is no charge in facts and law. And that is not the case of the Ld. CIT(E) that there is change in facts or law; and so, no fault can be said t....
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.... and Rs. 60,000/- respectively, and as per the provisions of Chapter IV-C of the Income Tax, Act, i.e. under the income from house property claimed deduction u/s. 24 @ 30%. We observe that there is no provision of Income Tax Act that if the property of the assessee trust is held for charitable purposes, no deduction u/s. 24 would be available. Section 24 itself allows deduction of 30% of rental income. Hence, we are of the considered view that Ld. CIT(A) has rightly directed the AO to allow the claim of the assessee. Ld. DR has not pointed out any decision or made submissions contrary to the observation made by Ld. CIT(A). We, therefore, reject the grounds of appeal taken by department and uphold the order of Ld. CIT(A)." 15. Facts being identical, respectfully following the above decision of the Tribunal, ground No. 1 is dismissed. 19. Therefore, in view of the decision of this Tribunal in assessee's own case on this issue, the view of the AO cannot be held to be un-sustainable in law. And it is not the case of Ld CIT(E) that the order of Tribunal (supra) has been reversed by the Hon'ble High Court. Therefore, we after going through the facts and circumstances of the case and f....