Case Law Details
Kohinoor Industrial Premises Co– operative Society Ltd. Vs ITO (ITAT Mumbai)
Undisputedly, the assessee has derived rental income from letting out space in the terrace of the building to mobile companies for installing their mobile tower / antenna. It is also a fact that the assessee has offered such rental income as income from house property and has claimed deduction under section 24(a) of the Act. The Assessing Officer has rejected assessee’s claim and treated the rental income as income from other sources basically for three reasons. Firstly, the assessee is not owner of the building; secondly, the terrace cannot be considered as house property and thirdly, annual letting value of the terrace is not ascertainable. Whereas, the learned Commissioner (Appeals) has upheld the decision of the Assessing Officer on the reasoning that the income received by the assessee is in the nature of compensation received for providing facilities and services to cellular operators on the terrace of the building. Thus, form the aforesaid facts, it is clear that the assessee has let–out some space on the terrace of the building to the cellular operators for installing and operating the mobile towers / antenna for the purpose of providing mobile telecom services. The issue before me is, what is the nature of income received by the assessee for letting out such space to the cellular operator/mobile company for installing and operating mobile towers/antenna? In my view, the terrace of the building cannot be considered as distinct and separate but certainly is a part of the house property. Therefore, letting–out space on the terrace of the house property for installation and operation of mobile tower / antenna certainly amounts to letting–out a part of the house property itself. That being the case, the observation of the Assessing Officer that the terrace cannot be considered as house property is unacceptable.
FULL TEXT OF THE ITAT JUDGEMENT
Aforesaid appeal has been filed by the assessee challenging the order dated 30th November 2017, passed by the learned Commissioner (Appeals)–42, Mumbai, for the assessment year 2013–14.
2. The only issue in dispute in the present appeal is confined to disallowance of deduction claimed towards repairs and maintenance under section 24 of the Income Tax Act, 1961 (for short “the Act”).
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OFFHAND
It is a paradox that the Revenue has chosen to, impudently so, – albeit not for the first time, in the history of income-tax regime/ administration -chosen to play the role of a ‘devil’s advocate’ ‘, make a somersault (figuratively) , by malking an unsucessful attempt to ‘DOWN date’ (as opposed to UPdate) its stance based on an interpretation of the applicable provisions. Has daringly done so obviously bypassing the diagonally contradicting stance taken in the line of cases as eventually disposed of by / covered in the SC JUdgment in Podar Cement’s case.
For More , and a better appreiciation of why to say so, suggest to look back and meticulously go throgh the critique of that SC Judgment as shared in a published article on this very website.
What is no less surprising is that the referred land mark judgment , in its favour, has not even been cited on the assessee’s behalf; so much so, the ITAT had no opportunity to consider why the point of issue had to be necessarily decided, in any view, only against the Revenue, as done now .