2005 (12) TMI 214 - AT - Income Tax

Summary

Issues Involved:
1. Whether the assessment order was erroneous and prejudicial to the interest of the revenue.
2. The allowability of various expenses incurred by the assessee for providing services to tenants.
3. The correctness of setting aside the assessment and directing a fresh assessment.

Detailed Analysis:

1. Whether the assessment order was erroneous and prejudicial to the interest of the revenue:

The Ld. CIT observed that the assessee claimed expenses of Rs. 17,54,266 for providing services to tenants, which were allowed by the Assessing Officer (AO) in addition to statutory deductions under section 24. The CIT considered this allowance erroneous and prejudicial to the interest of the revenue. The AO had disallowed Rs. 10,000 for unverifiable expenses but did not question the rest. The CIT issued a show-cause notice under section 263, deeming the assessment order as erroneous and prejudicial to the revenue.

2. The allowability of various expenses incurred by the assessee for providing services to tenants:

The assessee argued that rental income was shown under "Income from house property" and service charges under "Profits and gains of business or profession," a practice accepted by the revenue for decades. The AO had examined the books of account and allowed expenses accordingly. The assessee cited several judgments, including Karnani Properties Ltd. v. CIT, to support the bifurcation of income and expenses. The CIT, however, held that once statutory deductions under section 24 were allowed, additional expenses for repairs and maintenance were not permissible.

3. The correctness of setting aside the assessment and directing a fresh assessment:

The CIT set aside the assessment order, directing the AO to reconsider the expenses after providing a reasonable opportunity to the assessee. The Departmental Representative supported this, citing the need for proper inquiry and referencing the Supreme Court's decision in Shambhu Investment (P.) Ltd. v. CIT, which held that composite rent includes all charges. The assessee countered that rent and service charges were separately mentioned in tenancy agreements and bills, thus not composite. The Tribunal found that the assessee consistently showed rental income and service charges separately, and this practice was accepted by the revenue. The Tribunal concluded that the expenses were allowable under "Profits and gains of business or profession" and that the CIT erred in setting aside the assessment.

Conclusion:

The Tribunal held that the CIT erred in holding the assessment order as erroneous and prejudicial to the interest of the revenue. The expenses claimed by the assessee were allowable, and the AO's order was a possible view permissible under the law. The Tribunal directed the cancellation of the CIT's order and allowed the assessee's appeal.