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TMI Blog2015 (6) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee is that the ld. CIT(A) erred in confirming the action of the Assessing Officer (A.O.) of treating the income received in respect of the amenities under the head 'income from other sources' instead of 'income from house property' as claimed by the assessee. The facts of the case are that the assessee is a partnership firm. During the year, the assessee has derived income under the head 'income from house property' and has also earned income from running of Cinema Theater. On scrutinizing the return of income, the A.O. noticed that the assessee has earned income from house property at Rs. 14,33,47,104/- as income received from lease and amenities charges for letting out of its property. The A.O. called for the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue authorities. After giving a thoughtful consideration to the rival submissions, we have carefully perused the orders of the authorities below. It is not in dispute that the assessee has entered into two separate agreements, one for lease rental and the other for amenities. On going through the amenities agreement, the only amenity to be provided by the lessor to the lessee was in respect of structural repairs to the building let out and to pay municipal and property taxes in respect of the let out property. We fail to understand how these can be termed as amenities in respect of the letting out property. Even if the property is not let out, the assessee has to incur expenditure towards repairs and maintenance of the said property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,83,26,993/-. The A.O. observed that the assessee has not reconciled the difference amount of Rs. 4,00,697/-. The A.O. added the same to the income of the assessee. The assessee carried the matter before the ld. CIT(A), but without any success. 9. Before us, the ld. Counsel for the assessee claimed that the assessee is following the cash system of accounting and, therefore, has booked only that much of rent which it has received. We do not agree with this claim of the assessee as the method of accounting is only in respect of profits and gains of business or profession or income from other sources. The reconciliation statement filed before us is also not convincing as the assessee is required to compute the income as per the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is entitled for municipal taxes u/s.57(iii) of the Act. Aggrieved by this the Revenue is before us. 12. The ld. DR strongly submitted that the payment of municipal taxes have nothing to do with the amenities charges received by the assessee as per the agreement. Therefore, there is no nexus in incurring such expenditure for earning of the income. Accordingly, the assessee reiterated what has been submitted before the ld. CIT(A). 13. We have given a thoughtful consideration to the rival submission and have carefully perused the orders of the authorities below. As discussed elsewhere, we have held that the amenities charges have to be taxed under the head of 'income from other sources'. Section 57(iii) shows that any other expenditu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uilding was ready to use and was in fact put to use for conducting meetings/conferences by HSBC Bank from which it has received Rs. 1,20,000/- and, therefore, the expenditure should be allowed. The A.O. did not accept this contention of the assessee and disallowed the entire claim of expenditure. 15. The assessee carried the matter before the ld. CIT(A) and contended that its cinema building was ready to use and was used for giving on hire to HSBC Bank for holding meetings and conference on three occasions. After considering the facts and the submissions, the ld. CIT(A) observed that the Cinema Theatre was fit for exhibition of film from 31.03.2008, yet no exhibition of films has actually been done. The ld. CIT(A) further observed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.12.2008, which certificate is in pursuance to the qualified remark of Mumbai Fire Brigade vide its letter dated 20.05.2008. 17. We have carefully perused the documentary evidences brought on record before us and referred to. In our considered opinion, there appears to be conflict in these documentary evidences, therefore, in the interest of justice, we restore this issue to the file of the A.O. The A.O. is directed to verify whether the Cinema Theatre was fit for use after considering the report from the office of Commissioner of Police, Mumbai as brought on record by the ld. AR. The A.O. is directed to decide the issue afresh after giving reasonable and fair opportunity to the assessee. 18. In the result, the appeal filed by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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