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TMI Blog2011 (7) TMI 1328X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst which the department has filed the appeal u/s. 260A of the IT Act before High Court. 2. The assessee is a registered firm of partnership carrying on the business of trading in machinery and machine tools. The assessee was a tenant of a premises at Fort. It had sub-let the said premises to ICICI Bank. The question before AO was as to whether the income from sub-letting has to be assessed under the head income from house property or income from other sources . In A.Y 2005-06 the AO had taken the stand that the assessee was not owner of the property and, therefore, income from subletting has to be assessed under the head income from other sources. Consequently the deduction claimed by the assessee under section 24 of the Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lare the rental income as Income from House Property and be allowed the standard deduction allowable under the I.T. Act on such property. 5. Aggrieved by the order of the CIT(A) the revenue has preferred Ground No.1 before the Tribunal. 6. We have heard the rival submissions. We are of the view that filing of an appeal before Hon ble High Court against the order of the Tribunal in A.Y 2005-06 will not be a bar in following the order of the Tribunal. Since the issue has already been decided by the Tribunal in A.Y. 2005-06, respectfully following the decision of the Tribunal we uphold the order of the CIT(A) and dismiss Ground No.1 raised by the revenue. 7. Ground No.2 raised by the revenue reads as follows: On the facts and circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Assessee was only ₹ 230.28 Per Sq.ft. (Rs.8,28,312/3597). According to the AO, the partners were paid rent in excess of the market rate viz., ₹ 30.44 Per Sq.ft. (Rs.260.72-230.28). The AO therefore disallowed the excess rent paid compared to the rent received from Corporation Bank viz.,Rs. 2,00,812/-. (6597 x 30.44). The AO has mentioned the figure of addition at ₹ 2,00,843/-. The addition has been made by invoking the provisions of Sec.40A(2)(b) of the Act. 9. Before CIT(A), the Assessee submitted that the godown No.13 to 16 (total 3597 sq. fts) were given to the Corporation Bank in the year 1998 with 10 year agreement however the said Corporation Bank in the year 2007-08 has entered in to the fresh agreement on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was on the Assessing Officer to bring in the evidence of market rates and establish the excessiveness of the payment. 10. The CIT(A) found that the same issue had been discussed by the ld. CIT(A)XXIII in his order dated 21/02/2008 for A.Y 2005-06 in Assessee s case. He found that the CIT(A) in AY 05-06 had held that the Assessing Officer has not taken into consideration any facts presented by the assessee but has summarily dismissed its arguments of the appellant. The CIT(A) in AY 05-06 had deleted the addition accepting the argument of the Assessee. The CIT(A) following the order of CIT(A) in AY 05-06, held that in the current year also the addition made by the Assessing Officer on the issue cannot be upheld. He thus deleted the additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self had the finding yet had this inconsistency in his presumption. v) In any case, applying the space of 6000 sq.ft. instead of 3000 sq.ft. in the numerator and therefore, applying 9597 sq.ft. (6000 + 3597) in the denominator the appellant s proportionate use even as per AO s formula would be ₹ 12,00,375/- and that for the Bank would be ₹ 7,19,624/- instead of ₹ 8,73,124/- ₹ 10,46,875/- determined in the assessment order. 25. Thus, even as illogical, the AO s computation would not show any excess by adopting correct figures. Therefore, the excess computed at ₹ 2,18,563/- was ill-conceived. I delete such illogical disallowance. 13. In our view the above conclusions of the CIT(A) are proper and the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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