9911796707
TMI Blog2023 (4) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... TA HIGH COURT] which has been upheld by the Hon ble Supreme Court in Shambu Investments Vs. CIT [ 2003 (1) TMI 99 - SC ORDER] and Raj Dadarkar Associates [ 2017 (5) TMI 586 - SUPREME COURT] and by Tribunal in assessee s own case [ 2013 (7) TMI 1209 - ITAT MUMBAI] wherein the Tribunal was considering whether the assessee was entitled to deduction us/ 24(a) of the Act or not on the composite rent income comprising of income from renting out of property and income from amenities, which was allowed by the Tribunal by relying on the decision in similar case of Sri Satya Sai Trust Since the AO view after enquiring is plausible view it could not have been interfered with unless the Ld CIT(E) has conducted during revisional proceedings enquiry or verified the facts in order to come to a conclusion that AO s view was erroneous/un-sustainable in law. As noticed once AO has conducted enquiry (on an issue) then the Ld Pr. CIT before holding the order of AO to be erroneous, should have conducted necessary enquiries or verification in order to show that the finding given by the AO on that issue is erroneous/unsustainable in law. Coming back to the present case, once we have found that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hold that the assessee trust is not eligible for any benefit and/or exemption u/s 11 and accordingly tax the entire income of the assessee trust denying the benefit of exemption u/s 11 of the Act. And thus he rejected the claim exemption u/s 11 of the Act. The AO at para 3.10 noted that the assessee has offered rental income; and interest on investment as business incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amenities include water and electricity supply, elevator, CCTV in common areas, and security services. And that the terms of the agreement 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/co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same, and drew our attention to page no. 7 of the PB wherein notice u/s 142(1) of the Act dated 01.02.2019 is found placed, wherein the AO 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- -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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no change its facts and law as per the settled position of law on the same, the Rule of consistency is attracted in this case and the AO after verifying that there was no change in facts or law on the issue 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer cannot be treated as prejudicial to the interest of the revenue. It was further held that when the Assessing Officer adopts one of the course permissible in law and it has resulted in loss to the revenue, 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 le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an income tax officer acting in accordance with the law makes a certain assessment, the same cannot 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch must be satisfied for exercise of jurisdiction under section 263 of the Act. In such matters, to remand the matter/ssie to the Assessing Office and mean the Commissioner of Income tax has not examined and decided whether 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 consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Ld. Representatives of parties and orders of authorities below. We observe that assessee is a charitable trust and carrying on the objects for the last 42 years. Assessee has computed income of rent received of Rs. 14,72,376/- 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
