9911796707
TMI Blog2024 (8) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... by the judgment of Checkmate Services P. Ltd [ 2022 (10) TMI 617 - SUPREME COURT] holding that employees contribution, not paid within the due date specified under the relevant Act, is not allowable u/s 36(1)(va) of the Act. Accordingly, order of learned CIT(A) on the issue in question is set aside and that of Assessing Officer is restored. Ground is allowed. Disallowance u/s 14A - Addition to the extent of exempt income - CIT(A) restricted addition - HELD THAT:- As decided in the case of Joint Investment Pvt. Ltd. [ 2015 (3) TMI 155 - DELHI HIGH COURT] has categorically held that disallowance of expenditure u/s 14A of the Act is restricted only in relation to tax exempt income. We find that the learned CIT(A) in restricting the disallowance has correctly followed the judgment (supra). Therefore, no infirmity into the order of learned CIT(A) on the issue in question. The same is hereby affirmed. Ground is rejected. Addition made on account of income from house property - assessee argued Revenue has not made such addition in the subsequent years and in preceding year - CIT(A) deleted addition as relying on M/S CHENNAI PROPERTIES INVESTMENTS LTD [ 2015 (5) TMI 46 - SUPREME COURT] and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,759/- u/s 14A of the Act r.w. R 8D of the Rule without considering ratio decidendi as upheld in case of Maxopp Investment Vs CIT [2012] 347 ITR 272 (Delhi) on application of Rule 8D? 4. Whether in facts and circumstances of the case, the Ld. CIT(A) is legally justified in deleting addition of Rs. 4,75,75,902/- made by the AO on account of 'income from house property' by ignoring the ratio decedendi as held by Hon'ble jurisdictional High court in case of CIT Vs Ansal Housing Finance Leasing Co. Ltd 354 ITR 180? 4.1 Whether in facts and circumstances of the case, the Ld. CIT(A) is legally justified in deleting addition of Rs. 4,75,75,902/- on account of 'income from house property' by ignoring a fact that the AO had made addition on the basis of enquiry made during the year under consideration and taking into account peculiar facts on the case? 5. That the appellant craves leave to add, amend, alter or forgo any ground/(s) of appeal either before or at the time of hearing of the appeal. 2. Facts of the case, in brief, are that the assessee filed its return of income declaring income at Rs. 20,11,830/- on 29.09.2012. The case was selected for scrutiny assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledge by shop owners/tenant. These shop owners/tenant has refused to pay the maintenance charges. The evidence of refusal by the shop owner/tenant were also filed in paper book filed by appellant at Page no. 55 to 86 70-71 of the paper book. The AR of the appellant has relied on the decision of Supreme Court in the case of CIT vs. Excel Industries Pvt. Ltd. 358-ITR- 295(SC). The AR also relied on the latest decision of Supreme Court in the case of P.G. W. Sawoo Pvt. Ltd. vs. ACIT -385-ITR-60 (SC) for the proposition that unless the right to receive the amount is accrued to the appellant income cannot be ascertained nor it can be said that it is accrued to the appellant. The Supreme Court of India in the case of P.G. W. Sawoo Pvt. Ltd. (supra) held that unless and until there is created in favour of the assessee a debt due by somebody it cannot be said that he has acquired a right to receive the income or that income has accrued to him. Further the Hon .ble Supreme Court in the case of Excel Industries Pvt. Ltd. Supra held that It follows from these decisions that income accrues when it becomes due but it must also be accompanied by a corresponding liability of the other party t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny contrary material on record. The Revenue has not brought any evidence suggesting that the maintenance charges were actually received by the assessee. Therefore, in the absence of such material we do not see any infirmity into the order of learned CIT(Appeals). Moreover, the Revenue has not brought any material pointing any change into facts and circumstances in this year. The Assessing Officer has been allowing the claim of the assessee regarding maintenance charges in earlier years holding that such income was not received by the assessee. It is not brought before us that any suit for recovery of maintenance charges in this regard was pending before any court for adjudication. Thus, this ground of Revenue lacks any merit. Ground no. 2 is against deletion of addition of Rs. 9,739/- deposited late by the assessee. 9. Learned counsel for the assessee fairly conceded that the issue is well settled by the judgment of Hon ble Supreme Court in the case of Checkmate Services P. Ltd. v. CIT [Civil Appeal no. 2833 of 2016 dated October, 12,2022], holding that employees contribution, not paid within the due date specified under the relevant Act, is not allowable u/s 36(1)(va) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hini is 36153.98 sq. ft. out of above Area 5824.70 sq. ft. is sold out and area of 18305.88 sq. ft. is being used for cinema hall of the appellant. Income of the same is offered for taxation and accepted by AO. The area which is left after the sold area and area used for cinema halls comes to 12023.40 sq. ft. Out of above 12023.40 sq. ft. an area of 6928.60 sq. ft. is leased to various parties. The Balance area of 5049.80 is under dispute on which the AO has calculated the ALV. In the same way at the Pitampura site the total area is 53694.11 sq. ft. out of total area 18573.80 sq. ft. is sold out in previous years and 13225 sq. ft. stated is being used for cinema halls of the appellant. Out of remaining area of 21895.31 sq. ft. 5479.90 sq. ft. is leased out. The balance area 16415.41 is the vacant and under dispute. The AO observed that since the appellant is owner of the property/shop hence Income from such property/shop has to be determined as per provision of sec. 23 of the Act. The appellant submitted before AO that vacant area of 5049.80 sq. ft. at Rohini site is incomplete and not letable. The appellant contended that even the partition between the shops, P.O.P and paint work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance leasing 354-ITR-180 (Delhi) to strengthen his conclusion, where as the case of the appellant is that since the Area/Shops are incomplete and used for the passage of cinema halls and storage by the appellant, hence the law laid down by Delhi High Court in Ansal housing supra is not applicable to the facts of the case. The appellant further argued that merely not cap talizing of area of common passage used for cinema business and not showing of W.I.P in balance sheet does not mean it can be let out. Particularly when actual facts are entirely different from as stated in Balance sheet. The AR of the appellant relied on the decision of Hon'ble Supreme Court reported as Sutlej Cotton Mills Ltd. 1979-116-ITR - 1(SC) and Tuticorn Alkalis Chemicals Fertilizers Ltd. 1997-227-ITR-172 (SC) where in the Hon'ble Supreme Court held that Books of Account are not determinative of taxability, what is necessary to be considered is the true nature of transactions. On careful consideration of the facts and evidences I am of the view that the appellant has established the fact that the area under dispute is incomplete and used for the business of the appellant for cinema halls and store. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt year were filed at page no. 01 to 22 of Annexure A of the submission dated 27.09.2016. In view of above facts as well as the law laid down by Supreme Court of India in the case of Radha Swami Satsang Bhawan vs. CIT-1992-193-ITR-321(SC), wherein it was held that even though res judicata is not applicable in the Income tax proceeding but where fundamental aspect were found as fact accepted in earlier year a consistent view should be taken in subsequent year. Applying the above law laid down by Hon'ble Supreme Court to the facts of the appellant case it is admitted position that the area under dispute is incomplete and used as a passage for cinema hall and storage of the appellant is accepted in preceding and subsequent assessments completed under section 153A/143(3) of the Act. I do not find any plausible reason to depart from the accepted facts. In this view of the matter also, the additions of Rs. 4,75,75,902/- made by AO is not sustainable in law and the same is hereby deleted. In result this ground of appeal is allowed. 18. We find that the learned CIT(A) discussed the issue elaborately and in coming to his conclusion has relied on the ratio of decisions laid down by the H ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
