WESTERN INDUSTRIAL CO-OPERATIVE ESTATE LIMITED,MUMBAI vs. ACIT, CIRCLE 32(1), MUMBAI

The assessee in the return of income has also shown loss from testing charges from laboratory and other miscellaneous income after claiming expenses of Rs 31,78,068/- under the head & 6324/Mum/2024; A.Y. 2017-18 Western Industrial Co-operative Estate Limited income from other sources. The A.O disallowed the entire expenses towards testing charges from laboratory.

The assessee has also claimed deduction u/s 80P(2)(e) of Rs 2,16,000/- for storage charges from members. The A.O disallowed the claim observing it as claim on interest income of Rs.2,16,000/- received from Co-operative Banks which is not allowed u/s. 80P(2)(d) of the Act.

The learned Commissioner of Income Tax (Appeals) erred in holding that appellant is not entitled to standard deduction of 30% under the head “Income from House Property”.

The learned Commissioner of Income Tax (Appeals) erred in confirming the action of the Assessing Officer in not allowing deduction on account of expenses incurred amounting to Rs. 31,78,068/- in earning testing and parking charges under the head income from other sources.

Ground no. 1 to 3 relate to confirming the rental income shown by the assessee under the head income from house property as income from other sources.

The Ld.AR at the outset, has submitted that assessee has been consistently showing the rental income under the head house property income and the same has been accepted by the department. The Ld AR further submitted that there is no change in the nature of property let out on leave and license and majority of the tenants are also continuing. The Ld AR further submitted that the issue is covered in favour of assessee in its own case by & 6324/Mum/2024; A.Y. 2017-18 Western Industrial Co-operative Estate Limited the decision of Hon’ble Tribunal for in for A.Y 2013-14, dated 14.07.2021, where the rental income was shown under the head house property and the A.O after accepting the income under house property, had disallowed the sub-letting charges of Rs.7,78,420/- paid to Maharashtra Industrial Corporation and Hon’ble Tribunal has deleted the disallowances made by the A.O.

The Ld.DR on the other hand relied on the order of A.O and Ld.CIT(A) and submitted that the issue of house property was not before the Hon’ble ITAT and therefore issue is not covered.

We have heard the rival submissions and perused the material on record. The assessee is a registered co-operative society under Maharashtra State Co-operative Society Act 1961, located in MIDC, Andheri (E) Mumbai. The MIDC has allotted approx 6 acres area to the society and the society divided the same into 15 sub plots and constructed 16 buildings accommodated by 29 members. The same has been leased to members for 95 years and 1 building is allocated for the administrative purpose of the society around 17,500 Sq. feet constructed area. The society’s main income is through lease out of the administrative building by sub-letting. The Assessee has been showing income from leasing out of administrating building under the head income from house property from the beginning and there has not been any change in the activities of the assessee in the relevant previous year. However, the A.O in this assessment year has changed the stand and assessed the rental income as income from other sources. The A.O has misdirected himself holding the rental income as income from other sources, & 6324/Mum/2024; A.Y. 2017-18 Western Industrial Co-operative Estate Limited observing that the total quantum receipt is from advertising agency and mobile tower operators, contrary to the fact that the major rental income have been received from M/s Kotak Mahindra Bank Current Chest of Rs 1,13,99,220 , Renaissance Global Limited Jewellery of Rs 43,22,500/-, M/s Inter Gold (India) Pvt. Ltd of Rs 35,66,000/-, M/s MBMG Diamonds Ltd of Rs 36,40,000/- for letting out the area in administrative building. The Ld. CIT(A) also after analysing the financial statement held that assessee in income and expenditure statement has shown the rental income under income from other sources, without going into substance of the nature of receipt. The assessee has been showing income from the letting out the very same property under the head income from house property and the same has been accepted in all the preceding years. In fact, for A.Y 2013- 14, where A.O while accepting the income under head house property, has not allowed of sub-leasing of Rs.7,92,084/-paid to MIDC, the Hon’ble Tribunal in has deleted the disallowances. The Hon’ble Supreme Court in Azadi Bachao Andolan 26 ITR 706 has emphasized the need to follow the rule of consistency, especially where the facts and circumstances remain unchanged. We therefore reverse the finding of A.O and Ld. CIT(A) and direct A.O to assess the income under house property.

As regard to disallowance of 30% of annual value u/s. 24(a), the relief is consequential as we have held the rental income to be assessed under the head house property.

As regard to disallowances of the sub-letting charges of Rs.7,92,084/- paid to MIDC , the tribunal in the A.Y 2013-14 & 6324/Mum/2024; A.Y. 2017-18 Western Industrial Co-operative Estate Limited has already adjudicated the issue and deleted the disallowances. A.O, is therefore directed to delete the addition. Ground no. 1 to 3 are accordingly allowed.

Ground no. 4 is relating to disallowances of interest from borrowed fund amount to Rs.1,38,19,443/- u/s. 24(b) for construction of the property.

The Ld.AR has submitted that the assessee has borrowed fund from NKGSB Co-operative Bank Limited for construction of the property and subsequently, the loan was repaid from borrowing from Federal Bank and then DHFL . The assessee has claimed interest for construction of house property while computing the income under the head house property. The A.O has disallowed the interest u/s 24(b) as he assessed the income under head income from other sources. The Ld. CIT(A) upheld the disallowances but directed A.O to verify and allow the same in case assessee offers the income under the head other sources after verification. As we have already held that the income is to be assessed under the head income from house property, the assessee is eligible for deduction of interest u/s.24(b) of the Act. The assessee has been allowed the claim of interest u/s 24(b) in the preceding years, A.O is accordingly directed to allow the interest on the borrowed capital after due verification. Ground 4 is accordingly allowed.

Ground No. 5 is relating to confirming the disallowances of expenses of Rs. 31,78,068/- relating to income from testing charges made by the A.O.

The Ld.AR at the outset, has submitted that the above expenditure has not been verified and therefore this issue & 6324/Mum/2024; A.Y. 2017-18 Western Industrial Co-operative Estate Limited requires examination by the A.O. The Ld. DR did not oppose Ld. AR on this account.

We have considered rival submission and gone through the material available on record. Assessee has shown testing charges from laboratory of Rs. 7,03,590/- and miscellaneous income /parking charges totalling to Rs. 13,66,461/- and claimed expenditure incurred of Rs 31,78,068/-. The AO/CIT(A) have disallowed entire expenditure holding it expenditure relating to testing charges was not verifiable. As the expenditure has not been examined by the A.O/CIT(A), we restore the issue of allowability of expenditure to the A.O for fresh consideration. The A.O shall provide proper opportunity to the assessee before making any disallowances.

Ground No. 6 is relating to the disallowances of Rs. 2,16,000/- u/s.80P(2)(d) made by the A.O holding it interest from Co-operative Bank. The A.O in the assessment order has disallowed the claim of Rs.2,16,000/- made u/s. 80P(2)(e), holding that interest earned from deposits with Co-operative Bank Limited is not eligible for deduction as held by Hon’ble Supreme Court in the case of PCIT vs. Totagars Co-operative sale society. The Ld. CIT(A) upheld the disallowances holding that storage charges is in the nature of leave and license fee only, so not allowable u/s. 80P(2)(e) .

The Ld.AR has argued that the assessee is Co-operative Society and the interest income has been earned from Co- operative Bank which is a Co-operative Society and therefore eligible for deduction u/s.80P(2)(d). The Ld.AR in this respect relied on the case of ITO vs. MTNL Mumbai Co-operative Credit & 6324/Mum/2024; A.Y. 2017-18 Western Industrial Co-operative Estate Limited Society Limited ITA 5427/Mum/2024 for assessment year 2017- 18 to 2020-21. The Ld.DR relied on the order of Ld.CIT(A).

We have heard rival submission and perused the material available on record. The A.O has disallowed the claim of storage charges u/s. 80P(2)(e) as interest from co-operative bank and not allowable u/s. 80P(2)(d). The Ld. CIT(A) held it not allowable as storage charges has been received as fee from leave and licenses from M/s Hiralal Gulabchand Pvt Ltd. We find that assessee has claimed storage charges of Rs 2,16,000/- from members and claimed it u/s 80P(2)(e), but neither A.O nor Ld. CIT(A) has examined the nature and members from whom storage charges have been received. We, therefore, restore the matter back to the file of A.O to examine the issue afresh and allow the claim of deduction u/s. 80P as per law. The ground is therefore allowed for statistical purpose.

As we have already adjudicated the allowability of deduction u/s 24(a) in main appeal, this ground becomes infructuous and therefore dismissed. In the result the appeal filed by the assessee in stands allowed and appeal filed by the assessee in become infructuous and therefore dismissed.