JOLLY MAKER 1 PREMISES CO OP SOC. LTD,MUMBAI vs. DCIT 12(2), MUMBAI

ORDER

PER N.K. PRADHAN, AM

Jolly Maker 1 Prem. Co-op.

2.1 On the facts in the circumstances and in law, the Ld. AO has grossly erred in disallowing deduction of Rs.1,92,69,879/- claimed u/s 80P(2) of the Act. 2.2 The Ld. CIT(A) has failed to appreciate and consequentially erred in sustaining the disallowance by the Ld. AO when the deduction u/s 80P(2) of the Act. 2.3 The appellant submits that the deduction of Rs.1,92,69,879/- may be allowed and justice may be rendered.”

4. Briefly stated, the facts of the case are that the assessee filed its return of income for the assessment year (AY) 2011-12 on 29.09.2011 declaring total income of Rs.9,34,66,137/-. There is a property named Nariman Bhavan premises which is owned by a trust known by the name Jolly Maker Trust. The assessee Co-operative- society is the sole trustee of this trust. This property is let out and income from house property is derived. Security deposit has been received against letting out this property and interest income is being earned on this deposit. During the course of assessment proceedings, the Assessing Officer (AO) observed that the source of funds earning interest income is rental from the said house property and the security deposit has been received against letting out of the said property, so the interest income belongs to the trust and not to the society. In response to a query raised by the AO to explain as to why the claim of deduction u/s 80P(2) be not disallowed against interest income on bank deposits, since the claim of the assessee that the investment is out of society owned funds is not tenable, the assessee could not file specific details of sources of funds invested with the banks. In view of the capacity of the assessee being that of Jolly Maker 1 Prem. Co-op. representative assessee, it was held that the funds being generated from rental income belongs to the trust and not to the society. The AO found from the return of income filed in past years that all along, the society has been showing loss from its own activity of maintaining the housing society. Thus expenditure on maintenance activities all along have been more than the receipts from the members. Therefore, there was no question of generating any surplus out of the maintenance received. The only income that the society was showing in its hands is income out of letting out of house property and interest income from deposits in banks. The amount of Rs.24.17 crores in reserve fund shown in balance sheet of the society has been generated out of income from these two activities which is letting out of the said house property and interest income from banks. Thus the AO held that the funds shown in the reserve fund actually belonged to the trust though being reflected in the balance sheet of the society. Thus the AO disallowed deduction of Rs.1,92,69,879/- claimed u/s 80P(2) of the Act.

5. Aggrieved by the order of the AO, the assessee filed an appeal before the Ld. CIT(A). There was repeated non-compliance by the assessee before the Ld. CIT(A) as mentioned at page 2-3 of his order dated 11.11.2016 which is reproduced below: “At the outset it may be mentioned that this appeal was first fixed for hearing on 12.01.16 on which date an adjournment application was moved. Subsequently, on the next date that is 28.01.16 another adjournment application was moved fixing the hearing for 23.02.16. Thus, after three adjournments on 291h of February 2016 a petition was more stating that the society has moved a petition for AY 2007-08 before the honorable Bombay High Court in WP number 851 of 2014. Also the Jolly Maker 1 Prem. Co-op. AV 2008-09. Adjournment was further requested for mid-April 2016. Thereafter this case was fixed even six months after the requested date for fourth of October 2016. On the said date another adjournment application was moved requesting the hearing to be postponed for first week of November 2016. Heeding to the request once again the hearing was postponed for eighth of November 2016. It was clearly mentioned that this is the last opportunity which is been given to the appellant. In spite of that on the appointed date the AR of the appellant requested for short date to submit a brief write-up. In the interests of Justice yet another opportunity was granted for 10lh of November 2016. On the said date no other submission was made and yet another date was sought. In view of multiple opportunities and repeated adjournment requests for vague reasons this time the adjournment application was rejected by the undersigned. It is clear that the appellant is not pursuing the appeal and is merely taking date after date. It has also not been told as to how the writ petition is connected with the present appeal since it pertains to an entirely different set of facts; the petition seems to be about challenge to issuance of notice under section 148 of the Act. How this has a bearing on the present appeal I'm unable to understand. To the best of my understanding this has no bearing on the present appeal and also there is no bar by any higher judicial forum to conclude this appeal which is been filed in pursuance of a regular scrutiny assessment. In view of the complete non-cooperation on part of the appellant I proceed to decide the appeal on merit as per material on record.” 5.1 In respect of disallowance of Rs.1,92,69,879/- made by the AO, the Ld. CIT(A) noted that substantiating evidence could not be filed by the assessee before him. He held that the issue merely is in whose hands, the amount is to be assessed. There is no double taxation and hence this amount can be assessed only in one hand. The assessee shall get automatic consequential relief when assessment is made on Jolly Maker 1 Prem. Co-op. protective and substantive basis simultaneously. Only one addition can subsist and with that reasons, the Ld. CIT(A) dismissed the appeal on the above issue filed by the assessee.

6. Before us, the Ld. counsel of the assessee submits that the appellant is a Co-operative Society formed in 1977 and assessed to tax since AY 1978-79 for more than 32 years. The main sources of income are (i) income from house property of Jolly Maker 1 Trust clubbed u/s 60 of the Act with the income of the society; this is included in the return of income of the society as a representative assessee u/s 60 of the Act as explained in the annexure to the computation of income and (ii) income from other sources. The builder, Paramount premises, took additional amount from the purchaser of the flats who were members of the appellant over and above the purchase price of the flats. The additional amount was collected under a purchase agreement for construction of another property at Nariman Point known as, ‘Nariman Bhavan’. Out of the consideration received, Paramount Premises allotted 62,000 sq. ft. of commercial premises in Nariman Bhavan in the name of the appellant society. Share certificate was also issued to the appellant as, Jolly Maker 1 Premises Co-operative Society Ltd. i.e. in the name of the society. The Ld. counsel submits that since 1977 onwards the appellant is assessed to tax under the status of Co-operative Society. Commercial property of 62,000 sq. ft. in Nariman Bhavan is rented out by the Co-operative Society, the appellant under leave and license agreements. The agreements are entered by the appellant society directly with the lessees. Income received is assessed under the head Jolly Maker 1 Prem. Co-op. House Property’ and interest received on security deposit which is invested with Co-operative Banks is treated as ‘Income from Other Sources’. It is stated that from AY 1977-78 to AY 2001-02, this position of assessment in the hands of the appellant society was accepted. The Ld. counsel further submits that in AY 2002-03, an oral trust was created and society is the sole trustee of the trust. As per section 160(v)- Explanation, declaration to the effect has been filed with the AO at that time. The oral trust thus created, ‘Jolly Maker 1 Trust’ is a separate entity and has a separate PAN and is separately assessed to tax and returns up to 2012-13 were accepted by the Department. For AY 2002-03, the appellant originally filed two separate returns on 29.07.2002, one in the status of Co-operative Society declaring income at Rs. Nil and another return of income in the name of Jolly Maker 1 Premises Co-operative Society Ltd. (in the capacity of representative assessee trustee u/s 161/166 of the Act) declaring income of Rs.4.90 crores. Also the Ld. counsel of the assessee submits that the Hon’ble Bombay High Court in the case of the assessee i.e. Jolly Maker Premises Co-operative Society Ltd. v. DCIT in WP(L) No. 762 of 2014 and WP No. 1159, 1238, 1240 and 1419 of 2014 held vide order dated 09.07.2014 that : “1. Mr. Chotaray, learned Counsel appearing on behalf of the respondents seeks leave to withdrawn the impugned notices issued u/s 148 of the Income Tax Act, 1961 (“the Act”) for Assessment years 2008- 09, 2009-10, 2010-11 and 2012-13. He further seeks liberty to take such proceeding as would be available in law including issuing of fresh notice u/s 148 of the Act.

Jolly Maker 1 Prem. Co-op.

2. Revenue is granted liberty as prayed for.

3. In view of the above the present writ petitions no longer survive and the same have become infructuous. 4. It is made clear that the petitioner would be entitled to raise all defences available to it in law including the grounds stated in the present petition in case the revenue takes any other proceedings. It is also made clear that we have not examined the petitions on merits. All the petitions are dismissed as infructuous. No order as to costs.” 5. 7. On the other hand, the Ld. DR submits that there was repeated non-compliance by the assessee before the Ld. CIT(A). Also the assessee failed to file substantiating evidence before the Ld. CIT(A). Thus the Ld. DR supports the order passed by the Ld. CIT(A). 8. We have heard the rival submissions and perused the relevant materials on record. It is the finding of the Ld. CIT(A) that though several opportunities were given by him, the assessee sought repeated adjournment citing vague reasons. We have extracted the above finding of the Ld. CIT(A) at para 5 hereinbefore. We find that there was no genuine compliance by the appellant before the Ld. CIT(A). Therefore, the Ld. CIT(A) has to decide the appeal on materials available on record. We are of the considered view that the contentions of the assessee have to be examined on the basis of facts. Therefore, we set aside the order of the Ld. CIT(A) and restore the matter to him to decide the appeal afresh after giving a reasonable opportunity of being heard to the assessee. We direct the assessee to appear before the Ld. CIT(A) and file the relevant documents/evidence.

Jolly Maker 1 Prem. Co-op. Thus, the 2nd ground of appeal is allowed for statistical purposes.

9. The 3rd ground of appeal “3.1 On the facts and in the circumstances of the case and in law the AO has erred in disallowing Rs.71,24,346/- on account of deduction of society charges in respect of property let out. 3.2 The appellant submits that the expenditure of Rs.71,24,346/- is integral to the earning of the income and has direct nexus as cost of services provided and hence this may be allowed. The Ld. CIT(A) erred in confirming the disallowance of Rs.71,24,346/- and this may be deleted.”

10. During the course of assessment proceedings, the AO held that as per the lease agreements, the tenants were liable to bear taxes and maintenance expenses. Deduction u/s 24 stands allowed for these expenses in the computation of income from house property. Further allowing service charges, electricity charges, repairs and maintenance again u/s 57 of the Act would amount to double deduction for the same expenditure. Therefore, the AO made a disallowance of Rs.54,08,674/-.

11. In respect of the disallowance of Rs.54,08,674/- made by the AO, the Ld. CIT(A) held that once it is asserted that the income is to be assessed as income from house property only, statutory deductions as provided for in the provisions of law have to be given. Reflecting income as house property and claiming deductions which are admissible against income from other sources is not tenable in law. With that reasons, the Ld. CIT(A) confirmed the disallowance of Rs.54,08,674/- made by the AO.

Jolly Maker 1 Prem. Co-op.

is allowed.