Consulate Constructions, Bangalore V. Assistant Commissioner of Income tax, Bangalore

ITA 1209/BANG/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95253 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 15-09-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 24-09-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: PRASHANTH G S
• Keywords: Reopening of assessment; Business income; Depreciation; Opportunity of being heard; Principle of natural justice; Tangible material; Reason to believe
• Section: 143(3); 32; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH C BEFORE SHRI VIJAYPAL RAO, JUDICIAL MEMBER AND SHRI JASON P BOAZ, ACCOUNTANT MEMBER ITA NOS.1209 & 1 212/BANG/2014 (ASST. YEARS 2004-05 TO 2006-2007 & 2009-10) M/S CONSULATE CONSTRUCTIONS, UNIT NO.102, CONSULATE I, NO.1, RICHMOND ROAD, BANGALORE. . APPELLANT PAN AACFC7082Q. VS. THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-1(1), BANGALORE. . RESPONDENT APPELLANT BY : SHRI PRASHANTH G.S, CA RESPONDENT BY : SHRI SUNIL KUMAR AGARWALA, JCIT DATE OF HEARING : 15-9-2015 DATE OF PRONOUNCEMENT : 24-9-2015 O R D E R PER SHRI JASON P BOAZ, ACCOUNTANT MEMBER : THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEAL) I, BANGA LORE DATED 30/6/2014 FOR ASST. YEAR 2004-05 TO 2006-07 AND 200 9-10. HAVING ITA NO.1209-1212/B/14 2 BEEN HEARD TOGETHER, THESE APPEALS ARE DISPOSED OFF BY WAY OF THIS COMMON ORDER. 2. THE FACTS OF THE CASE, BRIEFLY, ARE AS UNDER: 2.1 THE ASSESSEE IS FIRM ENGAGED IN THE BUSINESS OF CONSTRUCTION AS BUILDERS AND DEVELOPERS. FOR THE CONCERNED ASST. Y EARS 2004-05 TO 2006-07 AND 2009-10, THE DETAILS OF RETURNS OF INCO ME FILED, INCOME RETURNED, ASSESSMENT ORDERS, ASSESSED INCOME ETC. A RE EXTRACTED HEREUNDER:- ASST. YEAR DT. OF FILING OF RETURN OF INCOME INCOME RETURNED (RS.) DT. OF ASST. ORDER ASSESSED INCOME ASST. ORDER U/S 2004-05 25/10/2004 51,54,259 19/12/2011 76,19 ,152 143(3) RWS 147 2005-06 31/08/2005 62,23,963 19/12/2011 69,2 7,019 143(3) RWS 147 2006-07 18/10/2006 1,04,90,178 19/12/2011 1,08,59,147 143(3) RWS 147 2009-10 31/7/2009 88,00,445 23/11/2011 81,15,523 ------------------ 88,00,449/- 143(3) RWS 147 -------------- PROTECTIVE U/S 143(3) ITA NO.1209-1212/B/14 3 2.2 FOR ASST. YEARS 2004-05 TO 2006-07, THE RETURNS WERE PROCESSED U/S 143(1) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) BUT NOT TAKEN UP FOR SCRUTINY. SUBSEQUENTLY, FOR THE ABOVE THREE YEARS, PROCEEDINGS U/S 147 OF THE ACT WERE INITIATE D TO BRING TO TAX INCOME FROM RENTAL RECEIPTS DECLARED BY THE ASSESSE E, UNDER THE HEAD BUSINESS INCOME FOR ASSESSMENT AS INCOME FROM HO USE PROPERTY. AFTER RECORDING REASONS TO THIS EFFECT, THE ASSESSI NG OFFICER ISSUED NOTICES U/S 148 OF THE ACT WHICH WERE DULY SERVED O N THE ASSESSEE. FOR THE ASST. YEAR 2009-10, THE CASE WAS TAKEN FOR SCRUTINY BY ISSUE OF NOTICE U/S 143(2) OF THE ACT. 2.3 THE REASONS RECORDED BY THE ASSESSING OFFICER, FOR INITIATING PROCEEDINGS U/S 147 OF THE ACT FOR ASST. YEARS 200 4-05 TO 2006-07 WERE GIVEN TO THE ASSESSEE AND THE ASSESSEES OBJEC TIONS THERETO WERE CONSIDERED AND DISPOSED OFF BY THE ASSESSING OFFICE R IN THE BODY OF THE ASSESSMENT ORDERS FOR THESE THREE YEARS. THE A SSESSMENT FOR THESE THREE YEARS WERE COMPLETED U/S 143(3) RWS 147 VIDE ORDERS DATED 19/12/2011, INTER ALIA, ASSESSING THE INCOME FROM L EASE RENT AS INCOME FROM HOUSE PROPERTY, AS AGAINST BUSINESS INCOME DECLARED BY THE ASSESSEE, BY FOLLOWING THE DECISION OF THE H ONBLE APEX COURT IN THE CASE OF SHAMBN INVESTMENTS PVT. LTD., REPORT ED IN 263 ITR 143. ITA NO.1209-1212/B/14 4 FOR ASST. YEAR 2009-10, THE ASSESSMENT WAS CONCLUDE D U/S 143(3) OF THE ACT VIDE ORDER DATED 23/11/2011 WHEREIN THE REN TAL RECEIPTS WERE ASSESSED AS INCOME FROM HOUSE PROPERTY AT RS.81,15, 523/- AND THE SAME RENTAL RECEIPTS WERE PROTECTIVELY ASSESSED AS BUSINESS INCOME AS DECLARED BY THE ASSESSEE. 3. AGGRIEVED BY THE ORDERS OF THE ASSESSMENT FOR AS ST. YEARS 2004- 05 TO 2006-07 DATED 29/11/2011 AND ASST. YEAR 2009- 10 DATED 23/11/2011, THE ASSESSEE PREFERRED APPEALS BEFORE T HE CIT(A)-I, BANGALORE. THE LEARNED CIT(A) DISPOSED OFF THE ASSE SSEES APPEAL FOR THE AFORESAID 4 ASST. YEARS BY WAY OF A COMMON ORDE R DATED 30/6/2014. IN THE IMPUGNED ORDERS, THE LEARNED CIT(A), UPHELD THE ASSESSING OFFICERS ACTION IN TREATING THE LEASE RENTAL RECEI PTS AS INCOME FROM HOUSE PROPERTY AND NOT BUSINESS INCOME AS DECLAR ED BY THE ASSESSEE; AND ALSO UPHELD THE ACTION OF THE ASSESSI NG OFFICER ON THE ISSUE OF INITIATING ASSESSMENT PROCEEDINGS U/S 147 OF THE ACT AND ISSUING NOTICES U/S 148 OF THE ACT FOR ASST. YEARS 2004-05 TO 2006-07. 4. AGGRIEVED BY THE ORDERS OF THE CIT(A)-I, BLORE DATED 30/6/2014 FOR ASST. YEARS 2004-05 TO 2006-07 AND 20 09-10, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. ITA NO.1209-1212/B/14 5 4.1 FOR ASST. YEARS 2004-05 TO 2006-07, THE FOLLOWI NG COMMON GROUNDS OF APPEAL HAVE BEEN RAISED AND, WE THEREFOR E EXTRACT ONLY THE GROUNDS RAISED FOR THE ASST. YEARS 2004-05 HEREUNDE R: 1. THE ORDER OF THE LEARNED AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO L AW, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS OF AND THE CIRCUMSTANCES OF THE APPELLANTS CASE. 2. THE APPELLANT DENIES ITSELF LIABLE TO BE ASSESSE D ON A TOTAL INCOME OF RS.69,27,019/- AS AGAINST THE RETUR NED INCOME OF RS.62,23,963/- UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. GROUND ON VALIDITY OF THE REASSESSMENT PROCEEDI NGS:- A. THE NOTICE U/S 148 OF THE ACT IS BARRED BY LIMITATION AS IT IS ISSUED AFTER THE EXPIRY OF FOUR YEARS AND CONSEQUENTLY THE ASSUMPTION OF JURISDICTION IS BAD IN LAW. B. THE NOTICE ISSUED IS BAD IN LAW AS PROPER SANCTION FOR REOPENING THE CASE HAS NOT BEEN OBTAINED FROM THE JT. CIT BEFORE PASSING THE ORDER OR HAVING BEEN OBTAINED, THE COY OF THE SAME HAS NOT BEEN PROVIDED TO THE APPELLANT. CONSEQUENTLY THE ORDERS PASSED SUFFER FROM THE WANT OF ITA NO.1209-1212/B/14 6 JURISDICTION UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. C. THE REOPENING OF ASSESSMENT IS NOT BASED ON ANY NEW TANGIBLE MATERIAL ON RECORD WHICH AMOUNTS TO MERE REVIEW OF THE EXISTING FACTS IS IMPERMISSIBLE AND UNSUSTAINABLE I THE EYES OF LAW. RELIANCE IS PLACED ON THE DECISION OF DELHI HIGH COURT IN THE CASE OF MADHUKAR KHOSLA VS. ACIT, REPORTED IN 367 ITR 165. D. THE ASSUMPTION OF JURISDICTION IS BAD IN LAW AS THE NOTICE UNDER SEC. 148 IS MERELY BASED ON SUSPICION AND SURMISES AND NOT BASED ON FACTUAL FOUNDATION. E. THE ASSUMPTION OF JURISDICTION IS FURTHER BAD IN LAW AS THE REASONS RECORDED ARE MERE REASON TO SUSPECT AND NOT REASON TO BELIEVE ON THE FACTS OF T HE CASE. F. THE MANDATORY CONDITION FOR REOPENING IS ESCAPEMENT OF INCOME WHICH IN THE CASE INSTANT IS NOT SATISFIED AS THE IMPUGNED INCOME WAS ALREADY DECLARED BY THE APPELLANT IN THE RETURN OF INCME FILED ON THE FACTS OF THE CASE. 4. THE AUTHORITIES BELOW ERRED IN TREATING INCOME F ROM TEMPORARY LETTING OUT OF COMMERCIAL PROPERTY OF RS.1,28,72,652/- AS INCOME FROM HOUSE PROPERTY AS AGAINST BUSINESS INCOME AS DECLARED BY THE APPELLAN T ON THE FACTS OF THE CASE. ITA NO.1209-1212/B/14 7 5. WITHOUT PREJUDICE, THE AUTHORITIES BELOW FAILED TO APPRECIATE THAT THE CONDITIONS PRECEDENT TO CLAIM DEPRECIATION U/S 32 DOES NOT INVOLVE ANY DISTINCTIO N BETWEEN FIXED ASSETS AND STOCK IN TRADE AS MENTIONE D BY THE CIT(A) ON THE FACTS OF THE CASE. RELIANCE ON T HE DECISION OF SUPREME COURT IN THE CASE OF ICDS LTD. VS. CIT, REPORTED IN 350 ITR 527. 6. WITHOUT PREJUDICE, THE AUTHORITIES BELOW ERRED I N NOT ALLOWING DEDUCTION FOR DEPRECIATION OF RS.29,50,498 /- AS CLAIMED BY THE APPELLANT ON THE FACTS OF THE CASE. 7. WITHOUT PREJUDICE, THE AUTHORITIES OUGHT TO HAVE ALLOWED DEPRECIATION OF AT LEAST RS.11,48,694/- IN RESPECT OF THE ASSETS OWNED AND USED BY THE APPELLANT IN IT S BUSINESS UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE. 8. THE ACTION OF THE AUTHORITIES BELOW IN NOT FOLLO WING THE DIRECTIONS GIVEN BY THE HONBLE JURISDICTIONAL TRIBUNAL IN THE APPELLANTS OWN CASE FOR THE ASSESSMENT YEAR 2002- 03 IS IN VIOLATION OF THE PRINCIPLES OF JUDICIAL DI SCIPLINE ON THE FACTS OF THE CASE. 9. THE APPELLANT DENIES ITSELF TO BE LEVIED INTERES T U/S 234D OF THE ACT. THE CALCULATION OF INTEREST U/S 2 34D OF THE ACT IS NOT IN ACCORDANCE WITH LAW SINCE THE MET HOD OF ITA NO.1209-1212/B/14 8 CALCULATION, THE RATE, PERIOD FOR WHICH IT HAS BEEN CHARGES IS NOT DISCERNIBLE FROM THE ORDER OF ASSESSMENT. 10. WITHOUT PREJUDICE, THE INTEREST U/S 234D OF THE ACT IS NOT LEVIABLE AND REQUIRES TO BE WAIVED OFF UNDER TH E FACTS AND CIRCUMSTANCES OF THE CASE. 11. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELET E OR SUBSTITUTE ANY OF THE GROUNDS URGED ABOVE. 12. IN THE VIEW OF THE ABOVE AND OTHER GROUNDS TH AT MAY BE URGED AT THE TIME OF THE HEARING OF THE APPEAL, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED IN T HE INTEREST OF JUSTICE AND EQUITY. 4.2 FOR ASST. YEARS 2009-10, THE ASSESSEE HAS RAISE D THE FOLLOWING GROUNDS: 1. THE ORDER OF THE LEARNED AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO L AW, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS OF AND THE CIRCUMSTANCES OF THE APPELLANTS CASE. 2. THE APPELLANT DENIES ITSELF TO BE ASSESSED ON A TOTAL INCOME OF RS.81,15,523/- AS AGAINST RS.88,00,450/- UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.1209-1212/B/14 9 3. THE APPELLANT DENIES TO BE ASSESSED ON A SUM O F RS.71,735267/- AS INCOME FROM HOUSE PROPERTY AS AGA INST THE BUSINESS INCOME OF RS.78,58,194/- UNDER THE FAC TS AND CIRCUMSTANCES OF THE CASE. 4. THE ORDERS PASSED BY THE AUTHORITIES BELOW ARE O N A WRONG APPRECIATION OF THE FACTS AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE AUTHORITIES BELOW ERRED IN TREATING INCOME F ROM TEMPORARY LETTING OUT OF COMMERCIAL PROPERTY OF RS.1,09,08,828/- AS INCOME FROM HOUSE PROPERTY AS AGAINST BUSINESS INCOME AS DECLARED BY THE APPELLAN T ON THE FACTS OF THE CASE. 6. WITHOUT PREJUDICE, THE AUTHORITIES BELOW FAILED TO APPRECIATE THAT THE CONDITIONS PRECEDENT TO CLAIM DEPRECIATION U/S 32 DOES NOT INVOLVE ANY DISTINCTIO N BETWEEN FIXED ASSETS AND STOCK IN TRADE AS MENTIONE D BY THE CIT(A) ON THE FACTS OF THE CASE. RELIANCE ON THE D ECISION OF SUPREME COURT IN THE CASE OF ICDS LTD. VS. CIT, REP ORTED IN 350 ITR 527. ITA NO.1209-1212/B/14 10 7. WITHOUT PREJUDICE, THE AUTHORITIES BELOW ERRED I N NOT ALLOWING DEDUCTION FOR DEPRECIATION OF RS.6,10,138/ - AS CLAIMED BY THE APPELLANT ON THE FACTS OF THE CASE. 8. THE ACTION OF THE AUTHORITIES BELOW IN NOT FOLLO WING THE DIRECTIONS GIVEN BY THE HONBLE JURISDICTIONAL TRIBUNAL IN THE APPELLANTS OWN CASE FOR THE ASSESSMENT YEAR 2002- 03 IS IN VIOLATION OF THE PRINCIPLES OF JUDICIAL DI SCIPLINE ON THE FACTS OF THE CASE. 9. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR SUBSTITUTE ANY OF THE GROUNDS URGED ABOVE. 10. IN THE VIEW OF THE ABOVE AND OTHER GROUNDS TH AT MAY BE URGED AT THE TIME OF THE HEARING OF THE APPEAL, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED IN T HE INTEREST OF JUSTICE AND EQUITY. 5. THE GROUNDS RAISED AT SNO. 1,2,11 & 12 FOR ASST. YEARS 2004-05 TO 2006-07 AND AT SNO. 1,2,9 & 10 FOR THE ASST. YEARS 2009-10 ARE GENERAL IN NATURE AND NOT BEING URGED BEFORE US IN APPELLATE PROCEEDINGS ARE DISMISSED AS INFRUCTUOUS. 6. AT THE OUTSET OF THE HEARING ITSELF, THE LEARNED AR FOR THE ASSESSEE SUBMITTED THAT THE ISSUES FOR CONSIDERATIO N IN THESE FOUR ITA NO.1209-1212/B/14 11 APPEALS FOR ASST. YEARS 2004-05 TO 2006-07 AND 2009 -10 STAND COVERED BY THE DECISION OF THE COORDINATE BENCH OF THIS TRI BUNAL IN THE ASSESSEES OWN CASE IN ITA NO.944 AND 945/BANG/2011 DATED 6/2/2015 FOR ASST. YEARS 2001-02 AND 2003-04. THE LEARNED DR WAS ALSO HEARD IN THE MATTER AND SUPPORTED THE IMPUGNED ORDERS OF THE LEARNED CIT(A) ON ALL THE ISSUES RAISED. 7. GROUND NO.3(A) TO 3(F) VALIDITY OF ASSUMPTION OF JURISDICTION (FOR ASST. YEARS 2004-05 TO 2006-07). 7.1 IN THE COURSE OF HEARINGS BEFORE US, THE LEARNE D AR FOR THE ASSESSEE, SUBMITTING THAT ALL ISSUES IN THESE APPEA LS STAND COVERED BY THE ORDERS OF THE COORDINATE BENCH OF THE TRIBUNAL FOR ASST. YEARS 2001- 02 AND 2003-04 (SUPRA), DID NOT URGE THESE GROUNDS . IN THIS VIEW OF THE MATTER, AS THE GROUNDS RAISED BY THE ASSESSEE C HALLENGING THE VALIDITY OF ASSUMPTION OF JURISDICTION BY THE AO IN THESE THREE ASST. YEARS 2004-05 TO 2006-07 WERE NOT URGED, THESE GRO UNDS ARE RENDERED INFRUCTUOUS AND, ARE ACCORDINGLY DISMISSED. CONSEQ UENTLY, GROUND AT SL. NOS. 3(A) TO (F) RAISED FOR ASST. YEARS 2004-05 TO 2006-07STAND DISMISSED. ITA NO.1209-1212/B/14 12 8. GROUND NOS. 4 TO 9 FOR ASST. YEARS 2004-05 TO 20 06-07 GROUND NO. 3 TO 8 FOR ASST. YEAR 2005-06 8.1 IN THESE GROUNDS THE ASSESSEE HAD CONTENDED THA T THE RECEIPTS FROM LEASE RENTALS OUGHT TO HAVE BEEN ASSESSED AS BUSINESS INCOME AS DECLARED BY THE ASSESSEE AND NOT AS INCOME FROM HO USE PROPERTY AS HELD BY THE AUTHORITIES BELOW. THE LEARNED AR SUBM ITS THAT THE COORDINATE BENCH OF THIS TRIBUNAL IN ITS ORDER IN I TA NOS. 944 AND 945/BANG/2011 DATED 6/2/2015 HAS REMITTED THIS MATT ER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION AND A DJUDICATION OF THE ISSUE OF WHETHER THE LEASE RENTAL RECEIPTS RECEIVED BY THE ASSESSEE FROM ITS TENANTS IS TO BE TREATED AS BUSINESS INC OME AS CLAIMED BY THE ASSESSEE OR AS INCOME FROM PROPERTY AS HELD B Y REVENUE. 8.2.1 WE HAVE HEARD THE RIVAL CONTENTION AND PERUSE D AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD, INCLUDING THE OR DERS FO THE COORDINATE BENCH OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASST. YEARS 2001-02 & 2003-04 IN ITA NOS. 944 & 945/BANG/ 2014 DATED 6/2/2015. IN THAT ORDER, THE CO-ORDINATE BENCH , F OLLOWING THE DECISION OF ANOTHER COORDINATE BENCH OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASST. YEAR 2002-03 IN ITA NO.1252/BANG/2007 DAT ED 29/10/2008, SET ASIDE THE ORDERS OF ASSESSMENT FOR ASST. YEARS 2001-02 AND 2003-04 ITA NO.1209-1212/B/14 13 BENCH TO THE FILE FOR FRESH CONSIDERATION AND DE-NO VO ASSESSMENT HOLDING AS UNDER AT PARA 8.3.2 AND 8.3.3 OF ITS ORD ER:- 8.3.2 ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND ON APPRECIATION OF TH E RIVAL CONTENTIONS AND MATERIAL ON RECORD, WE ARE OF THE CONSIDERED VIEW THAT, IN THE INTEREST OF EQUITY AND JUSTICE, THE MATTER / ISSUES WITH RESPECT TO WHETHER THE LEA SE RENTAL RECEIPTS RECEIVED BY THE ASSESSEE FROM ITS TENANTS IS TO BE TREATED AND ASSESSED AS BUSINESS INCOME AS CLAIM ED BY THE ASSESSEE OR AS INCOME FROM HOUSE PROPERTY AS HELD BY REVENUE, REQUIRES FRESH CONSIDERATION IN THE LI GHT OF THE OBSERVATIONS IN PARA 6 OF THE DECISION OF THE C O- ORDINATE BENCH OF THIS TRIBUNAL IN THE ASSESSEE'S O WN CASE FOR ASSESSMENT YEAR 2002-03. WE, THEREFORE, REMIT THIS MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRE SH CONSIDERATION OF THIS ISSUE AFTER AFFORDING THE ASS ESSEE ADEQUATE OPPORTUNITY OF BEING HEARD AND TO FILE DET AILS / SUBMISSIONS REQUIRED WHICH WILL BE CONSIDERED, IN T HE LIGHT OF OUR OBSERVATIONS ABOVE. IT IS ORDERED ACCORDINGLY. IN THIS VIEW OF THE MATTER, THE GROUN DS RAISED AT S.NOS.4 AND 5 ARE RENDERED INFRUCTUOUS AN D ARE ACCORDINGLY DISMISSED. 8.3.3 WE WISH TO MAKE IT CLEAR THAT WE HAVE ONLY SET ASIDE ONLY THE ISSUE OF ASSESSMENT OF LEASE RENTAL RECEIPTS RECEIVED BY THE ASSESSEE FROM ITS TENANTS, WHETHER AS INCOME FROM HOUSE PROPERTY OR BUSINESS INCOME, TO ITA NO.1209-1212/B/14 14 THE FILE OF THE ASSESSING OFFICER IN ACCORDANCE WIT H OUR OBSERVATIONS IN PARA 8.3.2 OF THIS ORDER (SUPRA) AN D PARA 6 OF THE ORDER OF THE CO-ORDINATE BENCH OF THE TRIB UNAL IN THE ASSESSEE'S OWN CASE FOR ASSESSMENT YEAR 2002-03 (SUPRA). IN THIS VIEW OF THE MATTER, WE ALSO MAKE IT CLEAR THAT WE ARE NOT ADJUDICATING ON THE MERITS OF THIS ISSUE AS RAISED BY THE ASSESSEE AT GROUNDS NOS.6 TO 9 OF THE SE APPEALS. 8.2.2 FOLLOWING THE AFORESAID DECISION OF THE COORD INATE BENCH OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASST. YEARS 2001-02 AND 2003- 04 IN ITA NOS.944 AND 945/BANG/2011 DATED 6/2/2015 AND ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCE S OF THE CASE WE ARE OF THE CONSIDERED VIEW THAT, IN THE INTEREST OF EQU ITY AND JUSTICE, THE MATTER/ISSUE OF WHETHER THE LEASE RENTAL RECEIPTS R ECEIVED BY THE ASSESSEE FROM ITS TENANTS IS TO BE TREATED AND ASSE SSED AS BUSINESS INCOME AS CLAIMED BY THE ASSESSEE OR AS INCOME FR OM HOUSE PROPERTY AS HELD BY REVENUE, REQUIRES FRESH CONSID ERATION IN THE LIGHT OF OBSERVATIONS IN PARA 6 OF THE DECISION OF THE CO -ORDINATE BENCH OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASST. YEARS 2002-03 (SUPRA). WE, THEREFORE, REMIT THE MATTER TO THE FI LE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION OF THIS ISSUE AFTER AFFORDING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD AND TO FILE DETAILS AND ITA NO.1209-1212/B/14 15 SUBMISSIONS REQUIRED, WHICH WILL BE CONSIDERED IN T HE LIGHT OF OUR OBSERVATIONS ABOVE. IT IS ORDERED ACCORDINGLY. CO NSEQUENTLY, THE GROUND RAISED AT SNO.4 OF THE ASSESSEES APPEALS FO R ASST. YEARS 2004- 05 TO 2006-07 AND GROUND NO. 3 OF THE ASSESSEES AP PEAL FOR ASST. YEARS 2009-10 ARE ALLOWED FOR STATISTICAL PURPOSES. 8.2.3 WE MAKE IT CLEAR THAT WE HAVE ONLY SET ASIDE THE ISSUE OF ASSESSMENT OF LEASE RENTAL RECEIPTS RECEIVED BY THE ASSESSEE FROM ITS TENANTS, WHETHER AS BUSINESS INCOME OR AS INCOME FROM HOUSE PROPERTY TO THE FILE OF THE ASSESSING OFFICER IN A CCORDANCE WITH OUR OBSERVATIONS IN PARA 8.2.2 OF THIS ORDER (SUPRA), PARA 8.3.2 OF THE ORDER OF THE COORDINATE BENCH IN ASSESSEES OWN CAS E FOR ASST. YEARS 2001-02 AND 2003-04 (SUPRA) AND PARA 6 OF THE TRIBU NALS ORDER IN THE ASSESSEES OWN CASE FOR ASST. YEARS 200203 (SUPRA). IN THIS VIEW OF THE MATTER, WE ALSO MAKE IT CLEAR THAT WE ARE NOT A DJUDICATING ON THE MERITS OF THIS ISSUE AS RAISED BY THE ASSESSEE IN G ROUNDS AT SNO.5 TO 9 FOR ASST. YEARS 2004-05 TO 2006-07 AND GROUNDS AT S NO.4 TO 7 FOR ASST. YEARS 2009-10. 9. CHARGING OF INTEREST U/S 234D OF THE ACT ITA NO.1209-1212/B/14 16 9.1 IN THE GROUND NO.10 FOR ASST. YEAR 2004-05 AND 2005-06 AND GROUND NO. 9 FOR ASST. YEAR 2009-10, THE ASSESSEE DENIES ITSELF AS BEING LIABLE TO BE CHARGED INTEREST U/S 234D OF THE ACT. THE CHARGING OF INTEREST IS CONSEQUENTIAL AND MANDATORY AND THE ASSESSING OFFICER HAS NO DISCRETION IN THE MATTER. THIS PROPOSITION HAS BEEN UPHELD BY THE HONBLE APEX COURT IN THE CASE OF ANJUM H. GHAS WALLA REPORTED IN 252 ITR 1 (SC) AND WE, THEREFORE, UPHOLD THE ACT ION IN CHARGING THE ASSESSEE THE SAID INTEREST. THE ASSESSING OFFICER IS, HOWEVER, DIRECTED TO RECOMPUTED THE INTEREST CHARGEABLE U/S 234D OF T HE ACT, IF ANY, WHILE GIVING EFFECT TO THIS ORDER. 6. IN THE RESULT, THE ASSESSEES APPEALS FOR THE AS ST. YEARS 2004-05 TO 2006-07 PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE APPEAL FOR THE ASST. YEARS 2009-10 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24TH SEPT, 2015. SD/- SD/- (VIJAYPAL RAO) (JASON P BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER VMS. BANGALORE DATED : 24/9/2015 ITA NO.1209-1212/B/14 17 COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF BY ORDER ASST. REGISTRAR, I TAT, BANGALORE.