BIP Developers Pvt. Ltd., Kolkata V. DCIT, Circle-2(1), Kolkata, Kolkata

ITA 1214/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1890 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 26-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEE CIT D R DEPAR
• Assessee Lawyers: A K TIBREWAL
• Keywords: Business income; Business expenditure
• Section: 143(3)

Judgement Text

I.T.A. NOS 1214, 1215, 12 16/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-1 0 & I.T.A. NOS. 1357, 1358 & 1359/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-10 PAGE 1 OF 11 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER & SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER I.T.A. NOS. 1214, 1215 & 1216/KOL/2017 ASSESSMENT YEAR: 2006-2007, 2008-2009 & 2009-2010 BIP DEVELOPERS PVT. LIMITED,....................... ..................................APPELLANT GROUND FLOOR, BUILDING BATA, BENGAL INTELLIGENTE PARK, BLOCK EP & GP, SECTOR-V, SALT LAKE ELECTRONICS COMPLEX, KOLKATA-700 091 [PAN: AABCB 6203 A] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. .........................RESPONDENT CIRCLE-2(1), KOLKATA, AAYAKAR BHAWN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 & I.T.A. NOS. 1357, 1358 & 1359/KOL/2017 ASSESSMENT YEARS: 2006-2007, 2008-2009 & 2009-2010 ASSISTANT COMMISSIONER OF INCOME TAX,.............. ............................APPELLANT CIRCLE-2(1), KOLKATA, AAYAKAR BHAWN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 -VS.- BIP DEVELOPERS PVT. LIMITED,....................... ......................................RESPONDENT 9B, WOOD STREET, KOLKATA-700 016 [PAN: AABCB 6203 A] APPEARANCES BY: SHRI A.K. TIBREWAL, FCA, FOR THE ASSESSEE SHRI A. BHATTACHARJEE, ADDL. CIT, D.R. , FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JULY 26, 2018 DATE OF PRONOUNCING THE ORDER : AUGUST 31, 2018 O R D E R PER SHRI P.M. JAGTAP, A.M. : THESE SIX APPEALS, THREE FILED BY THE ASSESSEE AND THREE FILED BY THE REVENUE, ARE CROSS APPEALS, WHICH ARE DIRECTED AGAI NST THREE SEPARATE I.T.A. NOS 1214, 1215, 12 16/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-1 0 & I.T.A. NOS. 1357, 1358 & 1359/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-10 PAGE 2 OF 11 ORDERS PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-15, KOLKATA, ALL DATED 27.03.2017 FOR ASSESSMENT YEARS 2006-07, 2008-09 AND 2009-10. SINCE THE ISSUES INVOLVED THEREIN ARE COMM ON, THE SAME HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSED OF BY A SINGLE CONSOLIDATED ORDER. 2. FIRST WE TAKE UP THE CROSS APPEALS FOR A.Y. 2006 -07 BEING ITA NO. 1214/KOL/2017 (ASSESSEES APPEAL) AND ITA NO. 1357/ KOL/2017 (REVENUES APPEAL). 3. THE RELEVANT FACTS OF THE CASE GIVING RISE TO TH ESE APPEALS ARE THAT THE ASSESSEE IS A COMPANY, WHICH IS ENGAGED IN THE BUSINESS OF GIVING THE PREMISES ON RENT. THE RETURN OF INCOME FOR A.Y. 200 6-07 WAS FILED BY IT ON 25.11.2006 DECLARING A LOSS OF RS.52,20,446/-. THE SAID LOSS WAS DECLARED BY THE ASSESSEE PARTLY UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND PARTLY UNDER THE HEAD PROFITS AND GAINS OF BUSINES S OR PROFESSION. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS FOUND BY THE ASSESSING OFFICER THAT THE ONLY ACTIVITY CARRIED ON BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION WAS LETTING OUT OF PRO PERTY OWNED BY IT AND THERE WAS NO OTHER BUSINESS ACTIVITY WHATSOEVER THA T HAD BEEN CARRIED OUT BY THE ASSESSEE-COMPANY. HE, THEREFORE, HELD TH AT THE ENTIRE RENTAL INCOME RECEIVED BY THE ASSESSEE WAS CHARGEABLE TO T AX UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND THE BUSINESS LOSS OF RS.30,34,296/- SHOWN BY THE ASSESSEE BY CLAIMING THE EXPENSES UNDE R VARIOUS HEADS WAS DISALLOWED BY HIM. HE ALSO DISALLOWED THE CLAIM OF THE ASSESSEE FOR DEDUCTION ON ACCOUNT OF PRE-CONSTRUCTION INTEREST A MOUNTING TO RS.27,92,431/- AND DETERMINED THE TOTAL INCOME OF T HE ASSESSEE FOR A.Y. 2006-07 AT RS.6,06,280/- IN THE ASSESSMENT COMPLETE D UNDER SECTION 143(3) VIDE AN ORDER DATED 26.12.2008. 4. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. I.T.A. NOS 1214, 1215, 12 16/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-1 0 & I.T.A. NOS. 1357, 1358 & 1359/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-10 PAGE 3 OF 11 CIT(APPEALS) AND BY RELYING ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENTS LIM ITED VS.- CIT [373 ITR 673, THE LD. CIT(APPEALS) HELD THAT THE MAIN OB JECT OF THE ASSESSEE- COMPANY BEING TO LET OUT THE PROPERTIES, RENTAL INC OME WAS ASSESSABLE TO TAX IN ITS CASE AS BUSINESS INCOME. HE ACCORDINGLY DIRECTED THE ASSESSING OFFICER TO ASSESS THE ENTIRE RENTAL INCOME RECEIVED BY THE ASSESSEE- COMPANY UNDER THE HEAD PROFITS AND GAINS OF BUSINE SS OR PROFESSION AND ALLOW ALL THE BUSINESS EXPENSES CLAIMED BY THE ASSE SSEE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE AND REV ENUE BOTH ARE IN APPEALS BEFORE THE TRIBUNAL. 5. THE GROUNDS RAISED BY THE ASSESSEE AND REVENUE I N THEIR RESPECTIVE APPEALS READ AS UNDER:- ITA NO. 1214/KOL/2017(ASSESSEES APPEAL), A.Y. 2006 -07 1. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN LAW IN DIRECTING THE ASSESSING OFFICER TO ASSESS TH E RENTAL RECEIPTS OF THE ASSESSEE COMPANY AS BUSINESS INCOME AS AGAINST INCOME FROM HOUSE PROPERTY, THE ASSESSMENT OF WHICH HAS BEEN REGULARLY AND CONSISTENTLY BEEN ASSE SSED IN EARLIER YEARS UNDER THE HEAD INCOME FROM HOUSE PROP ERTY. 2. THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT DECIDING GROUND NOS.1 TO 3 TAKEN IN APPEAL BEFORE H IM ON THE GROUND THAT SAME NEED NOT BE DECIDED WHEN RENTA L RECEIPTS OF THE ASSESSEE COMPANY IS TO BE ASSESSED UNDER THE HEAD 'PROFITS AND GAINS FROM BUSINESS AND PROFESSIO N'. 3. THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BE DIR ECTED TO ADJUDICATE GROUND NOS.1 TO 3 TAKEN IN APPEAL BEF ORE HIM SINCE THE ASSESSEE COMPANY CLAIMS THAT THE RENTAL R ECEIPTS OF THE ASSESSEE COMPANY ARE TO BE ASSESSED UNDER TH E HEAD 'INCOME FROM HOUSE PROPERTY'. 4. THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) SHOULD HAVE ALLOWED PRE-CONSTRUCTION INTEREST OF RS.27,92,431 B EING 1/5TH OF RS.1,39,62,155 UNDER SECTION 24(B) OF THE INCOME I.T.A. NOS 1214, 1215, 12 16/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-1 0 & I.T.A. NOS. 1357, 1358 & 1359/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-10 PAGE 4 OF 11 TAX ACT, 1961 WHEN THE RENTAL RECEIPTS ARE ASSESSAB LE TO TAX UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY'. 5. THAT, WITHOUT PREJUDICE TO GROUND NOS.1 TO 4 ABO VE, IN CASE IT IS HELD THAT THE RENTAL RECEIPTS OF THE ASS ESSEE COMPANY ARE TO BE ASSESSED UNDER THE HEAD 'PROFITS AND GAINS FROM BUSINESS AND PROFESSION' THEN BROUGHT FO RWARD LOSSES ARISING FROM RENTAL RECEIPTS ASSESSED UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' IN EARLIER YEARS IS TO BE SET OFF AGAINST THE INCOME ASSESSABLE TO TAX FOR THE AS SESSMENT YEAR 2006-07. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL AT OR BEFORE THE HE ARING OF THE APPEAL. ITA NO. 1357/KOL/2017(REVENUES APPEAL), A.Y. 2006- 07 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS JUSTIFIED IN TREATING THE IN COME AS BUSINESS INCOME IGNORING THE FACT THAT THE BULK INCOME OF TH E ASSESSEE COMPANY IS EARNED FROM LETTING OUT OF THE PROPERTY . 6. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUN SEL FOR THE ASSESSEE HAS SUBMITTED THAT EVEN THOUGH THERE ARE SEVERAL GROUND S RAISED IN THESE APPEALS, THE ISSUES LYING IN A SMALL COMPASS. HE HA S CONTENDED THAT THE COMMON GROUND OF THE APPEALS FILED BY THE ASSESSEE AND REVENUE IS THAT THE RENTAL INCOME RECEIVED BY THE ASSESSEE DURING T HE YEAR UNDER CONSIDERATION IS CHARGEABLE TO TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND THE SAME IS SQUARELY COVERED BY THE D ECISION OF THE HONBLE SUPREME COURT IN THE CASE OF RAJ DADARKAR & ASSOCIA TES [394 ITR 592], WHEREIN ITS EARLIER DECISION RENDERED IN THE CASE O F CHENNAI PROPERTIES & INVESTMENTS LIMITED (SUPRA) WAS DISTINGUISHED BY TH E HONBLE SUPREME COURT AND IT WAS HELD THAT WHERE THE ENTIRE INCOME OF THE ASSESSEE WAS THROUGH LETTING OUT OF THE PROPERTIES OWNED BY IT A ND THERE WAS NO OTHER INCOME EXCEPT INCOME FROM LET OUT OF THE SAID PROPE RTIES, WHICH WAS BUSINESS OF THE ASSESSEE, THEN INCOME EARNED FROM T HE LETTING OUT SHOULD BE TAXABLE UNDER THE HEAD INCOME FROM HOUSE PROPER TY. THE LD. D.R. HAS I.T.A. NOS 1214, 1215, 12 16/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-1 0 & I.T.A. NOS. 1357, 1358 & 1359/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-10 PAGE 5 OF 11 ALSO RELIED ON THE SAID DECISION OF THE HONBLE SUP REME COURT IN SUPPORT OF THE REVENUES CASE THAT THE RENTAL INCOME RECEIV ED BY THE ASSESSEE- COMPANY IN THE PRESENT CASE IS CHARGEABLE TO TAX UN DER THE HEAD INCOME FROM HOUSE PROPERTY AND NOT AS BUSINESS INCOME. RE SPECTFULLY FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SE OF RAJ DADARKAR & ASSOCIATES (SUPRA), WE DIRECT THE ASSESSING OFFICER TO ASSESS THE ENTIRE RENTAL INCOME OF THE ASSESSEE UNDER THE HEAD INCOM E FROM HOUSE PROPERTY. GROUND NO. 1 OF THE ASSESSEES APPEAL AS WELL AS GROUND NO. 1 OF THE REVENUES APPEAL ARE ACCORDINGLY ALLOWED. 7. AS REGARDS THE GROUNDS NO. 2 TO 4 RAISED IN THE ASSESSEES APPEAL FOR A.Y. 2006-07, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE TOTAL EXPENSES OF RS.1,99,05,446/- WERE CLAIMED BY THE ASSESSEE PARTLY UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND PAR TLY UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION. HE H AS CONTENDED THAT THE ENTIRE RENTAL INCOME RECEIVED BY THE ASSESSEE DURIN G THE YEAR UNDER CONSIDERATION HAVING BEEN HELD TO BE CHARGEABLE TO TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY, THE ASSESSEE IS ENTIT LED FOR DEDUCTION UNDER THE SAID HEAD ONLY TO THE EXTENT SPECIFIED IN SECTION 24. AS REGARDS THE EXPENSES CLAIMED UNDER THE HEAD PROFITS AND GA INS OF BUSINESS OR PROFESSION, HE HAS RELIED ON THE DECISION OF THE H ONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS.- GANGA PROPERTIES LIM ITED (1992) 62 TAXMAN 285, WHEREIN IT WAS HELD THAT THE EXPENSES INCURRED BY A COMPANY, EVEN WHEN IT DOES NOT CARRY ON BUSINESS, TO MAINTAIN EST ABLISHMENT FOR COMPLYING WITH STATUTORY OBLIGATION ARE ALLOWABLE A S DEDUCTION. HE HAS URGED THAT THE ASSESSING OFFICER MAY ACCORDINGLY BE DIRECTED TO VERIFY THE EXPENSES CLAIMED BY THE ASSESSEE UNDER VARIOUS HEAD S IN THE LIGHT OF THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF GANGA PROPERTIES LIMITED (SUPRA) AND ALLOW APPROPRIATE RE LIEF. WE FIND MERIT IN THIS CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE AND SINCE THE LD. D.R. HAS ALSO NOT RAISED ANY OBJECTION IN THIS REGARD, W E DIRECT THE ASSESSING OFFICER TO ALLOW DEDUCTION TO THE ASSESSEE UNDER TH E HEAD INCOME FROM I.T.A. NOS 1214, 1215, 12 16/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-1 0 & I.T.A. NOS. 1357, 1358 & 1359/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-10 PAGE 6 OF 11 HOUSE PROPERTY IN ACCORDANCE WITH SECTION 24 AND A LSO ALLOW THE BUSINESS EXPENSES CLAIMED BY THE ASSESSEE UNDER VAR IOUS HEADS AFTER VERIFYING THE SAME IN THE LIGHT OF THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF GANGA PROPERTIES LIMITED (SUPR A). GROUNDS NO. 2, 3 & 4 OF THE ASSESSEES APPEAL FOR A.Y. 2006-07 ARE ACC ORDINGLY TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 8. AS REGARDS GROUND NO. 5, IT IS OBSERVED THAT THE ISSUE RAISED THEREIN RELATING TO THE ALTERNATIVE CLAIM OF THE ASSESSEE H AS BECOME INFRUCTUOUS AS A RESULT OF OUR DECISION RENDERED ON THE MAIN IS SUE HOLDING THAT THE RENTAL INCOME RECEIVED BY THE ASSESSEE IS CHARGEABL E TO TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THE SAME IS ACCO RDINGLY DISMISSED. 9. NOW WE SHALL TAKE UP THE CROSS APPEALS FOR A.Y. 2008-09 BEING ITA NO. 1215/KOL/2017 (ASSESSEES APPEAL) AND ITA NO. 1358/KOL/2017(REVENUES APPEAL). 10. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PER USING THE RELEVANT MATERIAL AVAILABLE ON RECORD, IT IS OBSERVED THAT T HE COMMON ISSUE RAISED IN GROUND NO. 1 OF THE ASSESSEES APPEAL FOR A.Y. 2 008-09 AND THE SOLITARY GROUND RAISED IN THE REVENUES APPEAL FOR A.Y. 2008 -09 IS SIMILAR TO THE ISSUE INVOLVED IN GROUND NO. 1 OF THE ASSESSEES AP PEAL AND THE SOLITARY GROUND RAISED IN REVENUES APPEAL FOR A.Y. 2006-07, WHICH HAS ALREADY BEEN DECIDED BY US. FOLLOWING OUR CONCLUSION DRAWN IN A.Y. 2006-07, WE DIRECT THE ASSESSING OFFICER TO ASSESS THE RENTAL I NCOME RECEIVED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND ALLOW THIS GROUND OF APPEA L. 11. AS REGARDS THE ISSUES RAISED IN GROUNDS NO. 2, 3 & 4 OF THE ASSESSEES APPEAL FOR A.Y. 2008-09, IT IS OBSERVED THAT THE SAME ARE SIMILAR TO THE ISSUES RAISED IN GROUNDS NO. 2 TO 4 OF THE ASSESSEES APPEAL FOR A.Y. 2006-07, WHICH HAVE ALREADY BEEN DECIDED B Y US. FOLLOWING OUR I.T.A. NOS 1214, 1215, 12 16/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-1 0 & I.T.A. NOS. 1357, 1358 & 1359/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-10 PAGE 7 OF 11 CONCLUSION DRAWN IN A.Y. 2006-07, WE DIRECT THE ASS ESSING OFFICER TO ALLOW DEDUCTION TO THE ASSESSEE UNDER THE HEAD INC OME FROM HOUSE PROPERTY IN ACCORDANCE WITH SECTION 24 OF THE ACT AND ALSO ALLOW THE CLAIM OF THE ASSESSEE FOR BUSINESS EXPENSES UNDER V ARIOUS HEADS AFTER VERIFYING THE SAME IN THE LIGHT OF THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF GANGA PROPERTIES LIMITED (SUPR A). GROUNDS NO. 2, 3 & 4 OF THE ASSESSEES APPEAL FOR A.Y. 2008-09 ARE THU S TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 12. IN GROUND NO. 5 OF ASSESSEES APPEAL FOR A.Y. 2 008-09, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE AUTHORITIES BELOW IN ASSESSING ITS INTEREST INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES I NSTEAD OF PROFITS AND GAINS OF BUSINESS OR PROFESSION. 13. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES O N THIS ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON REC ORD. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE-CO MPANY DURING THE YEAR UNDER CONSIDERATION HAD EARNED INTEREST INCOME OF R S.12,60,780/- ON FIXED DEPOSITS AND THE SAME WAS DECLARED AS ITS BUS INESS INCOME. IN THIS REGARD, HE HAS RELIED ON THE MEMORANDUM AND ARTICLE S OF ASSOCIATION OF THE ASSESSEE-COMPANY AND POINTED OUT THAT TO LEND A ND ADVANCE MONEY WAS ONE OF THE ANCILLARY OBJECTS OF THE ASSESSEE-CO MPANY. HOWEVER, AS RIGHTLY POINTED OUT BY THE LD. D.R., THE SAID OBJEC T WAS INCIDENTAL OR ANCILLARY TO THE ATTAINMENT OF THE MAIN OBJECT OF T HE ASSESSEE, WHICH WAS TO CARRY ON THE BUSINESS OF REAL ESTATE INCLUDING T O ACQUIRE AND TO LEASE THE PROPERTY. IN THIS REGARD, THE LD. COUNSEL FOR T HE ASSESSEE HAS NOT BEEN ABLE TO ESTABLISH AS TO HOW THE INVESTMENT IN FIXED DEPOSITS WITH BANK WAS MADE BY THE ASSESSEE-COMPANY FOR THE ATTAINMENT OF ITS MAIN OBJECT AND HOW THE INTEREST INCOME RECEIVED ON THE SAID FI XED DEPOSITS WAS INCIDENTAL OR ATTRIBUTABLE TO THE ATTAINMENT OF THE MAIN OBJECT SO AS TO TREAT THE SAME AS ITS BUSINESS INCOME. WE, THEREFOR E, FIND NO INFIRMITY IN THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) TREATING THE INTEREST INCOME I.T.A. NOS 1214, 1215, 12 16/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-1 0 & I.T.A. NOS. 1357, 1358 & 1359/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-10 PAGE 8 OF 11 EARNED BY THE ASSESSEE AS INCOME FROM OTHER SOURCES AND NOT AS BUSINESS INCOME AND UPHOLDING THE SAME, WE DISMISS GROUND NO . 5 OF THE ASSESSEES APPEAL. 14. AS REGARDS GROUND NO. 6 OF THE ASSESSEES APPEA L FOR A.Y. 2008-09 RELATING TO ITS CLAIM FOR SET OFF OF UNABSORBED BRO UGHT FORWARD LOSSES ASSESSED IN THE EARLIER YEARS UNDER THE HEAD INCOM E FROM HOUSE PROPERTY WITH CURRENT YEARS INCOME AS COMPUTED BY THE ASSESSING OFFICER UNDER THE HEAD INCOME FROM HOUSE PROPERTY , WE DIRECT THE ASSESSING OFFICER TO VERIFY THE SAME AND ALLOW THE CLAIM OF THE ASSESSEE IN ACCORDANCE WITH LAW. 15. AS REGARDS GROUND NO. 7 OF THE ASSESSEES APPEA L FOR A.Y. 2008-09, IT IS OBSERVED THAT THE ISSUE RAISED THEREIN IS SIM ILAR TO THE ISSUE INVOLVED IN GROUND NO. 5 OF THE ASSESSEES APPEAL FOR A.Y. 2 006-07, WHICH HAS ALREADY BEEN DECIDED BY US. FOLLOWING OUR CONCLUSIO N DRAWN IN A.Y. 2006- 07, WE DISMISS GROUND NO. 7 OF THE ASSESSEES APPEA L AS INFRUCTUOUS. 16. NOW WE SHALL TAKE UP THE CROSS APPEALS FOR A.Y. 2009-10 BEING ITA NO. 1216/KOL/2017 (ASSESSEES APPEAL) AND ITA NO. 1 359/KOL?2017 (REVENUES APPEAL). 17. AS REGARDS GROUND NO. 1 OF THE ASSESSEES APPEA L AS WELL AS GROUND NO. 1 OF REVENUES APPEAL FOR A.Y. 2009-10, IT IS O BSERVED THAT THE ISSUE RAISED THEREIN IS SIMILAR TO THE ISSUE INVOLVED IN GROUND NO. 1 OF THE ASSESSEES APPEAL FOR A.Y. 2006-07, WHICH HAS ALREA DY BEEN DECIDED BY US. FOLLOWING OUR CONCLUSION DRAWN IN A.Y. 2006-07, GRO UND NO. 1 OF THE ASSESSEES APPEAL AS WELL AS GROUND NO. 1 OF THE RE VENUES APPEAL ARE ALLOWED. 18. GROUNDS NO. 2 & 3 OF THE ASSESSEES APPEAL ARE SIMILAR TO GROUNDS NO. 2, 3 & 4 OF ASSESSEES APPEAL FOR A.Y. 2006-07, WHICH HAVE ALREADY I.T.A. NOS 1214, 1215, 12 16/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-1 0 & I.T.A. NOS. 1357, 1358 & 1359/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-10 PAGE 9 OF 11 BEEN DECIDED BY US. FOLLOWING OUR CONCLUSION DRAWN IN AY 2006-07, WE ALLOW GROUNDS NO. 2 & 3 OF THE ASSESSEES APPEAL. 19. GROUND NO. 4 FOR THE A.Y. 2009-10 OF ASSESSEES APPEAL IS SIMILAR TO GROUND NO. 5 FOR A.Y. 2008-09 (INTEREST INCOME). FO LLOWING OUR CONCLUSION DRAWN IN A.Y. 2008-09, WE DISMISS GROUND NO. 4 OF ASSESSEES APPEAL. 20. GROUND NO. 5 FOR THE A.Y. 2009-10 OF ASSESSEE S APPEAL IS SIMILAR TO GROUND NO. 6 FOR A.Y. 2008-09. FOLLOWING OUR CONCLU SION DRAWN IN A.Y. 2008-09, WE DIRECT THE ASSESSING OFFICER TO VERIFY THE SAME AND ALLOW THE CLAIM OF THE ASSESSEE IN ACCORDANCE WITH LAW. 21. GROUND NO. 6 FOR THE A.Y. 2009-10 OF ASSESSEES APPEAL IS SIMILAR TO GROUND NO. 5 FOR A.Y. 2006-07. FOLLOWING OUR CONCLU SION DRAWN IN A.Y. 2006-07, WE DISMISS GROUND NO. 6 OF THE ASSESSEES APPEAL. 22. IN GROUNDS NO. 2 & 3 OF ITS APPEAL FOR A.Y. 200 9-10, THE REVENUE HAS RAISED A NEW ISSUE RELATING TO THE DELETION BY THE LD. CIT(APPEALS) OF THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT O F RENTAL INCOME FOR 75% OF THE PARKING SPACE. 23. IN ITS RETURN OF INCOME FOR A.Y. 2009-10, RENTA L INCOME OF RS.45,52,052/- RECEIVED FOR PARKING SPACE WAS DECLA RED BY THE ASSESSEE. THE ASSESSING OFFICER FOUND THAT THE SAID RENTAL IN COME WAS IN RESPECT OF ONLY 25% OF THE PARKING SPACE. HE, THEREFORE, ESTIM ATED THE RENTAL INCOME FOR THE ENTIRE PARKING SPACE AT RS.1,82,08,208/- AN D MADE ADDITION TO THE TOTAL INCOME OF THE ASSESSEE ON THIS ISSUE. ON APPE AL, THE LD. CIT(APPEALS) FOUND FROM THE RELEVANT LEASE AGREEMENTS THAT THE C ONCERNED TENANTS WERE ENTITLED FOR 75% OF THE CAR PARKING SPACE FOR NO EXTRA COST AND THEY WERE LIABLE TO PAY THE RENT FOR CAR PARKING SPACE O NLY FOR THE BALANCE 25% AREA. THE ASSESSEE ALSO FILED LETTERS FROM THE CONCERNED TENANTS I.T.A. NOS 1214, 1215, 12 16/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-1 0 & I.T.A. NOS. 1357, 1358 & 1359/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-10 PAGE 10 OF 11 CONFIRMING THIS POSITION. ACCORDINGLY THE RENTAL IN COME FOR PARKING SPACE ADDED BY THE ASSESSING OFFICER ON ESTIMATED BASIS W AS DELETED BY THE LD. CIT(APPEALS). 24. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES O N THIS ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON REC ORD. IT IS OBSERVED THAT THE ADDITION MADE BY THE ASSESSING OFFICER ON ESTIM ATED BASIS FOR 75% OF THE PARKING SPACE WAS DELETED BY THE LD. CIT(APPEAL S) AFTER HAVING FOUND FROM THE RELEVANT LEASE AGREEMENTS THAT THE CONCERN ED TENANTS WERE ACTUALLY ENTITLED FOR 75% OF THE PARKING SPACE FOR NO EXTRA COST. HE ALSO FOUND THAT THIS POSITION WAS FURTHER CORROBORATED B Y THE CONFIRMATION LETTERS FILED BY THE ASSESSEE OF THE CONCERNED TENA NTS. AT THE TIME OF HEARING BEFORE US, THE LD. D.R. HAS NOT BEEN ABLE T O BRING ANYTHING ON RECORD TO REBUT OR CONTROVERT THIS FINDINGS RECORDE D BY THE LD. CIT(APPEALS) IN HIS IMPUGNED ORDER ON THE BASIS OF RELEVANT DOCUMENTARY EVIDENCE WHILE GIVING RELIEF TO THE ASSESSEE. WE, T HEREFORE, FIND NO JUSTIFIABLE REASON TO INTERFERE WITH THE IMPUGNED O RDER OF THE LD. CIT(APPEALS) ON THIS ISSUE AND UPHOLDING THE SAME, WE DISMISS GROUNDS NO. 2 & 3 OF THE REVENUES APPEAL FOR A.Y. 2009-10. 25. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE AS WELL AS REVENUE ARE PARTLY ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 31, 20 18. SD/- SD/- (SATBEER SINGH GODARA) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 31 ST DAY OF AUGUST, 2018 COPIES TO : (1) BIP DEVELOPERS PVT. LIMITED, GROUND FLOOR, BUILDING BATA, BENGAL INTELLIGENT PARK, BLOCK EP & GP, SECTOR-V, SALT LAKE ELECTRONICS COMPLEX, KOLKATA-70 0 091 (2) DEPUTY /ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2(1), KOLKATA, I.T.A. NOS 1214, 1215, 12 16/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-1 0 & I.T.A. NOS. 1357, 1358 & 1359/KOL/2017 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-10 PAGE 11 OF 11 AAYAKAR BHAWN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (5) COMMISSIONER OF INCOME TAX (APPEALS)-15, KOLK ATA, (6) COMMISSIONER OF INCOME TAX- , (7) THE DEPARTMENTAL REPRESENTATIVE (8) GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O. INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.