Gulmohar Park Mall Pvt. Ltd, Ahmedabad V. DCIT, Circle-2(1)(1), Ahmedabad

ITA 135/AHD/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 8823 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 23-10-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 11-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: APPORNA AGARWAL
• Keywords: Business income; Rule of consistency; Question of law

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO.135/AHD/2018 / ASSTT. YEAR: 2013-14 GULMOHAR PARK MALL P.LTD. GULMOHAR PARK SATELLITE ROAD AHMEDABAD 380052. PAN : AACCN 2111 Q VS. DCIT, CIR.2(1)(1) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI TUSHAR P. HEMANI, AR REVENUE BY : SMT.APPORNA AGARWAL,CIT-DR ! / DATE OF HEARING : 23/10/2019 '#$ ! / DATE OF PRONOUNCEMENT: 21 /11/2019 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF THE LD.CIT(A)-2, AHMEDABAD DATED 4.12.2017 PASSED FOR T HE ASSTT.YEAR 2013-14. 2. ASSESSEE HAS RAISED SIX GROUNDS IN THE APPEAL, O UT OF WHICH GROUND NO.3 TO 6 ARE NOT PRESSED FOR ADJUDICATION. THEY ARE ACCORDINGLY DISMISSED FOR WANT OF PROSECUTION. 3. REMAINING GROUNDS FOR ADJUDICATION I.E GROUND NO .1 AND 2 OF THE APPEAL READS AS UNDER: ITA NO.135/AHD/2018 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN CONFIRMING THAT INCOME OF RS. 9,04,49,999/- IS TAXABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY AS AGAINST UNDER THE HEAD INCOME FROM BUSI NESS AND PROFESSION OFFERED IN THE RETURN OF INCOME OF T HE APPELLANT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LEARNED CIT(A) ERRED IN REJECTING THE RELEVANT GROU ND NO.3 RAISED BY THE APPELLANT BEFORE HIM TO THE EFFECT TH AT LD. A.O. ERRED IN RESTRICTING THE DEDUCTION TOWARDS INTEREST ON BORROWED FUND TO RES. 6,33,14,999/-. THE ASSESSEE H AS INCURRED INTEREST EXPENDITURE OF RS. 6,77,22,853/- BEING INTEREST ON BORROWED FUND WHICH WERE UTILIZED FOR CONSTRUCTING THE HOUSE PROPERTY AND ACQUIRING THE P LANTS & MACHINERY AND EQUIPMENT WHEREFROM INCOME WAS DERIVE D. THE A.O. OUGHT TO HAVE ALLOWED THE DEDUCTION TOWARD S THE INTEREST EXPENSE OF RS. 6,77,22,853/- IN COMPUTATIO N OF TOTAL INCOME.: 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE-COM PANY IS ENGAGED IN THE BUSINESS OF CONSTRUCTING, DEVELOPING FULLY EQUIPPED RETAIL MALLS, SHOPPING COMPLEXES ETC. THE ASSESSEE IS ALSO OPERATING AND RUNNING A FULLY EQUIPPED RETAIL MALL KNOWN AS GULMOHAR PARK. IT HAS FILED RETURN OF INCOME ON 30.9.2013 DECLARING TOTAL INCOME AT RS.NIL. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND NOTICE UNDER S ECTION 143(2)WAS ISSUED AND SERVED UPON THE ASSESSEE. DUR ING THE ASSESSMENT PROCEEDINGS, THE LD.AO NOTICED THAT THE ASSESSEE HAS EARNED INCOME FROM VARIOUS LET OUT PROPERTIES, WHIC H WAS TREATED BY THE ASSESSEE AS BUSINESS INCOME. THE LD.AO SOUG HT EXPLANATION FROM THE ASSESSEE AS TO WHY INCOME EARN ED BY THE ASSESSEE FROM LET OUT PROPERTIES BE NOT TREATED AS INCOME FROM HOUSE PROPERTY. THE LD.AO BASED ON THE DECISION O F EARLIER YEARS I.E. 2010-11 AND 2011-12, HELD THAT IN ORDER TO MAI NTAIN ITA NO.135/AHD/2018 3 CONSISTENCY WITH THE EARLIER YEARS, THE INCOME FROM LET OUT PROPERTIES IS TO BE TREATED AS INCOME FROM HOUSE PR OPERTY. APPEAL BEFORE THE LD.CIT(A) DID NOT YIELD ANY SUCCESS. HE NCE, THE ASSESSEE IS NOW BEFORE THE TRIBUNAL. 5. BEFORE US, THE LD.COUNSEL FOR THE ASSESSEE FILED WRITTEN SYNOPSIS WHICH IS RUNNING OVER 25 PAGES. THE SAME IS PLACED ON RECORD. IT IS INTER ALIA PLEADED THAT THE ASSESSEE GIVES SPACE IN THE MALL TO THE LICENSEES PURELY ON LEAVE AND LICEN SE BASIS FOR CONDUCTING AND OPERATING RETAIL STORE. BESIDES INCO ME FROM LET OUT PROPERTIES, IT ALSO DERIVES INCOME FROM PROVIDING O THER SERVICES ON THE BASIS OF THE AGREEMENT MADE WITH THE PARTIES. THE ASSESSEE HAS SHOWN BUSINESS REVENUE OF RS.1166.68 LAKHS IN I TS AUDITED ANNUAL ACCOUNTS, WHICH SHOWED THAT THE ASSESSEE IS ALSO GETTING INCOME FROM OTHER SOURCES AS PER THE AGREEMENT. TH E ASSESSEE HAS TO PERFORM CONTRACTUAL OBLIGATIONS SUCH AS PROV IDING VARIOUS FACILITIES, AMENITIES AND SERVICES TO THE LICENSEE/ VISITORS. IT IS FURTHER PLEADED THAT THESE ACTIVITIES REQUIRE CONTI NUOUS MANAGEMENT, MONITORING AND ATTENTION AND FOR THE SA ME THE ASSESSEE HAS EMPLOYED NUMBER OF PERSONNEL ON PERMAN ENT BASIS, AND THEREFORE, MANAGEMENT AND ADMINISTRATION OF THE SHOPPING MALL IS THE SOLE RESPONSIBILITY OF THE ASSESSEE. T HE ASSESSEE IS CARRYING OUT SYSTEMATIC BUSINESS ACTIVITIES AS A ON E-UNIT, WHICH ARE INSEPARABLE. THE RENTAL INCOME IS PART AND PAR CEL OF THE BUSINESS ACTIVITIES OF THE ASSESSEE-COMPANY. IT IS REITERATED THAT THE INTENTION OF THE ASSESSEE IS TO COMMERCIALLY EX PLOIT THE PROPERTY BY WAY OF COMPLEX COMMERCIAL ACTIVITIES AN D IT IS NOT A CASE OF LET OUT THE PROPERTY SIMPLICITOR . THE RENTAL INCOME AND ITA NO.135/AHD/2018 4 THE SERVICE CHARGES THUS ARE RECEIVED BY THE ASSESS EE AS BUSINESS INCOME DURING THE COURSE OF BUSINESS CARRIED OUT BY THEM OF OPERATING AND RUNNING MALL A S A COMMERCIAL ACTIVITY. IN ITS SUBMISSIONS, THE ASSESSEE HAS RELIED ON VARIOUS JUD GMENTS TO SUPPORT THE CASE OF THE ASSESSEE THAT SINCE THE INT ENTION OF THE ASSESSEE WAS TO EXPLOIT THE PROPERTY COMMERCIALLY, THE INCOME RECEIVED FOR LETTING OUT OF THE PROPERTY WAS TO BE ASSESSED UNDER THE HEAD BUSINESS INCOME. THE LD.COUNSEL FOR THE ASSESSEE ALSO DRAWN TO OUR ATTENTION THAT IN EARLIER YEARS ALSO S IMILAR CLAIM WAS MADE BY THE ASSESSEE. THE ISSUE WENT UPTO THE TRI BUNAL, AND THE TRIBUNAL IN ITA NOS.3559 & 3560/AHD/2015 ALLOWED TH E CLAIM OF THE ASSESSEE AND DIRECTED THE AO TO TREAT THE INCOM E RECEIVED BY THE ASSESSEE BY LETTING OUT OF THE PROPERTY AS INCO ME FROM BUSINESS. IN THIS YEAR ALSO, FACTS ARE IDENTICAL, AND THEREFORE, CLAIM OF THE ASSESSEE FOR A.Y YEAR 2013-14 BE ALLOW ED. HE PLACED ON RECORD COPY OF THE ORDER OF THE TRIBUNAL DATED 2 7.8.2019. ON THE OTHER HAND, THE LD.DR SUPPORTED ORDERS OF THE R EVENUE AUTHORITIES. 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND GONE TH ROUGH THE RECORD CAREFULLY. WE HAVE ALSO GONE THROUGH ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2010-11 AND 2011-12. WE FIND THAT ISSUES RAISED IN THIS YEAR ARE SIMILAR TO ASSESSMENT YEAR 2010-11 AND 2011-12. BEFORE US, TH IS IS NOT A VEXED ISSUE, BECAUSE THE ASSESSEE IS CONTINUOUSLY C LAIMING THE SAME CLAIM RIGHT FROM THE ASSTT.YEAR 2009-10, AND T HE TRIBUNAL HAS ALSO UPHELD THE TREATMENT OF INCOME EARNED BY T HE ASSESSEE UNDER THE INCOME FROM BUSINESS OR PROFESSION. THE DISCUSSION ITA NO.135/AHD/2018 5 MADE BY THE TRIBUNAL WHILE ALLOWING THE CLAIM OF TH E ASSESSEE READS AS UNDER: 7. WE HAVE NOTED THAT IN ASSESSEES OWN CASE FOR T HE ASSESSMENT YEAR 2009- 10, THE ASSESSING OFFICER HIMSELF HAS AC CEPTED THE TREATMENT OF INCOME IN QUESTION AS PROFITS AND GAI NS FROM BUSINESS OR PROFESSION. NO DOUBT THE PRINCIPLES OF RES JUDICATA DO NOT APPLY TO THE INCOME-TAX PROCEEDINGS, BUT WHERE A FUNDAMENTAL ASPECT PERMEATING THROUGH DIFFERENT ASS ESSMENT YEARS HAS BEEN FOUND AS A FACT ONE WAY OR THE OTHER AND PARTIES HAVE ALLOWED THAT POSITION TO BE SUSTAINED BY NOT C HALLENGING THE ORDER, IT WOULD NOT BE AT ALL APPROPRIATE TO ALLOW THE POSITION TO BE CHANGED IN A SUBSEQUENT YEAR. THIS IS SO HELD BY TH E HONBLE SUPREME COURT IN THE CASE OF RADHASOAMI SATSANG V. CIT [1992] 193 ITR 321 (SC). IN THIS PERSPECTIVE, WHEN WE APPR OACH THE FACTS OF THE PRESENT CASE, WE FIND THAT WHETHER THE INCOME IN QUESTION IS TO BE TREATED AS INCOME FROM HOUSE PROP ERTY OR INCOME FROM BUSINESS OR PROFESSION IS A QUESTION WH ICH MUST DEPEND ON THE APPRECIATION OF COMPLEX WEB OF FACTS PERTAINING TO THE SERVICES OFFERED BY MALL TO, AND FOR, THOSE OCC UPYING THE BUSINESS PREMISES ON SUCH MALL. ONCE THE ASSESSING OFFICER HIMSELF COMES TO THE CONCLUSION THAT GIVEN THE COMP LEXITY OF THESE SERVICES AND ALL THESE FACTS BEING TAKEN AS I NTEGRATED WHOLLY THE INCOME IN QUESTION IS TO BE TAXED AS BUSINESS I NCOME, IT WOULD NOT AT ALL APPROPRIATE FOR THE ASSESSING OFFICER TO DEVIATE FROM SUCH A STAND, WITHOUT ANY MATERIAL CHANGE IN THE FA CTS AND CIRCUMSTANCES IN A SUBSEQUENT YEAR. IN ANY EVENT, T HE MAINTENANCE CHARGE FOR COMMON AREA MAINTENANCE IS O NLY ONE OF THE SEGMENTS OF SERVICES PROVIDED TO THE UNIT HOLDE RS IN THE MALL. THE COMMON AREA MAINTENANCE IS ONE ASPECT WHERE COS TS ARE SHARED BUT THAT DOES NOT MEAN THAT ALL OTHER SERVIC ES AND AMENITIES ESSENTIAL TO SMOOTH FUNCTIONING AND CONDU CIVE TO BUSINESS, CAN BE IGNORED FOR THE PURPOSE OF ASCERTA INING THE NATURE OF BUSINESS MODEL. IT, THEREFORE, CANNOT BE SAID, ON THE FACTS AND CIRCUMSTANCES THAT ALL THE SERVICES WHICH HAVE BEEN PROVIDED TO THE UNIT HOLDERS HAVE BEEN SEPARATELY T AXED AS BUSINESS INCOME. THE FACT REMAINS THAT EVEN THOUGH COMMON AREA MAINTENANCE SERVICES ARE CHARGED FOR CERTAIN S ERVICES, THERE ARE LARGER NUMBER OF SERVICES SUCH AS ROUND-THE-CLO CK SECURITY, ELECTRIFICATION, CLEANLINESS, PARKING SERVICES AND MOST OF OTHER SERVICES WHICH ARE INTEGRATED AND ESSENTIAL FOR SUC CESSFUL OPERATION OF MALL, CONSIDERATION FOR WHICH IS INCLU DED IN THE ITA NO.135/AHD/2018 6 CHARGES RECEIVED FROM UNIT HOLDERS. THE FACT THAT T HESE UNIT HOLDERS TREAT THESE CHARGES AS RENT SIMPLICITER AND TAX DEDUCTED AT SOURCE UNDER SECTION 194-I CANNOT DETERMINE THE QUESTION OF TAXABILITY IN THE HANDS OF THE RECIPIENT. IN THE BU SINESS MODEL EMBEDDED BY THE OPERATION OF THE SHOPPING MALL, AS WE HAVE POINTED OUT EARLIER, A COMPLEX WEB OF INTEGRATED SE RVICES ARE TO BE PROVIDED AND THE CONSIDERATION RECEIVED FROM THO SE OCCUPYING THE BUSINESS PREMISES IS NOT SIMPLY AS SUCH RENT FO R THE PREMISES. AS WE HOLD SO, WE FIND SUPPORT FROM HONBLE SUPREME COURTS JUDGMENT IN THE CASE OF CIT VS. E CITY REAL ESTATE (P.) LTD., [2018] 100 TAXMANN.COM 94 (SC), WHEREIN THEIR LORDS HIPS HAS, INTER ALIA, OBSERVED AS FOLLOWS:- 14. IN THE PRESENT CASE, THE FACTS ARE OTHERWISE. THE SUBSTANTIVE INCOME OF THE ASSESSEE IS FROM LEASING OUT THE SHOP/STALLS. 15. THE TRIBUNAL IN ITS JUDGMENT, WHILE APPRECIATIN G THE FACTS, HAS OBSERVED THAT THE VARIOUS MALLS ARE BUIL T BY ASSESSEE AND ARE OPERATED FROM THE YEAR 2001. THE OPERATIONAL INCOME RECEIVED FROM THE SAID ACTIVITY, IN THE FORM OF RENT, AND OTHER SERVICE CHARGES WAS CONSIST ENTLY OFFERED TO TAX AS ITS BUSINESS INCOME IN THE EARLIE R YEARS AND THE SAME WAS ACCEPTED BY THE DEPARTMENT AS A BUSINE SS INCOME. AFTER DEMERGER, BOTH THE ASSESSEE COMPANIES TOOK OVER THE ASSETS AND LIABILITIES OF THE DEMERGED COM PANY AND CONTINUED THE SAME BUSINESS OF OPERATING AND RUNNIN G THE MALLS. THE TRIBUNAL HAS CONSIDERED THE NATURE OF TH E BUSINESS ACTIVITIES OF THE ASSESSEE COMPANY, AS WEL L AS, TERMS AND CONDITIONS OF THE RELEVANT AGREEMENTS, UN DER WHICH THE COMMERCIAL SPACE IN THE MALL WAS GIVEN ON HIRE BY THE ASSESSEE COMPANIES TO THE CONCERNED PARTIES. IT ALSO CONSIDERED THE VARIOUS SERVICES PROVIDED BY THE ASS ESSING COMPANIES DURING THE COURSE OF OPERATION AND RUNNIN G OF THE FAMILY ENTERTAINMENT CENTRE-CUM-MALLS. ON APPRECIATION OF FACTS, THE COMMISSIONER (APPEALS) A ND THE TRIBUNAL HAVE CONCURRENTLY ARRIVED AT A CONCLUSION THAT THE INTENTION OF THE ASSESSING COMPANIES WAS TO COMMERC IALLY EXPLOIT THE PROPERTY BY WAY OF COMPLEX COMMERCIAL ACTIVITIES AND IT WAS NOT A CASE OF LETTING OUT THE PROPERTY SIMPLICITOR. THE RENTAL INCOME AND THE SERVICE CHAR GES THUS WERE RECEIVED BY THE ASSESSEE COMPANY AS BUSINESS INCOME DURING THE COURSE OF BUSINESS CARRIED OUT BY THEM OF OPERATING AND RUNNING A MALL AS A COMMERCIAL ACTIVI TY. THE FACTS OF THE PRESENT CASE ARE MUCH SIMILAR TO THE C ASE OF ITA NO.135/AHD/2018 7 CHENNAI PROPERTIES AND INVESTMENTS LTD. (REFERRED T O SUPRA). 16. WE FIND THAT THE APPRECIATION OF EVIDEN CE BY THE COMMISSIONER (APPEALS) AND TRIBUNAL IS NOT PERVERSE AND THE FINDING ARRIVED AT BY THEM IS PLAUSIBLE ONE. 8. SPECIFICALLY DEALING WITH A MATERIALLY SIMILAR Q UESTION, THE HONBLE KERALA HIGH COURT IN THE CASE OF CIT VS. OB ERON EDIFICES & ESTATES (P) LTD, REPORTED IN [2019] 103 TAXMANN.COM 413 (KERALA), HAVE, INTER ALIA, OBSERVED AS FOLLOWS:- 27. IN THE INSTANT CASE, IT IS NOT A LETTING OUT O F PROPERTY SIMPLICITER, WITHOUT ANYTHING MORE. A HOST OF SERVI CES ARE BEING PROVIDED BY THE ASSESSEE AT THE SHOPPING MALL . THE ASSESSEE IS ENGAGED IN A COMPLEX SET OF ACTIVITIES AT THE SHOPPING MALL. MANAGEMENT OF THE SHOPPING MALL IS D ONE BY THE ASSESSEE. THE BASIC PURPOSE IS COMMERCIAL EXPLO ITATION OF THE PROPERTY. THE ASSESSEE HAS EARNED THE INCOME NOT MERELY BY LETTING OUT THE SHOP ROOMS BUT ALSO BY PR OVIDING AMENITIES AND FACILITIES AT THE SHOPPING MALL. SUCH AMENITIES AND FACILITIES ARE NOT THE BASIC FACILITIES REQUIRE D FOR OCCUPATION OF A SHOP ROOM BY A TENANT. THEY ARE THE SPECIAL FACILITIES FOR RUNNING THE SHOPPING MALL AND ARE ME ANT TO ATTRACT THE CUSTOMERS AND PROVIDE THEM THE COMFORT AND CONVENIENCE OF SHOPPING. IN CASES WHERE THE INCOME RECEIVED IS NOT FROM THE BARE LETTING OUT THE PROPE RTY BUT ON ACCOUNT OF THE FACILITIES AND SERVICES RENDERED, TH E OPERATIONS INVOLVED IN SUCH LETTING OUT IS IN THE N ATURE OF BUSINESS AND THE INCOME DERIVED THEREFROM HAS TO BE TREATED AS BUSINESS INCOME AND NOT INCOME FROM PROP ERTY. THE INCOME DERIVED BY THE ASSESSEE CANNOT BE REGARD ED AS SIMPLY FROM THE EXERCISE OF PROPERTY RIGHT. WHERE T HE ASSESSEE COMPANY HAS DEVELOPED THE SHOPPING MALL AN D LET OUT THE SAME BY PROVIDING A VARIETY OF SERVICES, FA CILITIES AND AMENITIES IN THE MALL, IT CAN BE FOUND THAT THE PRIMARY INTENTION OF THE ASSESSEE WAS COMMERCIAL EXPLOITATI ON OF THE PROPERTY AND WHERE IT HAS DERIVED SUBSTANTIAL PART OF ITS INCOME BY SUCH ACTIVITY, WHICH CONSTITUTES ITS MAIN BUSINESS, THE INCOME SO DERIVED WOULD BE BUSINESS I NCOME OF THE ASSESSEE. WE, THEREFORE, AGREE WITH THE VIEW OF THE TRIBUNAL THAT THE INCOME DERIVED BY THE ASSESSEE BY LETTING OUT THE SHOPS IN THE MALL HAS TO BE ASSESSED AS INC OME FROM BUSINESS AND NOT AS INCOME FROM HOUSE PROPERTY. 28. ON THE BASIS OF THE DISCUSSION ABOVE, WE FIND T HAT THE AMOUNT RECEIVED BY THE ASSESSEE COMPANY ON LETTING OUT THE SHOP ROOMS IN THE MALL CONSTRUCTED BY IT HAS TO BE ITA NO.135/AHD/2018 8 TREATED AS BUSINESS INCOME AND IT HAS TO BE ASSESSE D TO TAX UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS' AND NOT UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY'. THE SUBSTANTIAL QUESTION OF LAW IS ANSWERED IN FAVOUR O F THE ASSESSEE AND AGAINST THE REVENUE. 9. IN VIEW OF THE ABOVE DISCUSSIONS, AS ALSO BEARIN G IN MIND ENTIRETY OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE AUTHORITIES BELOW WERE INDEED IN ERROR IN TREATING THE CONSIDERATION RECEIVED BY THE ASSESSEE FOR COMMERCI AL SPACE GIVEN IN THE MALL TO VARIOUS PERSONS AS INCOME FROM HOUSE PROPERTY. WE VACATE THE ACTION OF THE AUTHORITIES B ELOW AND DIRECT THAT THE SAID INCOME BE TREATED AS PROFITS AND GAIN S FROM BUSINESS OR PROFESSION. AS THIS CORE ISSUE HAS BEEN DECIDED BY US IN FAVOUR OF THE ASSESSEE, ALL OTHER ISSUES ARE RENDERED ACAD EMIC AND INFRUCTUOUS. THE APPEAL OF THE ASSESSEE IS THUS ALL OWED. THE LD.DR HAS NOT POINTED OUT ANY FUNDAMENTAL CHANG ES IN THE FACTS OF THIS YEAR WITH THAT OF EARLIER YEARS, SO A S TO PROMPT TO US TO TAKE A DIFFERENT VIEW. RATHER, BOTH THE REVENU E AUTHORITIES GONE TO RECORD A FINDING THAT THERE IS NO CHANGE IN THE FACTS AND TO MAINTAIN CONSISTENCY WITH THE EARLIER YEARS, INCOME OF THE ASSESSEE IS TO BE TREATED AS INCOME FROM HOUSE PROP ERTY. SINCE IDENTICAL ISSUE WAS DEALT WITH BY THE TRIBUNAL IN E ARLIER YEARS, AS CITED (SUPRA) IN THE ASSESSEES OWN CASES, FOLLOWIN G THE PRINCIPLE OF CONSISTENCY, WE DIRECT THE AO TO TREAT THE IMPUG NED INCOME EARNED BY THE ASSESSEE UNDER PROFIT AND GAINS FROM BUSINESS OR PROFESSION. 7. IN GROUND NO.2, THE ASSESSEE IS AGGRIEVED BY THE ACTION OF THE REVENUE IN RESTRICTING THE DEDUCTION TOWARDS IN TEREST ON BORROWED FUNDS AND NOT ALLOWING THE SAME TO BE SET OFF AGAINST THE INCOME FROM BUSINESS. IN THE FOREGOING PARAGRA PH, WE HAVE HELD THAT INCOME EARNED BY THE ASSESSEE IS TO BE TR EATED UNDER THE HEAD PROFITS AND GAINS FROM BUSINESS OR PROFES SION, AS A ITA NO.135/AHD/2018 9 CONSEQUENCE THEREOF, THIS EXPENDITURE IS ALSO TO BE CONSIDERED FROM THAT ANGLE. ACCORDINGLY, THIS GROUND IS ALLOW ED. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 21 ST NOVEMBER, 2019. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER