JAFKAY P. LTD, MUMBAI V. ITO 4(2)(3), MUMBAI

ITA 1370/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79220 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 26-06-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 15-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VASANTI B PATEL
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH I, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 1370/MUM/2011 ASSESSMENT YEAR: 2007-08 JAFKAY PVT LTD., 212/A, HIND SAYRASHHTRA INDL ESTATE, ANDHERI (E), MUMBAI-400 059 PAN: AABCJ 0293 Q VS. ITO 4(2)(3), AAYAKAR BHAWAN, M.K.ROAD, MUMBAI- 400 020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SMT. VASANTI B PATEL REVENUE BY : SHRI SANJEEV JAIN DATE OF HEARING : 26.06.2014 DATE OF PRONOUNCEMENT : 26.06.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE LD.CIT(A)-10, MUMBAI DATED 09.12.2010 FOR THE ASSES SMENT YEAR 2007-08 2. IN GROUND NOS 1-5, THE ASSESSEE HAS AGITATED THE ACTION OF THE LD.CIT(A) CONFIRMING THE DECISION OF THE AO IN TAXING A SUM O F RS.46,22,310/- RECEIVED FROM BIRLA SUNLIFE INSURANCE CO LTD UNDER THE HEAD INCO ME FROM HOUSE PROPERTY AS AGAINST BUSINESS INCOME DECLARED BY THE ASSESSEE. 2.1 HAVING HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL ON RECORD, IT IS NOTED THAT ON THE SAME ISSUE, THE TRIBUNAL IN THE ASSESSE ES OWN CASE IN ITA NO. 3841/MUM/2010 FOR THE AY 2004-05, VIDE ITS ORDER DA TED 14.12.2012, RESTORED THE ISSUE BACK TO THE FILE OF THE AO TO VERIFY WHETHER THE ASSESSEE IS PROVIDING ANY SERVICE TO BIRLA SUNLIFE INSURANCE CO LTD AND DIREC TED THE AO THAT IN CASE THERE ARE ANY SERVICE ALONG WITH LEASING OUT OF THE PROPERTY, THEN TO THAT EXTENT, THE INCOME HAS TO BE ASSESSED AS BUSINESS INCOME OR FROM OTHER SOURCES DEPENDING ON THE FACT OF THE CASE. IT HAS BEEN BROUGHT TO OUR NOTICE THAT THE AO HAS GIVEN EFFECT TO THE ITA NO. 1370/MUM/2011 JAFKAY PVT LTD. ASSESSMENT YEAR: 2007-08 2 SAID ORDER OF THE TRIBUNAL VIDE HIS ORDER DATED 02. 05.2014 WHEREIN THE BIFURCATION OF THE INCOME ON ACCOUNT OF RENT AND FACILITIES HAVE B EEN WORKED OUT AT THE RATIO OF 70:30. THE AO, IN THE SAID ORDER, TREATED 30% OF TH E RECEIPT AS RECEIVED FOR OTHER SERVICES UNDER THE HEAD BUSINESS INCOME AND 70% O F THE RECEIPT AS RENT ON THE PROPERTY UNDER THE HEAD INCOME FROM HOUSE PROPERTY . IN VIEW OF THE FACT THAT THERE IS NO CHANGE IN RESPECT OF THE FACTS DURING THE YEA R UNDER CONSIDERATION, THE AO IS DIRECTED TO FOLLOW THE SAME ANALOGY FOLLOWED BY HIM IN THE EARLIER YEAR ALSO TO THE YEAR UNDER CONSIDERATION. WE DIRECT AND ORDER ACCOR DINGLY. 3. GROUND NO 6 IS NOT PRESSED BY THE ASSESSEE AND H ENCE THE SAME REQUIRES NO ADJUDICATION. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH DAY OF JUNE, 2014. SD/- SD/- (N.K. BILLAIYA) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 26.06.2014 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR I BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.