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

ITA 1718/AHD/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1813 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-01-2020
• Assessment Year: 2015-2016
• Appeal Filed On: 31-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KISHAN VYAS
• Keywords: Business income; Rule of consistency
• Section: 143(3); 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (VIRTUAL COURT) BEFORE: SHRI AMARJIT SINGH, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIA L MEMBER GULMOHAR PARK MALL PVT. LTD., GULMOHAR PARK, SATELLITE ROAD, AHMEDABAD PAN: AACCN2111Q (APPELLANT) VS THE ACIT, CIRCLE-2(1)(1), AHMEDABAD (RESPONDENT) REVENUE BY: SHRI KISHAN VYAS, CIT-D.R. ASSESSEE BY: SHRI TUSHAR HEMANI, SR . A.R. AND SHRI P.B. P ARMAR, A.R. DATE OF HEARING : 12-01-2021 DATE OF PRONOUNCEMENT : 19-02-202 1 /ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- THIS ASSESSEES APPEAL FOR A.Y. 2015-16, ARISES FRO M ORDER OF THE CIT(A)-2, AHMEDABAD DATED 16-07-2018, IN PROCEEDIN GS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE A CT. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE, THE LEARNED CIT(A) ERRED IN CONFIRMING THAT INCOME OF RS. 7,93,93,398/- IS TAXA BLE 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 THE APPELLANT. ITA NO. 1718 /AHD/2018 ASSESSMENT YEAR 2015-16 I.T.A NO. 1718/AHD/2018 A.Y. 2015-16 PAGE NO GULMOHAR PARK MALL PVT. LTD. VS. ACIT 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE APPELLANT'S CASE, THE LEARNED CIT(A) ERRED IN NOT ALLOWING DEDUCTION IN RESPECT OF VARIOUS EXPEND ITURE INCURRED DURING THE YEAR AGAINST COMMON AREA MAINTENANCE INCOME AND SPACE SELLING INCOME TA X AS INCOME FROM BUSINESS AND PROFESSION. 3. THE FACT IN BRIEF IS THAT RETURN OF INCOME DECLA RING TOTAL LOSS OF RS. (-)2,35,58,479/- WAS FILED ON 30 TH SEP, 2015. THE CASE WAS SUBJECT TO SCRUTINY ASSESSMENT AND NOTICE U/S. 143(2) OF THE A CT WAS ISSUED ON 21ND MARCH, 2016. DURING THE COURSE OF ASSESSMENT, THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAS EARNED INCOME FROM VARIOU S LET OUT PROPERTIES AND SHOWN THE SAME AS BUSINESS INCOME BY MAKING REFEREN CE TO THE EARLIER ASSESSMENT YEAR. THE ASSESSING OFFICER HAS ASKED T HE ASSESSEE TO EXPLAIN WHY THE INCOME EARNED FROM VARIOUS LET OUT PROPERTI ES SHOULD NOT BE TREATED AS INCOME FROM HOUSE PROPERTY AS TREATED IN EARLIER ASSESSMENT YEAR. THE ASSESSEE HAS SUBMITTED DETAILED SUBMISSION PRODUCED AT PAGE NO. 3 TO 10 OF THE ASSESSMENT ORDER STATING THAT ASSESSEE COMPANY WAS ENGAGED IN THE BUSINESS OF CONSTRUCTION, DEVELOPING MALLS AND SHOP PING COMPLEX. IT WAS ALSO EXPLAINED THAT ASSESSEE WAS OPERATING AND RUNN ING FULLY EQUIPPED RETAIL MALL KNOWN AS GULMOHAR PARK AND ASSESSEE WAS HAVING NECESSARY STAFF, INFRASTRUCTURE AND OTHER EQUIPMENT TO CARRY ON ITS BUSINESS OF OPERATING THE MALL. THE ASSESSEE PROVIDES SPACE IN THE MALL TO T HE LICENSEE ON LEASE AND LICENCE BASES FOR CONDUCTING AND OPERATING A RETAIL STORE. THE MANAGEMENT AND ADMINISTRATION OF THE SHOPPING MALL WAS THE SOL E RESPONSIBILITY OF THE ASSESSEE. AFTER GIVING THE DETAIL OF TERMS AND CON DITIONS OF THE AGREEMENT, THE ASSESSEE HAS STATED THAT THE MAIN OBJECT OF THE BUSINESS OF THE ASSESSEE WAS OF CONSTRUCTING, OPERATING AND MAINTAINING OF T HE MALL AND NOT MERELY OF LETTING OF ANY PARTICULAR PROPERTY. THE RENTAL INC OME AND THE SERVICE CHARGES WERE ITS BUSINESS INCOME FROM THE BUSINESS OF OPERA TING AND RUNNING A MALL I.T.A NO. 1718/AHD/2018 A.Y. 2015-16 PAGE NO GULMOHAR PARK MALL PVT. LTD. VS. ACIT 3 AS A COMMERCIAL ACTIVITY. THE ASSESSING OFFICER H AS NOT ACCEPTED THE DETAILED SUBMISSION AND SUPPORTING MATERIAL FURNISH ED BY THE ASSESSEE AND AFTER REFERRING THE EARLIER ASSESSMENT YEAR IN ORDE R TO MAKE CONSISTENCY STATED THAT INCOME EARNED BY THE ASSESSEE FROM VARI OUS LET OUT PROPERTIES WAS TREATED AS INCOME FROM HOUSE PROPERTY INSTEAD OF BU SINESS INCOME. 4. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE L D. CIT(A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. 5. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFOR E US, THE LD. COUNSEL HAS SUBMITTED THAT IDENTICAL ISSUE ON SIMILAR FACT HAS BEEN ADJUDICATED IN FAVOUR OF THE ASSESSEE BY THE CO-ORDINATE BENCH OF THE ITAT FOR ASSESSMENT YEAR 2010-11 TO 2011-12 VIDE ITA NO. 3559 & 3560/AH D/2015 DATED 27-08- 2019. THE LD. DEPARTMENTAL REPRESENTATIVE IS FAIR ENOUGH NOT TO CONTROVERT THESE UNDISPUTED FACT THAT THE ISSUE IN THE APPEAL IS COVERED BY THE DECISION OF CO-ORDINATE BENCH OF THE ITAT IN THE CASE OF THE ASSESSEE ITSELF AS REFEREED BY THE LD. COUNSEL. 6. HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DEVELOPING A ND MAINTAINING PROPERTIES AND MALLS. DURING THE YEAR UNDER CONSI DERATION, THE ASSESSING OFFICER HAS TREATED THE INCOME FROM LET OUT OF VARI OUS PROPERTIES IN THE MALL UNDER THE HEAD HOUSE PROPERTY AS DONE IN THE EARLIE R YEAR IN ORDER TO MAINTAIN CONSISTENCY. WITH THE ASSISTANCE OF LD. REPRESENTA TIVES, WE HAVE GONE THROUGH THE DECISION OF CO-ORDINATE BENCH OF THE IT AT FOR ASSESSMENT YEAR 2010-11 TO 2013-14 AND NOTICED THAT SIMILAR ISSUE O N IDENTICAL FACTS HAS BEEN I.T.A NO. 1718/AHD/2018 A.Y. 2015-16 PAGE NO GULMOHAR PARK MALL PVT. LTD. VS. ACIT 4 DECIDED IN FAVOUR OF THE ASSESSEE VIDE ITA NO. 3359 /AHD/2015, ITA NO. 3560/AHD/2015 AND ITA NO. 135/AHD/2018. THE DISCUS SION MADE BY THE TRIBUNAL WHILE ALLOWING THE CLAIM OF THE ASSESSEE F OR ASSESSMENT YEAR 2013- 14 VIDE ITA NO. 135/AHD/2018 IS REPRODUCED AS UNDER :- 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND GONE T HROUGH 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, THIS IS NOT A VEXED ISSUE, BECAUSE THE ASSESSEE IS CONTINUO USLY CLAIMING THE SAME CLAIM RIGHT FROM THE ASSTT.Y EAR 2009-10, AND THE TRIBUNAL HAS ALSO UPHELD THE TREAT MENT OF INCOME EARNED BY THE ASSESSEE UNDER THE INC OME FROM BUSINESS OR PROFESSION. THE DISCUSSION MADE B Y THE TRIBUNAL WHILE ALLOWING THE CLAIM OF THE ASSE SSEE READS AS UNDER: 7. WE HAVE NOTED THAT IN ASSESSEES OWN CASE FOR T HE ASSESSMENT YEAR 2009- 10, THE ASSESSING OFFICER HIMSELF HAS ACCEPTED THE TREATMENT OF INCOM E IN QUESTION AS PROFITS AND GAINS FROM BUSINESS OR PROFESSION. NO DOUBT THE PRINCIPLES OF RES JUDICATA DO NOT APPLY TO THE INCOME-TAX PROCEEDINGS, BUT WHERE A FUNDAMENTAL ASPECT PERMEAT ING THROUGH DIFFERENT ASSESSMENT YEARS HAS BEEN FOUND AS A FACT ONE WAY OR THE OTHER AND PARTI ES HAVE ALLOWED THAT POSITION TO BE SUSTAINED BY NOT CHALLENGING THE ORDER, IT WOULD NOT BE AT ALL A PPROPRIATE TO ALLOW THE POSITION TO BE CHANGED IN A SUBSEQUENT YEAR. THIS IS SO HELD BY THE HONBLE S UPREME COURT IN THE CASE OF RADHASOAMI SATSANG V. CIT [1992] 193 ITR 321 (SC). IN THIS PER SPECTIVE, WHEN WE APPROACH THE FACTS OF THE PRESENT CASE, WE FIND THAT WHETHER THE INCOME IN QU ESTION IS TO BE TREATED AS INCOME FROM HOUSE PROPERTY OR INCOME FROM BUSINESS OR PROFESSION IS A QUESTION WHICH MUST DEPEND ON THE APPRECIATION OF COMPLEX WEB OF FACTS PERTAINING TO THE SERVICES OFFERED BY MALL TO, AND FOR, THOSE OCCUPYING THE BUSINESS PREMISES ON SUCH MALL. ONCE THE ASSESSING OFFICER HIMSELF COMES TO THE CONCLUSION THAT GIVEN THE COMPLEXITY OF THESE SERVI CES AND ALL THESE FACTS BEING TAKEN AS INTEGRATED WHOLLY THE INCOME IN QUESTION IS TO BE TAXED AS BUS INESS INCOME, IT WOULD NOT AT ALL APPROPRIATE FOR THE ASSESSING OFFICER TO DEVIATE FROM SUCH A STAND, WITHOUT ANY MATERIAL CHANGE IN THE FACTS AND CIRCUMSTANCES IN A SUBSEQUENT YEAR. IN ANY EVENT, T HE MAINTENANCE CHARGE FOR COMMON AREA MAINTENANCE IS ONLY ONE OF THE SEGMENTS OF SERVICES PROVIDED TO THE UNIT HOLDERS IN THE MALL. THE COMMON AREA MAINTENANCE IS ONE ASPECT WHERE COSTS A RE SHARED BUT THAT DOES NOT MEAN THAT ALL OTHER SERVICES AND AMENITIES ESSENTIAL TO SMOOTH FU NCTIONING AND CONDUCIVE TO BUSINESS, CAN BE IGNORED FOR THE PURPOSE OF ASCERTAINING THE NATURE OF BUSINESS MODEL. IT, THEREFORE, CANNOT BE SAID, ON THE FACTS AND CIRCUMSTANCES THAT ALL THE SERVICE S WHICH HAVE BEEN PROVIDED TO THE UNIT HOLDERS HAVE BEEN SEPARATELY TAXED AS BUSINESS INCOME. THE FACT REMAINS THAT EVEN THOUGH COMMON AREA MAINTENANCE SERVICES ARE CHARGED FOR CERTAIN SERVIC ES, THERE ARE LARGER NUMBER OF SERVICES SUCH AS ROUND-THE-CLOCK SECURITY, ELECTRIFICATION, CLEANLIN ESS, PARKING SERVICES AND MOST OF OTHER SERVICES WHICH ARE INTEGRATED AND ESSENTIAL FOR SUCCESSFUL O PERATION OF MALL, CONSIDERATION FOR WHICH IS INCLUDED IN THE CHARGES RECEIVED FROM UNIT HOLDERS. THE FACT THAT THESE UNIT HOLDERS TREAT THESE CHARGES AS RENT SIMPLICITER AND TAX DEDUCTED AT SOU RCE UNDER SECTION 194-I CANNOT DETERMINE THE QUESTION OF TAXABILITY IN THE HANDS OF THE RECIPIEN T. IN THE BUSINESS MODEL EMBEDDED BY THE OPERATION OF THE SHOPPING MALL, AS WE HAVE POINTED OUT EARLIER, A COMPLEX WEB OF INTEGRATED SERVICES ARE TO BE PROVIDED AND THE CONSIDERATION R ECEIVED FROM THOSE OCCUPYING THE BUSINESS PREMISES IS NOT SIMPLY AS SUCH RENT FOR THE PREMISE S. AS WE HOLD SO, WE FIND SUPPORT FROM HONBLE SUPREME COURTS JUDGMENT IN THE CASE OF CIT VS. E C ITY REAL ESTATE (P.) LTD., [2018] 100 TAXMANN.COM 94 (SC), WHEREIN THEIR LORDSHIPS HAS, I NTER 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 BUILT BY ASSESSEE AND ARE OPERATED FROM THE YEA R 2001. THE OPERATIONAL INCOME RECEIVED FROM THE SAID ACTIVITY, IN THE FORM OF RENT, AND OTHER S ERVICE CHARGES WAS CONSISTENTLY OFFERED TO TAX AS I TS BUSINESS INCOME IN THE EARLIER YEARS AND THE SAME W AS ACCEPTED BY THE DEPARTMENT AS A BUSINESS INCOME. AFTER DEMERGER, BOTH THE ASSESSEE COMPANIES TOOK OVER THE ASSETS AND LIABILITIES OF THE DEMERGED COMPANY AND CONTINUED THE SAME BUSINESS OF OPERATING AND RUNNING THE MALLS. THE TRIBUNAL HAS CONSIDERED THE NATURE OF THE BUSINESS ACTIVITIES OF THE ASSESSEE COMPANY, AS WELL AS, I.T.A NO. 1718/AHD/2018 A.Y. 2015-16 PAGE NO GULMOHAR PARK MALL PVT. LTD. VS. ACIT 5 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 ASSESSING COMPANIE S DURING THE COURSE OF OPERATION AND RUNNING OF THE FAMILY ENTERTAINMENT CENTRE-CUM-MALLS. ON AP PRECIATION OF FACTS, THE COMMISSIONER (APPEALS) AND THE TRIBUNAL HAVE CONCURRENTLY ARRIVE D AT A CONCLUSION THAT THE INTENTION OF THE ASSESSING COMPANIES WAS TO COMMERCIALLY 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 CHARGES THUS WERE RECEIVED BY THE ASSESSEE COMPANY AS BUSINESS INCOME DURING THE COURSE OF BUSINESS CARRIED OUT BY THEM OF OPERATING AND RU NNING A MALL AS A COMMERCIAL ACTIVITY. THE FACTS OF THE PRESENT CASE ARE MUCH SIMILAR TO THE CASE OF CHENNAI PROPERTIES AND INVESTMENTS LTD. (REFERRED TO SUPRA). 16. WE FIND THAT THE APPRECIAT ION OF EVIDENCE BY THE COMMISSIONER (APPEALS) AND TRIBUNAL IS NOT PERVERSE AND THE FINDING ARRIVE D 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. OBERON EDIFICES & ESTATES (P) LTD, REPORTED IN [2019] 103 TAXMANN.COM 413 (KERALA), HAVE, INTER AL IA, OBSERVED AS FOLLOWS:- 27. IN THE INSTANT CASE, IT IS NOT A LETTING OUT O F PROPERTY SIMPLICITER, WITHOUT ANYTHING MORE. A HO ST OF SERVICES ARE BEING PROVIDED BY THE ASSESSEE AT T HE SHOPPING MALL. THE ASSESSEE IS ENGAGED IN A COMPLEX SET OF ACTIVITIES AT THE SHOPPING MALL. MAN AGEMENT OF THE SHOPPING MALL IS DONE BY THE ASSESSEE. THE BASIC PURPOSE IS COMMERCIAL EXPLOITAT ION OF THE PROPERTY. THE ASSESSEE HAS EARNED THE INCOME NOT MERELY BY LETTING OUT THE SHOP ROOMS BUT ALSO BY PROVIDING AMENITIES AND FACILITIES AT THE SHOPPING MALL. SUCH AMENITIES AND FACILITIES ARE NOT THE BASIC FACILITIES REQUIRED FOR OCCUPATION OF A SHOP ROOM BY A TENANT. THEY ARE THE SPECIAL FACILITIES FOR RUNNING THE SHOPPING MALL AND ARE MEANT 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 PROPERTY BUT ON ACCOUNT OF THE FACILITIES AND SERVICES RENDERED, THE OPERATION S INVOLVED IN SUCH LETTING OUT IS IN THE NATURE OF BUSINESS AND THE INCOME DERIVED THEREFROM HAS TO BE TREATED AS BUSINESS INCOME AND NOT INCOME FROM PROPERTY. THE INCOME DERIVED BY THE ASSESSEE C ANNOT BE REGARDED AS SIMPLY FROM THE EXERCISE OF PROPERTY RIGHT. WHERE THE ASSESSEE COMPANY HAS D EVELOPED THE SHOPPING MALL AND LET OUT THE SAME BY PROVIDING A VARIETY OF SERVICES, FACILITIES AND AMENITIES IN THE MALL, IT CAN BE FOUND THAT TH E PRIMARY INTENTION OF THE ASSESSEE WAS COMMERCIAL EX PLOITATION OF THE PROPERTY AND WHERE IT HAS DERIVED SUBSTANTIAL PART OF ITS INCOME BY SUCH ACTI VITY, WHICH CONSTITUTES ITS MAIN BUSINESS, THE INCOME SO DERIVED WOULD BE BUSINESS INCOME OF THE A SSESSEE. WE, THEREFORE, AGREE WITH THE VIEW OF THE TRIBUNAL THAT THE INCOME DERIVED BY THE ASSESSE E BY LETTING OUT THE SHOPS IN THE MALL HAS TO BE ASSESSED AS INCOME 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 CONSTRUCT ED BY IT HAS TO BE TREATED AS BUSINESS INCOME AND IT HAS TO BE ASSESSED TO TAX UNDER THE HEAD 'PROFIT S AND GAINS OF BUSINESS' AND NOT UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY'. THE SUBSTANTIAL QUEST ION OF LAW IS ANSWERED IN FAVOUR OF 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 IND EED IN ERROR IN TREATING THE CONSIDERATION RECEIVED BY THE ASSESSEE FOR COMMERCIAL SPACE GIVEN IN THE MALL TO VARIOUS PERSONS AS INCOME FROM HOUSE PROPERTY. WE VACATE THE ACTION OF THE AUTHORI TIES BELOW AND DIRECT THAT THE SAID INCOME BE TREATED AS PROFITS AND GAINS FROM BUSINESS OR PROFE SSION. AS THIS CORE ISSUE HAS BEEN DECIDED BY US IN FAVOUR OF THE ASSESSEE, ALL OTHER ISSUES ARE REN DERED ACADEMIC AND INFRUCTUOUS. THE APPEAL OF THE ASSESSEE IS THUS ALLOWED. THE LD.DR HAS NOT POINTED OUT ANY FUNDAMENTAL CHANG ES IN THE FACTS OF THIS YEAR WITH THAT OF EARLIER Y EARS, SO AS TO PROMPT TO US TO TAKE A DIFFERENT VIEW. RATH ER, BOTH THE REVENUE AUTHORITIES GONE TO RECORD A F INDING THAT THERE IS NO CHANGE IN THE FACTS AND TO MAINTAI N CONSISTENCY WITH THE EARLIER YEARS, INCOME OF THE ASSESSEE IS TO BE TREATED AS INCOME FROM HOUSE PROPERTY. SI NCE IDENTICAL ISSUE WAS DEALT WITH BY THE TRIBUNAL IN EARLIER YEARS, AS CITED (SUPRA) IN THE ASSESSEES O WN CASES, FOLLOWING THE PRINCIPLE OF CONSISTENCY, W E DIRECT THE AO TO TREAT THE IMPUGNED INCOME EARNED BY THE A SSESSEE UNDER PROFIT AND GAINS FROM BUSINESS OR PROFESSION. I.T.A NO. 1718/AHD/2018 A.Y. 2015-16 PAGE NO GULMOHAR PARK MALL PVT. LTD. VS. ACIT 6 SINCE IDENTICAL ISSUE ON SIMILAR FACT HAS BEEN ADJU DICATED BY THE ITAT IN EARLIER YEARS AS SUPRA IN FAVOUR OF THE ASSESSEE TREATING THE SAID INCOME AS PROFIT AND GAIN FROM BUSINESS OR PROFESSION, THEREF ORE, WE DIRECT THE ASSESSING OFFICER TO ASSESSEE THE INCOME EARNED BY THE ASSESSEE UNDER THE HEAD PROFIT AND GAIN FROM BUSINESS OR PROFESSION. ACCORDINGLY, THIS APPEAL OF THE ASSESSE IS ALLOWED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASS ESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19-02-2021 SD/- SD/- (MADHUMITA ROY) (AMARJIT SINGH) JUDICIAL MEMBER A CCOUNTANT MEMBER AHMEDABAD : DATED 19/02/2021 / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,