Sanat Das, Kolkata V. ITO, Ward - 28(3), Kolkata, Kolkata

ITA 1970/KOL/2010

• Counselvise Citation: 197023514 RSA 2010
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2011
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 11-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 22-10-2010
• Court: TRIBUNAL
• Department Lawyers: P C NAYAK
• Assessee Lawyers: S CHOWDHURY
• Keywords: Business income

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH A, KOLKATA () BEFORE , , , , SMT.DIVA SINGH, JUDICIAL MEMBER. /AND ! ! ! ! !' !' !' !' , #$ SHRI AKBER BASHA, ACCOUNTANT MEMBER % % % % / ITA NO . 1970/KOL/2010 &' ()/ ASSESSMENT YEAR : 2006-07 (+, / APPELLANT ) SANAT DAS, KOLKATA (PAN: ADRPD 9964 E) - & - - VERSUS - . (./+,/ RESPONDENT ) I.T.O., WARD-28(3), KOLKATA +, 0 1 #/ FOR THE APPELLANT: SHRI S.CHOWDHURY ./+, 0 1 #/ FOR THE RESPONDENT: SHRI P.C.NAYAK #' / ORDER ( (( ( ) )) ), ,, , PER SMT.DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-XIV, KOLKATA DATED 16.07.2010 PERTAINING TO 2006-07 ASSE SSMENT YEAR WHEREIN VARIOUS GROUNDS HAVE BEEN RAISED AGITATING THE ISSUE THAT T HE ASSESSEES RETURNED INCOME UNDER THE HEAD INCOME FROM BUSINESS HAS BEEN ASSESSED A S INCOME FROM HOUSE PROPERTY WHICH ACTION HAS BEEN UPHELD BY THE CIT(A). 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE AO IN THE SCRUTINY PROCEEDINGS OBSERVED THAT THE ASSESSEE HAS TREATED THE RENTAL I NCOME RECEIVED AMOUNTING TO RS.13,29,050/- FROM TOTAL 13 TENANTS AS BUSINESS INCOME AGAINST WHICH THE ASSESSEE HAS CLAIMED AN EXPENDITURE AGGREGATING TO RS.12,61, 224.10. THE AO WAS OF THE VIEW THAT THE RENTAL INCOME DERIVED FROM 13 TENANTS SHOU LD BE TREATED AS INCOME FROM HOUSE PROPERTY AS THE ASSESSEE IS THE SOLE OWNER O F THE SAID PROPERTY FROM WHICH THE 2 ASSESSEE WAS ENTITLED ONLY TO A DEDUCTION OF 30% OF THE ANNUAL VALUE AFTER DEDUCTING THE RESPECTIVE PANCHAYAT TAX ETC. THE ASSESSEE AS S UCH WAS REQUIRED TO SHOW AS TO WHY THE INCOME SHOULD NOT BE ASSESSED UNDER THE HEAD H OUSE PROPERTY AND THE EXPENSES CLAIMED BE DISALLOWED. CONSIDERING THE REPLY OF THE ASSESSEE THE AO WAS NOT CONVINCED. HE WAS OF THE VIEW THAT ON A PERUSAL OF THE COPIES OF THE AGREEMENT THERE WERE NO FACILITIES OR AMENITIES PROVIDE ON THE BASI S OF WHICH IT CAN BE SAID THAT IT WAS A BUSINESS ACTIVITY. THE FACT THAT OVER THE YEARS TH E SAID INCOME HAS BEEN CONSIDERED UNDER THE HEAD OF BUSINESS INCOME AND WAS ALSO FOUN D TO BE NOT ACCEPTABLE. LOOKING AT THE DEEDS AND THE NATURE OF SERVICES RENDERED, H E WAS OF THE VIEW THAT THESE WERE BASIC MINIMUM INFRASTRUCTURAL FACILITIES LIKE ELECT RICITY, WATER SUPPLY, LIGHTING ON THE APPROACH ROAD ETC. AND THE SAME DO NOT AMOUNT TO AM ENITIES AND FACILITIES PROVIDE TO THE TENANTS. RELIANCE WAS PLACED UPON THE FOLLOWING JUDGEMENTS :- I) CIT VS EAST INDIA HOUSING LAND DEVELOPMENT TRUST LTD. (1961) 47 ITR 49(SC) II) NARAYANDAS KISHANDUTTA VS CIT (1984) 149 ITR 63 6 (MP) III)K.RAMI REDDY & SONS VS ITO (1985) 14 ITD 108 (H YD.TRIB.) IV) CIT VS INDIAN WAREHOUSING INDUSTRIES LTD. (2002 ) 258 ITR 93 (MAD). ACCORDINGLY THE CLAIM OF THE ASSESSEE WAS DISMISSED . 2.1. CONSIDERING THE SUBMISSIONS ADVANCED ON BEHALF OF THE ASSESSEE WHICH ARE FOUND RECORDED IN PARA 3 OF THE IMPUGNED ORDER THE CIT(A) REJECTED THE CLAIM OF THE ASSESSEE VIDE PARA-4 HOLDING AS UNDER :- 4. I HAVE CONSIDERED THE ABOVE SUBMISSION OF TH E ASSESSEE. THE ARGUMENTS GIVEN BY THE ASSESSEE IN THIS SUBMISSION ARE DEALT BELOW. FIRST OF ALL THE ASSESSEE HAS CONTENDED THAT THE PREMISES LET-OUT BY HIM WAS INTENDED TO BE USED BY HIM FOR COMMERCIAL PURPOSES. THEY ARE BEING USED BY THE TENANTS FOR COMMERCIAL PURPOSES. THEREFORE THE RENT FROM THE PR EMISES USED FOR COMMERCIAL PURPOSES SHOULD BE TREATED AS BUSINESS I NCOME AND NOT INCOME FROM HOUSE PROPERTY I DO NOT AGREE WITH THESE ARGUM ENTS. AS PER SECTION 22 AND 23 OF THE I.T.ACT THE ANNUAL VALUE OF A PROPERTY CO NSISTING OF ANY BUILDING OR LANDS APPURTENANT THERE TO OWNED BY THE ASSESSEE IS CHARGEABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THESE SECTIONS DO NOT M ENTION ANYTHING ABOUT THE PROPOSED OR ACTUAL USE OF THE PROPERTY LET-OUT. IF THIS ARGUMENT OF THE ASSESSEE IS ACCEPTED THEN THE RENT RECEIVED BY A PER SON FOR A HOUSE LET-OUT BY HIM TO A BANK WILL BE TREATED AS BUSINESS INCOME AND NOT INC OME FROM HOUSE PROPERTY. BUT THAT IS NOT CORRECT. SECONDLY IT IS CLAIMED TH AT THE GODOWNS/WAREHOUSES HAVE BEEN LET-OUT FOR SHORT PERIOD OF TIME AS THE A SSESSEE COULD NOT USE THEM FOR 3 HIS OWN BUSINESS. THEREFORE THE RENT FROM THESE SHO ULD BE TREATED AS BUSINESS INCOME. I HAVE EXAMINED SOME OF THE LEASE AGREEMENT S FILED DURING THE APPELLATE PROCEEDING. I FIND THAT ALMOST ALL OF THE SE AGREEMENTS ARE FOR A PERIOD OF ABOUT 20 TO 25 YEARS. THEREFORE THIS CLAIM OF TH E ASSESSEE IS INCORRECT. THE GIVING OF THESE PREMISES ON RENT FOR LONG PERIOD IS RATHER AN INDICATION THAT THE ASSESSEE HAS ACTUALLY LET-OUT THE PROPERTY OWNED BY HIM AND THE INCOME FORM RENT IS ACTUALLY INCOME FROM HOUSE PROPERTY. THIRDL Y, THE ASSESSEE HAS CLAIMED THAT ALONG WITH THE SPACE IN HIS PREMISES HE HAS PR OVIDED A NUMBER OF FACILITIES ALSO TO HIS TENANTS AND THEREFORE, IT SHOULD BE TRE ATED AS A BUSINESS INCOME. I HAVE EXAMINED SOME OF THE LEASE AGREEMENTS. I FIND THAT IN THESE AGREEMENTS THERE IS MENTION THAT SOME PORTION OF THE LEASE AGR EEMENTS. I FIND THAT IN THESE AGREEMENTS THERE IS MENTION THAT SOME PORTION OF TH E LEASE AMOUNT CONSISTS OF CHARGES RELATED TO CERTAIN FACILITIES SUCH AS ELECT RICITY CONNECTION, WATER CHARGES, REPAIRS AND MAINTENANCE ETC. IT CAN BE SEE N THAT THESE FACILITIES ARE NOT ANY SPECIAL FACILITIES BUT ARE THE ONCE WHICH HAVE TO PROVIDED TO A TENANT IF ANY PROPERTY IS TO BE FUNCTIONALLY USED BY THE TENANT. WHEN WE TALK ABOUT LETTING OUT ANY HOUSE IT IS OBVIOUS THAT THE HOUSE IS BEING LET OUT INCLUDING THE ELECTRIC CONNECTION, WATER CONNECTION ETC. IT IS ALSO OBVIOU S THAT IN LIEU OF THE RENT, THE OWNER WILL CARRY OUT ANY REPAIRS AND MAINTENANCE IF REQUIRED IN THAT PROPERTY. THEREFORE I DO NOT FEEL THAT ASSESSEE HAS CREATED ANY MAJOR FACILITIES AND SUPPLIED THEM TO HIS TENANT ALONG WITH THE SPACE. T HEREFORE, THE RENT RECEIVED FROM THE TENANT IS NOTHING BUT INCOME COVERED UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THE ASSESSEE HAS ALSO CLAIMED THAT IN EARLIER YEARS ALL ALONG HE HAS BEEN SHOWING THE RENT RECEIPT AS BUSINESS INCOM E AND THEREFORE, FOR THE ASSESSMENT YEAR UNDER CONSIDERATION THE INCOME SHOU LD BE TAKEN AS BUSINESS INCOME ONLY. I DO NOT AGREE WITH THIS ARGUMENT BECA USE EVERY ASSESSMENT EAR IS DIFFERENT AND THE AO HAS THE POWER TO DECIDE ANY IS SUES ON THE MERIT OF THE ISSUE INDEPENDENTLY FOR EACH ASSESSMENT YEAR. THE A SSESSEE HAS ALSO RELIED ON A DECISION OF LD. CIT(A)-XXXIII IN THE CASE OF M/S.DU TTA PROPERTIES AND HAS CLAIMED THAT ON SIMILAR FACTS THIS CASE HAS BEEN DE CIDED IN FAVOUR OF THE ASSESSEE AND THE GODOWN RENT HAS BEEN TREATED AS BU SINESS INCOME. IT IS ALSO CLAIMED THAT THIS DECISION OF LD. CIT(A) HAS BEEN U PHELD BY HONBLE ITAT KOL. I HAVE EXAMINED THE ORDER OF LD. CIT(A) REFERR ED TO BY THE ASSESSEE. I FIND THAT THE FACTS OF THIS CASE ARE TOTALLY DIFFERENT. IT IS SEEN THAT IN THE CASE OF DUTTA PROPERTIES THE PREMISES WHICH HAVE BEEN LET OUT BY THE CONCERN WERE NOT OWNED BY THEM BUT THEY HAD THEMSELVES TAKEN THESE PREMISE S ON RENT. ON THE OTHER HAND IN THE CASE OF THE ASSESSEE THE PREMISES ARE O WNED BY THE ASSESSEE HIMSELF. THE FACTS IN THESE TWO CASES BEING SO DIFF ERENT THE TAXABILITY OF THE RENT INCOME WILL HAVE TO BE TREATED DIFFERENTLY IN THESE TWO CASES. SECONDLY, FROM THE DECISION OF HON.ITAT KOLKATA IT IS SEEN THAT TH EY HAVE NOT DECIDED THE MERIT OF THE CASE BUT HAVE RESTORED THE MATTER BACK TO THE LD. CIT(A) ON TECHNICAL GROUND. 2.2. STILL AGGRIEVED THE ASSESSEE IS IN APPEAL BEFO RE THE TRIBUNAL. 4 3. MR.S.CHOWDHURY, LD. AUTHORISED REPRESENTATIVE AP PEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT IT IS AN UNDISPUTED FACT TH AT OVER THE YEARS THE VERY SAME INCOME IN THE VERY SAME MANNER HAS BEEN RETURNED BY THE ASSESSEE ON THE BASIS OF VERY SAME LEASE AGREEMENTS CONSIDERING WHICH THEY HAVE B EEN CONSISTENTLY TREATED AS BUSINESS INCOME OF THE ASSESSEE. IN THE YEAR UNDER CONSIDERATION THE AO HAS DISREGARDED THESE FACTS HOLDING THAT BECAUSE THE L AW OF RES-JUDICATA DOES NOT APPLY TO THE INCOME TAX PROCEEDINGS THESE FACTS ARE NOT RELE VANT AND THE SAME CAN BE DECIDED DIFFERENTLY. IT WAS HIS CONTENTION THAT ON THE SAME FACTS THE DEPARTMENT CANNOT VARY ITS CONCLUSION. ONLY IN THE YEAR UNDER CONSIDERATION TH E DEPARTMENT HAS SHIFTED FROM ITS ACCEPTED STAND. MOREOVER, NONE OF THE EARLIER YEAR S ASSESSMENTS HAVE BEEN RE-OPENED NOR HAS THE DEPARTMENT DISAGREED WITH THE ASSESSEE IN THE SUBSEQUENT YEARS ON THE SAME ISSUE. THE VERY SAME INCOME HAS BEEN TREATED AS INCOME FROM BUSINESS. IT IS ONLY IN THE YEAR UNDER CONSIDERATION THAT THERE HAS BEEN A DEVIATION BY THE DEPARTMENT. IT WAS ALSO HIS ARGUMENT THAT THESE ARE GODOWNS AND STORAGE SPACES AND NOT RESIDENTIAL ACCOMMODATION AND ONLY SINCE THE AREA IS NOT CURREN TLY REQUIRED BY THE ASSESSEE WHO IS ALSO RUNNING HIS BUSINESS HERE THAT IT HAS BEEN LEASED FOR THE TIME BEING. THUS NO DOUBT THE SUPPLY OF ELECTRICITY AND WATER ETC. ARE THE BASIC FACILITIES WITHOUT WHICH A PROPERTY CANNOT BE GIVEN ON RENT HOWEVER, IT IS NOT SUFFICIENT TO HOLD THAT THE SAME IS NOT A BUSINESS INCOME OF THE ASSESSEE. IT WAS CONTE NDED THAT THE DEPARTMENT HAS NOT TAKEN NOTE OF THE FACT THAT THE ASSESSEE DERIVES IN COME FROM WHOLESALE TRADING OF CEMENT AND FOR THE SAID ACTIVITY THIS HUGE AREA WHE REIN THE ASSESSEE OPERATES IS TEMPORARILY NOT USED BY THE ASSESSEE AND AS A PRUD ENT BUSINESS DECISION CERTAIN PORTIONS OF THE SAME ARE LYING UN UTILISED AS SUCH THE ASSESSEE HAS CONSTRUCTED SHEDS ETC. AS GODOWN AND STORAGE AREAS AND AS A BUSINESS ACTIVITY HAS GIVEN OUT THE SAME AS LEASE TO 13 TENANTS. FOR THE SAID PURPOSES THE ASSE SSEE HAS PROVIDED AND IS MAINTAINING ROADS ETC. TO FACILITATE THE MOVEMENT OF TRUCKS TO AND FRO FROM THE SHEDS SO THAT LOADING AND UNLOADING CAN BE DONE FOR WHICH THESE R OADS ARE BEING PROVIDED BY THE ASSESSEE. APART FROM THE FREE MOVEMENT OF TRUCKS, L IGHTING, OTHER FACILITIES LIKE SECURITY FOR THE GOODS STORED IN THE GODOWNS IS ALS O BEING PROVIDED IN THESE SHEDS FOR WHICH NO SEPARATE CHARGE IS BEING COLLECTED AND THE SAME IS INCLUDED IN THE LEASE DEEDS. MOREOVER, SECURITY FOR THE GOODS STORED IS P ROVIDED FOR THESE LESSEES AND THE 5 SECURITY PROVIDED IS OVER AND ABOVE THE SECURITY AR RANGEMENTS WHICH THE ASSESSEE HAS MAINTAINED FOR ITS OWN OFFICE IN THE BUSINESS PREMI SES. IT WAS HIS SUBMISSION THAT IT IS NOT A DISPUTED FACT THAT THE ENTIRE AREA IS UNDER T HE OCCUPATION OF THE ASSESSEE WHEREIN BUSINESS ACTIVITY IS BEING CARRIED ON BY THE ASSESS EE AND AS A PRUDENT BUSINESS DECISION SINCE A CERTAIN PORTION OF WHICH IS NOT BEING CURRE NTLY UTILIZED THE ASSESSEE FOR THE TIME BEING HAS LEASED THE SAME TO OUTSIDE PARTIES. AS A MATTER OF RECORD CONSISTENTLY THE ACTIVITY HAS BEEN TREATED AS A BUSINESS ACTIVITY AN D ONLY IN THE YEAR UNDER CONSIDERATION THE DEPARTMENT HAS CHOSEN TO DEVIATE FROM ITS ACCE PTED STAND AND TOOK A VIEW TO THE CONTRARY. THE FOLLOWING CHART IN REGARD TO THE POSI TION OF THE SAID INCOME WAS PLACED BEFORE US WHEREIN ALL THE YEARS THE ASSESSEES CLAI M STAND HAS BEEN ACCEPTED :- ASST. YEAR GODOWN RENT (RS.) EXPENDITURE INCLUDING SECURITY CHARGES GODOWN REPAIR,ELECTRICITY ETC. (RS.) NET PROFIT (RS.) 2004-05 10,88,172/- 10,40,598/- 47,574/- 2005-06 11,21,180/- 10,67,004/- 54,176/- 2006-07 13,29,050/- 12,61,224/- 67,826/- 2007-08 17,29,428/- 16,40,763/- 88,665/- 2008-09 19,80,603/- 16,37,513/- 3,43,090/- 3.1. IN SUPPORT OF THE CLAIM RELIANCE WAS PLACED UP ON THE FOLLOWING JUDGEMENTS ALSO : I) 82 ITR 547 II) 110 ITD 337 III) 119 ITD (MUM) 3.2. IT WAS HIS SUBMISSION THAT FACTS OF THE JUDGEM ENT OF THE HONBLE SUPREME COURT IN 263 ITR 143 (SC) IN THE CASE OF SHAMBHU IN VESTMENT PVT. LTD. ARE DISTINGUISHABLE AND HAVE WRONGLY BEEN APPLIED BY TH E DEPARTMENT TO THE FACTS OF THE CASE AS THEREIN THE ASSESSEE HAD OFFICE SPACE IN WH ICH TABLE PLACE HAD BEEN LET OUT TO A NUMBER OF PARTIES. 3.3. ATTENTION WAS ALSO INVITED ALSO TO THE FOLLOWI NG JUDGEMENTS : I) ACIT VS SAPTARSHI SERVICES 265 ITR 379 (GUJ) 6 II) CIT VS K.VIJAY KUMAR [2000]111 TAXMAN 649 (MAD) III) 121 TTJ 265 (CHENNAI) ACCORDINGLY IT WAS HIS ARGUMENT THAT THE CLAIM OF T HE ASSESSEE SHOULD HAVE BEEN ALLOWED. 4. THE LD. DR, ON THE OTHER HAND, STRONGLY RELYING UPON THE ORDERS OF THE AO AND THE CIT(A) SUBMITTED THAT SIMPLY BECAUSE THE ASSESS EE WAS SUPPLYING ELECTRICITY AND WATER SUPPLY ETC. TO 13 TENANTS IT DOES NOT AMOUNT TO SAY THAT ANY SPECIFIC SERVICES WERE BEING RENDERED AS HAS BEEN RIGHTLY HELD BY THE AO AS WELL AS THE CIT(A) AND CONSEQUENTLY BEING RENTAL INCOME THE OCCASION TO AL LOW EXPENDITURE DOES NOT ARISE. IT WAS HIS SUBMISSION THAT SIMPLY PROVIDING BASIC FACI LITIES WOULD NOT AMOUNT ANY ORGANIZED BUSINESS ACTIVITY SINCE EVIDENTLY NO SPEC IAL FACILITIES HAS BEEN PROVIDED BY THE ASSESSEE. IT WAS ARGUED THAT MERELY BECAUSE IN THE EARLIER YEARS AND THE SUBSEQUENT YEARS THE SAID INCOME HAS BEEN ASSESSED UNDER THE H EAD BUSINESS ACTIVITY THAT FACT ITSELF IS NOT ENOUGH TO ALLOW THE CLAIM OF THE ASSE SSEE. IT WAS HIS SUBMISSION THAT WHETHER THE SAME HAS BEEN HELD UNDER SCRUTINY ASSES SMENT OR NOT IS ALSO NOT CLEAR. ACCORDINGLY IT WAS HIS SUBMISSION THAT THE ACTION O F THE CIT(A) SHOULD BE UPHELD. 5. THE LD. AR SUBMITTED THAT THE FACT THAT IN THE E ARLIER YEARS THE SAID INCOME HAD BEEN ASSESSED UNDER THE HEAD BUSINESS INCOME HAS NOT BEEN DISPUTED EVEN BY THE AO. IT WAS ALSO HIS SUBMISSION THAT NO REOPENING O N THE BASIS OF WHICH HAS BEEN DONE BY THE DEPARTMENT AND IN FUTURE ALSO THE SAID INCOM E AHS BEEN ASSESSED UNDER THE HEAD BUSINESS INCOME AND ONLY IN THE YEAR UNDER CONSIDER ATION THERE HAS BEEN A DEVIATION PURELY BASED ON SUSPICION AND IGNORING THE FACTS AV AILABLE ON RECORD. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ON A CAREFUL CONSIDERATION OF THE SAME, PER USAL OF VARIOUS JUDGEMENTS AND ORDERS AND CONSIDERING THE POSITION OF LAW WE ARE OF THE VIEW THAT IN THE YEAR UNDER CONSIDERATION THE CLAIM OF THE ASSESSEE HAS TO BE ALLOWED. IT IS SEEN THAT FROM THE ASSESSMENT ORDER THAT THE AO HAD NOT DISPUTED THE F ACT THAT THE SAID INCOME HAS BEEN SHOWN AND ACCEPTED AS INCOME FROM BUSINESS OVER THE YEARS. FOR READY REFERENCE WE REPRODUCE FROM PAGE 2 OF THE ASSESSMENT ORDER :- 7 THE ASSESSEES OTHER CONTENTION THAT THE ASSESSEE HAD BEEN SHOWING HIS RENTAL INCOME AS BUSINESS INCOME FROM THE INCEPTION IS A LSO NOT ACCEPTABLE BECAUSE THE LAW OF RES-JUDICATA DOES NOT APPLY IN CASE OF INCOME TAX PROCEEDINGS AS IT VARIES FROM YEAR TO YEAR. THE SAID CLAIM OF THE ASSESSEE WAS NOT ACCEPTED HOL DING THAT RES-JUDICATA DOES NOT APPLY TO THE INCOME TAX PROCEEDINGS AS IT VARIES FR OM YEAR TO YEAR. IT APPEARS HE IS OF THE VIEW THAT THE CONCLUSION COULD VARY FROM YEAR T O YEAR. THE SAID STAND OF THE AO IS NOT CORRECT. NO DOUBT RES JUDICATA DOES NOT APPLY TO THE INCOME TAX PROCEEDINGS HOWEVER, IT IS SETTLED POSITION OF LAW THAT ON THE SAME FACTS THE CONCLUSION CANNOT VARY FROM YEAR TO YEAR AS THERE HAS TO BE SOME LEVEL OF CONSISTENCY TO THE VIEW TAKEN SOME NEW FACTS AND CIRCUMSTANCES HAS TO BE TAKEN ON RECO RD SO AS TO MAKE A CHANGE FROM THE ACCEPTED VIEW AS HAS BEEN HELD BY THE APEX COUR T IN THE CASE OF RADHASWAMI SATSANG. IT IS NOT DISPUTED THAT IT IS THE VERY SAM E AGREEMENTS WHICH HAVE BEEN CONSIDERED IN THE EARLIER YEARS. IT IS ALSO NOT DIS PUTED THAT THE AREA IS UNDER THE OCCUPATION OF THE ASSESSEE WHO IS IN THE BUSINESS O F WHOLESALE TRADING OF CEMENT AND A CERTAIN POTION OF THE SAID PREMISES WHICH IS NOT CURRENTLY BEING UTILIZED BY THE ASSESSEE THEREIN THE ASSESSE HAS MAINTAINED ROADS FOR FACILITATING LOADING AND UNLOADING OF GOODS IN THE STORAGE AND WAREHOUSES/GO DOWNS FOR WHICH PURPOSE STREET LIGHTING AND SECURITY FOR THE GOODS BEING STORES ET C. ARE BEING PROVIDED. TAKING COGNIZANCE OF THE FACT THAT IN THE EARLIER YEARS AN D THE SUBSEQUENT YEARS THE INCOME RETURNED FROM THE SAID ACTIVITIES HAS CONSISTENTLY BEEN HELD AS INCOME FROM BUSINESS. IN THE AFORE MENTIONED PECULIAR FACTS AND CIRCUMSTA NCES WE ARE NOT INCLINED TO CONCUR WITH THE VIEW OF THE CIT(A) AND TOLD THAT THE INCOM E SHOULD BE ASSESSED AS INCOME FROM BUSINESS IN LINE WITH THE ACCEPTED VIEW OF THE EARLIER AND SUBSEQUENT YEARS. IN THE AFOREMENTIONED PECULIAR FACTS AND CIRCUMSTANCES TAK ING INTO CONSIDERATION THE DECISIONS RELIED UPON THE GROUND OF THE ASSESSEE IS ALLOWED. 8 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 10.06.2011. SD/- SD/- ! !' ! !' ! !' ! !', ,, , #$ #$ #$ #$ AKBER BASHA, ACCOUNTANT MEMBER , , , , DIVA SINGH, JUDICIAL MEMBER. ( (( (2$ 2$ 2$ 2$) )) ) DATE: 10.06.2011. ORDER PRONOUNCED BY SD/- SD/- SVM MS (AM) (JM) #' 0 .3 4#3(5- COPY OF THE ORDER FORWARDED TO: 1. SHRI SANAT DAS, 123/1, ROY BAHADUR ROAD, KOLKATA-70 0034. 2 THE I.T.O., WARD-28(3), KOLKATA 3. THE CIT, 4. THE CIT(A)-XIV, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA /3 ./ TRUE COPY, #'&;/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)