DCIT 8(1), MUMBAI V. E-CITY REAL ESTATES P.LTD, MUMBAI

ITA 2001/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 101193 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 24-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA R SWAMY
• Assessee Lawyers: RAJESH CHAMARIA
• Keywords: Business income
• Section: 10

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI N.K . BILLAIYA, ACCOUNTANT MEMBER AND RAM L AL NEGI, JUDICIAL MEMBER / I .T.A. NO S . 2001 & 2002/MUM/2014 ( / ASSESSMENT YEAR S : 2009 - 10 & 2010 - 11 THE DCIT - 8(1), AAYAKAR BHAVAN, MUMBAI - 400 020 / VS. M/S. E - CITY REAL ESTATES PVT. LTD., 844/4, FUN REPUBLIC, SHAH INDUSTRIAL ESTATE, OFF NEW LINK ROAD, ANDHERI (W), MUMBAI - 400 053 ./ ./ PAN/GIR NO. : AAJCS 5879F ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI MANJUNATHA R. SWAMY / RESPONDENT BY: SHRI RAJESH CHAMARIA / DATE OF HEARING : 1 4 .0 9 .2015 / DATE OF PRONOUNCEMENT : 1 4 .0 9 .2015 / O R D E R PER N.K. BILLAIYA, AM: TH ESE TWO APPEAL S BY THE REVENUE ARE PREFERRED AGAINST THE TWO SEPARATE ORDER S OF THE LD. CIT(A) - 1 6, MUMBAI D ATED 3 1.1 2 .201 3 PERTAINING TO ASSESSMENT YEAR 200 9 - 1 0 & 2010 - 11. 2. THE GRIEVANCE OF THE REVENUE IS COMMON IN BOTH THESE YEARS THEREFORE BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONV ENIENCE. ITA. NO S . 2001 & 2002/M/2014 2 3. THE GRIEVANCES OF THE REVENUE IN A.Y. 2009 - 10 READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THE INCOME FROM OPERATING FAMILY ENTERTAINMENT CENTRE CUM MALL(RENT) AND MAI NTENANCE CHARGES AMOUNTING TO RS. 17,69,66,693/ - & RS. 7,42,96,487/ - RESPECTIVELY IS TAXABLE UNDER THE HEAD PROFIT & GAINS FROM BUSINESS OR PROFESSION AND NO UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN COMPLETELY IGNORING THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF SHAMBHU INVESTMENT (P) LTD (263 ITR 143) (SC), WHEREIN IT IS HELD THAT INCOME DERIVED BY AN ASSESSEE BY LETTING OUT FURNISHED PREMISES ON MONT HLY RENT BASIS TO VARIOUS PARTIES ALONG WITH VARIOUS SERVICES, IS ASSESSABLE AS INCOME FROM PROPERTY AND NOT BUSINESS INCOME. 4. IN ASSESSMENT YEAR 2010 - 11, THE QUANTUM MAY DEFER BUT FACTS IN ISSUES ARE THE SAME. 5. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ISSUES INVOLVED ARE SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.YRS 2007 - 08 & 2008 - 09 IN ITA NOS. 1435 & 1436/M/2012. 6. THE LD. D EPARTMENTAL REPRESENTATIVE FAIRLY CONCEDED TO THIS. 7. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO GONE THROUGH THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA). THE SOLITARY COMMON ISSUE INVOLVED IN THE APPEALS BEFORE THE TRIBUNAL RELATED TO WHETHER THE OPERATIONAL INCOME (RENT) RECEIVED BY THE ASSESSEE FROM RUNNING AND OPERATIONS FAMILY ITA. NO S . 2001 & 2002/M/2014 3 ENTERTAINMENT CENTRE CUM MALL AND SERVICE CHARGES RECOVERED ARE CHARGEABLE TO TAX IN THE HANDS OF THE ASSESSEE UNDER THE HEAD PROFITS & GAINS FROM BUSINESS OR PROFESSION AS CLAI MED BY THE ASSESSEE OR UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 7.1. WE FIND THAT WHILE DECIDING THIS ISSUE THE TRIBUNAL HAS CONSIDERED THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF SHAMBHU INVESTMENT (P) LTD 249 ITR 47 WHICH HAS BEEN SUBSEQUENTLY AFFIRMED BY THE HONBLE SUPREME COURT AND FINALLY HELD THAT THE OPERATIONAL INCOME RECEIVED BY THE ASSESSEE FROM RUNNING OF MALL IN THE FORM OF RENT AND SERVICE CHARGES IS TO BE TREATED UNDER THE HEAD PROFITS & GAINS FROM BUSINESS OR PROFESS ION. AS NO DISTINGUISHING DECISION HAS BEEN BROUGHT ON RECORD BY THE LD. DR IN FAVOUR OF THE REVENUE, RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA), WE DECLINE TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). 8. IN THE RESULT, BOTH THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 1 4 TH SEPTEMBER , 2015 SD/ - SD/ - ( RAM L AL NEGI ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 1 4 TH SEPTEMBER , 2015 . . ./ RJ , SR. PS ITA. NO S . 2001 & 2002/M/2014 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI