K.G.Estate Private Limited, Kolkata V. ITO, Ward-8(3), Kolkata, Kolkata

ITA 2013/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9190 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 22-02-2017
• Assessment Year: 2000-2001
• Appeal Filed On: 19-10-2016
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR CIT LD
• Assessee Lawyers: ANKIT JALAN LD
• Keywords: Business income; Depreciation; Unabsorbed depreciation
• Section: 143(3); 68

Judgement Text

1 ITA NOS.2013 TO 2018/K/16 M/S. K.G ESTATE P.LTD IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D B ENCH, KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 2013/KOL/2016 A.Y 2000-01 I.T.A. NO. 2014/KOL/2016 A.Y 2001-02 I.T.A. NO. 2015/KOL/2016 A.Y 2002-03 I.T.A. NO. 2016/KOL/2016 A.Y 2003-04 I.T.A. NO. 2017/KOL/2016 A.Y 2004-05 I.T.A. NO. 2018/KOL/2016 A.Y 2005-06 K.G ESTATE PRIVATE LIMITED ..................................... APPELL ANT PAN: AABCK 4476E B-1, 1 ST FLOOR 75-C, PARK STREET, KOLKATA-700 016. -VS- INCOME TAX OFFICER ................................................. RESPONDENT WARD 8(3), KOLKATA AAYKAR BHAWAN P-7, CHOWRINGHEE SQUARE KOLKATA-700 069. APPEARANCES BY: SHRI ANKIT JALAN, LD. AR FOR THE ASSESSEE SHRI SAURABH KUMAR, ADDL. CIT, LD.DR FOR THE REVENU E DATE OF HEARING: 22-03-2017 DATE OF PRONOUNCEMENT: 24-03-2017 SHRI S.S. VISWANETHRA RAVI , JM: ALL THESE SIX APPEALS BY THE ASSESSEE ARE AGAINST S EPARATE ORDERS DT: 30- 05-2016 AND 31-05-2016 PASSED BY THE COMMISSIONER O F INCOME TAX- (APPEALS), 17, KOLKATA FOR THE ASSESSMENT YEARS 200 0-01 TO 2005-06 RESPECTIVELY. 2 ITA NOS.2013 TO 2018/K/16 M/S. K.G ESTATE P.LTD 2. AT THE OUTSET, IT IS NOTICED THAT THE CIT-A BY P ASSING EX PARTE ORDERS IN ALL THE CASES CONFIRMED THE IMPUGNED ADDITIONS MADE IN THE RESPECTIVE ASSESSMENT ORDER MADE U/S. 147/144/143(3) OF THE AC T BY THE AO. IT IS ALSO OBSERVED THAT THE ASSESSEE HAS BEEN GIVEN MANY OPPO RTUNITIES TO SUBSTANTIATE ITS CLAIM IN TREATING THE LEASE RENTAL INCOME REC EIVED BY THE ASSESSEE AS INCOME FROM BUSINESS. 3. BEFORE US THE LD.AR SUBMITS THAT DURING THE COUR SE OF ASSESSMENT PROCEEDINGS FOR THE A.Y 2004-05 THE AO RAISED A Q UERY IN CLAIMING RENTAL INCOME AS BUSINESS INCOME BY THE ASSESSEE. THE AO A SSESSED THE SAME AS INCOME FROM HOUSE PROPERTY. THEREBY THE AO REOPENED THE ASSESSMENTS FOR ALL THE EARLIER AND SUBSEQUENT A.YS. ACCORDINGLY, FOR A LL THE ASSESSMENT YEARS UNDER CONSIDERATION EXCEPT THE A.Y 2004-05, THE AO PASSED THE ASSESSMENT ORDERS U/S. 147/144 OF THE ACT TREATING THE LEASE R ENTAL INCOME RECEIVED BY THE ASSESSEE AS INCOME FROM HOUSE PROPERTY AGAINST T REATING THE SAME AS BUSINESS INCOME BY THE ASSESSEE. FOR THE A.Y 2004 -05 THE AO PASSED THE ASSESSMENT ORDER U/S. 143(3) OF THE ACT TREATING TH E LEASE RENTAL INCOME RECEIVED BY THE ASSESSEE AS INCOME FROM HOUSE PROPE RTY AS AGAINST BUSINESS INCOME TREATED BY THE ASSESSEE, WHEREIN THE AO TREA TED THE LEASE RENTAL INCOME BEING TAXABLE UNDER THE HEAD INCOME FROM HO USE PROPERTY. FOR THE A.YS 2004-05 AND 2005-06 THE AO ENHANCED THE RECEIP T OF RENTAL INCOME, MADE ADDITIONS U/S. 68 OF THE ACT AND DID NOT ALLO W THE UNABSORBED DEPRECIATION AND FOR THE REST OF A.YS UNDER CONSIDE RATION WHILE THE AO PASSED THE ASSESSMENT ORDERS U/S. 147/144 OF THE ACT TREA TED THE LEASE RENTAL INCOME RECEIVED BY THE ASSESSEE AS INCOME FROM HOUSE PROP ERTY AND DISALLOWED OTHER DEDUCTIBLE EXPENDITURE WHICH ARE ALLOWABLE UN DER THE HEAD BUSINESS INCOME. HOWEVER, SUCH ACTION OF THE AO IN MAKING V ARIOUS ADDITIONS WAS CONFIRMED BY THE CIT-A IN ALL THE CASES IN THE ABSE NCE OF ASSESSEE. 3 ITA NOS.2013 TO 2018/K/16 M/S. K.G ESTATE P.LTD 4. BEFORE US THE LD.AR SUBMITS THAT THE ISSUE IN HA ND IS COVERED BY THE DECISIONS OF THE HONBLE SUPREME COURT IN THE CASES OF CHENNAI PROPERTIES & INVESTMENTS LTD VS. CIT IN CIVIL APPEAL NOS.4491- 4 494 OF 2004 AND RAYALA CORPORATION PVT. LTD VS. ACIT IN CIVIL APPEAL NOS.6 438-6441 OF 2016. [COPY OF THESE ORDERS PLACED ON RECORD]. WE FIND THAT SUCH CONTENTION OF THE ASSESSEE WAS NOT AVAILABLE BEFORE THE AO FOR HIS CONSIDERATI ON. ACCORDINGLY, WE DEEM IT FIT AND PROPER TO REMAND THE ISSUES INVOLVED IN ALL THE APPEALS INCLUDING THE GROUND NOS. 7 TO 9 RAISED IN ITA NOS. 2017 & 2018/K OL/2016 FOR THE A.YS 2004- 05 & 2005-06 TO THE FILE OF THE AO TO DECIDE THE I SSUE(S) INVOLVED IN ALL THE APPEALS IN THE LIGHT OF ABOVE JUDGMENTS AS RELIED O N BY THE ASSESSEE AND TO PASS AN APPROPRIATE ORDER AS PER LAW AFTER GIVING T HE ASSESSEE ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. THE ASS ESSEE SHALL BE AT LIBERTY TO FILE THE REQUISITE EVIDENCES TO SUBSTANTIATE ITS CL AIM. 5. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 24-03 -2017 SD/- SD/- WASEEM AHMED S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 24 -03-2017 COPIES OF THE ORDER FORWARDED TO : (1) THE ASSESSEE: M/S. K.G ESTTE PVT. LTD C/O AGARW AL VISHWANATH & ASSOCIATES, 133/1/1A S.N BANERJEE ROAD, PUSHKAL BHA WAN, 3 RD FLOOR, KOLKATA-700 013. (2) THE DEPARTMENT: INCOME TAX OFFICER, WARD 8(3), KOLKATA AAYKAR BHAWAN, P-7 CHOWRINGHEE SQUARE, KOLKATA-69. (3) COMMISSIONER OF INCOME-TAX (APPEALS)- , K OLKATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE **PP/SPS BY ORDER ASSISTANT R EGISTRAR, IN COME TAX APPELLATE TRIBUNAL KOLKATA