A.C.I.T Cir - 30,kolkata, Kolkata V. M/s Tapasya Enterprises, Kolkata

ITA 2099/KOL/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1246 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-07-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 11-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T VARKEY JUDIC IA L M EMBER
• Keywords: Depreciation; Business expenditure
• Section: 143(3)

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI ABY.T VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 2097 - 2100 / KOL / 2013 ASSESSMENT YEARS :2004-05 TO 2006- 07 & 2009-10 ACIT, CIRCLE-30, 2, GARIAHAT ROAD(S), KOLKATA-68 V/S . M/S TAPASYA ENTERPRISES 11A, PALM AVENUE, KOLKATDA-19 [ PAN NO.AADFT 1366 M ] /APPELLANT .. / RESPONDENT /BY ASSESSEE NONE /BY RESPONDENT SHRI SAURABH KUMAR, ADDL. CIT-DR /DATE OF HEARING 05-10-2017 /DATE OF PRONOUNCEMENT 13-10-2017 / O R D E R PER BENCH:- THESE FOUR APPEALS BY THE REVENUE ARE DIRECTED AGA INST THE DIFFERENT ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS)-XIV, KOLKATA DATED 16.04.2013, 17.04.2013 & 25.04.2013. ASSESSMENTS WE RE FRAMED BY ACIT, CIRCLE-3/JCIT, RANGE-3 KOLKATA U/S 143(3) R.W.S 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE TH EIR ORDERS DATED 16.04.2013, 07.12.2011, & 13,12,2011FOR ASSESSMENT YEARS 2004-0 5 TO 2006-07 & 2009- 10 RESPECTIVELY. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F ASSESSEE THOUGH SEVERAL NOTICES WERE ISSUED THROUGH RPAD. SO WE DEC IDED TO HEAR THE ITA NO.2097-2100/KOL/2013 A.YS. 04-05 TO 06-07 & 09-10 ACIT, CIR-30 KOL VS. M/S TAPASYA ENTERPRIS ES PAGE 2 PRESENT APPEALS AFTER HEARING THE LD. DR AND WITHOU T THE APPEARANCE OF ASSESSEE OR BY LD.AR. 3. SINCE COMMON GROUNDS ARE INVOLVED IN ALL THE APP EALS OF REVENUE EXCEPT FIGURES, THEREFORE, THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENI ENCE. REVENUES APPEAL IN ITA NO.2097/KOL/2013 FOR ASSESSMENT YEAR 2004-05 IS TREATED AS LEAD CASE, THE GROUNDS RAISED BY THE REVENUE READS AS UNDER: 1) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) WAS RIGHT IN LAW AS WELL AS ON FACTS IN IGNORING THE FA CT THAT ASSESSEE HAD NO REAL ESTATE BUSINESS AND AS SUCH BUSINESS EXPENSES CLAIM ED AGAINST HOUSE PROPERTY INCOME WAS NOT ALLOWABLE U/S 24 OF THE ACT . 2) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) WAS RIGHT IN LAW AS WELL AS ON FACTS IN IGNORING THE FA CT THAT AS PER LEASE AGREEMENT WITH TENANTS, RENTAL INCOME WAS SEPARATE FROM CAR P ARKING FEES, FURNITURE LEASE ETC. AND THENCE STANDARD DEDUCTION U/S.24 OF THE ACT ON THIS RECEIPT WAS ON ALLOWABLE. 3) THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, M ODIFY, INCLUDE OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 4. FIRST ISSUE RAISED BY REVENUE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN DELETING THE DISALLOWANCE MADE BY ASSESSING OFFICER FOR THE BUSINESS EXPENSES INCLUDING THE DEPRECIATION IN VIEW OF THE FACT THAT ASSESSEE CARRIED NO BUSINESS ACTIVITY. 5. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS A PART NERSHIP FIRM AND DERIVING ITS INCOME FROM THE LETTING OUT OF PROPERTY. THE AS SESSEE IS THE OWNER OF TWO PROPERTIES WHICH ARE LOCATED IN BANGALORE AND DELHI RESPECTIVELY. THE BANGALORE PROPERTY WAS COMPLETELY LET OUT ON RENT A ND ITS INCOME WAS DECLARED UNDER THE HEAD HOUSE PROPERTY. SIMILARLY , ASSESSEE LET OUT PART OF THE PROPERTY LOCATED IN DELHI ON RENTAL BASIS AND P ART OF THE PROPERTY WAS BEING USED AS ADMINISTRATIVE OFFICE. THE INCOME FROM THE PARTLY LET OUT PROPERTY I.E. DELHI PROPERTY WAS ALSO OFFERED TO TAX UNDER THE HE AD HOUSE PROPERTY. 5.1 THE ASSESSEE BESIDES HOUSE PROPERTY INCOME ALSO CLAIMED TO CARRY ON THE BUSINESS OF BUILDING CONSTRUCTION AS EVIDENT FR OM OBJECT CLAUSE OF PARTNERSHIP DEED WHICH READS AS UNDER:- THAT THE BUSINESS OF THE FIRM IS AND SHALL BE TO DE AL IN REAL ESTATE, LET OUT PROPERTIES ACT AS COMMISSION AGENT, BUILDERS, RELTO RS, CULTIVATOR, GROWER, ITA NO.2097-2100/KOL/2013 A.YS. 04-05 TO 06-07 & 09-10 ACIT, CIR-30 KOL VS. M/S TAPASYA ENTERPRIS ES PAGE 3 PRODUCER, HARVESTER, IMPORTER, EXPORTER, TRADER, AC T AS WHOLESALERS, COMMISSION AGENTS ETC. OF AGRICULTURE PRODUCE, COMM ODITY, CROPS, HERBS AND ALLIED AGRICULTURAL ACTIVITIES. HOWEVER, THE PARTNE RS, MAY BY MUTUAL CONSENT, TAKE UP ANY OTHER LINE OF TRADE. THE ASSESSEE IN ITS BALANCE-SHEET AS ON 31.03.2004 HAS SHOWN ADVANCE PAYMENT FOR CERTAIN PROPERTIES AT 1,17,20,000/- ONLY. THE ASSESSEE IN ITS PROFIT AND LOSS ACCOUNT HAS CLAIMED EXPENSE OF 31,41,251/- INCLUDING THE DEPRECIATION IN RESPECT OF DELHI PROPERTY AND OTHE R FIXED ASSET FOR 22,53,751/- ONLY. 5.2 THEREFORE, THE ASSESSEE IN ITS INCOME TAX RETUR NS SHOWN THE INCOME AS DETAILED UNDER:- SL.NO. PARTICULARS 1 INCOME UNDER THE HEAD HOUSE PROPERTY 2 LOSS UNDER THE HEAD BUSINESS AND PROFESSION 3 INCOME UNDER THE HEAD OTHER SOURCE THE ASSESSEE IN ITS COMPUTATION OF INCOME CLAIMED T HE LOSS OF 31,41,251/- UNDER THE HEAD BUSINESS AND PROFESSION WHICH WAS SET OFF AGAINST THE INCOME FROM HOUSE PROPERTY / OTHER SOURCES. HOWEVER , DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO OBSERVED THAT THE EXPENS E CLAIMED UNDER THE HEAD BUSINESS AND PROFESSION ARE NOT ELIGIBLE FOR D EDUCTION IN VIEW OF THAT ASSESSEE CARRIED NO BUSINESS ACTIVITY IN THE YEAR U NDER CONSIDERATION AS WELL AS IN THE SUBSEQUENT YEAR ALSO. ACCORDINGLY, AO CAL LED UPON ASSESSEE TO EXPLAIN AS TO WHY EXPENSE CLAIMED UNDER THE HEAD B USINESS AND PROFESSION SHOULD BE ALLOWED AS DEDUCTION AND CONSEQUENTLY SET TING OFF THE SAME FROM HOUSE PROPERTY INCOME. IN COMPLIANCE THERETO, ASSES SEE SUBMITTED THAT IT IS ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT AND FOR THE RUNNING OF ITS BUSINESS IT HAS INCURRED EXPENSES SUCH AS SALARY, C ONVEYANCE, PAINTING, STATIONERY, ELECTRICITY, OFFICE MAINTENANCE, TELEPH ONE ETC. BESIDES THE ABOVE, IT HAS ALSO CLAIMED THE DEPRECIATION OF 22,53,751/- WHICH IS A STATUTORY ALLOWANCE U/S. 32(1) OF THE ACT. SIMPLY, THE ASSESS EE HAS NOT SHOWN ANY ITA NO.2097-2100/KOL/2013 A.YS. 04-05 TO 06-07 & 09-10 ACIT, CIR-30 KOL VS. M/S TAPASYA ENTERPRIS ES PAGE 4 INCOME UNDER THE HEAD BUSINESS OR PROFESSION CANN OT BE THE BASIS OF RULING OUT THE EXISTENCE OF ANY BUSINESS. HOWEVER, THE AO DISALLOWED THE CLAIM OF ASSESSEE BY OBSERVING THAT IT HAS ALREADY CLAIMED E XPENDITURE AGAINST THE RENTAL INCOME U/S. 24 OF THE ACT AND IN FACT, ALL E XPENSES CLAIMED BY ASSESSEE UNDER THE HEAD BUSINESS OR PROFESSION ARE ACTUALL Y INCURRED AGAINST THE RENTAL INCOME. THUS, AO DISALLOWED THE CLAIM OF 31,41,251/- AND ADDED TO THE TOTAL INCOME OF ASSESSEE. 6. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A). THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT IT HAS CO NSTITUTED THE DEED OF PARTNERSHIP WITH EFFECT FROM 10.01.2003 TO CARRY ON THE REAL ESTATE BUSINESS. THE ASSESSEE FOR REAL ESTATE BUSINESS HAS ADVANCED MONEY FOR THE PLOTS/ LANDS FOR 1,17,20,000/- WHICH HAS BEEN DULY DISCLOSED IN ITS BALANCE-SHEET AS ON 31.03.2004.THE ASSESSEE FURTHER SUBMITTED THAT A LL THE EXPENSES CLAIMED BY IT WAS INCURRED IN CONNECTION WITH THE BUSINESS ONLY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOWHERE HAS DOUBTED THE GENUINENESS OF SUCH EXPENSES BUT ERRED IN TREATING THE SAME AS NON-BUSI NESS EXPENSE. THE AO ERRED TREATING THE SAME AS INCURRED AGAINST THE HOU SE PROPERTY INCOME. LD. CIT(A) AFTER CONSIDERING THE SUBMISSION OF ASSESSEE DELETED THE ADDITION MADE BY THE AO BY OBSERVING AS UNDER:- IT IS SEEN THAT THE REAL ESTATE BUSINESS IS ONE OF THE DOMINANT ACTIVITIES MENTIONED IN THE DEED OF PARTNERSHIP. IT IS ALSO SE EN THAT THE APPELLANT HAS USED ITS VASANT VIHAR PROPERTY OF NEW DELHI FOR THE PURPOSE OF ITS REAL ESTATE BUSINESS. FROM THIS VASANT VIHAR PROPERTY, THE APPE LLANT HAS RUN HIS OFFICE FOR MAINTAINING ITS REAL ESTATE BUSINESS. IT IS ALSO FO UND THAT THE ASSESSING OFFICER HAS LOST SIGHT OF THE FACT THAT THE APPELLANT FIRM HAS GIVEN ADVANCES FOR PROPERTIES BEING LANDS AND PLOTS TO GS IDE AND DYNA STY PROP. P.L. AMOUNTING TO RS.17,20,000/- AND RS.1 CR. RESPECTIVELY. THE AF ORESAID ADVANCES ARE REFLECTED IN THE AUDITED ACCOUNTS OF THE APPELLANT. THIS FACT ITSELF INDICATES THAT THE APPELLANT IS IN THE BUSINESS OF REAL ESTATE DEV ELOPMENT IN THIS REGARD, IT IS WELL SETTLED PRINCIPLE THAT BUSINESS IS NOTHING MOR E THAN CONTINUOUS COURSE OF ACTIVITIES AND FOR COMMENCEMENT OF BUSINESS, ALL TH E ACTIVITIES WHICH GO TO MAKE UP THE BUSINESS NEED NOT BE STARTED SIMULTANEO USLY. AS SOON AS AN ACTIVITY WHICH IS THE ESSENTIAL ACTIVITY IN THE COU RSE OF CARRYING ON THE BUSINESS IS STARED, THE BUSINESS MUST SAID TO HAVE COMMENCED . IN THE PRESENT CASE, THE APPELLANT GAVE ADVANCES FOR ACQUISITION OF LAND FOR ITS BUSINESS AND DELHI PROPERTY HAS BEEN USED BY THE APPELLANT AS ITS ADMI NISTRATIVE OFFICE FOR ITS REAL ESTATE BUSINESS. ON THESE FACTS, IN THE LIGHT OF TH E JUDGMENT OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF TETRUN COMMERCIA L LTD. 261 ITR 422 (CAL), ITA NO.2097-2100/KOL/2013 A.YS. 04-05 TO 06-07 & 09-10 ACIT, CIR-30 KOL VS. M/S TAPASYA ENTERPRIS ES PAGE 5 IT CAN BE HELD THAT THE BUSINESS OF REAL ESTATE OF THE APPELLANT HAS COMMENCED IN THE AFORESAID JUDGMENT, THE HON'BLE CALCUTTA HIG H COURT HAS HELD THAT IN THE BUSINESS OF REAL ESTATE, THERE ARE THREE STAGES. ON E IS THE ACQUISITION OF LAND AND THE OTHER IS THE PROCESS OF CONSTRUCTION OF BUI LDING AND THE THIRD IS THE ACTUAL DISTRIBUTION OR SALE OF THE BUILDING. THERE IS NO REQUIREMENT IN LAW THAT DEDUCTION FOR EXPENDITURE IN COURSE OF BUSINESS CAN BE GRANTED ONLY AGAINST INCOME. NONETHELESS, IT IS NOT THE CASE THAT THE AP PELLANT HAS NOT EARNED ANY INCOME, IT HAS EARNED INTEREST INCOME FROM PARKING OF SURPLUS FUNDS. IT IS AN ESTABLISHED FACT THAT THE BUSINESS ACTIVITIES HAVE BEEN DONE AND BUSINESS HAS COMMENCED. IN PARA-14 OF THE SAID DECISION, JUDGMENT OF GUJARA T HIGH COURT IN THE CASE OF CIT V. SOURASTRA CEMENT & CHEMICAL INDUSTRIES LTD. REFERRED WHEREIN ALSO IT WAS HELD THAT ALL THE ACTIVITIES WHICH GO TO MAKE U P A BUSINESS NEED NOT BE STARTED SIMULTANEOUSLY IN ORDER THAT BUSINESS MAY C OMMENCE. THE BUSINESS WOULD COMMENCE WHEN THE ACTIVITY WHICH IS FIRST IN POINT OF TIME AND WHICH MUST NECESSARILY PRECEDE ALL OTHER ACTIVITIES IS ST ARTED. IN 102 ITR 25 (GUJ) TOOK THE SAME VIEW AND HELD THAT BUSINESS COMMENCES WITH THE FIAT ACIVITY FOR ACQUIRING BY PURCHASE OR OTHERWISE, IMMOVABLE PROPE RTY. THERE MAY BE AN INTERVAL BETWEEN THE SETTING UP OF THE BUSINESS AND THE COMMENCEMENT OF THE BUSINESS. IN CIT V. SARABHAI MANAGEMENT CORPORATION LTD., 192 ITR 151 (SC), THE DECISION OF THE GUJARAT HIGH COURT WAS AF FIRMED AND WENT A STEP AHEAD THAT EVEN THE ACTIVITIES AT PREPARATORY STAGE IS ALSO ADMISSIBLE. RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE GUJARAT HIGH COURT, CITED SUPRA, AND THE DECISION OF THE HON'BLE CALCUTTA HIG H COURT, IT IS HELD THAT THE EXPENSES CLAIMED BY THE APPELLANT, ARE ALLOWABLE. I T ALSO A FACT THAT THE ASSESSING OFFICER HAS NOT DOUBTED THE BONA FIDE OF THE EXPENSES CLAIMED BY THE APPELLANT. IT IS ALSO AN UNDISPUTED FACT THAT T HE DELHI PROPERTY ON WHICH DEPRECIATION HAS BEEN CLAIMED, IS OWNED BY THE APPE LLANT AND IT HAS BEEN USED TO RUN ITS OFFICE BY THE APAPE. THEREFORE, NOT ONLY THE EXPENSES CLAIMED BY THE APPELLANT ARE ALLOWABLE BUT ALSO THE DEPREC IATION CLAIMED BY IT FOR ITS DELHI OFFICE, IS ALLOWABLE; AS THE SAID OFFICE HAS BEEN USED BY THE APPELLANT FOR RUNNING ITS BUSINESS OF REAL ESTATE. THE CLAIM OF D EPRECIATION OF THE ASSESSEE RELATES TO PROPERTY AT E-14/17, VASANT VIHAR, NEW D ELHI, OWNED BY THE ASSESSEE. ALL THE FIXED ASSETS OF THE ASSESSEE ARE ALSO INSTALLED AT THE OFFICE PREMISES OF THE ASSESSEE AS IS EVIDENT FROM THEIR V ERY NATURE AND THESE HAVE BEEN USED FOR CONDUCTING THE BUSINESS OF THE FIRM. HENCE IT IS HELD THAT THE CLAIM OF DEPRECIATION OF THE APPELLANT IS ADMISSIBL E. ACCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO DELETE THE DISALLO WANCE OF RS.31,4,251/- CLAIMED AS BUSINESS EXPENSES WHICH IS INCLUSIVE OF DEPRECIATION. ACCORDINGLY, THE GROUND NO.5 OF THE APPEAL IS ALLOWED. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFORE U S. 7. BEFORE US LD. DR STATED THAT THE ASSESSEE-FIRM W AS ESTABLISHED ON 10.01.2003 BUT IT HAS NOT CARRIED OUT ANY BUSINESS ACTIVITIES TILL 31.03.2009. THE ASSESSEE TILL 31.03.2009 HAS ONLY SHOWN ADVANCE FOR THE PURCHASE OF ITA NO.2097-2100/KOL/2013 A.YS. 04-05 TO 06-07 & 09-10 ACIT, CIR-30 KOL VS. M/S TAPASYA ENTERPRIS ES PAGE 6 PROPERTIES. IT WAS ALSO CONTENDED THAT THE ASSESSEE IN THE AY 2009-10 HAS SHOWN THE RENTAL INCOME FOR RS. 13,50,80,731.00 BUT NO BUSINESS ACTIVITY. THUS THE LD. DR APPREHENDED THAT THE ASSESSEE OUT O F RENTAL INCOME IS MAKING INVESTMENT IN THE PROPERTIES AND EARNING REN TAL INCOME. AT THE SAME THE ASSESSEE IS SHOWING THE INVESTMENT AS ADVANCES IN THE FINANCIAL STATEMENT IN ORDER TO JUSTIFY ITS BUSINESS ACTIVITY . THUS THE ASSESSEE IN GARB OF BUSINESS IS CLAIMING EXPENSES IN ORDER TO REDUCE TH E TAXABLE INCOME. EVENTUALLY THE ASSESSEE IS CLAIMING DOUBLE BENEFIT BY WAY OF CLAIMING THE EXPENSES UNDER SECTION 24 OF THE ACT AS WELL AS UND ER BUSINESS HEAD. BESIDES THE ABOVE THE LD. AR FURTHER SUBMITTED THAT THE FACT WHETHER THE ADVANCE SHOWN BY THE ASSESSEE REPRESENTS AS INVESTM ENT MADE BY THE ASSESSEE OR AS STOCK-IN-TRADE IN THE BOOKS HAS NOT BEEN VERIFIED BY LD. CIT(A) DURING HIS APPELLATE STAGE. LD. DR FURTHER SUBMITTE D THAT ASSESSEE HAS NOT CARRIED OUT ANY BUSINESS ACTIVITIES SINCE INCEPTION TILL 31.03.2009 AND NO RECORD IS ALSO AVAILABLE FOR THE SUBSEQUENT YEARS. THUS, IN VIEW OF THE FACT THAT LD. DR SUBMITTED THAT ASSESSEE HAS NOT CARRIED OUT ANY BUSINESS ACTIVITY AND THEREFORE THE EXPENSE CLAIMED BY IT UNDER THE HEAD BUSINESS OR PROFESSION NEEDS TO BE DISALLOWED. HE HEAVILY RELIED ON THE OR DER OF AO. 8. WE HAVE HEARD LD. DR AND PERUSED THE MATERIAL AV AILABLE ON RECORD INCLUDING THE ORDER OF AUTHORITIES BELOW. IN THE IN STANT CASE, ASSESSEE DERIVED ITS INCOME UNDER THE HEAD HOUSE PROPERTY, BUSINESS & PROFESSION AND INCOME FROM OTHER SOURCES. ACCORDING TO THE AO THE ASSESS EE HAS NOT CARRIED OUT ANY ACTIVITY UNDER THE HEAD BUSINESS OR PROFESSION DURING THE YEAR UNDER CONSIDERATION AS WELL AS SUBSEQUENT YEAR. THEREFORE , THE BUSINESS EXPENSES CLAIMED BY IT CANNOT BE ALLOWED AS DEDUCTION. HOWEV ER, LD. CIT(A) REJECTED THE FINDING OF AO ON THE GROUND THAT ASSESSEE-FIRM HAS GIVEN ADVANCE FOR THE PURCHASE OF PROPERTY WHICH EVIDENCES THAT BUSINESS OF ASSESSEE IS IN EXISTENCE. 8.1 IT IS THE DISPUTED FACT THAT NO INCOME WHATSOEV ER HAS BEEN SHOWN BY THE ASSESSEE IN THE FINANCIAL YEAR WHICH BEGINNING FROM 2003-04 TO 2005-06 AND 2008-09 AS EVIDENT FROM THE ORDER OF AUTHORITIE S BELOW. IT IS ALSO DISPUTED ITA NO.2097-2100/KOL/2013 A.YS. 04-05 TO 06-07 & 09-10 ACIT, CIR-30 KOL VS. M/S TAPASYA ENTERPRIS ES PAGE 7 FACT THAT ASSESSEE HAS SHOWN VARIOUS ADVANCES IN IT S BALANCE-SHEET FOR THE PURCHASE OF PROPERTY AS EVIDENT FROM THE ORDER OF A UTHORITIES BELOW. BUT THE DISALLOWANCES WERE MADE BY AO ON THE GROUND THAT TH ERE IS NO BUSINESS ACTIVITY CARRIED OUT BY ASSESSEE. NOW THE ISSUE ARI SES BEFORE US TO ADJUDICATE WHETHER THERE IS ANY BUSINESS ACTIVITY OF THE ASSES SEE OR NOT. IN OUR CONSIDERED VIEW IT IS A QUESTION OF FACT TO ESTABLI SH WHETHER THE BUSINESS OF ASSESSEE IS IN EXISTENCE OR NOT. IF YES IT IS VERY MUCH ELIGIBLE FOR DEDUCTION OF THE EXPENSE INCURRED BY ASSESSEE. WE NOTE THAT THE LD. CIT-A HAS SIMPLY ACCEPTED ON THE SUBMISSION OF THE ASSESSEE AND HAS COME TO THE CONCLUSION THAT THE ASSESSEE IS DOING BUSINESS ACTIVITY. BUT N O CONTRARY EVIDENCE HAS BEEN BROUGHT ON RECORD TO PROVE THE EXISTENCE OF BU SINESS OF ASSESSEE IN THE APPELLATE ORDER EXCEPT A FINDING THAT ASSESSEE HAS MADE ADVANCE FOR THE PURCHASE OF PROPERTY. IN OUR CONSIDERED VIEW, THE A DVANCE SHOWN BY ASSESSEE DOES NOT IPSO FACTO PROVE THAT ASSESSEE IS CARRYING ON BUSINESS. THUS IN OUR CONSIDERED VIEW THE FACT THAT THE ASSES SEE IS RUNNING A BUSINESS NEEDS TO BE ESTABLISHED. THEREFORE IN THE LIGHT OF ABOVE DISCUSSION, WE ARE INCLINED TO SET ASIDE THE IMPUGNED ORDER AND RESTOR E THE ISSUE BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO FIND OUT THE QUES TION OF FACT AS TO WHETHER THE BUSINESS OF ASSESSEE IS IN EXISTENCE OR NOT. WHILE DOING SO, THE LD. CIT(A) SHALL GIVE A DUE AND FAIR OPPORTUNITY OF HEARING TO THE ASSESSEE AS WELL AS CALL FOR THE REMAND REPORT FROM THE AO IN ACCORDANCE WIT H LAW AND SHALL DECIDE THE MATTER BY WAY OF A SPEAKING ORDER IN ACCORDANCE WIT H LAW. HENCE, THIS GROUND OF REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURP OSE. 9. IN THE REMAINING ISSUES IT WAS AGITATED BY THE R EVENUE THAT THE RENTAL INCOME FROM THE LETTING OF CAR PARKING AND FURNITUR E SHOULD NOT BE TREATED AS INCOME UNDER THE HEAD HOUSE PROPERTY. IN THIS REGAR D WE FIND THAT THESE GROUND DO NOT CALL FOR ANY ADJUDICATION AT THIS STA GE BECAUSE THE MATTER IS ALREADY RESTORED BACK TO THE FILE OF LD. CIT(A) FOR DECIDING THE ISSUE AFRESH AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEA RD TO ASSESSEE. THUS THIS ITA NO.2097-2100/KOL/2013 A.YS. 04-05 TO 06-07 & 09-10 ACIT, CIR-30 KOL VS. M/S TAPASYA ENTERPRIS ES PAGE 8 ISSUE ALSO REMITTED BACK TO THE AO FOR FRESH ADJUDI CATION IN ACCORDANCE WITH THE LAW. 10. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. COMING TO REVENUES APPEAL IN ITA NO. 2098-2100/KOL /2013 FOR AYS 05- 06 TO 06-07 & 09-10 . 11. IN THE REMAINING APPEALS, SINCE THE FACTS ARE E XACTLY IDENTICAL, LD. DR AGREED WHATEVER VIEW TAKEN IN THE ABOVE APPEAL (ITA NO.2097/KOL/2013) MAY BE TAKEN IN THESE APPEALS ALSO, WE HOLD ACCORDINGLY . 12. IN THE RESULT, APPEALS OF REVENUE STAND ALLOWED FOR STATISTICAL PURPOSE. 13. IN COMBINE RESULT, REVENUES APPEALS STAND ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 13 /10/2017 SD/- SD/- (ABY. T. VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP &- 13 / 10 /201 7 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M/S TAPASYA ENTERPRISES 11A, PALM AVENUE, KOLKATA-19 2. /REVENUE-ACIT, CIRCLE-30, 2, GARIAHAT ROAAD(S), KOL KATA-68 3. 1 2 / CONCERNED CIT KOLKATA 4. 2- / CIT (A) KOLKATA 5. 5 881, 1, / DR, ITAT, KOLKATA 6. ; / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 1,