ASST CIT CIR 6(2)(1), MUMBAI V. CITY CENTER MALL NASHIK P.LTD, MUMBAI

ITA 2125/MUM/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0322 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 10-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T A KHAN LD
• Assessee Lawyers: PRADNYA KHAPNE LD
• Keywords: Business income

Judgement Text

ITA NO 2125/MUM/2015 CITY CENTRAL MALL NASHIK PRIVATE LIMITED ASSESSMENT YEAR 2010-11 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.2125/MUM/2015 ( / ASSESSMENT YEAR: 2010-11) ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 6(2)(1) ROOM NO.563 AAYAKAR BHAVAN M.K.ROAD, CHURCHGATE MUMBAI 400 020 / VS. CITY CENTRAL MALL NASHIK PRIVATE LIMITED ROOM NO.62,PLOT NO.8-9 PAREKH MAHAL, JAMSHEDJI ROAD, SAKHARAM KEER MARG, MAHIM,MUMBAI -400 016 ! ./ ./PAN/GIR NO. AACCC-6422-B ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) ASSESSEE BY : PRADNYA KHAPNE, LD. AR REVENUE BY : T.A.KHAN, LD. DR / DATE OF HEARING : 10/08/2017 / DATE OF PRONOUNCEMENT : 16 /08/2017 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY REVENUE FOR ASSESSMENT YEAR [AY] 2010- 11 ASSAILS THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-12 [CIT(A)], MUMBAI DATED 27/01/2015 QUA RELIEF PROVIDED TO ASSESSEE AGAINST CLAIM OF INTEREST U/S 24(B) OF THE INCOME T AX ACT, 1961. ITA NO 2125/MUM/2015 CITY CENTRAL MALL NASHIK PRIVATE LIMITED ASSESSMENT YEAR 2010-11 2 2. BRIEFLY STATED THE ASSESSEE BEING RESIDENT CORPORATE ASSESSEE , ENGAGED IN THE BUSINESS OF CONSTRUCTION & RUNNING OF COMMERCIAL & SHOPPING MALLS WAS ASSESSED FOR IMPUGNED ASSESSMENT YEAR U/S 143( 3) ON 08/03/2013 AT RS.1,31,77,870/- AFTER CERTAIN ADJ USTMENTS AND DISALLOWANCES AS AGAINST RETURNED LOSS OF RS. 12,89 ,90,988/- E-FILED BY THE ASSESSEE ON 07/10/2010. DURING ASSESSMENT PROCE EDINGS, IT WAS NOTICED THAT THE ASSESSEE DERIVED INCOME FROM SHOPPING MALL OPERATIONS FOR RS.8,50,71,284/-, WHICH IN THE OPINION OF LD. A O, WAS ASSESSABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THE ASSESSEE SUBMITTED THAT THE SAME REPRESENTED CONTRACTUAL RECEIPTS TOWA RDS MALL OPERATIONS & MAINTENANCE SERVICES AND HENCE, CONSTITUTE ASSESSEES BUSINESS AND RIGHTLY OFFERED AS BUSINESS INCOME. HOWEVER, NOT CONVINCED, LD. AO TREATED THE SAME AS INCOME FROM HOUSE PROPERTY AGAINST WHICH STATUTORY DEDUCTION @30% AND DEDUCTION ON ACCOUNT O F INTEREST WAS ADMISSIBLE. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITH PARTIAL SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 27/01/2 015 WHERE LD. CIT(A) UPHELD THE STAND OF LD. AO THAT THE INCOME W AS ASSESSABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY. HOWEVER, LD. CIT(A) ACCEPTED THE ALTERNATIVE CONTENTIONS OF THE ASSESSE E THAT THE TERM INTEREST AS DEFINED IN SECTION 2(28A) INCLUDED SERVICE FEES OR OTHER CHARGES IN RESPECT OF MONEY BORROWED AND DIRECTED THE LD. AO TO VERIFY THE CLAIM OF THE ASSESSEE IN THIS REGARD. AGGRIEVED , THE REVENUE IS IN APPEAL BEFORE US. 4. THE RESPECTIVE REPRESENTATIVES BROUGHT TO THE NO TICE OF THE BENCH THAT THE ASSESSEE ALSO CONTESTED THE STAND OF LD. C IT(A) BEFORE THIS ITA NO 2125/MUM/2015 CITY CENTRAL MALL NASHIK PRIVATE LIMITED ASSESSMENT YEAR 2010-11 3 TRIBUNAL VIDE ITA NO. 1783/MUM/2015 ORDER DATED 23/ 09/2016 WHERE THE TRIBUNAL HAS ACCEPTED THE STAND OF THE ASSESSEE THAT INCOME FROM MALL OPERATIONS WERE ASSESSABLE AS BUSINESS INCOME. 5. WE HAVE PERUSED THE CITED ORDER OF THE TRIBUNAL RENDERED IN ASSESSEES APPEAL AND FIND THAT THE ISSUE HAS BEEN DECIDED IN ASSESSEES FAVOR IN THE FOLLOWING MANNER:- 11. IN VIEW OF THE FOREGOING, WE ARE OF THE VIEW TH AT THERE IS MERIT IN THE CONTENTIONS OF THE ASSESSEE THAT THE IMPUGNED INCOM E SHOULD BE ASSESSED AS BUSINESS INCOME. ACCORDINGLY, WE SET ASIDE THE ORDE R PASSED BY LD CIT(A) ON THIS ISSUE AND DIRECT THE AO TO ASSESSEE THE INCOME FROM SHOPPING MALL AS BUSINESS INCOME. THEREFORE, SINCE THE ISSUE HAS ALREADY BEEN DECIDED BY THE TRIBUNAL IN ASSESSEES FAVOR AS ABOVE, THE REVENUES APPEAL BEC OME INFRUCTUOUS AND HENCE, REQUIRES NO FURTHER ADJUDICATION BY US. 6. RESULTANTLY, THE REVENUES APPEAL STANDS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH AUGUST, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 16. 08.2017 SR.PS:- THIRUMALESH ITA NO 2125/MUM/2015 CITY CENTRAL MALL NASHIK PRIVATE LIMITED ASSESSMENT YEAR 2010-11 4 ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. , ( ) / THE CIT(A) 4. , / CIT CONCERNED 5. $'. , . , / DR, ITAT, MUMBAI 6. / / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI