Gulmohar Park Mall Pvt. Ltd, Ahmedabad V. ITO, Ward-2(1)(1), Ahmedabad

ITA 226/AHD/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6563 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 14-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BIREN SHAH
• Keywords: Business income; Depreciation; Rule of consistency; Question of law; Set aside
• Section: 201; 143(2)

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A [CONDUCTED THROUGH VIRTUAL COURT] BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO.226/AHD/2019 / ASSTT. YEAR: 2014-15 GULMOHAR PARK MALL P.LTD. GULMOHAR PARK SATELLITE ROAD AHMEDABAD 380052. PAN : AACCN 2111 Q VS. ITO, CIR.2(1)(1) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI BIREN SHAH, AR REVENUE BY : SHRI VINOD TANWANI, CIT-DR ! / DATE OF HEARING : 16/08/2021 '#$ ! / DATE OF PRONOUNCEMENT: 08/09/2021 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF THE LD.CIT(A)-11, AHMEDABAD DATED 5.12.2018 PASSED FOR THE ASSTT.YEAR 2014-15. 2. ASSESSEE HAS RAISED TWO GROUNDS OF APPEAL. WE TA KE GROUND NO.1 FIRST FOR ADJUDICATION. IT READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN CONFIRMING INCOME OF RS.9,58,97,427 /- TOWARDS MALL OPERATING REVENUE AS TAXABLE UNDER THE HEAD IN COME FROM ITA NO.226/AHD/2019 2 HOUSE PROPERTY AS AGAINST INCOME FROM BUSINESS AND PROFESSION OFFERED BY APPELLANT IN THE RETURN OF INCOME. 3. BRIEF FACTS OF THE CASE OF THE ASSESSEE ARE THAT THE ASSESSEE IS ENGAGED IN DEVELOPMENT AND MAINTENANCE OF IMMOVA BLE PROPERTIES AND MALL MANAGEMENT. THE ASSESSEE IS AL SO OPERATING AND RUNNING A FULLY EQUIPPED RETAIL MALL KNOWN AS GULMOHAR PARK. IT HAS FILED RETURN OF INCOME ON 29.11.2014 DECLARING NIL INCOME. THE RETURN WAS PROCESSED UNDER SECTION 143 (1) OF THE ACT, WHICH WAS SUBSEQUENTLY FOR SELECTED FOR SCRUTI NY ASSESSMENT BY ISSUING NOTICE UNDER SECTION 143(2) OF THE INCOM E TAX ACT, 1961. DURING THE ASSESSMENT PROCEEDINGS, IT WAS NO TICED BY THE AO THAT THE ASSESSEE HAS EARNED INCOME FROM VARIOUS LET OUT PROPERTIES AND TREATED THE SAME UNDER THE HEAD INC OME FROM BUSINESS. THE LD.AO DOUBTED THE CLASSIFICATION OF INCOME UNDER THIS HEAD, WHICH ACCORDING TO THE AO SHOULD HAVE BE EN UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THE LD.AO ACCOR DINGLY ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE AS TO WHY INCOME FROM LET OUT PROPERTIES BE NOT TREATED UNDER THE HEAD INCOME FR OM HOUSE PROPERTY. THE ASSESSEE FILED DETAILED SUBMISSION S, WHICH WAS REPRODUCED BY THE AO IN THE IMPUGNED ASSESSMENT ORD ER. IT WAS INTERALIA EXPLAINED THAT THE ASSESSEE DERIVED BUSINESS INCOM E FOR PROVIDING SEVERAL SERVICES INCLUDING LEASING AND OT HER ALLIED FACILITIES AS PER THE LEASE AGREEMENT. THE BUSINES S INCOME OF RS.1235.16 LACS HAVE BEEN DERIVED NOT MERELY ON LEA SING OUT THE UNITS BUT THEY HAVE BEEN DERIVED BY WAY OF MALL OPE RATING REVENUE, COMMON AREA MAINTENANCE REVENUE AND OTHER MISCELLANEOUS BUSINESS REVENUES. THE ASSESSEE HAS RESPONSIBILITY OF PROVIDING SECURITY, ELECTRICAL, TELEPHONE, OVERA LL MAINTENANCE OF ITA NO.226/AHD/2019 3 THE ENTIRE BUILDING KNOWN AS GULMOHAR PARK MALL. THE ENTIRE PREMISES FULLY WAS UNDER CONTROL AND SUPERVISION OF THE ASSESSEE, WHICH IS CONTINUOUS ORGANIZED BUSINESS OPERATIONS A ND OF COMPLEX NATURE. THE INCOME GENERATED FROM SUCH ACTIVITIES INSEPARABLE, AND THE LEASE RENTAL AMOUNT VARIES EVERY MONTH ACCO RDING TO THE REVENUE GENERATED BY THE UNIT HOLDERS. IN OTHER WOR DS, THE INCOME GENERATED BY THE ASSESSEE IS NOT DEPENDED UPON THE AREA LEASED OUT BUT OVERALL REVENUE GENERATED BY THE LEASE HOLD ER. THE ASSESSEE WAS UNDERTAKING VARIOUS ACTIVITIES FOR BUS INESS DEVELOPMENT SUCH AS DEPLOYMENT OF SECURITIES, STAFF FOR ALLIED ACTIVITIES, PROVIDING CLEANLINESS, HOUSING KEEPING , REPAIRS AND MAINTENANCE, ELECTRICITY, LIFT MAINTENANCE ETC. TH EREFORE, REVENUE GENERATED FROM LEASING OF THE PROPERTY AND SEVERAL OTHER SERVICES ARE INSEPARABLE FROM THE LEASING, ARE BUSINESS REVE NUE, AND THEREFORE FALL UNDER THE HEAD BUSINESS INCOME. THE LD.AO DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE, AND BASED O N THE DECISION OF EARLIER ASSESSMENT YEARS, HE HELD THAT IN ORDER TO MAINTAIN CONSISTENCY WITH THE EARLIER YEARS, THE INCOME FROM LET OUT PROPERTIES IS TO BE TREATED AS INCOME FROM HOUSE PR OPERTY. APPEAL BEFORE THE LD.CIT(A) DID NOT YIELD ANY SUCCESS. HE NCE, THE ASSESSEE IS NOW BEFORE THE TRIBUNAL. 4. BEFORE US, THE LD.COUNSEL FOR THE ASSESSEE FILED WRITTEN SYNOPSIS WHICH IS RUNNING OVER 25 PAGES. THE SAME IS PLACED ON RECORD. THE SUBMISSIONS MADE THEREIN ARE MORE OR L ESS ON SIMILAR LINE OF ARGUMENTS TAKEN BEFORE THE REVENUE AUTHORIT IES. IN ITS SUBMISSIONS, THE ASSESSEE HAS ALSO RELIED ON VARIOU S JUDGMENTS TO SUPPORT THE CASE OF THE ASSESSEE THAT SINCE THE INT ENTION OF THE ITA NO.226/AHD/2019 4 ASSESSEE WAS TO EXPLOIT THE PROPERTY COMMERCIALLY, THE INCOME RECEIVED FOR LETTING OUT OF THE PROPERTY WAS TO BE ASSESSED UNDER THE HEAD BUSINESS INCOME. THE LD.COUNSEL FOR THE ASSESSEE ALSO DRAWN TO OUR ATTENTION THAT IN EARLIER YEARS SIMILA R CLAIM WAS MADE BY THE ASSESSEE. THE ISSUE WENT UPTO THE TRIBUNAL , AND THE TRIBUNAL HAS TAKEN A CONSISTENT VIEW ON THE ISSUE A ND ALLOWED THE CLAIM OF THE ASSESSEE VIDE ITA NO.135/AHD/2018 FOR A.Y.2013-14; ITA NOS.3559 & 3560/AHD/2015 FOR THE ASSTT.YEAR 201 0-11 AND 3560/AHD/2015 FOR THE ASSTT.YEAR 2011-12. DESPITE TRIBUNAL HAVING TAKEN CONSISTENT VIEW IN ALL THREE PRECEDING ASSESSMENT YEARS, REVENUE AUTHORITIES INSTEAD OF FOLLOWING ORD ERS OF THE TRIBUNAL ON THE ISSUE, CONTINUED TO TAKE A DIVERGEN T VIEW, WHICH REQUIRES TO BE SET ASIDE AND ALLOW CLAIM OF THE ASS ESSEE IN THIS YEAR AS WELL. ON THE OTHER HAND, THE LD.DR SUPPOR TED ORDERS OF THE REVENUE AUTHORITIES. 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND GONE TH ROUGH THE RECORD CAREFULLY. WE HAVE ALSO GONE THROUGH ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2010-11 TO 2013-14. WE FIND THAT ISSUES RAISED BEFORE THE T RIBUNAL IN THIS YEAR ARE SIMILAR TO PRE-CEDING THREE ASSESSMENT YEA RS. IN ALL THESE YEARS, TRIBUNAL HAS ALLOWED CLAIM OF THE ASSE SSEE AND DIRECTED THE LD.AO TO TREAT THE INCOME OF THE ASSES SEE AS BUSINESS INCOME. THEREFORE, IT WOULD NOT BE APPROPRIATE FO R US TO DEVIATE FROM THE VIEW TAKEN IN EARLIER YEARS, WITHOUT POINT ING OUT ANY MATERIAL CHANGE IN THE FACTS AND CIRCUMSTANCES IN S UBSEQUENT YEAR. EVEN, THE LD.DR HAS NOT DISPUTED ABOUT THE D ECISION OF THE TRIBUNAL IN THE EARLIER YEARS ON THE SIMILAR NOR AB LE TO STATE HOW ITA NO.226/AHD/2019 5 THE FACTS IN THE EARLIER ASSESSMENT YEARS ARE DIFFE RENT FROM THE YEAR UNDER CONSIDERATION. HOWEVER, TO TAKE THE ISS UE TO A LOGICAL CONCLUSION, IT IS SUFFICIENT FOR US TO REPRODUCE RE LEVANT PART OF ORDER OF THE TRIBUNAL PASSED IN THE CASES OF THE AS SESSEE IN EARLIER. THE DISCUSSION MADE BY THE TRIBUNAL IN IT A NO.135/AHD/2018 FOR THE ASSTT.YEAR 2013-14 WHILE AL LOWING THE CLAIM OF THE ASSESSEE READS AS UNDER: 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND GONE THROUGH THE RECORD CAREFULLY. WE HAVE ALSO GONE TH ROUGH ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FO R THE ASSESSMENT YEAR 2010-11 AND 2011-12. WE FIND THA T ISSUES RAISED IN THIS YEAR ARE SIMILAR TO ASSESSMEN T YEAR 2010-11 AND 2011-12. BEFORE US, THIS IS NOT A VEXE D ISSUE, BECAUSE THE ASSESSEE IS CONTINUOUSLY CLAIMING THE S AME CLAIM RIGHT FROM THE ASSTT.YEAR 2009-10, AND THE TR IBUNAL HAS ALSO UPHELD THE TREATMENT OF INCOME EARNED BY T HE ASSESSEE UNDER THE INCOME FROM BUSINESS OR PROFESSI ON. THE DISCUSSION MADE BY THE TRIBUNAL WHILE ALLOWING THE CLAIM OF THE ASSESSEE READS AS UNDER: 7. WE HAVE NOTED THAT IN ASSESSEES OWN CASE FOR T HE ASSESSMENT YEAR 2009- 10, THE ASSESSING OFFICER HIM SELF HAS ACCEPTED THE TREATMENT OF INCOME IN QUESTION AS PROFITS AND GAINS FROM BUSINESS OR PROFESSION. NO DOUBT TH E PRINCIPLES OF RES JUDICATA DO NOT APPLY TO THE INCO ME-TAX PROCEEDINGS, BUT WHERE A FUNDAMENTAL ASPECT PERMEAT ING THROUGH DIFFERENT ASSESSMENT YEARS HAS BEEN FOUND A S A FACT ONE WAY OR THE OTHER AND PARTIES HAVE ALLOWED THAT POSITION TO BE SUSTAINED BY NOT CHALLENGING THE ORDER, IT WO ULD NOT BE AT ALL APPROPRIATE TO ALLOW THE POSITION TO BE CHAN GED IN A SUBSEQUENT YEAR. THIS IS SO HELD BY THE HONBLE SUP REME COURT IN THE CASE OF RADHASOAMI SATSANG V. CIT [199 2] 193 ITR 321 (SC). IN THIS PERSPECTIVE, WHEN WE APPROACH THE FACTS OF THE PRESENT CASE, WE FIND THAT WHETHER THE INCOME IN QUESTION IS TO BE TREATED AS INCOME FROM HOUSE P ROPERTY OR INCOME FROM BUSINESS OR PROFESSION IS A QUESTION WHICH MUST DEPEND ON THE APPRECIATION OF COMPLEX WEB OF F ACTS PERTAINING TO THE SERVICES OFFERED BY MALL TO, AND FOR, THOSE ITA NO.226/AHD/2019 6 OCCUPYING THE BUSINESS PREMISES ON SUCH MALL. ONCE THE ASSESSING OFFICER HIMSELF COMES TO THE CONCLUSION T HAT GIVEN THE COMPLEXITY OF THESE SERVICES AND ALL THESE FACT S BEING TAKEN AS INTEGRATED WHOLLY THE INCOME IN QUESTION I S TO BE TAXED AS BUSINESS INCOME, IT WOULD NOT AT ALL APPRO PRIATE FOR THE ASSESSING OFFICER TO DEVIATE FROM SUCH A STAND, WITHOUT ANY MATERIAL CHANGE IN THE FACTS AND CIRCUMSTANCES IN A SUBSEQUENT YEAR. IN ANY EVENT, THE MAINTENANCE CHAR GE FOR COMMON AREA MAINTENANCE IS ONLY ONE OF THE SEGMENTS OF SERVICES PROVIDED TO THE UNIT HOLDERS IN THE MALL. THE COMMON AREA MAINTENANCE IS ONE ASPECT WHERE COSTS A RE SHARED BUT THAT DOES NOT MEAN THAT ALL OTHER SERVIC ES AND AMENITIES ESSENTIAL TO SMOOTH FUNCTIONING AND CONDU CIVE TO BUSINESS, CAN BE IGNORED FOR THE PURPOSE OF ASCERTA INING THE NATURE OF BUSINESS MODEL. IT, THEREFORE, CANNOT BE SAID, ON THE FACTS AND CIRCUMSTANCES THAT ALL THE SERVICES W HICH HAVE BEEN PROVIDED TO THE UNIT HOLDERS HAVE BEEN SEPARAT ELY TAXED AS BUSINESS INCOME. THE FACT REMAINS THAT EVE N THOUGH COMMON AREA MAINTENANCE SERVICES ARE CHARGED FOR CERTAIN SERVICES, THERE ARE LARGER NUMBER OF SERVIC ES SUCH AS ROUND-THE-CLOCK SECURITY, ELECTRIFICATION, CLEANLIN ESS, PARKING SERVICES AND MOST OF OTHER SERVICES WHICH ARE INTEG RATED AND ESSENTIAL FOR SUCCESSFUL OPERATION OF MALL, CON SIDERATION FOR WHICH IS INCLUDED IN THE CHARGES RECEIVED FROM UNIT HOLDERS. THE FACT THAT THESE UNIT HOLDERS TREAT THE SE CHARGES AS RENT SIMPLICITER AND TAX DEDUCTED AT SOURCE UNDE R SECTION 194-I CANNOT DETERMINE THE QUESTION OF TAXABILITY I N THE HANDS OF THE RECIPIENT. IN THE BUSINESS MODEL EMBED DED BY THE OPERATION OF THE SHOPPING MALL, AS WE HAVE POIN TED OUT EARLIER, A COMPLEX WEB OF INTEGRATED SERVICES ARE T O BE PROVIDED AND THE CONSIDERATION RECEIVED FROM THOSE OCCUPYING THE BUSINESS PREMISES IS NOT SIMPLY AS SU CH RENT FOR THE PREMISES. AS WE HOLD SO, WE FIND SUPPORT FR OM HONBLE SUPREME COURTS JUDGMENT IN THE CASE OF CIT VS. E CITY REAL ESTATE (P.) LTD., [2018] 100 TAXMANN.COM 94 (SC), WHEREIN THEIR LORDSHIPS HAS, INTER ALIA, OBSE RVED AS FOLLOWS:- 14. IN THE PRESENT CASE, THE FACTS ARE OTHERWISE. THE SUBSTANTIVE INCOME OF THE ASSESSEE IS FROM LEASING OUT THE SHOP/STALLS. 15. THE TRIBUNAL IN ITS JUDGMENT, WHILE APPRECIATIN G THE FACTS, HAS OBSERVED THAT THE VARIOUS MALLS ARE BUIL T BY ASSESSEE AND ARE OPERATED FROM THE YEAR 2001. THE ITA NO.226/AHD/2019 7 OPERATIONAL INCOME RECEIVED FROM THE SAID ACTIVITY, IN THE FORM OF RENT, AND OTHER SERVICE CHARGES WAS CONSIST ENTLY OFFERED TO TAX AS ITS BUSINESS INCOME IN THE EARLIE R YEARS AND THE SAME WAS ACCEPTED BY THE DEPARTMENT AS A BUSINE SS INCOME. AFTER DEMERGER, BOTH THE ASSESSEE COMPANIES TOOK OVER THE ASSETS AND LIABILITIES OF THE DEMERGED COM PANY AND CONTINUED THE SAME BUSINESS OF OPERATING AND RUNNIN G THE MALLS. THE TRIBUNAL HAS CONSIDERED THE NATURE OF TH E BUSINESS ACTIVITIES OF THE ASSESSEE COMPANY, AS WEL L AS, TERMS AND CONDITIONS OF THE RELEVANT AGREEMENTS, UN DER WHICH THE COMMERCIAL SPACE IN THE MALL WAS GIVEN ON HIRE BY THE ASSESSEE COMPANIES TO THE CONCERNED PARTIES. IT ALSO CONSIDERED THE VARIOUS SERVICES PROVIDED BY THE ASS ESSING COMPANIES DURING THE COURSE OF OPERATION AND RUNNIN G OF THE FAMILY ENTERTAINMENT CENTRE-CUM-MALLS. ON APPRECIATION OF FACTS, THE COMMISSIONER (APPEALS) A ND THE TRIBUNAL HAVE CONCURRENTLY ARRIVED AT A CONCLUSION THAT THE INTENTION OF THE ASSESSING COMPANIES WAS TO COMMERC IALLY EXPLOIT THE PROPERTY BY WAY OF COMPLEX COMMERCIAL ACTIVITIES AND IT WAS NOT A CASE OF LETTING OUT THE PROPERTY SIMPLICITOR. THE RENTAL INCOME AND THE SERVICE CHAR GES THUS WERE RECEIVED BY THE ASSESSEE COMPANY AS BUSINESS INCOME DURING THE COURSE OF BUSINESS CARRIED OUT BY THEM OF OPERATING AND RUNNING A MALL AS A COMMERCIAL ACTIVI TY. THE FACTS OF THE PRESENT CASE ARE MUCH SIMILAR TO THE C ASE OF CHENNAI PROPERTIES AND INVESTMENTS LTD. (REFERRED T O SUPRA). 16. WE FIND THAT THE APPRECIATION OF EVIDEN CE BY THE COMMISSIONER (APPEALS) AND TRIBUNAL IS NOT PERVERSE AND THE FINDING ARRIVED AT BY THEM IS PLAUSIBLE ONE. 8. SPECIFICALLY DEALING WITH A MATERIALLY SIMILAR Q UESTION, THE HONBLE KERALA HIGH COURT IN THE CASE OF CIT VS. OB ERON EDIFICES & ESTATES (P) LTD, REPORTED IN [2019] 103 TAXMANN.COM 413 (KERALA), HAVE, INTER ALIA, OBSERVED AS FOLLOWS:- 27. IN THE INSTANT CASE, IT IS NOT A LETTING OUT O F PROPERTY SIMPLICITER, WITHOUT ANYTHING MORE. A HOST OF SERVI CES ARE BEING PROVIDED BY THE ASSESSEE AT THE SHOPPING MALL . THE ASSESSEE IS ENGAGED IN A COMPLEX SET OF ACTIVITIES AT THE SHOPPING MALL. MANAGEMENT OF THE SHOPPING MALL IS D ONE BY THE ASSESSEE. THE BASIC PURPOSE IS COMMERCIAL EXPLO ITATION OF THE PROPERTY. THE ASSESSEE HAS EARNED THE INCOME NOT MERELY BY LETTING OUT THE SHOP ROOMS BUT ALSO BY PR OVIDING AMENITIES AND FACILITIES AT THE SHOPPING MALL. SUCH AMENITIES AND FACILITIES ARE NOT THE BASIC FACILITIES REQUIRE D FOR ITA NO.226/AHD/2019 8 OCCUPATION OF A SHOP ROOM BY A TENANT. THEY ARE THE SPECIAL FACILITIES FOR RUNNING THE SHOPPING MALL AND ARE ME ANT TO ATTRACT THE CUSTOMERS AND PROVIDE THEM THE COMFORT AND CONVENIENCE OF SHOPPING. IN CASES WHERE THE INCOME RECEIVED IS NOT FROM THE BARE LETTING OUT THE PROPE RTY BUT ON ACCOUNT OF THE FACILITIES AND SERVICES RENDERED, TH E OPERATIONS INVOLVED IN SUCH LETTING OUT IS IN THE N ATURE OF BUSINESS AND THE INCOME DERIVED THEREFROM HAS TO BE TREATED AS BUSINESS INCOME AND NOT INCOME FROM PROP ERTY. THE INCOME DERIVED BY THE ASSESSEE CANNOT BE REGARD ED AS SIMPLY FROM THE EXERCISE OF PROPERTY RIGHT. WHERE T HE ASSESSEE COMPANY HAS DEVELOPED THE SHOPPING MALL AN D LET OUT THE SAME BY PROVIDING A VARIETY OF SERVICES, FA CILITIES AND AMENITIES IN THE MALL, IT CAN BE FOUND THAT THE PRIMARY INTENTION OF THE ASSESSEE WAS COMMERCIAL EXPLOITATI ON OF THE PROPERTY AND WHERE IT HAS DERIVED SUBSTANTIAL PART OF ITS INCOME BY SUCH ACTIVITY, WHICH CONSTITUTES ITS MAIN BUSINESS, THE INCOME SO DERIVED WOULD BE BUSINESS I NCOME OF THE ASSESSEE. WE, THEREFORE, AGREE WITH THE VIEW OF THE TRIBUNAL THAT THE INCOME DERIVED BY THE ASSESSEE BY LETTING OUT THE SHOPS IN THE MALL HAS TO BE ASSESSED AS INC OME FROM BUSINESS AND NOT AS INCOME FROM HOUSE PROPERTY. 28. ON THE BASIS OF THE DISCUSSION ABOVE, WE FIND T HAT THE AMOUNT RECEIVED BY THE ASSESSEE COMPANY ON LETTING OUT THE SHOP ROOMS IN THE MALL CONSTRUCTED BY IT HAS TO BE TREATED AS BUSINESS INCOME AND IT HAS TO BE ASSESSE D TO TAX UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS' AND NOT UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY'. THE SUBSTANTIAL QUESTION OF LAW IS ANSWERED IN FAVOUR O F THE ASSESSEE AND AGAINST THE REVENUE. 9. IN VIEW OF THE ABOVE DISCUSSIONS, AS ALSO BEARIN G IN MIND ENTIRETY OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE AUTHORITIES BELOW WERE INDEED IN ERROR IN TREATING THE CONSIDERATION RECEIVED BY THE ASSESSEE FOR COMMERCI AL SPACE GIVEN IN THE MALL TO VARIOUS PERSONS AS INCOME FROM HOUSE PROPERTY. WE VACATE THE ACTION OF THE AUTHORITIES B ELOW AND DIRECT THAT THE SAID INCOME BE TREATED AS PROFITS AND GAIN S FROM BUSINESS OR PROFESSION. AS THIS CORE ISSUE HAS BEEN DECIDED BY US IN FAVOUR OF THE ASSESSEE, ALL OTHER ISSUES ARE RENDERED ACAD EMIC AND INFRUCTUOUS. THE APPEAL OF THE ASSESSEE IS THUS ALL OWED. ITA NO.226/AHD/2019 9 AS MENTIONED ABOVE, THE LD.DR HAS NOT POINTED OUT A NY FUNDAMENTAL CHANGES IN THE FACTS OF THIS YEAR WITH THAT OF EARLIER YEARS, PROMPTING US TO TAKE A DIFFERENT VIEW. RAT HER, BOTH THE REVENUE AUTHORITIES GONE TO RECORD A FINDING THAT T HERE IS NO CHANGE IN THE FACTS AND IN ORDER TO MAINTAIN CONSIS TENCY WITH THE EARLIER YEARS, INCOME OF THE ASSESSEE IS TO BE TREA TED AS INCOME FROM HOUSE PROPERTY. SINCE IDENTICAL ISSUE WAS DEA LT WITH BY THE TRIBUNAL IN EARLIER YEARS, AS CITED (SUPRA) IN THE ASSESSEES OWN CASES, FOLLOWING THE PRINCIPLE OF CONSISTENCY, WE D IRECT THE AO TO TREAT THE IMPUGNED INCOME EARNED BY THE ASSESSEE UN DER PROFIT AND GAINS FROM BUSINESS OR PROFESSION. 6. IN GROUND NO.2, THE ASSESSEE IS AGGRIEVED BY THE ACTION OF THE REVENUE IN NOT ALLOWING DEDUCTION OF BUSINESS E XPENDITURE AND DEPRECIATION ON FIXED ASSETS AGAINST INCOME FROM BU SINESS OPERATION OF RS.2,64,48,936/-. IN THE FOREGOING PAR AGRAPH, WE HAVE HELD THAT INCOME EARNED BY THE ASSESSEE IS TO BE TREATED UNDER THE HEAD PROFITS AND GAINS FROM BUSINESS OR PROFESSION, AS A CONSEQUENCE THEREOF, THIS EXPENDITURE IS ALSO TO BE CONSIDERED FROM THAT ANGLE. ACCORDINGLY, THIS GROUND IS ALLOW ED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 8 TH SEPTEMBER, 2021. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 08/09/2021