Appeal Details
Counselvise Citation
[2016] 131 COUNSELVISE.COM (IT) 1540 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 7 month(s) 26 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
16-12-2016
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
F
Next Hearing Date
15-12-2017
Assessment Year
2011-2012
Appeal Filed On
20-04-2015
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'F' BENCH, MUMBAI BEFORE SHRI JASON P. BOAZ, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN , JUDICIAL MEMBER ITA NO. 2267/MUM/2015 (ASSESSMENT YEAR: 2011-12) M/S. NATIONAL REALTY P. LTD. VS. DCIT, CIRCLE 5(2) 11 - 16 ASHOKA SHOPPING CENTRE LAKMANYA TILAK MARG, NEAR G.T. HOSPITAL, MUMBAI 400001 AAYAKAR BHAVAN M.K. ROAD MUMBAI 400020 PAN AAACN1433D APPELLANT RESPONDENT APPELLANT BY: SHRI VIPUL JOSHI RESPONDENT BY: SMT. B. PADMAJA DATE OF HEARING: 15.12.2016 DATE OF PRONOUNCEMENT: 16.12.2016 O R D E R PER JASON P. BOAZ, A.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)- 10, MUMBAI DATED 23.03.2015 FOR A.Y. 2011-12. 2. THE FACTS OF THE CASE, BRIEFLY, ARE AS UNDER: - 2.1 THE ASSESSEE, ENGAGED IN THE BUSINESS OF LEASIN G OF PROPERTY AND OTHER ASSETS, FILED ITS RETURN OF INCOME FOR A.Y. 2011-1 2 ON 14.09.2011 DECLARING A LOSS OF ` 3,81,05,562/-. THE RETURN WAS PROCESSED UNDER SECTI ON 143(1) OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') AND T HE CASE WAS SUBSEQUENTLY TAKEN UP FOR SCRUTINY. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 24.01.20 14 WHEREIN THE ASSESSEES LOSS WAS ASSESSED AT ` 3,28,37,661/-; IN VIEW OF THE AO TREATING THE ASSESSEES INCOME OF ` 56,97,031/- FROM AMENITIES AND SERVICE CHARGES AS EXIGIBLE TO TAX UNDER THE HEAD INCOME FROM HOUS E PROPERTY AND NOT AS BUSINESS INCOME OR INCOME FROM OTHER SOURCES AND CONSEQUENTLY FOR WHICH ONLY THE STANDARD DEDUCTION BEING ALLOWABLE U NDER THE HEAD INCOME ITA NO. 2267/MUM/2015 M/S. NATIONAL REALTY P. LTD. 2 FROM HOUSE PROPERTY; OTHER EXPENSES CLAIMED AS BUS INESS EXPENSES AND DEPRECIATION WOULD NOT BE ALLOWABLE. 2.2 AGGRIEVED BY THE ORDER OF ASSESSMENT FOR A.Y. 2 011-12 DATED 24.01.2014, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A)-10, MUMBAI WHO DISMISSED THE ASSESSEES APPEAL VIDE THE IMPUGNED ORDER DATED 23.03.2015. 3.1 AGGRIEVED BY THE ORDER OF THE CIT(A)-10, MUMBAI DATED 23.03.2015 FOR A.Y. 2011-12, THE ASSESSEE PREFERRED THIS APPEAL AN D RAISED THE FOLLOWING GROUNDS: - I. THE APPELLANT SUBMITS THAT THE HON'BLE COMMISSI ONER OF INCOME-TAX (APPEALS) - 10, MUMBAI (HEREINAFTER REFERRED TO AS 'THE CIT-(A)') ERRED IN UP-HOLDING THE ACTION OF THE LEARNED DEPUT Y COMMISSIONER OF INCOME-TAX (HEREINAFTER REFERRED TO AS 'DCIT') I N TREATING, COMPUTING AND ASSESSING THE INCOME RECEIVED FROM PR OVIDING AMENITIES AND SERVICES CHARGES AS 'INCOME FROM HOUS E PROPERTY' INSTEAD OF COMPUTING AND ASSESSING IT UNDER THE HEA D 'PROFIT & GAINS FROM BUSINESS'. II. FURTHER, AS A RESULT THEREOF, HON'BLE CIT-(A) A LSO ERRED IN UP-HOLDING THE ACTION OF LEARNED DOT IN DISALLOWING DEPRECIATI ON OF RS.34,97,160 ON THE ASSETS ACQUIRED AND USED TO EAR N THE AMENITIES INCOME. III. THE HON'BLE CIT-(A) ERRED IN UP-HOLDING THE AC TION OF LEARNED DCIT IN DISALLOWING NORMAL AND REGULAR BUSINESS EXPENSES OF RS.35,06,322 ON THE GROUND THAT NO BUSINESS WAS CAR RIED ON BY THE APPELLANT DESPITE FINDING OF FACT THAT THE APPELLAN T CARRIED ON BUSINESS OF LEASING OF PROPERTIES AND OTHER ASSETS. IV. WITHOUT PREJUDICE TO THE GROUND I ABOVE, IF IT IS HELD THAT INCOME FROM AMENITIES CANNOT BE TAXED UNDER THE HEAD 'PROF IT & GAINS FROM BUSINESS', THEN, HON'BLE CIT-(A) ERRED IN UP-HOLDIN G THE ACTION OF LEARNED DCIT IN TREATING, COMPUTING AND ASSESSING T HE INCOME RECEIVED FROM PROVIDING AMENITIES AS 'INCOME FROM H OUSE PROPERTY' INSTEAD OF COMPUTING AND ASSESSING IT UNDER THE HEA D 'INCOME FROM OTHER SOURCES' AFTER ALLOWING DEDUCTION OF DEPRECIA TION OF RS.34,97,160 ON THE ASSETS USED FOR RENDERING THE A MENITIES U/S 57 OF THE ACT. V. THE APPELLANT PRAYS THAT ORDER OF HON'BLE CIT-(A ), BEING CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, AS WELL AS IN LAW, BE SET ASIDE IN VIEW OF THE GROUNDS OF APPEAL STATED AT NO S. ITO IV. VI. THE APPELLANT PRAYS FOR APPROPRIATE RELIEF. VII. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AM END THE GROUNDS OF APPEAL AT THE TIME OF HEARING. ITA NO. 2267/MUM/2015 M/S. NATIONAL REALTY P. LTD. 3 3.2.1 VIDE LETTER DATED 08.12.2016, THE ASSESSEE RA ISED THE FOLLOWING ADDITIONAL GROUNDS: - ADDITIONAL GROUNDS 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LICENSE FEE/COMPENSATION OF RS.18,06,58,809/- EARNED BY THE APPELLANT WAS REQUIRED TO BE TAXED UNDER THE HEAD PROFITS AN D GAINS OF BUSINESS INSTEAD OF THE HEAD INCOME FROM HOUSE PR OPERTY. 2. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR MODIFY ALL OR ANY THE ABOVE GROUNDS AT THE TIME OF HEARING. 3.2.2 WE HAVE HEARD BOTH PARTIES ON THE ISSUE OF AD MISSION OF ADDITIONAL GROUNDS (SUPRA). THE SUBMISSIONS OF THE ASSESSEE SE EKING ADMISSION OF THE ADDITIONAL GROUNDS ARE AS UNDER: - 1. THE APPELLANT IS IN THE BUSINESS OF LEASING OF PROPERTIES, WITH ITS MAIN OBJECT CLAUSE BEING TO DEAL IN PROPERTIES BY W AY OF PURCHASE, SALE LEASE, LEAVE AND LICENSE, ETC. THE O NLY COMMERCIAL ACTIVITY UNDERTAKEN BY THE APPELLANT IS ACQUIRING A ND LETTING OUT OF VARIOUS PROPERTIES, SOME OF WHICH WITH VARIOUS A MENITIES. THE APPELLANT HAS BEEN UNDERTAKING SUCH ACTIVITIES SINC E LAST OVER TWO DECADES. THE APPELLANT HAD BEEN CONSISTENTLY CL AIMING THE INCOME FROM SUCH BUSINESS ACTIVITIES UNDER THE HEAD 'PROFITS AND GAINS FROM BUSINESS. 2. HOWEVER, INADVERTENTLY AND ALSO UNDER BONA FIDE - THOUGH MISTAKEN - BELIEF ABOUT THE TRUE LEGAL POSITION AND LEGAL REMEDIES, FOR THE PREVIOUS YEAR, THE APPELLANT RETURNED THE I NCOME ARISING ON ACCOUNT OF THE LICENSE FEES EARNED UNDER THE HEA D 'INCOME FROM HOUSE PROPERTY' HOWEVER, THE AMENITIES CHARGES RECEIVED CONTINUED TO BE CLAIMED UNDER THE HEAD 'PROFITS AND GAINS FROM BUSINESS'. 3. HOWEVER, PENDING THE PROCEEDINGS BEFORE THE LOWE R AUTHORITIES, THE HON'BLE HIGH COURT ADMITTED THE APPEALS OF THE APPELLANT FOR A.Y. 1989 - 90 TO A.Y. 1992 - 93 AND 1995 - 96 ALSO FOR A.Y. 2005- 06 TO AY 2008-09, ON THIS VERY QUESTION OF LAW; THAT IS, WHETHER SUCH INCOME IS TAXABLE UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS' OR UNDER THE HEAD 'INCOME FROM HOUSE PROP ERTY'. 4. IN THE CIRCUMSTANCES, THE APPELLANT MOST RESPECT FULLY SUBMITS THAT THE APPELLANT BE ALLOWED TO RAISE THE ADDITION AL GROUND ATTACHED HEREWITH FOR THE FOLLOWING REASONS: (I) THE ISSUES RAISED IN THIS GROUND GOES TO THE R OOT OF THE HEAD UNDER WHICH THE LICENCE FEES/COMPENSATION IS TAXABL E. (II) ENTERTAINING THIS ADDITIONAL GROUND WILL NOT REQUIRE INVESTIGATION INTO ANY FRESH FACTS, APART FROM THE FACTS ALREADY ON THE RECORDS OF THE APPELLANT WITH THE DEPARTMENT. ITA NO. 2267/MUM/2015 M/S. NATIONAL REALTY P. LTD. 4 (III) NOT TAKING THIS ADDITIONAL GROUND AT THE TIM E OF FILING OF THE APPEAL WAS PURELY UNINTENTIONAL AND DUE TO OVERSIGH T. (IV) IN FACT, THE APPELLANT HAD CHALLENGED THE SIM ILAR ACTION OF THE A.O. IN TREATING THE LICENSE FEES / COMPENSATIO N EARNED BY IT AS TAXABLE UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' IN EARLIER YEARS, THAT IS, FOR A.Y. 1989- 90 TO A.Y. 1992-93, A.Y. 1995-96 AND A.Y. 2005-06 TO A.Y. 2008 -09, AND, ON THIS VERY ISSUE, THE APPELLANT'S APPEALS AR E ALSO ADMITTED BY THE HON'BLE HIGH COURT FOR THOSE YEARS AND ARE PENDING FINAL HEARING. THIS FACT ALSO GOES TO S HOW THAT THE APPELLANT HAD CHALLENGED THE ACTION OF THE A.O. OF TREATING THE LICENSE FEES / COMPENSATION AS TAXABLE UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' IN THE EARLIE R YEARS. HOWEVER, FOR THE YEAR UNDER CONSIDERATION, IT WAS O NLY DUE TO INADVERTENCE THAT THE GROUND CHALLENGING THE ACT ION OF THE A.O. TREATING THE LICENSES FEE AS 'INCOME FROM HOUSE PROPERTY' REMAINED TO BE TAKEN. 3.2.2 TAKING INTO CONSIDERATION THE SUBMISSIONS PUT FORTH BY THE ASSESSEE FOR ADMISSION OF ADDITIONAL GROUNDS AND THE FACT TH AT SIMILAR ADDITIONAL GROUNDS WERE CONSIDERED BY THE COORDINATE BENCH WHI LE DECIDING THE ASSESSEES APPEAL FOR A.Y. 2009-10 IN ITS ORDER IN ITA NO. 5839/MUM/2012 DATED 29.06.2016 (A COPY OF WHICH WAS PLACED BEFORE THE BENCH) WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE AND EQUITY THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE BE ADMITTED FOR CONSIDERATIO N. 4.1 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD; INCLUDING THE JU DICIAL PRONOUNCEMENTS CITED. WE FIND THAT IDENTICAL GROUNDS/ADDITIONAL GR OUNDS WERE RAISED BY THE ASSESSEE BEFORE THE COORDINATE BENCH IN ASSESSE ES APPEAL FOR A.Y. 2009-10. THESE ISSUES WERE CONSIDERED AND DISPOSED OFF BY THE COORDINATE BENCH IN ITS ORDER IN ITA NO. 5839/MUM/2012 DATED 2 9.06.2016 FOR A.Y. 2009-10 IN THE ASSESSEES OWN CASE AS UNDER: - 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- I. THE APPELLANT SUBMITS THAT THE HONBLE COMMISS IONER OF INCOME TAX (APPEALS) 9, MUMBAI (HEREINAFTER REFERRE D TO AS THE CIT(A)) ERRED IN UP-HOLDING THE ACTION OF THE LEARNED DEPUTY COMMISSIONER OF INCOME-TAX (HEREINAFTER REFE RRED TO AS DCIT) IN TREATING, COMPUTING AND ASSESSING THE INCOME RECEIVED FROM PROVIDING AMENITIES AND SERVICES CHAR GES AS INCOME FROM HOUSE PROPERTY INSTEAD OF COMPUTING A ND ASSESSING IT UNDER THE HEAD PROFIT & GAINS FROM BU SINESS. ITA NO. 2267/MUM/2015 M/S. NATIONAL REALTY P. LTD. 5 II. FURTHER, AS A RESULT THEREOF, THE HONBLE CIT(A ) ALSO ERRED IN UP-HOLDING THE ACTION OF THE LEARNED DCIT IN DISALL OWING DEPRECIATION OF RS.46,75,819/- ON THE ASSETS ACQUIR ED AND USED TO EARN THE AMENITIES INCOME. III. THE HONBLE CIT(A) ERRED IN UP-HOLDING THE ACT ION OF THE LEARNED DCIT IN DISALLOWING NORMAL AND REGULAR BUSI NESS EXPENSES OF RS.26,96,576/- ON THE GROUND THAT NO BU SINESS WAS CARRIED ON BY THE APPELLANT DESPITE THE FINDING OF FACT THAT THE APPELLANT CARRIED ON THE BUSINESS OF LEASI NG OF PROPERTIES AND OTHER ASSETS. IV. WITHOUT PREJUDICE TO THE GROUND I ABOVE, IF IT IS HELD THAT INCOME FROM AMENITIES CANNOT BE TAXED UNDER THE HEA D PROFIT & GAINS FROM BUSINESS, THEN, THE HONBLE C IT(A) ERRED IN UP-HOLDING THE ACTION OF THE LEARNED DCIT IN TREATING, COMPUTING AND ASSESSING THE INCOME RECEIV ED FROM PROVIDING AMENITIES AS INCOME FROM HOUSE PROPERTY INSTEAD OF COMPUTING AND ASSESSING IT UNDER THE HEA D INCOME FROM OTHER SOURCE AFTER ALLOWING DEDUCTION OF DEPRECIATION OF RS.46,75,819/- ON THE ASSETS USED F OR RENDERING THE AMENITIES U/S.57 OF THE ACT. V. THE APPELLANT PRAYS THAT ORDER OF HONBLE CIT(A) , BEING CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE , AS WELL AS IN LAW, BE SET ASIDE IN VIEW OF THE GROUNDS OF A PPEAL STATED AT NOS. I TO IV. VI. THE APPELLANT PRAYS FOR APPROPRIATE RELIEF. ADDITIONAL GROUNDS:- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LICENSE FEE/ COMPENSATION OF RS.12,73,37,632/- EARN ED BY THE APPELLANT WAS REQUIRED TO BE TAXED UNDER THE HEAD PROFIT AND GAINS OF BUSINESS INSTEAD OF THE HEAD INCOME FROM HOUSE PROPERTY AND CONSEQUENTLY. 2. WITHOUT PREJUDICE TO THE ABOVE, THE INCOME FROM LIC ENSE FEE AND AMENITIES CONCERNING AT LEAST THE THREE PROPERTIES WAS REQUIRED TO BE TAXED UNDER THE HEAD PROFITS & GAINS OF BUS INESS OR PROFESSION. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED THE RETURN OF INCOME DECLARING TOTAL INCOME TO THE TUNE OF RS. 80,52,729/- ON 11.09.2009. THE RETURN WAS PROCESSED U/S.143(1) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THEREAFTER, THE CA SE WAS SELECTED FOR SCRUTINY AND NOTICE U/S.143(2) OF THE ACT WAS ISSUE D ON 24.08.2010 AND SERVED UPON THE ASSESSEE. SUBSEQUENTLY STATUTOR Y NOTICE U/S.142(1) OF THE ACT ALONG WITH QUESTIONNAIRE DATE D 14.07.2011 WAS ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF LEASING OF PROPERTIES AND OTHER ASS ETS AND HAS SHOWN INCOME FROM HOUSE PROPERTY, CAPITAL GAINS AND DIVID END INCOME. IN THE INSTANT CASE THE ASSESSEE HAS CLAIMED THE COMPE NSATION FOR ITA NO. 2267/MUM/2015 M/S. NATIONAL REALTY P. LTD. 6 AMENITIES AS BUSINESS INCOME WHICH WAS TREATED BY T HE ASSESSING OFFICER AS RENTAL INCOME AND ACCORDINGLY THE ASSESS MENT WAS COMPLETED, THEREAFTER THE ASSESSEE WENT UP IN APPEA L WHERE CIT(A) CONFIRMED THE ORDER PASSED BY THE ASSESSING OFFICER . FEELING AGGRIEVED THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ISSUE NO.1 AND 2:- 4. ACCORDING TO ISSUE NO.1 &2 THE CLAIM OF THE ASSE SSEE IS THAT THE COMPENSATION FOR AMENITIES IS BUSINESS INCOME AND C ANNOT BE TREATED AS RENTAL INCOME. ON APPRAISAL OF ORDER OF THE INC OME TAX APPELLATE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE A.Y.200 5-06, THE CONTENTION OF THE ASSESSEE HAS BEEN DECLINED AND TH E COMPENSATION FOR AMENITIES HAS BEEN TREATED AS RENTAL INCOME. T HE SAID ORDERS ALSO SPEAKS THAT THE MATTER OF CONTROVERSY IS PENDING BE FORE HONBLE BOMBAY HIGH COURT FOR DISPOSAL. THE HONBLE TRIBUN AL HAS DECIDED THE MATTER OF CONTROVERSY ON THE BASIS OF CALCUTTA HIGH COURT, IN CASE TITLED AS COMMISSIONER OF INCOME TAX VS. SHAMBHU IN VESTMENT PVT. LTD. [2001] 249 ITR 47. THE REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE MATTER OF CONTROVERSY HAS NOW BEEN ADJUDICATED BY THE HONBLE SUPREME CASE IN CASE OF CHENNAI PROPERT IES & INVESTMENT LTD. VS. CIT [2015] 373 ITR 0673 (SC). HOWEVER, ON THE OTHER HAND THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS REFUTED THE SAID CONTENTIONS. IN THE INSTANT CASE THE ASSESSEE FILE D THE RETURN OF INCOME BY DECLARING THE RENTAL INCOME FROM HOUSE PR OPERTY TO THE TUNE OF RS.12,73,37,632/-. THE ASSESSEE ALSO RECEIVED T HE COMPENSATION FROM AMENITIES TO THE TUNE OF RS.1,24,08,780/-. HO WEVER, THE SAID INCOME HAS BEEN CLAIMED BY THE ASSESSEE AS BUSINESS INCOME. THE HONBLE SUPREME COURT HAS OBSERVED IN THE ABOVE MEN TIONED CASE I.E. CHENNAI PROPERTIES & INVESTMENT LTD. (SUPRA) THAT W HERE IN THE TERMS OF MEMORANDUM OF ASSOCIATION, THE MAIN OBJECT OF TH E COMPANY IS TO ACQUIRE THE PROPERTY AND TO EARN THE INCOME BY LE TTING OUT THE PROPERTY, THE SAID INCOME WAS BROUGHT TO TAX AS BUS INESS INCOME NOT AS INCOME FROM HOUSE PROPERTY. IN VIEW OF THE SAI D CIRCUMSTANCES WE ARE OF THE VIEW THAT THE MATTER OF CONTROVERSY IS R EQUIRED TO BE RE- EXAMINED / VERIFIED AFRESH IN VIEW OF THE OBSERVAT IONS OF THE HONBLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & I NVESTMENT LTD. (SUPRA). ACCORDINGLY, WE SET ASIDE THE FINDING OF THE LEARNED CIT(A) ON THIS ISSUE AND REMAND THE CASE TO THE ASSESSING OFF ICER TO RE-CONSIDER THE MATTER OF CONTROVERSY IN VIEW OF THE GUIDELINES CONTAINED IN THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CH ENNAI PROPERTIES & INVESTMENT LTD. (SUPRA). THE ASSESSING OFFICER W OULD PROVIDE THE REASONABLE AND PROPER OPPORTUNITY TO THE ASSESSEE B EFORE PASSING THE ORDER IN THE INTEREST OF JUSTICE. 5. THE OTHER GROUND ARE RELATED TO THE FINDING OF T HE ASSESSING OFFICER WHILE DECIDING THE MATTER OF CONTROVERSY ON THE ADJUDICATION OF ISSUE NO.1&2 AS DECIDED ABOVE THEREFORE THESE ISSUE S WOULD BE CONSEQUENTIAL RESULT THEREOF. ACCORDINGLY, WE ALSO SET ASIDE THESE ISSUES AND RESTORE TO THE FILE OF ASSESSING OFFICER TO ADJUDICATE THE ITA NO. 2267/MUM/2015 M/S. NATIONAL REALTY P. LTD. 7 MATTER AFRESH IN THE LIGHT OF DECISION TAKEN BY HIM WHILE DECIDING THE ISSUE NO.1 &2. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSE . 4.2 FOLLOWING THE AFORESAID DECISION OF THE COORDIN ATE BENCH OF THE TRIBUNAL IN THE ASSESSEES OWN CASE IN ITA NO. 5839 /MUM/2012 DATED 29.06.2016 FOR A.Y. 2009-10, WE TOO ARE OF THE VIEW THAT THE MATTER OF CONTROVERSY IS REQUIRED TO BE RE-EXAMINED/VERIFIED AFRESH IN VIEW OF THE OBSERVATIONS OF THE HON'BLE APEX COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENT LTD. (2015) 373 ITR 673 (SC). IN THIS VI EW OF THE MATTER WE SET ASIDE THE FINDING OF THE LEARNED CIT(A) ON THIS ISS UE AND RESTORE THIS MATTER TO THE FILE OF THE AO TO RECONSIDER THE MATTER OF C ONTROVERSY IN THE LIGHT OF THE GUIDELINES LAID DOWN IN THE JUDGEMENT OF THE HO N'BLE APEX COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENT LTD. (SUPRA ), AFTER AFFORDING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD AND TO FILE DETAILS/ SUBMISSIONS IN THIS REGARD. 4.3 THE OTHER GROUNDS ARE RELATED TO THE FINDING OF THE AO WHILE DECIDING THE MATTER OF CONTROVERSY ON ADJUDICATION OF ISSUE RAISED IN GROUNDS NO. 1 AND 2 AS DECIDED ABOVE AND THOSE GROUNDS WOULD BE C ONSEQUENTIAL TO THE FINDINGS THEREON. IN THESE CIRCUMSTANCES, WE ACCORD INGLY ALSO SET ASIDE AND RESTORE THESE ISSUES/GROUNDS TO THE FILE OF THE AO TO CONSIDER/ADJUDICATE THE SAME AFRESH IN THE LIGHT OF THE DECISION TAKEN BY HIM WHILE DECIDING THE ISSUES AT NO. 1 & 2. WE HOLD AND DIRECT ACCORDINGLY . 5. IN THE RESULT, THE ASSESSEES APPEAL FOR A.Y. 2011- 12 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH DECEMBER, 2016. SD/ - SD/ - (SANDEEP GOSAIN) (JASON P. BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 16 TH DECEMBER, 2016 ITA NO. 2267/MUM/2015 M/S. NATIONAL REALTY P. LTD. 8 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -10, MUMBAI 4. THE CIT - 5, MUMBAI 5. THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.
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