ACITT-CIRCLE 5(3)(2), Mumbai V. M/S XTP DESIGN FURNITURE LTD., Mumbai

ITA 2424/MUM/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 7280 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 16-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA
• Section: 143(3)

Judgement Text

ITA NOS. 2424 /MUM/2019 ASSESSMENT YEARS: 2013 - 14 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI 'G' BENCH, MUMBAI [CORAM: PRAMOD KUMAR (VICE PRESIDENT), AND SAKTIJIT DEY (JUDICIAL MEMBER)] ITA NOS. 2424 /MUM/2019 ASSESSMENT YEARS: 2013 - 14 ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE - 5(3)(2), MUMBAI .APPELLANT VS. M/S. XTP DESIGN FURNITURE LTD. RESPONDENT 44/C, MOTIWALA BUILDING, 2 ND FLOOR, PROCTOR ROAD, GRANT ROAD EAST, MUMBAI 400007 [PAN: AAACX0160B ] APPEARANCES BY T. S. KHALSA FOR THE APPELLANT NONE FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JANUARY 18 , 2021 DATE OF PRONOUNCEMENT : JANUARY 1 9 , 2021 O R D E R PER PRAMOD KUMAR, VP: 1. BY WAY OF TH IS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 28 TH JANUARY 2019, PASSED BY THE LEARNED CIT(A), IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961, F OR THE ASSESSMENT YEAR 2013 - 14. 2. GRIEVANCES RAISED BY THE APPELLANT ARE AS FOLLOWS: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS CORRECT IN LAW IN TREATING THE GROSS RECEIPTS ON ACCOUNT OF AMENITIES SERVICES PROVIDED BY THE ASSESSEE TO ITS TENANTS OF RS. 3,95,58,070/ - AS INCOME FROM HOUSE PROPE RTY AS AGAINST THE STAND OF THE ASSESSING OFFICER IN ASSESSING THE SAME AS INCOME FROM OTHER SOURCES. 3. WHEN THIS APPEAL CAME UP FOR HEARING LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY ACCEPTED THAT, AS EVIDENT FROM THE OBSERVATIONS MADE BY THE LEARNED CIT(A) I N THE IMPUGNED ORDER THE ISSUE IN APPEAL IS COVERED BY A DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN ASSESSE E S OWN CASE FOR THE ASSESSMENT YEAR S 2009 - 10 AND 2010 - 11, IN FAVOUR OF THE ASSESSEE. ITA NOS. 2424 /MUM/2019 ASSESSMENT YEARS: 2013 - 14 PAGE 2 OF 4 4. WE FIND THAT THE, LEARNED COMMISSIONER HA S INTER ALIA OBSERVED AS FOLLOWS: - 6.3.1 I HAVE CONSIDERED THE SUBMISSION OF THE APPELLANT, CAREFULLY GONE THROUGH THE ORDER OF THE AO, AND PERUSED THE MATERIAL PLACED ON RECORD. 6.3.2 THIS ISS UE HAS BEEN DECIDED BY HON'BLE I TAT MUMBAI IN ITS ORDER FOR AY 2009 - 10 VIDE PARA 5 & 6 OF ORDER DT. 20.08.2014 WHICH IS REPRODUCED HEREUNDER: 5. THE ONLY OTHER GROUND IN REVENUE'S APPEAL RELATES TO THE TREATMENT OF RS. 4, 74, 64,848/ - AS 'INCOME FROM HOUSE PROPERTY' AS AGAINST 'INCOME FRO M OTHE R SOURCES' TREATED BY THE A.O. 6. THE UNDISPUTED FACT IS THAT THE ASSESSEE IS AN OWNER OF OFFICES AT UNIT NO.201, 301 AND 401 IN PENINSULA CHAMBERS, LOWER PARE I, MUMBAI AND THE PREMISES WAS LEASED OUT TO GROUP MEDIA PVT, LTD. AND HINDUSTAN THOMPSO N ASSOCIATES PVT. LTD. IT IS ALSO A FACT THAT THE ASSESSEE HAS GIVEN THE LESSEES ADDITIONAL COMMON FACILITIES LIKE LIFT, SECURITY, FIRE FIGHTING SYSTEM, COMMON AREA FACILITIES, CAR PARKING, TERRACE USE, WATER SUPPLY ETC. WE FIND THAT THE AO HAS TAXED LICENSE FEES OF RS.4,38,13,370/ - UNDER THE; HEAD 'INCOME FROM HOUSE PROPERTY' AND AMENITIES FEE OF RS.4, 74,64,484/ - UNDER THE HEAD 'INCOME FROM OTHER SOURCES'. WE FIND THAT THE NATURE SERVICES PROVIDED BY THE ASSESSEE TO THE TENANTS/ LESSEES WERE LINKE D TO THE PREMISES AND WERE IN THE NATURE OF AUXILIARY SERVICES WHICH WERE DIRECTLY LINKED TO THE LEASING OF THE PROPERTY. SINCE THERE A DIRECT NEXUS BETWEEN THE AMENITIES A ND LEASED PREMISES, THE ID. CIT(A) HAS RIGHTLY DIRECTED THE AO TO TREAT THE INCOME FROM AMENITIES UNDER THE HEAD, 'INCOME FROM HOUSE PROPERTY'. WE DO NOT FIND ANY INFIRMITY OR ERROR IN T HE FINDINGS OF THE ID. CIT(A). GROUND NO,1 OF THE REVENUE'S APPEAL IS ACCORDINGLY DISMISSED.' 6.3.3 THE HON'BLE ITAT MUMBAI IN ITS ORDER FOR AY 2010 - 11 VIDE PARA 8 ORDER DT. 09.02.2016 HAS CONCURRED WITH THE ABOVE VIEW 'BY HOLDING THAT THE INCOME OF RS. 4,38,61,4867 - RECEIVED BY THE ASSESSEE COMPANY FROM AMENITIES FEE SHALL BE CHARGEABLE TO TAX UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY', 6.3.4 THE FACTS OF THE CASE DURING THE YEAR UNDER CONSIDERATION ARE IDENTICAL AND HENCE HAVING REGARD TO THE TOTALITY OF FAC TS AND CIRCUMSTANCES OF THE CASE, AND RESPECTFULLY FOLLOWIN G THE DECISIONS OF THE HON'BLE I TAT, IT IS HELD TH AT THE INCOME OF RS.3,95,58,0 70/ - FROM THE AMENITIES IS TAXABLE AS 'INCOME FROM HOUSE PROPERTY'. 5. AS EVIDENT FROM THE ABOVE AND AS THE LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY ACCEPTS , THE ISSUE IN APPEAL IS CLEARLY COVERED BY A DECISION OF THE COORDINATE BENCH IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR S 2009 - 10 AND 2010 - 11 . ITA NOS. 2424 /MUM/2019 ASSESSMENT YEARS: 2013 - 14 PAGE 3 OF 4 6. WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THEN THE VIEW SO TAKEN BY THE COORDINATE BENCH . C LEARLY, THEREFORE, THERE IS NO INFIRMITY IN THE LEARNED CIT(A), DECIDING THE ISSUE IN FAVOU R OF THE ASSESSEE IN CONSONANCE WITH THE COORDINATE BENCH DECISION . WE APPROVE THE ACTION OF THE LEARNED CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. 7 . IN THE RESULT, THE APPEAL IS DISMISSED IN THE TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON THE 1 9 DAY OF JANUARY 2021 S D / - S D / - SAKTIJIT DEY PRAMOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) MUMBAI, DATED THE 1 9 DAY OF JANUARY, 2021 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, MUMBAI ITA NOS. 2424 /MUM/2019 ASSESSMENT YEARS: 2013 - 14 PAGE 4 OF 4