M/s SHOBHANA PROPERTIES & INVESTMENTS PVT LTD, MUMBAI V. INCOME TAX OFFICER, MUMBAI

ITA 2524/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4458 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 09-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 03-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIVEK OJHA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI JASON P. BOAZ (AM) AND SHRI RAM LAL NEG I (JM) ITA NO. 2524 /MUM/2013 ASSESSMENT YEAR: 2009-10 M/S. SHOBHANA PROPERTIES & INVESTMENTS PVT. LTD. M/S. J.J. MEHRA & CO, CHARTERED ACCOUNTANTS, 11, LAXMI BUILDING, 2 ND FLOOR, OFF. TURNER ROAD, BANDRA(W), MUMBAI- 400050. PAN AADCS5180P VS. THE I.T.O WARD 2(3)(2), AAYKAR BHAVAN, MUMBAI-20 (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI. VIVEK OJHA DATE OF HEARING: 04/01/2016 DATE OF PRONOUNCEMENT: 06/01/2016 O R D E R PER JASON P. BOAZ, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER OF THE CIT(APPEALS)-6, MUMBAI DT. 28/02/2013 FOR THE ASST. YEAR 2009-10. 2. THE FACTS OF THE CASE, BRIEFLY, ARE AS UNDER:- 2.1 THE ASSESSEE FILED ITS RETURN OF INCOME FOR AS ST. YEAR 2009-10 ON 30/09/2009 DECLARING INCOME OF RS. 4,52,491/-. THE RETURN WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961(IN SHORT THE ACT) AND THE CASE WAS SUBSEQUENTLY TAKEN UP FOR SCRUTINY . THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT VIDE ORDER DT. 18/10/2011, 2 ITA NO. 2524 /MUM/2013 ASSESSMENT YEAR: 2009-10 WHEREIN THE INCOME OF THE ASSESSEE WAS DETERMINED A T RS. 35,24,113/- . THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT ( APPEALS)-6, MUMBAI WHO DISPOSED OFF THE ASSESSEES APPEAL VIDE ORDER D T. 28/02/2013, ALLOWING THE ASSESSEE PARTIAL RELIEF. 3. AGGRIEVED BY THE ORDER OF THE CIT (A)-6, MUMBAI DT. 28/02/2013 FOR ASST. YEAR 2009-10, THE ASSESSEE PREFERRED THIS APPEAL BEFORE THE TRIBUNAL RAISING THE FOLLOWING GROUNDS:- 1) THE LEARNED INCOME TAX OFFICER HAS ERRED AND THE LEARNED COMMISSIONER OF INCOME TAX HAS UP HELD TREATING COM PENSATION RECEIVED FROM THE SOUTH INDIAN BANK OF RS.46,84,680 /- AS RENT INCOME & DISALLOWANCE OF RS.96,258/- AS PER RULE 8D AND DISALLOWANCES OF ALL EXPENSES DEBITED TO PROFIT & L OSS A/C . 2. THESE EXPLANATIONS AND SUBMISSIONS WERE GIVEN TO THE LEARNED INCOME TAX OFFICER AS WELL AS TO THE LEARNED COMMIS SIONER OF INCOME TAX. THE LEARNED INCOME TAX OFFICER & LEARNE D COMMISSIONER OF INCOME TAX HAS CONSIDERED YOUR APPE LLANT AS DEEMED TO BE THE OWNER OF THE PREMISES HENCE CONSID ERED THE COMPENSATION RECEIVED AS RENT INCOME WHEREAS YOUR A PPELLANT HAS GIVEN THE PREMISES TO THE SOUTH INDIAN BANK ON LEAS E FOR A PERIOD OF 11 MONTHS WITH A FURTHER RENEWAL OPTION FOR THE PERIOD OF 11MONTHS, THUS THE PROVISION OF DEEMED TO BE THE OW NER U/S 269UA(F) READ WITH SECTION 27(IIIB) OF THE INCOME T AX ACT 1961 DOESN'T ARISE. IN ORDER TO BUY PEACE WITH THE INCOM E TAX DEPARTMENT YOUR APPELLANT HAS SUBMITTED THE REVISED COMPUTATION OF TOTAL INCOME BIFURCATING THE COMPENSATION RECEIV ED FROM THE SOUTH INDIAN BANK AS THE INCOME FROM HOUSE PROPERTY & SERVICE CHARGES, WHERE THE LEARNED INCOME TAX OFFICER AS WE LL AS LEARNED 3 ITA NO. 2524 /MUM/2013 ASSESSMENT YEAR: 2009-10 COMMISSIONER OF INCOME TAX HAS PARTIALLY ACCEPTED T HE COMPUTATION BY TREATING THE COMPENSATION RECEIVED A S INCOME FROM HOUSE PROPERTY & OTHER SOURCES AND NOT GIVEN THE AL LOWANCE OF THE EXPENSES INCURRED FOR THE PURPOSE OF THE BUSINESS. 3. THE LEARNED INCOME TAX OFFICER HAS ERRED IN PROP ORTIONATELY DISALLOWING THE EXPENSES OF RS.96,258/- AS PER NEW RULE 8D WHICH WAS UPHELD BY THE LEARNED COMMISSIONER OF INCOME TA X. YOUR APPELLANT HAS SUBMITTED THE EXPLANATIONS TO THE LEA RNED INCOME TAX OFFICER & ALSO TO THE LEARNED COMMISSIONER OF I NCOME TAX THAT YOUR APPELLANT HAS INVESTED IN THE SHARES OUT OF OW NED CAPITAL HELD BY THEM TO EARN TAX FREE INCOME WHEREAS THE LOAN S FROM THE BANK WAS TAKEN FOR THE BUSINESS PURPOSE. 4. THIS CASE WAS FIXED FOR HEARING ON SEVERAL OCCA SIONS. ON FOUR OCCASIONS, I.E. ON 07/07/2014, 15/07/2014, 25/09/2014 AND 09/0 7/2015, THE LD. AR FOR THE ASSESSEE SOUGHT ADJOURNMENTS OF HEARINGS AN D ON THE OTHER OCCASIONS, NONE APPEARED ON BEHALF OF THE ASSESSEE. WHEN THIS CASE WAS CALLED FOR HEARING TODAY, I.E. ON 04/01/2016, NONE APPEARED ON BEHALF OF THE ASSESSEE, BUT THE LD. DR WAS PRESENT FOR REVENUE. I N VIEW OF THE CIRCUMSTANCES OF THE CASE, AS LAID OUT ABOVE, THIS CASE IS BEING DISPOSED OFF WITH THE ASSISTANCE OF THE LD. DR FOR REVENUE AND T HE MATERIAL ON RECORD. 5. AFTER CONSIDERING THE SUBMISSIONS MADE BY THE L D. DR FOR REVENUE AND THE FINDINGS ON THE IMPUGNED ORDER OF THE LD. CIT(A ), WE ARE THE CONSIDERED VIEW THAT THE ASSESSEE HAS BEEN UNABLE TO REBUT T HE FINDINGS OF THE LD. CIT(A) THEREIN ON THE ISSUES OF TREATING COMPENSATI ON OF RS. 46,84,080/- RECEIVED FROM SOUTH INDIAN BANK LTD. AS RENTAL INCO ME, THE DISALLOWANCE OF RS. 96,258/- AS PER RULE 8D OF THE INCOME TAX RULES , 1962 AND THE DISALLOWANCE OF ALL EXPENSES DEBITED TO THE PRO FIT AND LOSS ACCOUNT AS THE 4 ITA NO. 2524 /MUM/2013 ASSESSMENT YEAR: 2009-10 ASSESSEE HAD NOT CARRIED OUT ANY BUSINESS DURING TH E YEAR UNDER CONSIDERATION. IN VIEW OF THE ABOVE FACTUAL POSITIO N OF THE CASE, WE DO NOT FIND ANY REASON TO DEVIATE FROM OR INTERFERE WITH T HE FINDINGS AS RECORDED BY THE LD. CIT(A) AND ACCORDINGLY CONFIRM THE SAME. CO NSEQUENTLY GROUNDS AT SR. NO 1TO 3 RAISED BY THE ASSESSEE (SUPRA) ARE DIS MISSED. 6. IN THE RESULT, THE ASSESSEES APPEAL FOR ASST. YEAR 2009-10 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 6TH JANUARY, 2016 SD/- SD/- ( RAM LAL NEGI ) (JASON P.BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED: 06/01/2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &'( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, M PRAMILA