AVIJIT MOITRA, MUMBAI V. D.C.I.T. CIR. 34(1), MUMBAI

ITA 2829/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2452 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 20-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANADI VERMA; V K CHATURVEDI
• Keywords: Business income; Rule of consistency; Condonation of delay; Revised return
• Section: 263; 63; 154; 143(3); 139(5); 80IA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHR I G. MANJUNATHA , ACCOUNTANT MEMBER ITA NO . 2498 / MUM . / 2017 ( ASSESSMENT YEAR : 20 10 1 1 ) AMAZIA DEVELOPERS PVT. LTD. 108, G WING AKRUTI COMMERCIAL COMPLEX NEXT TO AKRUTI CENTRE POINT CENTRAL ROAD, ANDHERI (EAST) MUMBAI 400 093 PAN AAHCA6934H . APPELLANT V/S DY. COMMISSIONER OF INCOME TAX CIRCLE 1(1)(1), MUMBAI . RESPONDENT ITA NO .5348 /MUM./ 2017 ( ASSESSMENT YEAR : 20 10 1 1 ) DY. COMMISSIONER OF INCOME TAX CIRCLE 1(1)(1), MUMBAI . APPELLANT V/S AMAZIA DEVELOPERS PVT. LTD. 108, G WING AKRUTI COMMERCIAL COMPLEX NEXT TO AKRUTI CENTRE POINT CENTRAL ROAD, ANDHERI (EAST) MUMBAI 400 093 PAN AAHCA6934H . RESPONDENT ASSESSEE BY : SHRI VIJAY MEHTA A/W REVENUE BY : SHRI ANADI VERMA A/W SHRI V.K. CHARTURVEDI DATE OF HEARING 25.06.2019 DATE OF ORDER 04.09.2019 2 AMAZIA DEVELOPERS PVT. LTD. O R D E R PER SAKTIJIT DEY, J.M. THESE ARE TWO APPEALS RELATING TO THE SAME ASSESSEE PERTAINING TO THE ASSESSMENT YEAR 2010 11. WHILE REVENUES APPEAL IS AGAINST THE ORDER DATED 12 TH APRIL 2017, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 2, MUMBAI, THE APPEAL FILED BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE LEARNED COMMISSION ER OF INCOME T AX UNDER SECTION 263 OF THE INCOME - TAX ACT, 1961 (FOR SHORT 'THE ACT' ). ITA NO.5348/MUM./2017 REVENUES APPEAL 2 . AS STATED EARLIER, THIS APPEAL ARISES OUT OF THE CONSEQUENTIAL ORDER PASSED BY THE ASSESSING OFFICER IN PURSUANCE TO THE DIRECTION S OF LEARNED COMMISSIONER OF INCOME T AX (CIT) UNDER SECTION 263 OF THE ACT. 3 . IN GROUND NO.1, THE REVENUE HA S CHALLENGED THE DECISION OF LEARNED COMMISSIONER (APPEALS) IN TREATING THE LEAS E RENTAL INCOME AS INCOME UNDER THE HEAD BUSINESS AND PROFE SS ION INSTEAD OF INCOME FROM HOUSE PROPERTY. 3 AMAZIA DEVELOPERS PVT. LTD. 4 . BRIEF FACTS ARE, THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF BUYING AND RUNNING INFRASTRUCTURE FACILITIES AND PROPERTY DEVELOPMENT. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, THE ASSESSEE FILED ITS RET URN OF INCOME ON 15 TH OCTOBER 2010 DECLARING LOSS OF ` ( ) 15,11,29,677. IN THE BOOKS OF ACCOUNT AS WELL AS IN THE RETURN OF INCOME FILED, THE ASSESSEE TREATED THE LEASE RENTAL INCOME EARNED OF ` 8,57,92,855, AS INCOME FROM BUSINESS AND AFTER CLAIMING VARI OUS EXPENSES , DECLARED NET LOSS OF ` 4,92,46,770. WHILE COMPLETING THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 16 TH MARCH 2013, THE ASSESSING OFFICER ACCEPTED THE LOSS DECLARED BY THE ASSESSEE. THE ASSESSMENT ORDER PASSED , AS AFORESAID , WAS SUBJECTED TO PROCEEDINGS UND ER SECTION 263 OF THE ACT BY LEARNED CIT AS HE WAS OF THE VIEW THAT THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO TH E INTEREST OF REVENUE DUE TO NON CONSIDERATION OF THE FOLLOWING ISSUES: I ) INTEREST EXPENDITURE SHOU LD HAVE BEEN DISALLOWED DUE TO NO N DEDUCTION OF TAX AT SOURCE; II ) INCOME OF ` 76,00,850, ON ACCOUNT OF DIFFERENCE IN TOTAL INCOME AS PER PROFIT & LOSS ACCOUNT AND COMPUTATION OF INCOME WAS NOT ASSESSED TO TAX; 4 AMAZIA DEVELOPERS PVT. LTD. III ) RENTAL INCOME WAS ASSESSED AS BUSINESS INCOME INSTEAD OF INCOME FROM HOUSE PROPERTY THEREBY RESULTING IN ALLOWANCE OF VARIOUS EXPENSES. T HUS, ON THE AFORESAID BASIS, LE ARNED CIT ULTIMATELY HELD THE ASSESSMENT ORDER TO BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE AND SET IT ASIDE WITH A DIRECTION TO THE ASSESSING OFFICER TO FRAME A FRESH ASSESSMENT ORDER IN ACCORDANCE WITH HIS OBSERVATIONS. IN PURSUANCE TO THE DIRECTIO N OF LE ARNED CIT , THE ASSESSING OFFICER FRAMED A FRESH ASSESSMENT , WHEREIN , HE TREATED THE LEASE RENTAL INCOME RECEIVED BY THE ASSESSEE AS INCOME FROM HOUSE PROPERTY. 5 . BEING AGGRIEVED WITH THE AFORESAID DECISION OF THE ASSESSING OFFICER, THE ASSESSEE PREF ERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 6 . THE LEARNED COMMISSIONER (APPEALS), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIAL ON RECORD, OBSERVED THAT THE LEASE RENTAL INCOME WAS RECEIVED BY THE ASSESS EE FRO M INFORMATION TECHNOLOGY PARK (IT PARK) SITUATED AT ANDHERI, MUMBAI, WHICH WAS PURCHASED BY THE ASSESSEE FROM ACKRUTI CITY LTD. HE OBSERVED , THE SAID IT P ARK HAS BEEN NOTIFIED AS AN 5 AMAZIA DEVELOPERS PVT. LTD. INFRASTRUCTURE FACILITY FOR CLAIMING DEDUCTION UNDER SECTION 80IA(4) OF TH E ACT AT THE HANDS OF THE EARLIER OWNER AND THE SAID BENEFIT WAS NOT PASSED ON TO THE ASSESSEE. HE FURTHER OBSERVED , THE ASSESSEE HAD BEEN CONSISTENTLY OFFERING THE LEASE RENTA L INCOME RECEIVED FROM THE IT P ARK AS INCOME FROM BUSINESS AND THE DEPARTMENT HA S ACCEPTED THE CLAIM OF THE ASSESSEE IN ASSESSMENTS COMPLETED UNDER SECTION 143(3) OF THE ACT. HE FURTHER OBSERVED , WHILE DECIDING THE ISSUE IN ASSESSMENT YEAR 2012 13, HE HAS ACCEPTED ASSESSEES CLAIM OF LEASE RENTAL INCOME AS BUSINESS INCOME. THUS, FOLLO WING HIS OWN ORDER FOR THE ASSESSMENT YEAR 2012 13, HE HELD THAT THE LEASE RENTAL INCOME RECEIVED BY THE ASSESSEE SHOULD BE TREATED AS INCOME FROM BUSINESS. 7 . THE LEARNED DEPARTMENTAL REPRESENTATIVE RELYING UPON THE OBSERVATIONS OF THE ASSESSING OFFICER SUB MITTED , SINCE THE ASSESSEE HAS EARNED THE LEASE RENTAL INCOME AS THE OWNER OF THE PROPERTY, IT HAS TO BE ASSESSED AS INCOME FROM HOUSE PROPERTY. 8 . THE LEARNED AUTHORISED REPRESENTATIVE STRONGLY SUPPORTING THE REASONING OF LEARNED COMMISSIONER (APPEALS) SUB MITTED , THE ASSESSEE HAS BEEN CONSISTENTLY OFFERING THE LEASE RENTAL INCOME AS INCOME FROM BUSINES S IN THE PAST AS WELL AS SUBSEQUENT ASSESSMENT YEAR S AND THE DEPARTMENT HAS ALWAYS ACCEPTED ASSESSEES CLAIM. HE SUBMITTED , ONLY IN THE YEAR UNDER CONSIDE RATION, LE ARNED CIT HAS RAISED THE ISSUE OF 6 AMAZIA DEVELOPERS PVT. LTD. TAXABILITY OF LEASE RENTAL INCOME AS INCOME FROM HOUSE PROPERTY. HE SUBMITTED , WHILE COMPLETING THE ASSESSMENT FOR THE ASSESSMENT YEAR 2012 13, THE ASSESSING OFFICER HAD INITIALLY TREATED THE LEASE RENTAL INCOME AS INCOME FROM OTHER SOUR CES. HOWEVER, WHILE DECIDING ASS ESSEES APPEAL ON THE ISSUE, LEARNED COMMISSIONER (APPEALS) ACCEPTED ASSESSEES CLAIM OF LEASE RENTAL INCOME AS BUSINESS INCOME. HE SUBMITTED , THE AFORESAID DECISION OF LEARNED COMMISSIONER (APPEALS) WAS ACCEPTED BY THE DEPARTMENT. HE SUBMITTED , WHEN LE ARNED CIT REVISED THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2012 13 RAISING IDENTICAL ISSUE OF TREATING THE LEASE RENTAL INCOME AS INCOME FROM HOUSE PROPERTY, THE TRIBUNAL WHILE DECIDING ASSESSEES A PPEAL IN ITA NO.2499/MUM./2017, DATED 8 TH MAY 2019, HAS QUASHED THE REVISION ORDER PASSED UNDER SECTION 263 OF THE ACT BY ACCEPTING ASSESSEES CLAIM THAT INCOME FROM LEASE RENTAL IS TO BE TREATED AS BUSINESS INCOME. HE SUBMITTED , SINCE IN ALL OTHER ASSESSM ENT YEARS ASSESSEES CLAIM OF BUSINESS INCOME HAS BEEN ACCEPTED BY THE DEPARTMENT , APPLYING THE RULE OF CONSISTENCY , IN TH E IMPUGNED ASSESSMENT YEAR ALSO THE LEASE RENTAL INCOME HAS TO BE ASSESSED AS INCOME FROM BUSINESS. IN SUPPORT OF SUCH CONTENTION, HE RELIED UPON THE DECISION OF THE TRIBUNAL IN DCIT V/S E CITY PROJECT CONSTRUCTION PVT. LTD., ITA NO.8390/MUM./2010 & ORS., DATED 30 TH JULY 2014. HE SUBMITTED , THE AFORESAID DECISION O F THE TRIBUNAL HOLDING THAT RULE OF 7 AMAZIA DEVELOPERS PVT. LTD. CONSISTENCY SHOULD BE APPLIED WAS APPR OVED BY THE HON'BLE JURISDICTIONAL HIGH COURT WHILE DISMISSING DEPARTMENTS APPEAL IN ITA NO.149/2015 & ORS., VIDE JUDGMENT DATED 18 TH JULY 2017. WITHOUT PREJUDICE TO THE AFORESAID SUBMISSIONS, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , EVEN CBDT, VI DE CIRCULAR NO.16 OF 2017, DATED 25 TH APRIL 2017, HAS HELD T HAT INCOME FROM INDUSTRIAL PARK/ SEZ ESTABLISHED UNDER VARIOUS SCHEMES FRAMED AND NOTIFIED UNDER SECTION 80I A(4)(III) OF THE ACT IS LIABLE TO BE TREATED AS INCOME FROM BUSINESS. THUS, HE SUBMITTED , THERE IS NO REASON TO INTERFERE WITH THE DEC ISION OF LEARNED COMMISSIONER (APPEALS). 9 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. WE HAVE ALSO APPLIED OUR MIND TO THE JUDICIAL PRECEDENTS CITED BEFORE US. THE FACTUAL MATRIX ARISING FROM RECORD REVEALS THAT THE DISPUTED LEASE RENTAL INCOME WAS RECE IVED BY THE ASSESSEE FROM A IT PARK AT SUBU RBAN MUMBAI. IT IS ALSO A FACT THAT THE SAID IT PARK INITIALLY BELONGED TO ANOTHER ENTITY AND WAS NOTIFIED AS AN INFRASTRUCTURE FACILITY ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA(4)(III) OF THE ACT. THOUGH , ON PURCHASE OF THE SAID IT P ARK, THE ASSESSEE DID NOT GET THE BENEFIT OF DEDUCTION UNDER SECTION 80IA OF THE ACT, HOWEVER, THERE IS NO DISPUTE THAT THE ASSESSEE IS ENGAGED IN OPERATING AND MAINTA INING AN INFRASTRUCTURE FACILITY. THAT BEING THE CASE, THE INCOME DERIVED FROM OPE RATION AND MAINTENANCE OF THE IT PARK CERTAINLY PARTAKE S THE 8 AMAZIA DEVELOPERS PVT. LTD. CHARACTER OF BUSINESS INCOME. THIS FACT HAS BEEN CLARIFIED BY THE CBDT, VIDE CIRCULAR NO.16 OF 2017, DATED 25 TH A PRIL 2017. EVEN , OTHERWISE ALSO, FACTS ON RECORD REVEAL THAT THE ASSESSEE IS CONSISTENTLY CLAIMING THE LEASE RENTAL INCOME FROM IT P ARK AS INCOME FROM BUSINESS. THE AFORESAID CLAIM OF THE ASSESSEE WAS ACCEPTED BY THE ASSESSING OFFICER IN THE ASSESSMENTS CO MPLETED UNDER SECTION 143(3) OF THE ACT IN THE ASSESSMENT YEAR S 2009 10 AND 2011 12. EVEN , IN THE ORIGINAL ASSESSMENT COMPLETED UNDER SECTION 143(3) OF THE ACT FOR THE IMPUGNED ASSESSMENT YEAR ALSO, THE ASSESSING OFFICER HAD ACCEPTED ASSESSEES CLAIM. NOTABLY, WHILE COMPLETING THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT FOR THE ASSESSMENT YEAR 2012 13, THE ASSESSING OFFICER TREATED THE INCOME FROM LEASE RENTAL AS INCOME FROM OTHER SOURCES. HOWEVER, WHILE DECIDING ASSESSEE S APPEAL F OR THE SAID ASSESSMENT YEAR, LEARNED COMMISSIONER (APPEALS) ACCEPTED ASSESSEES CLAIM OF LEASE RENTAL INCOME AS BUSINESS INCOME. IT IS ALSO EVIDENT , THE AFORESAID DECISION OF LEARNED COMMISSIONER (APPEALS) HAS BEEN ACCEPTED BY THE DEPARTMENT. MOR E IMPORTANTLY, THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE ACT FOR ASSESSMENT YEAR 2012 - 13 WAS REVISED UNDER BY THE LE ARNED CIT ON IDENTICAL REASONING ON THE BASIS OF WHICH HE P ASSED THE ORDER UNDER SECTION 2 6 3 OF THE ACT FOR THE IMPUGNED ASSES SMENT YEAR. HOWEVER, WHILE DECIDING ASSESSEES APPEAL IN THE ORDER REFERRED TO ABOVE, THE TRIBUNAL QUASHED THE ORDER PASSED 9 AMAZIA DEVELOPERS PVT. LTD. UNDER SECTION 263 OF THE ACT AND ACCEPTED ASSESSEES CLAIM OF LEASE RENTAL AS BUSINESS INCOME. THUS, APPLYING TH E RULE OF CONSISTENC Y ALSO, ASSESSEES CLAIM OF LEASE RENTAL AS INCOME FROM BUSINESS AND PROFESSION HAS TO BE ACCEPTED. IN VIEW OF THE AFORESAID, WE DO NOT FIND AN Y INFIRMITY IN THE ORDER OF LEARNED COMMISSIONER (APPEALS) ON THE ISSUE. THIS GROUND IS DISMISSED. 10 . IN GROUND NO. 2, THE REVENUE HA S CHALLENGED THE DECISION OF LEARNED COMMISSIONER (APPEALS) IN ALLOWING INTEREST EXPENDITURE OF ` 2,82,01,438. 11 . BRIEF FACTS ARE, AFTER COMPLETION OF ASSESSMENT VIDE ORDER DATED 16 TH MARCH 2016, IN PUR SUANCE TO THE DIRECTIONS OF LE ARNED CI T UNDER SECTION 263, THE ASSESSING OFFICER PASSED AN ORDER UNDER SECTION 154 OF THE ACT ON 22 ND AUGUST 2016, DISALLOWING THE INTEREST EXPENDITURE OF ` 2,82,01,438. THE ASSESSEE CHALLENGED THE AFORESAID ORDER PASSED UNDER SECTION 154 OF THE ACT BEFORE THE F IRST APPELLATE AUTHORITY. 12 . L EARNED COMMISSIONER (APPEALS) IN A CONSOLIDATED ORDER DISPOSED OFF ASSESSEES APPEAL AGAINST THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R/W SECTION 263 OF THE ACT AS WELL AS THE ORDER PASSED UNDER SECTION 154 OF THE ACT. W HILE DECIDING THE APPEAL FILED AGAINST THE ORDER PASSED UN DER SECTION 154 OF THE ACT, LEARNED COMMISSIONER (APPEALS) OBSERVED THAT THE ASSESSEE HAD INADVERTENTLY 10 AMAZIA DEVELOPERS PVT. LTD. OMITTED TO CLAIM INTEREST EXPENDITURE , THOUGH , IT WAS INCURRED IN THE YEAR UNDER CONSIDERATION . THEREFORE, HE FILED A COMPUTATION BEFORE THE ASSESSING OFFICER TO RECTIFY THE MISTAKE AND ALLOW THE EXPENDITURE. HOWEVER, THE ASSESSING OFFICER DID NOT ALLOW ASSESSEES CLAIM ON THE GROUND THAT THE INTEREST EXPENDITURE WAS NOT CLAIMED IN THE RETURN OF IN COME FILED UNDER SECTION 139(1) OF TH E ACT. L EARNED COMMISSIONER (APPEALS) OBSERVED , IN THE ORDER PASSED UNDER SECTION 154 OF THE ACT, THE ASSESSING OFFICER HAS NOT ANY DISPUTE REGARDING ALLOWABILITY OF INTEREST EXPENDITURE TO THE ASSESSEE. HE FURTHER FOUN D THAT FOR RECTIFYING THE SAID MISTAKE, THE ASSESSEE ALSO FILED A REVISED RETURN OF INCOME UNDER SECTION 139(5) OF THE ACT, WHICH HAS NOT BEEN TAKEN COGNIZANCE BY THE ASSES SING OFFICER. THUS, HE HELD THAT THE DISALLOWANCE MADE BY THE ASSESSING OFFICER PURELY ON TECHNICAL REASON IS NOT SUSTAINABLE. ACCORDINGLY HE ALLOWED ASSESSEES CLAIM. 13 . THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED , SINCE THE ASSESSEE HAD NOT CLAIMED THE EXPENDITURE IN THE RETURN OF INCOME FILED UNDER SECTION 139(1) OF THE ACT, IT IS NOT ALLOWABLE. 14 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THIS GROUND ARISES OUT OF THE ORDER UNDER SECTION 154 OF THE ACT. HENCE, THE REVENUE SHOULD H AVE FILED A SEPARATE APPEAL AGAINST THE ORDER OF THE LEARNED CO MMISSIONER (APPEALS) ON THE ISSUE. THUS, HE SUBMITTED , THE 11 AMAZIA DEVELOPERS PVT. LTD. GROUND RAISED BY THE DEPARTMENT IS NOT MAINTAINABLE. WITHOUT PREJUDICE, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , ASSESSEES CL AIM BEING BORNE OUT FROM RECORD AND AS PER REVISED RETURN OF INCOME , COULD NOT HAVE BEEN DISALLOWED MERELY ON TECHNI CAL REASON THAT THE ASSESSEE HAD NOT CLAIMED IT IN THE RETURN OF INCOME FILED UNDER SECTION 139(1) OF THE ACT . THUS, HE SUBMITTED , THIS GRO UND SHOULD BE DISMISSED. 15 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. IT IS EVIDENT FROM THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) , THE ASSESSEE HAD FILED TWO SEPARATE APPEALS BEFORE HIM , ONE CHALLENGING THE ASSESSMENT O RDER PASSED UNDER SECTION 143(3) R/W SECTION 263 OF THE ACT AND THE OTHER AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER UND ER SECTION 154 OF THE ACT. L EARNED COMMISSIONER (APPEALS) DISPOSED OFF BOTH THE APPEALS IN A CONSOLIDATED ORDER WHICH IS IMPUGNED IN THE PRESENT APPEAL. THUS, IT IS PATENT AND OBVIOUS THAT THE TWO GROUNDS RAISED IN THE PRESENT APPEAL BY THE REVENUE ARISE OUT OF TWO COMPLETELY SEPARATE PROCEEDINGS. WHILE GROUND NO.1, ARISES OUT OF APPEAL RELATING TO THE ASSESSMENT COMPLETED UNDER SEC TION 143(3) R/W SECTION 263 OF THE ACT, GROUND NO.2, ARISES OUT OF THE PROCEEDINGS UNDER SECTION 154 OF THE ACT. THEREFORE, TECHNICALLY, THE REVENUE CANNOT CHALLENGE BOTH THESE ISSUES IN A SINGLE APPEAL , WHICH IS THE CAS E AT HAND. AS PER THE PROVISION OF T HE ACT, IF THE REVENUE WAS 12 AMAZIA DEVELOPERS PVT. LTD. AG GRIEVED WITH THE DECISION OF LEARNED COMMISSIONER (APPEALS) IN RESPECT OF BOTH THE APPEALS FILED BY THE ASSESSEE, IT SHOULD HAVE FILED TWO SEPARATE APPEALS, AS THE ISSUE ARISING OUT OF TWO SEPARATE PROCEEDINGS CANNOT BE CLUBBED IN A SINGLE APPEAL . FOR THIS REASON ALONE, GROUND NO.2 RAISED BY THE REVENUE DESERVES TO BE DISMISSED , AS , THE PRESENT APPEAL IS TO BE TREATED AS ORIGINATING FROM THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R/W SECTION 263 OF THE ACT. ACCORDINGLY, GROUND NO.2 IS DISMISSED. 16 . IN THE RESULT, REVENUES APPEAL IS DISMISSED. ITA NO.2498/MUM./2017 ASSESSEES APPEAL 17 . THIS APPEAL BY THE ASSESSEE IS AGAINST ORDER DATED 26 TH MARCH 2015, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX 1, MUMBAI, UNDER SECTIO N 263 OF THE ACT FOR THE ASSESSMENT YEAR 2010 11. 18 . AS COULD BE SEE N FROM THE IMPUGNED ORDER OF LE ARNED CIT , HE REVISED THE ASSESSME NT ORDER ON THE ISSUE, WHETHER THE LEASE RENTAL INCOME IS TO BE ASSESSED AS BUSINESS INCOME OR INCOME FROM HOUSE PROPERTY? 19 . PERTINENTLY, WHILE IMPLE MENTING THE AFORESAID DIRECTION OF LEARNED CIT IN THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R/W 13 AMAZIA DEVELOPERS PVT. LTD. SECTION 263 OF THE ACT, THE ASSESSING OFFICER HAS TREATED THE LEASE RENTAL INCOME RECEIVED BY THE ASSESSEE AS INCOME FROM HOUS E PROPERTY AS AGAINST ASSESSEES CLAIM OF BUSINESS INCOME. NOTABLY, WHILE DECIDING ASSESSEES APPEAL AGAINST THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R/W SECTION 263 OF THE ACT, LEARNED COMMISSIONER (APPEALS) HAS ALLOWED ASSESSEES CLAIM OF LEASE R ENTAL INCOME BEING TREATED AS BUSINESS INCOM E. THE AFORESAID DECISION OF LEARNED COMMISSIONER (APPEALS) HAS ALSO BEEN UPHELD BY US WHILE DECIDING REVENUES APPEAL IN ITA NO.5348/MUM./2017, IN THE EARLIER PART OF THE ORDER. THAT BEING THE CASE, THE PRESENT APPEAL IS OF MERE ACADEMIC IMPORTANCE. FU RTHER, THERE IS DELAY OF 678 DAYS IN FILING THE APPEAL. OF COURSE, THE ASSESSEE HAS FILED AN APPLICATION SUPPORTED BY AN A FFIDAVIT SEEKING CONDONATION OF DELAY. HOWEVER, CONSIDERING THE FACT THAT TH IS APPEAL HAS BECOME ACADEMIC IN VIEW OF OUR DECISION IN REVENUES APPEAL BEING ITA NO.5348/MUM./2017, WE DO NOT FIND THE NECESSITY TO DEAL WITH THE ISSUE OF CONDONATION OF DELAY AND THE M ERITS OF THE APPEAL . FOR THE AFORESAID REASON THE APPEAL IS DISMISSED. 20 . IN THE RESULT, BOTH THE APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 04.09.2019 SD/ - G. MANJUNATHA ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 04.09.2019 14 AMAZIA DEVELOPERS PVT. LTD. COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI