M/S Beli Ram Sareen, V. P.Comm.of Income Tax,

ITA 312/CHANDI/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8976 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 25-07-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 05-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI SARANGA L
• Keywords: Business income; Rule of consistency; Difference of opinion; Change of opinion; Revenue expenditure; Capital expenditure
• Section: 143(3); 147; 148; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 312/CHD/2016 ASSESSMENT YEAR : 2011-12 M/S BELI RAM SAREEN, VS THE PR.CIT, MINERWA CINEMA, PANCHKULA CIRCLE, SADAR BAZAR ROAD, HARYANA. RAI MARKET, AMBALA CANTT. PAN: AAAFB8866H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SING H RESPONDENT BY : SHRI RAVI SARANGAL DATE OF HEARING : 21.11.2016 DATE OF PRONOUNCEMENT : 30.11.2016 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. PR. CIT, PANCHKULA DATED 25.02.201 6 FOR ASSESSMENT YEAR 2011-12 UNDER SECTION 263 OF THE INCOME TAX ACT. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSEE IS A FIRM, FILED RETURN OF INCOME AT RS. 2,62,360/-. TH E ASSESSEE IS ENGAGED IN REAL ESTATE BUSINESS AND ALS O RUNNING MINERWA MULTIPLEX AND CAPITAL CINEMA. THE ASSESSING OFFICER AFTER EXAMINING THE BOOKS OF ACCO UNT AND INFORMATION SUPPLIED BY THE ASSESSEE, PASSED 2 ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT DA TED 14.01.2014 COMPUTING INCOME OF THE ASSESSEE AT RS. 4,83,490/-. LD. PR. CIT, ON PERUSAL OF THE RECORD FOUND THAT THERE WERE SOME DEFICIENCIES AND IRREGULARITIE S IN THE ASSESSMENT ORDER. HE ISSUED NOTICE UNDER SECTI ON 263 OF THE ACT WHICH IS REPRODUCED IN THE IMPUGNED ORDER IN WHICH IT WAS BRIEFLY NOTED THAT ASSESSEE E ARNED RENTAL INCOME FROM COMMERCIAL PREMISES AND INCOME FROM PROVIDING OTHER RELATED SIDE BY FACILITIES, SE RVICES AND ACTIVITIES TO THE TENANTS/LESSEE OF COMMERCIAL PREMISES IN THE SHAPE OF AIR CONDITIONER, POWER AND BACK-UP, GEN SET, SLIDER, A.C. REPAIRS AND MAINTENA NCE, BOOKING, CANTEEN, CYCLE STAND ETC. AND EARNED NET P ROFIT OF RS. 48,66,505/- AFTER CLAIMING EXPENSES OF RS. 2 .60 CR. THE ASSESSEE DECLARED INCOME FROM HOUSE PROPER TY AS WELL AS BUSINESS INCOME. THE LD. PR. CIT ALSO NO TED THAT ASSESSMENT ORDER PASSED BY THE ASSESSING OFFIC ER DOES NOT APPEAR TO BE REASONABLE BECAUSE ASSESSEE W AS INVOLVED IN LETTING OUT OF COMMERCIAL PROPERTIES AN D PROVIDING FACILITIES, SERVICES ETC. TO ITS LET OUT PROPERTIES WHICH MAKE ALL THE RECEIPTS FROM LETTING OUT THESE COMMERCIAL PROPERTIES AND RELATED FACILITIES ETC. T O THESE LET OUT PROPERTIES AS INCOME FROM HOUSE PROPERTY INSTEAD FROM BUSINESS INCOME. 3. THE ASSESSEE IN REPLY TO THE NOTICE UNDER SECTIO N 263 OF THE ACT SUBMITTED A REPLY BEFORE LD. PR. CIT WHICH IS REPRODUCED IN THE IMPUGNED ORDER IN WHICH THE 3 ASSESSEE BRIEFLY EXPLAINED THAT ASSESSEE IS LANDLOR D OF THE PROPERTIES POPULARLY CALLED IN MODERN DAYS AS MALL AND COMMERCIAL COMPLEX IN AMBALA CANTT. SINCE 2006. THE SHOPS, MALLS AND OFFICES WERE OFFERED ON RENT T O THE GENERAL PUBLIC, LEASE DEEDS WERE EXECUTED IN THIS R EGARD. NOW, IF WE OFFER ANY PROPERTY TO BE USED BY THE TEN ANTS, IT HAS TO BE EQUIPPED WITH THE SPACE FOR PARKING, ELECTRICITY CONNECTION, WATER CONNECTION AND OTHER MODERN FACILITIES. THE ELECTRICITY CHARGES ARE PAI D BY THE TENANTS. IN THE LEASE DEED, NO INSTALLATION OF AC, GENERATOR ELECTRIC PANEL ETC. HAVE BEEN PROMISED AN D UNDERTAKEN TO BE SUPPLIED. THE TENANTS ARE BIG BUSINESSMEN AND HAVE PERSUADED THE ASSESSEE TO INST ALL ALL EQUIPMENTS SUCH AS AIR CONDITIONING PLANT, GENERATOR, FIRE FIGHTING SYSTEM, ELECTRIC PANEL, LI FTS, ESCALATOR ETC. THIS IS PURELY A BUSINESS ACTIVITY AND NOT RELATED TO INCOME FROM RENT OR HOUSE PROPERTY. THE TENANTS HAVE DEDUCTED TDS ON THE RENT WHICH CAN BE VERIFIED. THE ASSESSEE SUFFERED BUSINESS LOSS IN T HIS ACTIVITY AND CLAIMED SET OFF. 3(I) HON'BLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENT VS CIT 373 ITR 673 HAS HELD THAT , LETTING OF PROPERTIES AND CARRIED OUT ACTIVITIES IN SUCH A MANNER TO EARN INCOME IS INCOME FROM BUSINE SS. THE ASSESSEE SINCE 2006, HAS BEEN CLAIMING SAME INCOME FROM BUSINESS WHICH HAVE BEEN ACCEPTED. THE RULE OF CONSISTENCY DO APPLY TO THE INCOME TAX 4 PROCEEDINGS AND ASSESSEE RELIED UPON JUDGEMENT OF T HE DELHI HIGH COURT IN THE CASE OF ARJ SECURITIES PRIN TERS 264 ITR 276, CIT VS ESCORTS LTD. 198 TAXMAN 222 AND JUDGEMENT OF HON'BLE SUPREME COURT IN THE CASE OF RADHASOAMI SATSANG VS CIT 193 ITR 121. IT WAS ALSO POINTED OUT THAT IN ASSESSMENT YEAR 2008-09 THE DEPARTMENT TRIED TO DISTURB THE OPINION IN THIS CAS E UNDER SECTION 147 OF IT ACT BUT LATER ON, DROPPED T HE PROCEEDINGS AND ACCEPTED THE COMPUTATION OF INCOME FILED BY THE ASSESSEE. 4. THE LD. PR. CIT, HOWEVER, DID NOT ACCEPT EXPLANATION OF THE ASSESSEE AND REFERRED TO JUDGEME NTS OF HON'BLE SUPREME COURT IN THE CASES OF M/S SHAMBU INVESTMENTS PVT. LTD. AND M/S SULTAN BROTHERS PVT. LTD. IN WHICH THE MAIN THRUST IS THAT THE AGREEMENT OF THE ASSESSEE WITH THE TENANT IS THE PRIMARY FACT ON THE BASIS OF WHICH FINAL DECISION REQUIRED TO BE TAKEN WHETHE R THE PROPERTY COULD HAVE BEEN RENTED OUT WITH ACCOMPANIE D SERVICES MENTIONED BY THE ASSESSEE. THE LD. PR. CI T NOTED THAT ASSESSING OFFICER HAS NOT CALLED FOR THE DETAILS ON THE BASIS OF WHICH THE ISSUES HAVE TO BE DECIDED. THE LD. PR. CIT ALSO DID NOT ACCEPT CONTE NTION OF THE ASSESSEE THAT IN EARLIER YEAR, THE INCOME EA RNED BY ASSESSEE BY PROVIDING FACILITIES WAS CONSIDERED AS BUSINESS INCOME. THE LD. PR.CIT, THEREFORE, HELD T HAT ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E. 5 THE ASSESSMENT ORDER WAS SET ASIDE WITH DIRECTION T O DECIDE THE MATTER AFRESH IN ACCORDANCE WITH LAW. 5. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE LD . COUNSEL FOR THE ASSESSEE REFERRED TO VARIOUS PAGES IN THE PAPER BOOK FROM PB-51 TO 82 WHICH ARE ASSESSMENT ORDERS UNDER SECTION 143(3) OF THE ACT AND COMPUTAT ION OF ASSESSABLE INCOME FOR THE ASSESSMENT YEARS 2005- 06, 2006-07, 2008-09, 2009-10 AND 2010-11. THE ASSESSE E SUBMITTED BEFORE AUTHORITIES BELOW THAT IT HAS RECE IVED RENT FROM VARIOUS TENANTS, MOSTLY COMPANIES AND SAM E WAS ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY IN EARLIER YEARS. THE ASSESSEE FILED COPI ES OF THE LEASE DEEDS EXECUTED BETWEEN ASSESSEE AND THE TENANTS. IN THE COPIES OF THE LEASE DEED, IT HAS B EEN CLEARLY MENTIONED THAT THE RENT WILL BE PAID FOR TH E SPACE TAKEN FOR BUSINESS PURPOSE AND FOR OTHER FACILITIES, THE AMENITIES CHARGES WILL BE PAID. TH E ASSESSEE HAS ALSO RECEIVED CHARGES ON ACCOUNT OF FACILITIES PROVIDED TO THE TENANTS SUCH AS ELECTRIC FITTINGS, ELECTRIC PANELS, GENERATOR, FIRE FIGHTING EQUIPMENT, AIR CONDITIONER PLANT, LIFT AND ESCALATO R ETC. THE ASSESSEE HAS SHOWN INCOME FROM THESE FACILITIES AS INCOME FROM BUSINESS. THE CLAIM OF THE ASSESSEE IN EARLIER YEARS HAVE BEEN ACCEPTED BY THE ASSESSING OFFICER IN THE ORDERS UNDER SECTION 143(3) OF THE A CT, COPIES OF THE SAME ORDERS FOR VARIOUS YEARS, AS REF ERRED 6 TO ABOVE, HAVE BEEN FILED IN THE PAPER BOOK WITH STATEMENT OF ASSESSABLE INCOME. IN ASSESSMENT YEAR 2008-09, THE ASSESSING OFFICER DESPITE ACCEPTING TH E CLAIM OF THE ASSESSEE THAT IT HAS EARNED INCOME ON ACCOUNT OF BUSINESS INCOME IN THE ORDER UNDER SECTI ON 143(3), REOPENED THE ASSESSMENT FOR ASSESSMENT YEAR 2008-09 AND PASSED THE ORDER UNDER SECTION 143(3)/1 48 OF THE ACT DATED 12.03.2013 IN WHICH THE ASSESSING OFFICER CONSIDERED THE IDENTICAL ISSUE, WHETHER FOR PROVIDING OTHER FACILITIES, IT IS BUSINESS INCOME O F THE ASSESSEE. THE ASSESSEE FILED DETAILED REPLY BEFORE ASSESSING OFFICER AND ALSO FILED COPIES OF THE LEAS E DEED EXECUTED BETWEEN THE ASSESSEE AND THE TENANTS. THE ASSESSEE CLAIMED THAT IT HAS EARNED INCOME FROM THE SE FACILITIES AS INCOME FROM BUSINESS WHICH HAVE BEEN ACCEPTED BY THE ASSESSING OFFICER ON THE BASIS OF T HE DETAILS AND MATERIAL PRODUCED BEFORE THE ASSESSING OFFICER. 5(I) THESE FACTS, THEREFORE, CLEARLY PROVED ON RECO RD THAT THE COPIES OF THE LEASE DEED WERE ALREADY AVAI LABLE ON RECORD OF THE REVENUE DEPARTMENT IN EARLIER YEAR S. THE ASSESSING OFFICER HAS EXAMINED THE ISSUE IN DET AIL NOT ONLY IN VARIOUS YEARS BUT IN PRECEDING ASSESSME NT YEAR 2008-09 UNDER SECTION 148 OF THE ACT, AND ACCE PTED THE CLAIM OF THE ASSESSEE THAT INCOME FROM OTHER FACILITIES/AMENITIES AS INCOME FROM BUSINESS. THEREFORE, OBSERVATION OF THE LD. PR. CIT IN THE IM PUGNED 7 ORDERS THAT AGREEMENT OF THE ASSESSEE WITH THE TENA NTS WHICH IS PRIMARY FACT, REQUIRED TO BE EXAMINED BY T HE ASSESSING OFFICER IS INCORRECT BECAUSE THE ASSESSIN G OFFICER NOT ONLY IN ASSESSMENT YEAR UNDER APPEAL HA S EXAMINED THE SAME FACTS BUT ALSO EXAMINED SAME FACT S AND MATERIAL IN PRECEDING ASSESSMENT YEARS. THE ASSESSEE EXPLAINED BEFORE LD. PR. CIT THAT IN LEASE DEED, NO INSTALLATION OF DIFFERENT SERVICES HAS BEEN PROM ISED OR UNDERTAKEN TO BE SUPPLIED WOULD CLEARLY SHOW IT IS BUSINESS INCOME OF ASSESSEE DIFFERENT FROM RENTAL INCOME. THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO PB- 132 WHICH IS REPLY FILED BEFORE ASSESSING OFFICER A T ASSESSMENT STAGE IN WHICH ASSESSEE EXPLAINED SAME FACTS THAT ASSESSEE RECEIVED RENT FROM VARIOUS TENA NTS WHICH ARE ASSESSED UNDER THE HEAD INCOME FROM HOUS E PROPERTY. THE ASSESSEE ALSO RECEIVED INCOME FROM VARIOUS SERVICES RENDERED TO THE TENANTS AS PER AGREEMENTS WHICH ARE ASSESSED UNDER THE HEAD INCOM E FROM BUSINESS & PROFESSION. THE CONTENTION OF LD. DR THAT ASSESSING OFFICER HAS NOT APPLIED HIS MIND TO THE FACTS OF THE CASE AND PASSED NON-SPEAKING ORDER IS REJECTED BECAUSE THE ASSESSING OFFICER CONSIDERED T HIS ISSUE AT ASSESSMENT STAGE AFTER CALLING FOR THE REP LY OF THE ASSESSEE ON THE SAME ISSUE WHICH HAVE ALREADY B EEN CONSIDERED IN DETAIL IN EARLIER YEARS, ACCEPTED THE CLAIM OF THE ASSESSEE THAT INCOME RECEIVED ON ACCOUNT OF OTHER FACILITIES PROVIDED TO THE TENANTS WAS BUSINESS INC OME OF THE ASSESSEE. 8 6. HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF HARI IRON TRADING CO. VS CIT 263 ITR 437 HELD TH AT ASSESSEE HAD NO CONTROL OVER THE WAY THE ASSESSMENT ORDER WAS DRAFTED BY THE ASSESSING OFFICER. THE ASSESSEE HAD EXPLAINED AND PRODUCED NECESSARY EVIDENCE THAT THERE WAS NO DISCREPANCY EITHER IN CA SH OR IN THE STOCK. 6(I) HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT V S GABRIEL (INDIA) LTD. 203 ITR 109 HELD AS UNDER : HELD, THAT THE INCOME-TAX OFFICER IN THIS CASE HAD MADE ENQUIRIES IN REGARD TO THE NATURE OF THE EXPENDITURE INCURRED BY THE ASSESSEE. THE ASSESSEE HAD GIVEN A DETAILED EXPLANATION IN THAT REGARD BY A LETTER IN WRITING. ALL THESE WERE PART OF THE RECORD OF THE CASE. EVIDENTLY, THE CLAIM URNS ALLOWED BY THE INCOME-TAX OFFICER ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE. THIS DECISION OF THE INCOME-TAX OFFICER COULD NOT BE HELD TO BE ERRONEOU S' SIMPLY BECAUSE IN HIS ORDER HE DID NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD. MOREOVER, IN T HE INSTANT CASE, THE COMMISSIONER HIMSELF, EVEN AFTER INITIATING PROCEEDINGS FOR REVISION AND HEARING THE ASSESSEE, 'COULD NOT SAY THAT THE ALLOWANCE OF THE CLAIM OF THE ASSESSEE WAS ERRONEOUS AND THAT THE EXPENDITURE WAS NOT REVENUE EXPENDITURE BUT AN EXPENDITURE OF CAPITAL NATURE. HE SIMPLY ASKED THE INCOME-TAX OFFICER TO RE-EXAMINE THE MATTER. THAT WAS NOT PERMISSIBLE. THE TRIBUNAL WAS JUSTIFIES IN SETTING ASIDE THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX UNDER SECTION 263. 7. LD. PR. CIT DID NOT ACCEPT CONTENTION OF THE ASSESSEE THAT IN EARLIER YEARS ON THE SAME ISSUE, REVENUE DEPARTMENT HAS ACCEPTED IN THE ASSESSMENT ORDERS UNDER SECTION 143(3) AND UNDER SECTION 143(3)/148 OF THE ACT THAT INCOME RECEIVED ON ACCOU NT 9 OF PROVIDING OTHER FACILITIES TO THE TENANT WAS BUS INESS INCOME. THE LD. PR. CIT IN THIS REGARD NOTED THAT MISTAKE COMMITTED BY THE ASSESSING OFFICER IN EARLI ER YEARS CANNOT BE FORMED BASIS FOR CONTINUING THE SAM E MISTAKE FOR THE SUBSEQUENT YEARS. FINDINGS OF THE L D. PR. CIT ARE WHOLLY ILLOGICAL AND INCORRECT BECAUSE IT I S WELL SETTLED LAW THAT PRINCIPLE OF CONSISTENCY DO APPLY TO THE INCOME TAX PROCEEDINGS. SINCE IN EARLIER YEAR, SAM E NATURE OF INCOME HAVE BEEN ACCEPTED AS BUSINESS INCOME, THEREFORE, UNLESS SOME MATERIAL HAVE BEEN BROUGHT AGAINST ASSESSEE ON RECORD, REVENUE DEPARTMENT CANNOT BE ALLOWED TO TAKE CONTRARY VIEW AGAINST THE ASSESSEE. WE RELY UPON DECISION OF THE DELHI HIGH COURT IN THE CASE OF A.R.J. SECURITIES PRINTERS 264 ITR 276, DECISION OF DELHI HIGH COURT IN THE CASE OF ESCORTS LTD. 338 ITR 435, DECISION OF MADHYA PRADESH HIGH COURT IN THE CASE OF GODAWARI CORPORATION LTD. 156 ITR 835 AND DECISION OF HON'BL E SUPREME COURT IN THE CASE OF RADHA SOAMI SATSANG VS CIT 193 ITR 321. HON'BLE PUNJAB & HARYANA HIGH COU RT IN THE CASE OF VIKAS CHEMI GUM (INDIA) 276 ITR 32 H ELD THAT WHEN SAME SOURCE OF INCOME IN 1986-97 WAS NOT CHALLENGED BY THE REVENUE, IT IS NOT OPEN TO CHALLE NGE THE SAME SOURCE OF INCOME IN SUBSEQUENT YEAR. THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, RIGHTLY CONTEN DED THAT THE IMPUGNED ORDER UNDER SECTION 263 HAVE BEEN PASSED ONLY ON THE BASIS OF TWO JUDGEMENTS OF HON'B LE SUPREME COURT IN THE CASES OF M/S SHAMBU INVESTMENT 10 PVT. LTD. AND M/S SULTAN BROTHERS PVT. LTD. (SUPRA) WITHOUT BRINGING ANY MATERIAL ON RECORD AGAINST THE ASSESSEE. 7(I) THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F CHENNAI PROPERTIES & INVESTMENT LTD. VS CIT 373 ITR 673 IN WHICH IT WAS HELD THAT, THE LETTING OF THE PROPERTIES WAS, IN-FACT, THE BUSINESS OF THE ASSESS EE. THE ASSESSEE, THEREFORE, RIGHTLY DISCLOSED THE INCO ME UNDER THE HEAD INCOME FROM BUSINESS. IT MAY NOT BE TREATED AS INCOME FROM HOUSE PROPERTY. THE LD. COUNSEL FOR THE ASSESSEE ALSO RELIED UPON ORDER OF ITAT, MUMBAI BENCH IN THE CASE OF KAVITA MARKETING PVT. L TD. VS ITO 70 TAXMAN.COM 391 IN WHICH IT WAS HELD AS UNDER : THE ASSESSEE HAS ALSO POINTED OUT THAT THE FACILIT Y SERVICE CHARGES EARNED BY IT REQUIRE OUTGOINGS ALSO IN AS M UCH AS IT HAD HIRED SERVICES PROVIDERS FOR THE SAME. QUITE CLEARLY, THE PROVIDING OF SUCH SERVICES DOES NOT SHOW THAT THE I NCOME BY WAY OF FACILITY SERVICE CHARGES CAN BE SAID TO BE DER IVED FROM MERE OWNERSHIP OF THE PROPERTY. FOR THIS REASON, THE STA ND OF THE ASSESSEE IS THAT INCOME FROM SUCH SERVICES IS LIAB LE TO BE TREATED AS BUSINESS INCOME. AND ALSO ORDER OF ITAT MUMBAI BENCH IN THE CASE OF M/S LEVISH PRODUCTS PVT. LTD. VS DCIT 175 TTJ 153 IN WH ICH IT WAS HELD AS UNDER : ASSESSEE-COMPANY HAVING DEVELOPED A SHOPPING MALL AN D LET OUT THE SAME ALONG WITH HOST OF SERVICES/FACILITIES/ AMENITIES VIZ., INFRASTRUCTURE FACILITIES, ESCALATORS, POWER BA CKUP, CENTRAL AIR-CONDITIONING, LIFTS, MAINTENANCE OF COMMON AREA AND A WHOLE LOT OF OTHER FACILITIES, THE BASIC INTENTION IS TO COMMERCIALLY EXPLOIT THE PROPERTY WHICH IS ONE OF TH E MAIN 11 OBJECTS OF THE COMPANY AND, THEREFORE, THE INCOME F ROM LETTING OUT OF MULTIPLEX IS ASSESSABLE AS BUSINESS INCOME AN D NOT AS INCOME FROM HOUSE PROPERTY. 8. SINCE IN THE CASE OF THE ASSESSEE, IT IS NOT IN DISPUTE THAT ASSESSEE IS ENGAGED IN REAL ESTATE BUS INESS AND ALSO RUNNING MINERWA MULTIPLEX AND CAPITAL CINEMA, THEREFORE, ASSESSEE FIRM SINCE BEGINNING, H AD BEEN DISCLOSING RENTAL INCOME FOR LETTING OUT THE PROPERTIES/SPACE AND WAS ALSO EARNING BUSINESS INCO ME ON ACCOUNT OF PROVIDING OTHER FACILITIES TO THE OCCUPANTS/TENANTS. THEREFORE, PROVIDING OTHER FACI LITIES TO THE TENANTS/OCCUPANTS IS, IN-FACT BUSINESS OF TH E ASSESSEE AND SINCE BEGINNING, IT HAS BEEN SHOWING A S BUSINESS INCOME WHICH HAVE BEEN ACCEPTED BY THE REVENUE DEPARTMENT. THEREFORE, FOR PROVIDING SUCH OTHER SERVICES TO THE TENANTS/OCCUPANTS WOULD NOT S HOW THAT INCOME BY WAY OF OTHER FACILITIES/SERVICE CHAR GES CAN BE SAID TO BE DERIVED FROM MERE OWNERSHIP OF TH E PROPERTY. THE ASSESSEE, THEREFORE, RIGHTLY TREATED THE SAME INCOME TO BE BUSINESS INCOME. THE LD. DR, ON THE OTHER HAND, HOWEVER RELIED UPON DECISION OF THE CAL CUTTA HIGH COURT IN THE CASE OF CIT VS SHAMBU INVESTMENT PVT. LTD. 249 ITR 47 AND DECISION OF THE HON'BLE PU NJAB & HARYANA HIGH COURT IN THE CASE OF SHEETAL KHURANA FOODS PVT. LTD. VS ITAT & ORS. 335 ITR 1 IN SUPPORT OF THE CONTENTION THAT WHEN PROPERTY HAVE BEEN LET OUT AND OTHER FACILITIES HAVE BEEN PROVIDED BY THE ASSESSEE TO THE TENANTS, THE ENTIRE INCOME SHOULD BE CONSIDERED AS INCOME FROM HOUSE PROPERTY. HOWEVER, WE MAY NOTE 12 HERE THAT THESE ARE PROCEEDINGS UNDER SECTION 263 O F THE ACT AND IN THESE PROCEEDINGS, THE REVENUE DEPARTMEN T SHALL HAVE TO SATISFY THE CONDITIONS THAT THE ASSES SMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. 9. HON'BLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS CIT 243 ITR 83 HELD AS UNDER : EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDE R OF THE ASSESSING OFFICER, CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, FOR EXAMPLE, WHEN AN INCOME-TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME-TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE UNLESS THE VIEW TAKEN BY THE INCOME-TAX OFFICER IS UNSUSTAINABLE IN LAW. 10. IN THE LIGHT OF THE FACTS OF THE CASE, IT IS CL EAR THAT ASSESSING OFFICER HAS TAKEN ONE OF THE POSSIBLE VIE W IN THE MATTER THAT FOR PROVIDING OTHER FACILITIES TO T HE TENANT/OCCUPANTS, ASSESSEE EARNED BUSINESS INCOME O N THE BASIS OF THE RECORD OF THE REVENUE DEPARTMENT A ND FACTS AND CIRCUMSTANCES OF THE CASE. THE VIEW OF T HE ASSESSING OFFICER IS IN ACCORDANCE WITH LAW AS IS D ECIDED BY THE HON'BLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENT LTD. (SUPRA). THEREFORE, I F THE LD. PR. CIT DOES NOT AGREE WITH THE VIEW OF THE ASS ESSING OFFICER, IT CANNOT BE TREATED THE ASSESSMENT ORDER TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E. THE VIEW OF THE ASSESSING OFFICER HAVE BEEN ACCEPTE D BY 13 THE REVENUE DEPARTMENT ITSELF IN PRECEDING MANY ASSESSMENT YEARS, THEREFORE, COULD NOT BE SAID THAT THE VIEW TAKEN BY THE ASSESSING OFFICER IS UNSUSTAINABL E IN LAW. THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, RIGHTLY CONTENDED THAT THE PROCEEDINGS UNDER SECTION 263 OF THE ACT HAVE BEEN INITIATED ON MERE CHANGE OF OPINION O N THE SAME IDENTICAL FACTS AND CIRCUMSTANCES OF THIS CASE AS IS CONSIDERED BY THE REVENUE DEPARTMENT IN EARLI ER YEAR AS WELL AS IN THE ASSESSMENT YEAR UNDER APPEAL . AS IS NOTED ABOVE, ASSESSING OFFICER HAS CONSIDERED TH IS ISSUE AT ASSESSMENT STAGE BY CALLING FOR INFORMATIO N FROM THE ASSESSEE. THE CLAIM OF THE ASSESSEE IS CONSISTENT AS HAVE BEEN MADE IN EARLIER YEARS, THER EFORE, IN THE ABSENCE OF ANY NEW MATERIAL AGAINST THE ASSE SSEE, REVENUE DEPARTMENT CANNOT BE ALLOWED TO TAKE A CONTRARY VIEW IN SUBSEQUENT YEAR. SUCH APPROACH IS NOT PERMISSIBLE UNDER THE LAW. 10(I) WE MAY ALSO NOTE HERE THAT LD. PR. CIT HAS NO T POINTED OUT IN THE IMPUGNED ORDER AS TO HOW THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WA S ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E. THE LD. PR. CIT, WITHOUT ANY BASIS AND MERELY FOLLO WING TWO DECISIONS OF THE HON'BLE SUPREME COURT REFERRED TO ABOVE, HAVE SET ASIDE THE ASSESSMENT ORDER. WHETHE R A PARTICULAR INCOME IS INCOME FROM HOUSE PROPERTY O R A BUSINESS INCOME, DEPENDS UPON FACTS AND CIRCUMSTANCES OF EACH CASE AND DIFFERENT VIEWS ARE 14 POSSIBLE AS PER VARIOUS JUDGEMENTS, REFERRED TO ABO VE BASED UPON THE EVIDENCE AND MATERIAL ON RECORD. TH E ISSUE IS HIGHLY DEBATABLE AND AS SUCH, LD. PR. CIT WAS NOT JUSTIFIED IN SETTING ASIDE THE ASSESSMENT ORDER BY INVOKING JURISDICTION UNDER SECTION 263 OF THE ACT. 11. CONSIDERING THE ABOVE DISCUSSION, WE DO NOT AGR EE WITH THE VIEW OF LD. PR. CIT IN INVOKING JURISDICTI ON UNDER SECTION 263 OF THE ACT. ACCORDINGLY, WE SET ASIDE AND QUASH THE ORDER UNDER SECTION 263 OF THE ACT DA TED 25.02.2016 AND RESTORE THE ASSESSMENT ORDER DATED 14.01.2014. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- ( ANNAPURNA GUPTA) (BHAVNESH SAINI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30 TH NOVEMBER,2016. POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD