VAISHNAV S.PURI (HUF), MUMBAI V. ASST CIT 19(3), MUMBAI

ITA 3259/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2307 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 25-08-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 26-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHAMMED RIZWAN
• Keywords: Business income; Question of law
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI [BEFORE S/SHRI B. R. BASKARAN, ACCOUNTANT MEMBER AND AMARJIT SINGH, JUDICIAL MEMBER] / I .T.A. NO.3259/MUM/2013 ( / ASSESSMENT YEAR: 2009-10 VAISHNAV S. PURI (HUF), PROP. OF KAKS INTERNATIONAL, NCL BUILDING, 8 TH FLOOR, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400051 / VS. THE ASSISTANT COMMISSIONER OF INCOME TAX-19 (3), PIRAMAL CHAMBERS, 3 RD FLOOR, LALBAUG, PAREL, MUMBAI 400012 ./ ./ PAN/GIR NO. : AACHP 9479A ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: AASIFA KHAN / RESPONDENT BY: MOHAMMED RIZWAN / DATE OF HEARING: 25.08.2015 !'# /DATE OF PRONOUNCEMENT: 04.11.2015 $% / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL CHALLENGING THE ORDER DATED 01-02-2013 PASSED BY TH E LEARNED COMMISSIONER OF INCOME TAX (APPEAL)-30, MUMBAI [HEREINAFTER REFERRE D TO AS THE CIT(A)] WHICH RELATES TO ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE HUF IS PROPRIETOR OF KAKS INTERNATI ONAL WHOSE MAIN SOURCE OF INCOME IS FROM RUNNING BUSINESS CENTRES ALONG WI TH INFRASTRUCTURE FACILITIES AND RELATED SERVICES. 3. THE MAIN GROUND WHICH HAS BEEN TAKEN BY THE ASSE SSEE IN THE APPEAL IS THAT THE ASSESSEE CLAIMED INCOME IN HIS RETURN AS BUSINESS INCOME AND THE ITA NO.3259/MUM/2013 ASSESSMENT YEAR: 2009-10 2 ASSESSING OFFICER [HEREINAFTER REFERRED TO AS THE AO] TREATED THE SAME AS INCOME FROM HOUSE PROPERTY. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIALS AVAILABLE ON RECORD. THE ASSERTION OF THE LEARNED COUNSEL FOR TH E ASSESSEE IS THAT THE ASSESSEE WAS PROVIDING BUSINESS CENTRES AND HIS INTENTION WA S TO EXPLOIT THE COMMERCIAL ASSETS OF THE ASSESSEE INCLUDING THE FURNITURE/FIXT URES AND AIR CONDITIONERS AS WELL AS TO RENDER VARIOUS SERVICES WHICH HAVE BEEN MENTIONED IN THE AGREEMENTS. HE IS ALSO ARGUED THAT THE INTENTION O F THE ASSESSEE WAS NOT TO EARN RENTAL INCOME, BUT BEYOND THAT TO COVER THE INVESTM ENT ON THE ABOVE SAID ASSETS DEPLOYED. THEREFORE, IN THE SAID CIRCUMSTANCES, THE LEARNED CIT(A) HAS ERRED IN NOT TREATING THE INCOME OF THE ASSESSEE AS BUSINES S INCOME INSTEAD OF TREATING THE ASSESSEES INCOME AS INCOME FROM HOUSE PROPERT Y, HENCE, THE ORDER DATED 01-02-2013 IS WRONG, AGAINST LAW AND FACTS AND IS L IABLE TO BE SET ASIDE. IT IS ALSO ARGUED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE AO HAS TREATED THE INCOME OF THE ASSESSEE AS INCOME FROM HOUSE PROPER TY, WHEREAS THE INCOME OF THE ASSESSEE SHOULD BE TREATED BUSINESS INCOME. T HEREFORE, THE AO AS WELL AS THE LEARNED CIT(A) HAVE WRONGLY TREATED THE INCOME OF THE ASSESSEE AS INCOME FROM HOUSE PROPERTY HENCE, THE ORDER OF THE LEARNE D CIT(A) DATED 01-02-2013 IS LIABLE TO BE SET ASIDE AND THE INCOME OF THE ASS ESSEE IS LIABLE TO BE TREATED AS BUSINESS INCOME. 4.1. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL RE PRESENTATIVE [HEREINAFTER REFERRED TO AS DR] HAS REFUTED THE SAID CONTENTIO NS OF THE ASSESSEE AND ARGUED THAT THE LEARNED CIT(A) HAS PASSED THE ORDER IN VIE W OF THE DECISION TAKEN BY THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.499 6/MUM/2009 IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006-07, THEREFORE, TH E LEARNED CIT(A) HAS RIGHTLY PASSED THE ORDER DATED 01-02-2013 IN ACCORDANCE WIT H LAW. ITA NO.3259/MUM/2013 ASSESSMENT YEAR: 2009-10 3 5. CONSIDERING THE ASSERTIONS MADE BY BOTH THE PART IES AND CAREFUL PERUSAL OF THE MATERIALS AVAILABLE ON RECORD, IT HAS COME TO O UR NOTICE THAT THE ISSUE IN CONTROVERSY HAS ALREADY BEEN ADJUDICATED BY THE CO- ORDINATE BENCH OF THE MUMBAI TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSME NT YEAR 2006-07, WHEREIN THE MATTER OF CONTROVERSY HAS BEEN DECIDED AGAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE, WHILE DECIDING THE ASSESSEES APPEAL B EARING ITA NO.4996/MUM/2009 BY TREATING THE INCOME OF THE ASSE SSEE AS INCOME FROM HOUSE PROPERTY. NO DOUBT, ON THE BASIS OF THE SAID ORDER, ANOTHER ORDER HAS BEEN PASSED BY THE TRIBUNAL IN ITA NO.693/MUM/2012 FOR ASSESSMENT YEAR 2007-08, WHEREIN ALSO THE INCOME OF THE ASSESSEE HA S BEEN TREATED AS INCOME FROM HOUSE PROPERTY IN VIEW OF THE NATURE OF BUSIN ESS EXECUTED BY THE ASSESSEE. IN VIEW OF THE AFORESAID ORDERS OF THE CO-ORDINATE BENCHES OF THE TRIBUNAL, WE ARE OF THE CONSIDERED OPINION THAT THERE IS NO NEED TO GO FURTHER TO DECIDE THE ISSUE CHALLENGED IN THIS APPEAL, THEREFORE, IN THE SAID CIRCUMSTANCES, THE ISSUE IS DECIDED AGAINST THE ASSESSEE AND IN FAVOUR OF THE R EVENUE. 6. DURING THE COURSE OF HEARING, THE LEARNED COUNSE L FOR THE ASSESSEE HAS FURTHER CONTENDED THAT THE ASSESSEE HAS PREFERRED A PPEAL BEFORE THE HONBLE JURISDICTIONAL HIGH COURT AGAINST THE ORDERS OF THE TRIBUNAL FOR ASSESSMENT YEARS 2003-04 TO 2006-07 AND REQUESTED TO REOPEN THE MATT ER, IF LAW POINT WOULD BE DECIDED IN FAVOUR OF THE ASSESSEE AND ALSO TENDERED FORM NO.8 I.E. DECLARATION U/S 153A (1) OF THE INCOME TAX ACT, 1961, ALONG WIT H THE COPY OF THE ORDER DATED 08-02-2013 PASSED BY THE HONBLE BOMBAY HIGH COURT WHEREIN THE CLAIM OF THE ASSESSEE HAS BEEN ADMITTED FOR ADJUDICATION. THE ORDER OF HONBLE HIGH COURT HAS BEEN REPRODUCED AS UNDER:- WHETHER, ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE RECEIPTS UNDER VARIOUS AGREEMENTS ARE BUSINESS INCOME OR INCOME FR OM HOUSE PROPERTY? IT IS ARGUED IN VIEW OF THE SAID CIRCUMSTANCE, IT I S APPARENT THAT IDENTICAL QUESTION OF LAW IS PENDING FOR DECISION BEFORE THE HONBLE HIGH COURT, ITA NO.3259/MUM/2013 ASSESSMENT YEAR: 2009-10 4 THEREFORE, AN ORDER UNDER SUB-SECTION 3 OF SECTION 158B IS REQUIRED TO PASSED AS THE ASSESSEE SHALL NOT RAISE SUCH QUESTION OF LAW T ILL FINAL DECISION OF THE HONBLE HIGH COURT. A COPY OF THE DECLARATION SUBMITTED BY THE ASSESSEE HAS BEEN GIVEN TO THE LEARNED DR WHO HAS NOT OBJECTED FOR THE SAME . 8. IN VIEW OF SUCH SITUATION, WE ADMIT THE CLAIM OF THE ASSESSEE UNDER THE PROVISIONS OF SUB-SECTION 3 OF SECTION 158A OF THE ACT AND DECIDE THE GROUNDS OF APPEAL AGAINST THE ASSESSEE WITH THE DIRECTION T HAT WHENEVER THE QUESTION OF LAW RAISED BY THE ASSESSEE BEFORE THE HONBLE HIGH COURT RELATING TO THE EARLIER ASSESSMENT YEARS IS REPLIED, THE SAME WOULD APPLY T O THE GROUNDS RAISED BY THE ASSESSEE IN THE PRESENT APPEAL ALSO. IN OTHER WORDS , THE ISSUE IN CONTROVERSY IN THIS CASE WOULD BE DECIDED AS AND WHEN THE MATTER O F CONTROVERSY WOULD BE ADJUDICATED BY THE HONBLE BOMBAY HIGH COURT; WOULD BE DECIDED IRRESPECTIVE OF THE ORDERS PASSED BY THE TRIBUNAL. IN VIEW OF TH E ABOVE SAID OBSERVATION, THE GROUNDS RAISED IN THE PRESENT APPEAL OF THE ASSESSE E ARE DECIDED AGAINST THE ASSESSEE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 4 TH NOVEMBER, 2015 SD/ SD/- (B. R. BASKARAN) (AMARJIT SINGH) $ / ACCOUNTANT MEMBER &' $ /JUDICIAL MEMBER ( ) MUMBAI; *$ DATED : 4 TH NOVEMBER, 2015 .'../ LK DEKA LK DEKA LK DEKA LK DEKA , ,, , SR. PS SR. PS SR. PS SR. PS ITA NO.3259/MUM/2013 ASSESSMENT YEAR: 2009-10 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. , ( ) / THE CIT(A)- 4. , / CIT 5. /01 ''23 , 23# , ( ) / DR, ITAT, MUMBAI 6. 156 7 / GUARD FILE. / BY ORDER, / ' //TRUE COPY// / !'# (DY./ASST. REGISTRAR) #$ %, ( ) / ITAT, MUMBAI