ITO 3(1)(2), MUMBAI V. BRINDABAN BUILDERS P.LTD, MUMBAI

ITA 3453/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9103 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 11-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAYUR KI SNARWALA
• Assessee Lawyers: S K MITRA
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM ITA NO. 3453 / MUM/20 17 & CO NO.203/MUM/2017 (ARISING OUT OF ITA NO.3453/MUM/2017 ( ASSESSMENT YEAR : 2007 - 08 ) ITO 3(1)(2) R.NO.218, MATRU MANDIR MUMBAI 400 007 VS. M /S. BRINDABAN BUILDERS PVT. LTD., 4 TH FLOOR, RAHEJA CORNER OF MAIN AVENUE OF N.P. ROAD, SANTACRUZ (WEST) MUMBAI 400 049 PAN/GIR NO. AAACB1815B APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI S.K. MITRA REVENUE BY SHRI MAYUR KI SNARWALA DATE OF HEARING 07 / 09 /201 7 DATE OF PRONOUNCEME NT 09 / 10 /201 7 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 20, MUMBAI DATED 27/02/2017 IN THE MATTER OF ORDER PASSED U/S.143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961. 2. IN THE APPEAL FILED BY THE REVENUE, REVENUE IS AGGRIEVED BY THE ACTION OF CIT(A) FOR ASSESSING THE INCOME UNDER THE HEAD INCOME FROM BUSINESS, WHICH WAS ASSESSED BY THE AO AS INCOME FROM HOUSE PROPERTY. I FOUND THAT CIT(A) HAS TREATED THE INCOME SO OFFERED BY THE ASSESSEE AS INCOME ITA NO. 3453/MUM/2017 & CO 203/MUM/2017 M/S. BRINDABAN BUILDERS PVT. LTD., 2 FROM BUSINESS AFTER HAVING THE FOLLOWING OBSERVATION OF THE TRIBUNAL IN ASSESSEES OWN CASE DATED 03/10/2012. THE PRECISE OBSERVATION OF THE CIT( A) WAS AS UNDER: - 7. I HAVE PERUSED THE ASSESSMENT ORDER AND SUBMISSIONS MADE BY THE APPELLANT IN THIS REGARD. THE ONLY ISSUE IN THE PRESENT APPEAL IS WHETHER THE INCOME FROM LETTING OF THE PROPERTY IS TO BE ASSESSED AS BUSINESS INCOME OR INCOME FROM HOU SE PROPERTY. IT IS NOTED THAT THE ISSUE AT HAND IS A RECURRING ONE WHICH HAS BEEN DECIDED IN THE FAVOUR OF THE APPELLANT BY THE HON'BLE ITAT MUMBAI B' BENCH VIDE ITS ORDER DATED 03 - 10 - 2012 IN THE ITA NO.6902/MUM/2011. THE HON'BLE TRIBUNAL WHILE ALLOWING R ELIEF TO THE ASSESSEE ON THIS ISSUE HAD NOTED THAT THE ASSESSEE WAS ENGAGED IN LETTING OF PREMISES WITH RENDERING OF SERVICES AND FACILITIES AND THE ENTIRE ACTIVITY OF THE ASSESSEE WAS SUCH THAT THE LETTING OF THE PROPERTY WAS IN THE NATURE OF BUSINESS RAT IONS. IT WAS HELD BY THE HON'BLE ITAT THAT THE INCOME RECEIVED BY THE ASSESSEE WAS NOT ONLY FROM LETTING OUT, BUT IT IS BECAUSE OF FACILITIES AND SERVICES RENDERED AND SO SHOULD BE ASSESSED UNDER THE HEAD BUSINESS INCOME. SINCE THE FACTS OF THE PRESENT CAS E ARE IDENTICAL TO A.Y.2008 - 09, IT IS NOTED THAT THE DIRECTIONS OF THE HON'BLE ITAT IN ASSESSEE'S OWN CASE FOR A.Y.2008 - 09 ARE APPLICABLE TO THE PRESENT CASE. IN VIEW OF THIS DISCUSSION AND RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HON'BLE ITAT MUMBAI FOR A.Y.2008 - 09 THE ADDITIONS MADE BY THE A.O, CANNOT BE SUSTAINED IN APPEAL AND ARE DIRECTED TO BE DELETED. ACCORDINGLY THE GROUND NOS. 1 TO 3 OF APPEAL ARE ALLOWED. 3. IN EARLIER YEARS THE DEPAR TMENT HAD ACCEPTED THE INCOME SO OFFERED BY ASSESS EE AS INCOME FROM BUSINESS. 4. I FOUND THAT TRIBUNAL HAVE HELD THE INCOME AS INCOME ARISING FROM HIRING OF OFFICE PREMISES WAS ASSESSABLE AS INCOME FROM BUSINESS, ACCORDINGLY I DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) FOR TREATING THE HIRING INCOME AS INCOME FROM BUSINESS BY FOLLOWING THE DECISION OF THE TRIBUNAL HOLDING THAT INCOME IS ACCESSIBLE UNDER THE HEAD INCOME FROM BUSINESS. FACTS AND CIRCUMSTANCES DURING THE YEAR UND ER CONSIDERATION I . E A.Y.200 7 - 0 8 ARE PARAMETRIA, THEREFORE, FOLLOWING TH E ORDER OF TRIBUNAL IN ITA NO. 3453/MUM/2017 & CO 203/MUM/2017 M/S. BRINDABAN BUILDERS PVT. LTD., 3 ASSESSEES OWN CASE, I DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). 4. IN THE CROSS OBJECTION ASSESSEE IS AGGRIEVED FOR UPHOLDING REOPENING O F ASSESSMENT BY THE CIT(A). AS I HAVE ALREADY UPHELD THE ORDER OF CIT(A) FOR TREATING THE INCOME AS INCOME FROM BUSINESS, THE CROSS OBJECTION HAS BE COME INFRUCTUOUS. 5. IN THE RESULT BOTH THE APPEALS OF THE REVENUE AS WELL AS CO FILED BY THE ASSESSEE ARE DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 09 / 10 /2017 SD/ - ( R.C.SHARMA ) ACCOUNTANT MEMBER MUMBAI ; DATED 09 / 10 /201 7 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//