DCIT 9(1), MUMBAI V. GOLDEN PEACE HOTELS & RESORTS P. LTD, MUMBAI

ITA 3629/MUM/2010

• Counselvise Citation: 362919914 RSA 2010
• Duration Of Justice: 1 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 29-09-2011
• Assessment Year: misc
• Appeal Filed On: 07-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Assessee Lawyers: CHETAN KARIA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI R.V. EASWAR, PRESIDENT AND SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NO. 3629 AND 3651/MUM./2010 (A.YS : 2004-05 AND 2007-08 ) DY. COMMISSIONER OF INCOME TAX RANGE-9(1), AAYAKAR BHAVAN 101, M.K. ROAD, MUMBAI 400 020 .. APPELLANT V/S GOLDEN PEACE HOTELS & RESORTS PVT. LTD. 103, SHANTIVAN, 2A, RAHEJA TOWNSHIP MALAD (EAST), MUMBAI 400 097 PAN AAACG2298P .... RESPONDENT REVENUE BY : MR. JITENDRA YADAV ASSESSEE BY : MR. CHETAN KARIA DATE OF HEARING 29.09.2011 DATE OF ORDER 29.09.2011 O R D E R PER J. SUDHAKAR REDDY, A.M. THESE APPEALS PREFERRED BY THE REVENUE, ARE DIRECT ED AGAINST THE IMPUGNED SEPARATE ORDERS 3 RD MARCH 2010, PASSED BY THE COMMISSIONER (APPEALS)-XIX, MUMBAI, FOR ASSESSMENT YEAR 2004-05 AND 2007-08 RESPECTIVELY. 2. BRIEF FACTS ARE THAT, THE ASSESSEE IS A COMPANY AND IS IN THE BUSINESS OF HOTEL AND TEXTILES. THE SOLE GROUND FOR OUR ADJU DICATION IN BOTH THE ASSESSMENT YEARS IS, WHETHER THE INCOME DERIVED BY THE ASSESSEE FROM LEASING OF HOTEL BUILDING ALONG WITH PLANT AND MACH INERY, FURNITURE AND GOLDEN PEACE HOTELS & RESORTS PVT. LTD. ITA NO. 3629/MUM./2010 ITA NO. 3651/MUM./2010 2 FIXTURE, ETC. WAS ASSESSABLE UNDER THE HEAD PROFITS & GAINS OF BUSINESS OR UNDER THE HEAD INCOME FROM OTHER SOURCES . THE GROUND READS AS FOLLOWS:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN HOLDING THAT THE INCOME DER IVED FROM HOTEL BUSINESS LEASED OUT ALONG WITH THE PLANT AND MACHIN ERY, FURNITURE AND FIXTURE WAS ASSESSABLE UNDER THE HEAD PROFITS AND G AINS FROM BUSINESS AS AGAINST UNDER THE HEAD INCOME FROM HOUSE PROPERT Y. 3. THE COMMISSIONER (APPEALS) HAD FOLLOWED THE DECISIO N OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.5068/MUM./2008, G BENCH, ORDER DATED 4 TH NOVEMBER 2009, FOR ASSESSMENT YEAR 2005-06, AND HE LD THAT THE INCOME IN QUESTION IS ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS . 4. BOTH THE PARTIES SUBMITTED THAT THE TRIBUNAL, IN AS SESSEES OWN CASE IN ITA NO.5068/MUM./2008, ORDER DATED 4 TH NOVEMBER 2009, FOR ASSESSMENT YEAR 2005-06, AND IN ITS ORDER IN ITA NO.895/MUM./2 010, FOR ASSESSMENT YEAR 2006-07, ORDER DATED 30 TH SEPTEMBER 2010, HAVE TAKEN A VIEW THAT THE INCOME IN QUESTION IS ASSESSABLE ONLY UNDER THE HEA D INCOME FROM BUSINESS . AS THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTAN CES IN THE CASE, WE RESPECTFULLY FOLLOW THE CO-ORDINATE BENCH DECISI ON IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2005-06 AND 2006-07 CITED SUPR A AND UPHOLD THE ORDERS OF THE COMMISSIONER (APPEALS) AND DISMISS TH E GROUND RAISED BY THE REVENUE FOR BOTH THE ASSESSMENT YEARS. 5. IN THE RESULT, REVENUES APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT TODAY I.E., 29 TH SEPTEMBER 2010. SD/- R.V. EASWAR PRESIDENT SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 29 TH SEPTEMBER 2011 GOLDEN PEACE HOTELS & RESORTS PVT. LTD. ITA NO. 3629/MUM./2010 ITA NO. 3651/MUM./2010 3 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, G BENCH, ITAT, MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI DATE INITIAL 1. DRAFT DICTATED ON 29.9.2011 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 29.9.2011 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 29.9.2011 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 29.9.2011 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 29.9.2011 SR.PS 6. DATE OF PRONOUNCEMENT 29.9.2011 SR.PS 7. FILE SENT TO THE BENCH CLERK 29.9.2011 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER