M/s. Krome Planet Interiors Pvt. Ltd., Pune V. Deputy Commissioner of Income-tax,

ITA 394/PUN/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2871 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-11-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 03-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ KUMAR JAIN
• Keywords: Business income; Depreciation; Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E , , !'!! # , $ % BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NOS. 393 & 394/PN/2014 $& ' !(' / ASSESSMENT YEAR : 2008-09 & 2010-11 M/S. KROME PLANET INTERIORS PVT. LTD., 32/3, AMAR MANOR, PUNE-SOLAPUR ROAD, WANOWARI, PUNE 411013 PAN : AACCK6861A ....... / APPELLANT )& / V/S. DY. COMMISSIONER OF INCOME TAX, CIRCLE 11(1), PUNE / RESPONDENT ASSESSEE BY : SHRI DHARMESH SHAH REVENUE BY : SHRI DHEERAJ KUMAR JAIN / DATE OF HEARING : 10-11-2015 / DATE OF PRONOUNCEMENT : 08-01-2016 * / ORDER PER VIKAS AWASTHY, JM : THESE TWO APPEALS FOR THE ASSESSMENT YEARS 2008-09 AN D 2010- 11 HAVE BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-I, PUNE FOR THE RESPECTIVE ASSESSME NT YEARS. BOTH THE IMPUGNED ORDERS ARE DATED 31-10-2013. SINCE, THE I SSUES RAISED IN 2 ITA NOS. 393 & 394/PN/2014, A.YS. 2008-09 & 2010-11 BOTH THE APPEALS ARE IDENTICAL, THE APPEALS ARE TAKEN UP TOGETHER FOR ADJUDICATION. 2. THE FACTS OF THE CASE AS EMANATING FROM THE RECORDS ARE: THE ASSESSEE IS ENGAGED IN THE BUSINESS OF LEASING OUT OF SHOP SPACE (UNITS) IN THE SHOPPING MALL. THE BUILDING WHERE THE SHOPPING MALL HAS BEEN DEVELOPED WAS ALLEGEDLY PURCHASED BY THE ASSESSEE TO E ARN INCOME BY LETTING OUT OF THE PROPERTY. THE ASSESSEE IN THE RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEARS HAD DECLARED THE INCOME RECE IVED FROM LEASING OUT OF SHOPS/UNITS TO VARIOUS PERSONS AS BUSINESS RECEIPTS. THE ASSESSEE HAD ALSO CLAIMED DEPRECIATION ON THE BUILDING. AP ART FROM THE RENTAL INCOME THE ASSESSEE HAS RECEIVED CERTAIN CHARGES FROM THE LESSEES VIZ. COMMON AMENITIES, MAINTENANCE CHARGES, ADVERTIS EMENTS AND MISCELLANEOUS RECEIPTS ETC. DURING THE COURSE OF SCRU TINY ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER REJECTED TH E CLAIM OF ASSESSEE IN TREATING THE INCOME FROM LEASING OF SHOPS AS B USINESS RECEIPTS. THE ASSESSING OFFICER HELD THAT THE INCOME RECE IVED BY THE ASSESSEE FROM LEASING OF SHOPS IS TO BE ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY. ACCORDINGLY, THE ASSESSI NG OFFICER DISALLOWED THE CLAIM OF DEPRECIATION ON THE BUILDING. FURTHER, THE ASSESSING OFFICER BROUGHT TO TAX THE RECEIPTS RECEIVED BY THE ASSESSEE ON ACCOUNT OF COMMON AMENITIES, MAINTENANCE, ADVERTISEMENT ETC. UNDER THE HEAD INCOME FROM OTHER SOURCES. AGGRIEVED BY THE ASSESSMENT ORDER DATED 31-12-2010 FO R THE ASSESSMENT YEAR 2008-09 AND DATED 05-03-2013 FOR ASS ESSMENT YEAR 2010-11, THE ASSESSEE PREFERRED SEPARATE APPEALS BEFOR E THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF I NCOME 3 ITA NOS. 393 & 394/PN/2014, A.YS. 2008-09 & 2010-11 TAX (APPEALS) UPHELD THE FINDINGS OF THE ASSESSING OFFICER AND REJECTED THE CONTENTIONS OF THE ASSESSEE. NOW, THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL ASSAILING THE FINDINGS OF COMMISSIONER OF IN COME TAX (APPEALS). 3. SHRI DHARMESH SHAH APPEARING ON BEHALF OF THE ASSESSE E SUBMITTED THAT THE ASSESSEE HAD PURCHASED A BUILDING TO BE USED AS SHOPPING MALL AND LEASING OUT THE VARIOUS SHOPS THEREIN. T HE MAIN PURPOSE OF THE ASSESSEE TO INVEST IN THE BUILDING WAS TO USE IT AS BUSINESS ASSET. THE ASSESSEE IN ITS RETURN OF INCOME HAS DISCLOSED THE LICENSE FEES RECEIVED FROM VARIOUS PARTIES/LICENSEES TO WHOM THE SHOPS HAVE BEEN GIVEN UNDER LEAVE AND LICENSE AGREEMENTS AS BUSINESS INCOME. IT IS NOT A CASE WHERE THE ASSESSEE HAS SIMPLY GIVEN THE PREMISES ON RENT. THE ASSESSEE IS PROVIDING VARIOUS AMEN ITIES AND FACILITIES TO THE LICENSEES. THE FACILITIES PROVIDED BY THE ASS ESSEE INCLUDE LIGHTING ARRANGEMENT FOR COMMON PLACE, REST ROOMS, C AR PARKING AREAS, AIR CONDITIONERS, ELEVATORS, ELECTRONIC SECURIT Y SYSTEM, CUSTOMIZED FIRE HYDRANT AND SPRINKLER SYSTEM, CENTRAL GARB AGE COLLECTION AND DISPOSAL SYSTEM, LOADING/UNLOADING DOCKS AND LO GISTICS AREA, COMMON REST ROOMS, COMMON WATER PURIFIER AND DISPEN SING SYSTEM, CENTRALIZED MUSIC AND PUBLIC ANNOUNCEMENT SYSTEMS WITH TELECOMMUNICATION, POWER BACKUP SYSTEM ETC. THE LD. AR RE FERRED TO ONE OF THE LEAVE AND LICENSE AGREEMENT AT PAGES 1 TO 44 OF THE PAPER BOOK TO SHOW THAT THE SERVICES PROVIDED BY THE ASSESS EE ALONG WITH SHOP FLOOR AREA AND THE TERMS AND CONDITIONS FOR PROVIDIN G THE SERVICES. THE LD. AR POINTED THAT THE ASSESSEE HAS TAKEN LOAN FACILIT Y FROM COSMOS CO-OPERATIVE BANK LTD. AND ICICI BANK FOR CONST RUCTION OF SHOPPING MALL AND CREATING OTHER FACILITIES AT THE PREMISES. 4 ITA NOS. 393 & 394/PN/2014, A.YS. 2008-09 & 2010-11 THE LD. AR SUBMITTED THAT THE AUTHORITIES BELOW HAVE ERRE D IN COMING TO THE CONCLUSION THAT CHARGES RECEIVED BY THE A SSESSEE ON ACCOUNT OF ADVERTISEMENT, COMMON AMENITIES, MAINTENANCE ET C. ARE TO BE ASSESSED UNDER THE HEAD, INCOME FROM OTHER SOURCE S. THE LD. AR REFERRED TO PROFIT AND LOSS ACCOUNT FOR YEAR ENDED 31-03 -2008 AT PAGES 48 AND 49 OF THE PAPER BOOK TO SHOW THAT THE ASSESSE E HAS INCURRED EXPENDITURE ON ACCOUNT OF HOUSEKEEPING EXPENSE, SECURIT IES SERVICES, AND DIESEL FOR DG SET ETC. THE LD. AR IN ORDER TO SUPPOR T HIS SUBMISSIONS PLACED RELIANCE ON THE FOLLOWING DECISIONS: I. KARNANI PROPERTIES LTD. VS. COMMISSIONER OF INCOME-TAX, 82 ITR 547 (SC); II. ASSISTANT COMMISSIONER OF INCOME TAX VS. SAPTARSHI SERVICE S LD., 265 ITR 379 (GUJ.); AND III. PFH MALL & RETAIL MANAGEMENT LTD. VS. INCOME-TAX OFFICER, 110 ITD 337 (KOL.). 4. ON THE OTHER HAND SHRI DHEERAJ KUMAR JAIN REPRESEN TING THE DEPARTMENT VEHEMENTLY SUPPORTED THE FINDINGS OF THE AUT HORITIES BELOW. THE LD. DR SUBMITTED THAT THE AGREEMENT ENTERED INTO BETWEEN THE ASSESSEE AND VARIOUS PARTIES TO WHOM SHOPS HAVE B EEN RENTED OUT SHOWS THAT THE ASSESSEE IS RECEIVING CONSOLIDATED MONTHL Y RENT FROM THE OCCUPANTS. THE RENT INCLUDES CHARGES FOR THE AMENITIES P ROVIDED BY THE ASSESSEE. THEREFORE, THE INCOME FROM RENTING OF THE SHOPS HAS TO BE ASSESSED UNDER THE HEAD, INCOME FROM HOUSE PROPERTY . A FURTHER PERUSAL OF RECORDS SHOW THAT THE TDS HAS BEEN DEDUCTE D UNDER THE PROVISIONS OF THE ACT ON ACCOUNT OF RENTAL INCOME. FURTHE R, THERE IS NO SHARING OF REVENUE WITH THE TENANTS. THE SHOPS HAVE BE EN GIVEN ON RENT FOR LONG PERIOD. THUS, FROM THE FACTS OF THE CASE IT IS EVIDENT THAT 5 ITA NOS. 393 & 394/PN/2014, A.YS. 2008-09 & 2010-11 THE INCOME FROM LETTING OF SHOPS HAS TO BE ASSESSED UNDE R THE HEAD, INCOME FROM HOUSE PROPERTY. IN SUPPORT OF HIS SUBMISSIO NS THE LD. DR PLACED RELIANCE ON THE DECISION OF HON'BLE SUPREME COURT O F INDIA IN THE CASE OF EAST INDIA HOUSING AND LAND DEVELOPMENT TRU ST LTD. VS. COMMISSIONER OF INCOME TAX REPORTED AS 42 ITR 49 (SC) AN D SHAMBHU INVESTMENT (P) LTD. VS. COMMISSIONER OF INCOME TAX REPORTE D AS 263 ITR 143 (SC). 5. THE LD. AR REFUTING THE SUBMISSIONS OF THE REVENUE SUB MITTED THAT IN THE PERIOD RELEVANT TO THE ASSESSMENT YEAR 201 0-11, THE ASSESSEE HAD ENTERED INTO AGREEMENT WITH ONE OF THE PA RTIES FOR SHARING OF REVENUE. HOWEVER, IT IS NOT NECESSARY THAT IN EVERY C ASE THERE SHOULD BE SHARING OF REVENUE. IN THE ASSESSMENT YEAR 2009-1 0 AND 2011-12 THE DEPARTMENT HAS ACCEPTED THE RETURN OF ASSESSEE U /S. 143(1) OF THE ACT WITHOUT ANY OBJECTION. 6. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW. WE HAVE ALSO EXAMINED THE DOCUMENTS FILED BY THE ASSESSEE IN THE FORM OF PAPER BOOK. THE ASSESSEE HAS ASSAILED THE FINDINGS OF COM MISSIONER OF INCOME TAX (APPEALS) IN THE IMPUGNED ASSESSMENT YEARS O N THE FOLLOWING GROUNDS: I. TREATING THE BUSINESS INCOME AS INCOME FROM HOUSE P ROPERTY. II. TREATING THE BUSINESS INCOME AS INCOME FROM OTHER S OURCES. III. DISALLOWING EXPENSES INCURRED FOR THE MALL BUSINESS . 6.1 THE INCOME FROM LETTING OUT OF PROPERTY WHETHER TO BE ASSESSED UNDER THE HEAD INCOME FROM BUSINESS OR INCOME FROM HOUS ING PROPERTY 6 ITA NOS. 393 & 394/PN/2014, A.YS. 2008-09 & 2010-11 IS A MIXED QUESTION OF LAW AND FACTS. IN THE PRESENT CAS E, THE ASSESSEE HAS ALLEGEDLY PURCHASED A BUILDING TO BE USED AS A SHOPP ING MALL. THE ASSESSEE HAS PLACED ON RECORD A COPY OF THE LEAVE AND LICENSE AGREEMENT BETWEEN THE ASSESSEE AS LICENSOR AND INFINITY RETAIL LIMITED AS LICENSEE. A PERUSAL OF THE SAID AGREEMENT SHOWS THAT THE BUILDING WHEREIN THE SHOPPING MALL HAS BEEN MADE IS APPROVED BY T HE PUNE MUNICIPAL CORPORATION FOR SETTING UP OF A SHOPPING MALL. THE ASSESSEE IS PROVIDING VARIOUS FACILITIES AND AMENITIES APART FROM THE SH OP SPACE TO THE LICENSEE. THE LIST OF THE FACILITIES PROVIDED BY THE ASSESSEE IN THE SHOPPING MALL IS GIVEN IN CLAUSE 7 OF THE AGREEMENT. ILLUSTR ATIVE LIST OF THE FACILITIES/AMENITIES PROVIDED BY THE ASSESSEE TO THE LIC ENSEES ARE GIVEN HERE-IN-UNDER: I. LIGHTING ARRANGEMENT FOR COMMON AREAS LIKE PASSAGES , ATRIUM, REST ROOMS, LOADING / UNLOADING AREAS, WASTE DISPOSAL AR EAS, STAIRCASE, BASEMENTS, CAR PARKING AREAS, COMPOUND, PARKING ETC . II. INSTALLATION OF WATER COOLED SPLIT AIR CONDITIONERS WITH COMPRESSORS, CONDENSERS, FAN COIL UNITS & DUCTING SYSTEMS (HVAC) MORE PARTICULARLY DEFINED IN ANNEXURE-B. III. INSTALLATION OF GOOD & REPUTED BRAND ELEVATORS FOR VERTICAL MOVEMENT. IV. INSTALLATION OF ELECTRONIC SECURITY SYSTEM IN THE C OMMON AREAS, ATRIUM AND SURROUNDING THE MAIN SHOPPING MALL WITHIN THE P LOT BOUNDARIES. V. INSTALLATION OF CUSTOMIZED FIRE HYDRANT & SPRINKLER SYSTEM. VI. INSTALLING THE CENTRAL GARBAGE COLLECTION & DISPOSA L SYSTEM. VII. PROVISION OF SEPARATE AREA FOR GARBAGE COLLECTION, LOADING / UNLOADING DOCKS AND LOGISTICS AREA. VIII. INSTALLATION OF COMMON DINING ARRANGEMENT FOR OCCUP ANTS, THEIR STAFF & WORKERS WITH TABLES, CHAIRS, BENCHES, ETC. IX. INSTALLATION OF COMMON WATER PURIFIER AND DISPENSIN G SYSTEM TO PROVIDE CLEAN & HYGIENIC POTABLE WATER. 7 ITA NOS. 393 & 394/PN/2014, A.YS. 2008-09 & 2010-11 X. INSTALLATION OF COMMON REST ROOM FACILITIES. 6.2 CHARGES FOR SOME OF THE FACILITIES AND UTILITIES ARE INCLUDE D IN THE LICENSE FEES CHARGED FOR THE SHOP SPACE. FOR EXAMPLE CO ST OF COMMON LIGHTING AND ELECTRIFICATION OF COMMON AREAS, INCLUDING CHARGE S TOWARDS THE COST OF ELECTRICITY CONSUMED FOR THE LIGHTS, AIR CONDITION ER, TOILETS, WASHROOM EXCLUSIVELY DESIGNATED TO THE LICENSEE, RUNNING A ND MAINTENANCE COST OF GENERATOR SETS AND UPS, ADMINISTRATIV E EXPENSES, HOUSEKEEPING EXPENSES, MAINTENANCE OF UNDERGROUND AND O VERHEAD WATER TANKS, MANUAL/ ELECTRONIC SECURITIES ETC. A PERU SAL OF CLAUSE 3 RELATING TO LICENSE FEE AND OTHER CHARGES WOULD SHOW THAT THE LICENSE FEE IS INCLUSIVE OF TAXES, LEVIES, CAM (COMMON AMENITIES MAINTENA NCE AND SERVICES) CHARGES, SERVICE TAX AND STATUTORY DUTIES/ LEVIES AS MAY BE APPLICABLE FROM TIME TO TIME. HOWEVER, THE LICENSEE WAS REQU IRED TO PAY ADDITIONAL CHARGES TOWARDS THE COST OF ELECTRICITY CONSUM ED FOR LIGHTS, AIR CONDITIONING OF THE CENTER PART ATRIUM AREA AND THE T OILETS AND WASHROOMS EXCLUSIVELY DESIGNATED TO THE LICENSEE. THE LIC ENSE AGREEMENT IS FOR A PERIOD OF 60 MONTHS. THE ASSESSEE HA S SUBMITTED A CHART SHOWING THE DETAILS OF THE PARTIES WITH WHOM LICENSE AGREEMENT HAS BEEN ENTERED, THE PERIOD OF AGREEMENT AND THE LICENS E FEE CHARGED. A PERUSAL OF SAME SHOWS THAT THE DURATION OF AGREEMENT WITH MAJORITY OF PARTIES IS 60 MONTHS. 6.3 THE LD. AR HAS ALSO PLACED ON RECORD THE SANCTION LETT ER FROM THE COSMOS CO-OPERATIVE BANK LTD. WHEREBY LOAN OF RS.14 CROR ES HAS BEEN SANCTIONED TO THE ASSESSEE AGAINST THE SECURITY OF RENT AL RECEIVABLES. THE FACTS ON RECORD SHOW THAT THE ASSESSEE HAD ACQUIR ED THE PROPERTY FOR ITS COMMERCIAL EXPLOITATION. THE ASSESSEE HAS NOT GIVE N 8 ITA NOS. 393 & 394/PN/2014, A.YS. 2008-09 & 2010-11 UNITS/SHOPS IN THE SHOPPING COMPLEX ON RENT SIMPLICITOR. TH E ASSESSEE IS PROVIDING VARIOUS AMENITIES AND FACILITIES ALSO. THE OBJECT OF THE ASSESSEE IS TO EXPLOIT THE BUILDING AS A BUSINESS ASSET. THE ASSESSEE HAD TAKEN LOAN FACILITY FROM THE BANK FOR THE SHOPPING MALL P ROJECT. THE ASSESSEE HAD ALSO ENGAGED STAFF TO MANAGE THE AFFAIRS OF THE SHOPPING COMPLEX. 6.4 THE LD. AR OF THE ASSESSEE HAS DRAWN SUPPORT FROM THE DECISION OF KOLKATA BENCH OF THE TRIBUNAL IN THE CASE OF PFH MALL & R ETAIL MANAGEMENT LTD. VS. INCOME TAX OFFICER (SUPRA). THE TRIBUN AL AFTER CONSIDERING FACTS OR THE CASE AND VARIOUS DECISIONS RENDE RED BY THE HON'BLE HIGH COURTS AND THE DECISION OF HON'BLE SUPREME C OURT OF INDIA IN THE CASE OF SHAMBHU INVESTMENT (P) LTD. VS. COMMIS SIONER OF INCOME TAX (SUPRA) HAS HELD THAT THE INCOME FROM LETTING O UT OF SHOPS IN THE SHOPPING COMPLEX IS A BUSINESS INCOME. THE RELEVANT EXTRACT OF THE FINDINGS OF THE TRIBUNAL ARE REPRODUCED HERE-IN-UNDER: 6. WE HAVE CAREFULLY CONSIDERED THE RELEVANT FACTS , THE ARGUMENTS ADVANCED BY THE RIVAL PARTIES AND THE DECISIONS CIT ED. IN OUR VIEW, BEFORE ARRIVING AT ANY CONCLUSION ABOUT THE PARTICULAR HEA D UNDER WHICH THE INCOME DERIVED BY THE ASSESSEE IS REQUIRED TO BE AS SESSED, IT IS NECESSARY TO EXAMINE THE RELEVANT PROVISIONS OF THE AGREEMENTS THAT THE ASSESSEE HAD ENTERED INTO WITH THE USERS. IN ALL TH E AGREEMENTS THE ASSESSEE IS SHOWN AS THE OWNER OF THE PREMISES IN W HICH THE SHOPPING MALLS/BUSINESS CENTRES ARE LOCATED AND THE OTHER PA RTY TO THE AGREEMENT IS SHOWN AS THE USER. THE ASSESSEE, AS OWNERS OF TH E PREMISES, HAS THE RESPONSIBILITY OF PROVIDING SECURITY, COMMUNICATION AND OTHER SERVICES AS SPECIFIED IN THE AGREEMENTS. THE AGREEMENTS WITH PA NTALOON INDUSTRIES LTD., PFH ENTERTAINMENT LTD. AND PANTALOON FASHIONS (INDIA) LTD., ARE OPERATIVE FOR A PERIOD OF SIX YEARS COMMENCING FROM 1-4-1999 AND THAT WITH PANTALOON RETAIL (INDIA) LTD. IS MADE OPERATIV E FOR A PERIOD OF SEVEN YEARS COMMENCING FROM THE DATE OF OFFICIAL LAUNCH O F THE MALL, OR, IN ANY CASE, ON OR BEFORE 15-3-2000, BY WHICH TIME THE OWN ER WOULD ENDEAVOUR 9 ITA NOS. 393 & 394/PN/2014, A.YS. 2008-09 & 2010-11 TO PROVIDE THE USER WITH ALL THE SERVICES AND FACIL ITIES AS MENTIONED IN THE AGREEMENT. THE AGREEMENTS PROVIDE INTER ALIA THAT T HE OWNER, LE. THE ASSESSEE, WOULD KEEP OPEN THE BUSINESS CENTRES FROM 9 A.M. TO 10 P.M. ((10 A.M. TO 10 P.M. AS PER THE AGREEMENT WITH PANT ALOON RETAIL (INDIA) LTD.)) EVERY DAY. DURING THIS PERIOD THE ASSESSEE W OULD PROVIDE THE SERVICES AS MENTIONED IN THE AGREEMENTS AND WOULD P ERMIT THE EMPLOYEES OF THE USER FREE ACCESS TO THE SAID SERVI CES. IT HAS BEEN CLARIFIED IN THE AGREEMENTS THAT SIMILAR SERVICES AR E PROVIDED TO THE OTHER CLIENTS ALSO. THE OWNER WOULD DETERMINE THE PRECISE HOURS DURING WHICH THE STOCK-IN-TRADE OR WARES MAY BE BROUGHT INTO THE BUSINESS CENTRES TO OBVIATE ANY INCONVENIENCE TO THE USE OF THE SAID BU SINESS CENTRE AND TO FACILITATE FREE MOVEMENT OF THE VISITORS WITHIN THE SAID BUILDING. AS PER THE AGREEMENTS THE USERS ARE NOT PERMITTED TO ALLOW ANY PERSON TO SLEEP OR STAY IN SNY PART OF THE BUILDING NOR TO USE THE SAME FOR RESIDENTIAL PUPOSES. THE AGREEMENTS SPECIFICALLY STIPULATE THAT THE USER IS ONLY GRANTED PERMISSIVE USE OF THE SERVICES AND FACILITI ES PROVIDED IN THE PREMISES BY THE ASSESSEE. THE USER WOULD NOT BE VES TED WITH OR ENJOY ANY RIGHT, TITLE OR INTEREST OF ANY KIND IN THE SER VICES AND FACILITIES PROVIDED BY THE ASSESSEE, ANY MACHINERY, EQUIPMENTS AND ARTIDES IN THE BUSINESS CENTRE OR ANY PART OR PORTION OF THE BUILD ING. THE AGREEMENTS ALSO PROVIDE THAT ANY RIGHT CONTEMPLATED BY ANY STA TUTE IN FUTURE IS ALSO DEEMED TO HAVE BEEN WAIVED BY THE USER. THUS THE US ERS DO NOT ENJOY EVEN ANY TENANCY RIGHT AS PER THE AGREEMENTS. THE S ERVICE CHARGES PAYABLE BY THE USERS HAVE BEEN DETERMINED AT A FIXE D RATE. FAILURE TO MAKE PAYMENTS OF SERVICE CHARGES IN TIME WOULD ATTRA CT CHARGE OF INTEREST AT A STEEP RATE (21% AND 24% COMPOUNDED QU ARTERLY). THE FIXED SERVICE CHARGES DO NOT INCLUDE CHARGES FOR TELEPHON E AND FAX FACILITIES AND ELECTRICITY CHARGES OR CHARGES FOR ANY OTHER SI MILAR FACILITIES PROVIDED BY THE OWNER TO THE USERS. THESE ARE TO BE PAID BY THE USERS ON ACTUAL BASIS. THE ASSESSEE IS RESPONSIBLE FOR THE PAYMENT OF GROUND RENT/LEASE RENT, MAINTENANCE CHARGES, MUNICIPAL AND OTHER TAXE S, RATES AND CESSES AS WELL AS OTHER SUCH OUTGOINGS. HOWEVER, IN CASE O F INCREASE IN ASSESSEE'S LIABILITIES ON ACCOUNT OF INCREASE IN TA XES, CHARGES, DUES OR LIABILITIES PAYABLE TO ANY GOVERNMENTAL BODY OR AUT HORITY, THE FEES PAYABLE BY THE USERS FOR ENJOYING SERVICES AND FACI LITIES PROVIDED BY THE ASSESSEE MAY BE PROPORTIONATELY INCREASED AT THE DI SCRETION OF THE ASSESSEE. THUS THE ASSESSEE HAS CONTRACTUAL OBLIGAT ION FOR PROVIDING SERVICES TO ITS CUSTOMERS (USERS) LIKE ELECTRICITY, TELEPHONE, WATCH AND WARD, ETC. AS PER THE TERMS OF THE AGREEMENT THE CU STOMERS HAD NO RIGHT OF OCCUPANCY. THEY HAVE ONLY LIMITED ACCESS TO USE T HE SPACE FOR THE 10 ITA NOS. 393 & 394/PN/2014, A.YS. 2008-09 & 2010-11 PURPOSE OF THEIR BUSINESS, AND THAT TOO, IN RESPECT OF CERTAIN ACTIVITIES, DURING THE SPECIFIC HOURS OF THE DAY ONLY. FURTHERM ORE THE KEYS OF THE PREMISES ARE KEPT BY THE ASSESSEE MEANING THEREBY T HAT THE PREMISES ARE FULLY IN CONTROL OF THE ASSESSEE. 6.1 AT THIS JUNCTURE IT WOULD BE PERTINENT TO FOCUS OUR ATTENTION TO SOME UNDISPUTED FACTS PERTAINING TO THIS CASE. THE ASSES SEE HAS GIVEN UP ITS BUSINESS OF TRADING IN TEXTILES AND EMBARKED ON SET TING UP SHOPPING MALLS/ BUSINESS CENTRES AT VARIOUS METROS IN INDIA IN A BIG WAY. FOR THIS PURPOSE IT HAD SECURED LOANS FROM THE BANKS, OBSERV ED VARIOUS FORMALITIES AND OBTAINED NECESSARY PERMISSIONS. APA RT FROM PROVIDING VARIOUS SERVICES, IN Q SUBSEQUENT YEARS IT HAS ALSO TAKEN UP, AS PART AND PARCEL OF ITS MALL MANAGEMENT ACTIVITIES, THE JOB O F MARKETING AS WELL AS; THAT OF SELLING AGENCY OF READY-MADE GARMENTS AND O THER ARTICLES. NO DOUBT IN THE CHANGING ECONOMIC SCENARIO OF THE COUN TRY THE ASSESSEE CORRECTLY RECOGNISED THE IMMENSE OPPORTUNITY THAT T HE RETAIL SHOPPING MALLS WOULD PROVIDE FOR MAKING BIG MONEY. THAT IS W HY IT LOST NO TIME IN DISCARDING ITS EARLIER BUSINESS TO VENTURE INTO THI S NEW FIELD. THE HON'BLE SUPREME COURT IN KARNANI PROPERTIES LTD. 'S CASE (S UPRA) HAD OBSERVED : FROM THE FACTS; FOUND BY THE TRIBUNAL IT FOLLOWS T HAT THE SERVICES RENDERED BY THE ASSESSEE TO ITS TENANTS WERE THE RE SULT OF ITS ACTIVITIES CARRIED ON CONTINUOUSLY IN AN ORGANIZED MANNER, WITH A SET PURPOSE AND WITH A VIEW TO EARN PROFITS. HENCE, THOSE ACTIVITIES HAVE TO BE CONSIDERED AS BUSINESS ACTIVI TIES. APPLYING THE ABOVE TEST TO THE FACTS OF THE PRESENT CASE WE FIND THAT THE ASSESSEE HAS DIRECTED ALL ITS ACTIVITIES IN AN ORGA NISED MANNER FOR THE PURPOSE OF DEVELOPING THE PROPERTIES AS SHOPPING MA LLS/BUSINESS CENTRES. FROM THE AGREEMENTS IT IS APPARENT THAT TH E MANAGEMENT AND ADMINISTRATION OF THE SHOPPING MALLS IS THE SOLE RE SPONSIBILITY OF THE ASSESSEE. OBVIOUSLY THE ASSESSEE IS REQUIRED TO EMP LOY A GOOD NUMBER OF PERSONNEL ON A PERMANENT BASIS TO DISCHARGE SUCH RESPONSIBILITY. THE VARIOUS ARRANGEMENTS THAT THE ASSESSEE HAS TO MAKE ON A DAILY BASIS, TO ENSURE AVAILABILITY OF THE SERVICES AND AMENITIES T O THE USERS IN ACCORDANCE WITH THE AGREEMENTS, REFLECT A CLEAR MAN IFESTATION OF ORGANISED ACTIVITY. THE DURATION OF THE AGREEMENTS AND VARIOUS LEGAL AND OTHER COMMITMENTS THAT EACH PARTY TO THE AGREEMENT( S) ARE REQUIRED TO HONOUR, INDISPUTABLY SHOW THAT THE ACTIVITIES ARE C ONTINUOUS. SO CLEARLY THE ACTIVITIES OF THE ASSESSEE THAT GENERATED THE I NCOME FROM SHOPPING MALLS/BUSINESS CENTRES CAN BE CATEGORIZED AS CONTIN UOUS ORGANISED 11 ITA NOS. 393 & 394/PN/2014, A.YS. 2008-09 & 2010-11 ACTIVITIES FOR A SET PURPOSE. THERE IS ALSO NO DOUB T THAT THE ASSESSEE ENGAGED IN SUCH ACTIVITIES WITH A VIEW TO EARN PROF IT. CLEARLY THE ASSESSEE IS ENGAGED IN A COMPLEX SET OF ACTIVITIES, THE PURPOSE OF WHICH CANNOT BE REGARDED AS MERELY EARNING OF RENTAL INCO ME. THE VARIOUS FEATURES OF THE AGREEMENTS, AS STATED ABOVE, ALSO I NDICATE THAT THERE IS MUCH MORE THAN LETTING OUT OF THE PROPERTIES SIMPLI CITER FOR EARNING RENTAL INCOME. 6.2 THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CI T V. NATIONAL STORAGE (P.) LID., WHILE LAYING DOWN THE PRINCIPLES TO BE FOLLOWED IN DETERMINING THE PARTICULAR HEAD UNDER WHICH AN INCO ME IS TO BE ASSESSED, OBSERVED: IN CASES WHERE THE INCOME RECEIVED IS NOT FROM THE BARE LETTING OF THE TENEMENT OR FROM THE LETTING ACCOMPANIED BY INC IDENTAL SERVICES OR FACILITIES, BUT THE SUBJECT HIRED OUT I S A COMPLEX ONE AND THE INCOME OBTAINED IS NOT SO MUCH BECAUSE OF T HE BARE LETTING OF THE TENEMENT BUT BECAUSE OF THE FACILITI ES AND SERVICES RENDERED, THE OPERATIONS INVOLVED IN SUCH LETTING O F THE PROPERTY MAY BE OF THE NATURE OF BUSINESS OR TRADING OPERATI ONS AND THE INCOME DERIVED MAY BE OF THE NATURE OF BUSINESS OR TRADING OPERATIONS AND THE INCOME DERIVED MAY BE INCOME NOT FROM EXERCISE OF PROPERTY RIGHTS PROPERLY SO-CALLED SO A S TO FALL UNDER SECTION BUT INCOME FROM OPERATIONS OF A TRADING NAT URE FALLING UNDER SECTION 10 OF THE ACT; THE FACTS IN THE INSTANT CASE UNDOUBTEDLY SHOW THAT THE INCOME OBTAINED IS NOT MERELY BECAUSE OF THE BARE LETTING OF THE PR EMISES BUT ALSO BECAUSE OF THE FACILITIES AND SERVICES RENDERED. THUS THE I NCOME DERIVED BY THE ASSESSEE CANNOT BE REGARDED AS SIMPLY FROM THE EXER CISE OF PROPERTY RIGHTS. RATHER THE INCOME IS DERIVED BY THE ASSESSE E FROM COMPLEX G OPERATIONS OF A TRADING NATURE. 6.3 IN THE CASE OF EVEREST HOTELS LTD. (SUPRA) IT H AS BEEN HELD BY THE HON'BLE CALCUTTA HIGH COURT THAT THE RUNNING OF HOT EL BEING A COMMERCIAL ACTIVITY, THE INCOME DERIVED FROM LEASE RENT BY LET TING OUT THE HOTEL PREMISES IS ASSESSABLE AS BUSINESS INCOME. THIS IS BECAUSE THE LEASE RENT RECEIVED WAS FROM COMMERCIAL UTILISATION OF TH E PROPERTY. THE HON'BLE CALCUTTA HIGH COURT ENUNCIATED THE FOLLOWIN G PRINCIPLES IN THIS RESPECT: 12 ITA NOS. 393 & 394/PN/2014, A.YS. 2008-09 & 2010-11 (1) IN ORDER TO BE A BUSINESS INCOME WITHIN THE MEA NING OF SECTION 10 THERE MUST BE EVIDENCE OF EXPLOITATION OF A COMM ERCIAL ASSET. (2) EXPLOITATION OF A COMMERCIAL ASSET DOES NOT NEC ESSARILY MEAN EXPLOITATION BY THE ASSESSEE HIMSELF AT ALL MATERIA L TIMES. THE ASSESSEE MAY TEMPORARILY CAUSE IT TO BE EXPLOITED B Y ANOTHER PERSON AGAINST PAYMENT OF CONSIDERATION AND FOR THIS PURPOSE MAY ALSO EXECUTE A LEASE FOR A FIXED PERIOD EVEN WI TH CLAUSES OF OPTION TO RENEW. (3) BUT IN ORDER THAT THE INCOME DERIVED FROM THE L EASE MAY BE TAXABLE UNDER SECTION 10 IT MUST BE SHOWN THAT THE LESSOR'S INTENTION WAS THAT DURING THE PERIOD OF THE LEASE T HE ASSET LEASED OUT MUST REMAIN AND BE TREATED AS A COMMERCIAL ASSE T AND EXPLOITED AS SUCH. (4) THIS INTENTION OF THE LESSOR REFERRED TO ABOVE HAS TO BE ASCERTAINED FROM THE CUMULATIVE EFFECT OF ALL THE T ERMS OF THE LEASE AND OTHER MATERIAL CIRCUMSTANCES. 6.4 WE AGREE WITH THE LEARNED COUNSEL OF THE APPELL ANT THAT THERE ARE A LOT OF SIMILARITIES IN BOTH THE PURPOSE AS WELL AS THE ACTIVITIES CONCERNING THE RUNNING OF A HOTEL AND THAT OF SHOPPING MALL. I NDEED BOTH MALLS AND HOTELS CONSTITUTE BUILDING OR GROUP OF BUILDINGS PR OVIDING ACCOMMODATION FOR COMMERCIAL USE THEREOF. IN THE MANAGEMENT OF BO TH HOTELS AND SHOPPING MALLS THE PREDOMINANT ACTIVITY IS COMMERCI AL EXPLOITATION OF THE PROPERTY. WE FEEL THAT THERE IS A LOT OF SENSE IN T HE CONTENTION OF THE LEARNED COUNSEL OF THE APPELLANT THAT JUST AS UTILI SATION OF ACCOMMODATION FOR PROVIDING F CUSTOMERS WITH BOARD AND LODGING IS A COMMERCIAL ACTIVITY, UTILISATION OF SPACE FOR PROVIDING SHOPPI NG FACILITIES TO CUSTOMERS IS ALSO A COMMERCIAL ACTIVITY. SO APPLYING THE ABOV E PRINCIPLES LAID DOWN BY THE COURT THE IRRESISTIBLE CONCLUSION WOULD BE T HAT THE INCOME DERIVED BY THE ASSESSEE FROM THE SHOPPING MALLS/BUSINESS CE NTRES IS TO BE ASSESSED AS BUSINESS INCOME. 6.5 IN THE CASE OF SAPTARSHI SERVICES LTD. (SUPRA), THE HON'BLE GUJARAT HIGH COURT SUMMARILY DISMISSED THE APPEAL OF THE RE VENUE AGAINST THE DECISION OF THE TRIBUNAL THAT THE INCOME FROM DEVEL OPING THE PROPERTY AS BUSINESS CENTRE CONSTITUTES BUSINESS INCOME. THE DE CISION OF THE TRIBUNAL IS BASED ON THE FINDING THAT THE ASSESSEE IS PROVID ING A NUMBER OF SERVICES, E.G. HAVING AN EPABX MACHINE FACILITATING TELEPHONE SERVICES TO 13 ITA NOS. 393 & 394/PN/2014, A.YS. 2008-09 & 2010-11 THE OCCUPANTS OF THE BUSINESS CENTRE, SERVICES OF L IFT, SERVICES OF RECEPTIONISTS, SECRETARIAL SERVICES, DATA PROCESSIN G, CONFERENCE ROOM, ETC. THUS WHAT THE ASSESSEE IS PROVIDING IN REALITY HAPP ENS TO BE A WORKING PLACE ALONG WITH THE AFORESAID FACILITIES. IT IS AP PARENT THAT THE VARIOUS SERVICES AND FACILITIES PROVIDED BY THE PRESENT ASS ESSEE ARE VERY SIMILAR IN NATURE. THEREFORE, IT CAN BE JUSTIFIABLY INFERRE D THAT HERE TOO THE ASSESSEE IS ACTUALLY PROVIDING A WORKING PLACE FOR DOING BUSINESS WITH THE ATTENDANT FACILITIES. IN THIS VIEW OF THE MATTE R, THE IRRESISTIBLE CONCLUSION IS THAT WHAT THE APPELLANT HAS EARNED IS BUSINESS INCOME AND THE SAME SHOULD BE ASSESSED UNDER THE HEAD OF 'PROF ITS CTND GAINS FROM BUSINESS AND PROFESSION'. 6.6 IN THE CASE OF KONGARAR SPINNERS (P.) LTD. (SUP RA), THE HON'BLE MADRAS HIGH COURT HELD THAT ONLY LETTING OUT OF A PROPERTY SIMPLICITER WITHOUT ANYTHING MORE WILL FALL UNDER THE CATEGORY INCOME F ROM HOUSE PROPERTY. BUT WHERE THE ASSESSEE IS ALREADY RUNNING A FACTORY AND HAS BUILT ANOTHER FACTORY AND GIVES IT ON RENT FOR RUNNING IT , IT IS NOT A CASE OF LETTING OUT THE PROPERTY SIMPLICITER. FROM THE NATU RE OF THE SERVICES PROVIDED BY THE APPELLANT COUPLED WITH SOME OF THE PROVISIONS OF THE AGREEMENTS (NOTABLY THE ONE REGARDING DENIAL OF ANY KIND OF RIGHT TO THE USER) IT CAN BE SAID WITH CERTAINTY THAT THE; INSTA NT CASE ALSO IS NOT ONE OF LETTING OUT OF THE PROPERTY SIMPLICITER. 6.7 THE REVENUE RELIED HEAVILY ON THE DECISION OF T HE HON'BLE SUPREME COURT IN THE CASE OF SHAMBHU INVESTMENT (P.) LTD. ( SUPRA). THE SAID JUDGMENT CONSISTS ONLY OF THE OPERATIVE PORTION, AF FIRMING THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN CIT V. SHAMBHU I NVESTMENT (P .) LTD. (2000) 249 ITR 47. IN THE SAID DECISION THE CALCUTT A HIGH COURT OBSERVED: TAKING A SUM TOTAL OF THE AFORESAID DECISIONS IT CL EARLY APPEARS THAT MERELY BECAUSE INCOME IS ATTACHED TO ANY IMMOV ABLE PROPERTY THAT CANNOT BE THE SOLE FACTOR FOR ASSESSM ENT OF SUCH INCOME AS INCOME FROM PROPERTY. WHAT HAS TO BE SEEN IS WHAT WAS THE PRIMARY OBJECT OF THE ASSESSEE WHILE EXPLOITING THE PROPERTY. IF IT IS FOUND APPLYING SUCH TEST THAT THE MAIN INTENT ION IS FOR LETTING OUT THE PROPERTY OR ANY PORTION THEREOF THE SAME MU ST BE CONSIDERED AS RENTAL INCOME OR INCOME FROM PROPERTY . IN CASE IT IS FOUND THAT THE MAIN INTENTION IS TO EXPLOIT THE IMM OVABLE PROPERTY BY WAY OF COMPLEX COMMERCIAL ACTIVITIES IN THAT EVE NT IT MUST BE HELD AS BUSINESS INCOME. 14 ITA NOS. 393 & 394/PN/2014, A.YS. 2008-09 & 2010-11 CLEARLY, IN THE INSTANT CASE THE PRIMARY OBJECT OF THE ASSESSEE IS TO EARN INCOME BY COMMERCIAL EXPLOITATION OF THE PROPERTY. FROM THE PLANNING STAGE AND ARRANGING FINANCE FOR ITS INVESTMENTS, EV ERY SUBSEQUENT ACTIVITY OF THE ASSESSEE HAS BEEN DIRECTED TOWARDS DEVELOPING THE PROPERTIES AS SHOPPING MALLS/BUSINESS CENTRES AND T AKING UP THE BUSINESS OF THE MANAGEMENT OF THE SAME. THE WAY THE AGREEMENTS HAVE BEEN DRAFTED GIVES AMPLE EVIDENCE OF SUCH INTENTION OF THE ASSESSEE. THE FACT THAT THE APEX COURT HELD THAT THE INCOME EARNE D BY SHAMBHU INVESTMENT PVT. LTD. IS ASSESSABLE AS PROPERTY INCO ME HAS NO RELEVANCE IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. BECAUSE IN THAT CASE THE FACTS SHOWED THAT THE MAIN INTENTION WAS TO EAR N RENTAL INCOME. THAT WAS WHY THE ENTIRE COST OF THE PROPERTY WAS RECOVER ED FROM THE TENANTS BY WAY OF INTEREST-FREE ADVANCE. IN THE INSTANT CAS E, ON THE OTHER HAND, THE ASSESSEE HAD TAKEN BANK LOANS TO FINANCE HIS PR OJECTS LIKE ANY OTHER BUSINESSMAN. AS DISCUSSED HEREINABOVE, EVERY ACTION OF THE PRESENT ASSESSEE APPEARS TO BE WITH THE SOLE OBJECT OF COMM ERCIAL EXPLOITATION OF THE PREMISES. 6.8 AFTER CAREFULLY ANALYSING THE FACTS OF THE INST ANT CASE, AND FOLLOWING THE CONSENSUS OF JUDICIAL OPINION ON THE ISSUE, OUR CONSIDERED VIEW IS THAT, THE MERE FACT THAT THE INCOME IS ATTA CHED TO IMMOVABLE PROPERTY, CANNOT BE THE SOLE CRITERION FOR ASSESSME NT OF SUCH INCOME AS INCOME FROM HOUSE PROPERTY. IT IS NECESSARY TO DIG FURTHER TO FIND OUT WHAT IS THE PRIMARY OBJECT OF THE ASSESSEE WHILE EX PLOITING THE PROPERTY. IF IT IS FOUND, THAT THE MAIN INTENTION IS FOR SIMP LY LETTING OUT OF PROPERTY OR ANY PORTION THEREOF, THE RESULTANT INCOME MUST B E ASSESSED AS INCOME FROM HOUSE PROPERTY. IF, ON THE OTHER HAND, THE MAI N INTENTION IS FOUND TO BE THE EXPLOITATION OF THE IMMOVABLE PROPERTY BY WAY OF COMMERCIAL ACTIVITIES, THEN THE RESULTANT INCOME MUST BE HELD AS BUSINESS INCOME . IN THE INSTANT CASE, WE FOUND THAT SERVICES RENDERED B Y THE ASSESSEE WERE THE RESULT OF ITS ACTIVITIES CARRIED ON CONTINUOUSL Y IN AN ORGANIZED MANNER WITH A SET PURPOSE AND WITH A VIEW TO EARN PROFIT. HENCE, ALL THESE ACTIVITIES ARE IN THE NATURE OF COMMERCIAL ACTIVITI ES. ACCORDINGLY WE HOLD THAT THE INCOME DERIVED BY THE ASSESSEE FROM SHOPPI NG MALLS/BUSINESS CENTRES IS TO BE ASSESSED AS BUSINESS INCOME AND NO T AS INCOME FROM HOUSE PROPERTY. IN THE INSTANT CASE WE OBSERVE THAT THE INTENTION OF TH E ASSESSEE RIGHT FROM THE BEGINNING WAS TO EXPLOIT THE PROPERTY FOR COMMERCIAL 15 ITA NOS. 393 & 394/PN/2014, A.YS. 2008-09 & 2010-11 ACTIVITIES. AS IS EVIDENT FROM LICENSE AGREEMENT, THE ASSES SEE IS CARRYING OUT VARIOUS ACTIVITIES TO MANAGE THE AFFAIRS OF THE SHOPPING COMPLEX. WE ARE OF THE VIEW THAT THE FACTS IN THE CASE O F THE ASSESSEE ARE SIMILAR TO THE FACTS IN THE CASE OF PFH MALL & RETAIL MA NAGEMENT LTD. VS. INCOME TAX OFFICER (SUPRA). THE COMMISSIONER OF INCO ME TAX (APPEALS) HAS TRIED TO CREATE DISTINCTION BETWEEN THE TWO CASES ON INSIGNIFICANT ISSUES. THEREFORE, THE SAME ARE NOT SUSTAINABLE. 6.5 THE LD. AR IN ORDER TO BUTTRESS HIS SUBMISSIONS HAS A LSO PLACED RELIANCE ON THE DECISION OF HON'BLE SUPREME COURT OF INDIA IN THE CASE OF KARNANI PROPERTIES LTD. VS. COMMISSIONER OF INCOME-TAX ( SUPRA) AND THE JUDGMENT OF GUJARAT HIGH COURT IN THE CASE OF ASSIS TANT COMMISSIONER OF INCOME TAX VS. SAPTARSHI SERVICES LD. (SUPR A). THE KOLKATA BENCH OF TRIBUNAL IN QUITE COMPREHENSIVE MANNER HAS CONSIDERED THE JUDGMENTS RENDERED IN BOTH THE ABOVE C ASES. FOR THE SAKE OF BREVITY AND TO AVOID REPETITION WE ARE NOT DISCUS SING THESE DECISIONS AGAIN IN DETAIL. 7. IN VIEW OF THE FACTS OF THE CASE AND THE DOCUMENTS O N RECORD, WE ARE OF THE CONSIDERED VIEW THAT THE AUTHORITIES BELOW HAV E ERRED IN HOLDING THAT THE INCOME DERIVED BY ASSESSEE FROM LETTING O UT OF SHOPS IN THE SHOPPING COMPLEX KROME PLANET IS TO BE TREATED AS I NCOME FROM HOUSE PROPERTY. THE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS) ARE SET ASIDE AND THE INCOME FROM LETTING OUT O F SHOPS IN THE SHOPPING MALL IS HELD TO BE BUSINESS INCOME. 16 ITA NOS. 393 & 394/PN/2014, A.YS. 2008-09 & 2010-11 8. SINCE, WE HAVE HELD THE INCOME FROM SHOPS AS BUSINESS INCOME AND THE SHOPPING COMPLEX AS BUSINESS ASSET THE OTHER G ROUNDS RAISED IN THE APPEAL ARE ALLOWED AS COROLLARY TO OUR ABOVE FINDS. 9. IN THE RESULT, THE IMPUGNED ORDERS ARE SET ASIDE AND THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED ON FRIDAY, THE 08 TH DAY OF JANUARY, 2016. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 08 TH JANUARY, 2016 RK *+,$-.'/'(- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-I, PUNE 4. ' / THE CIT-I, PUNE 5. !*+ %%,- , ,- , . /01 , / DR, ITAT, A BENCH, PUNE. 6. + 2 34 / GUARD FILE. // ! % // TRUE COPY// #5 / BY ORDER, %6 ,1 / PRIVATE SECRETARY, ,- , / ITAT, PUNE