Sh Agya Ram, New Delhi V. ITO, New Delhi

ITA 4121/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65655 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 01-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAM BILASH MEENA
• Assessee Lawyers: SAHNI
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI A.D. JAIN, JUDICIAL MEMBER ITA NO.4121/DEL/2012 ASSESSMENT YEAR : 2007-08 AGYA RAM, PROP. M/S SUPREME AUTO WORKS, B-93, OKHLA INDL. AREA, PHASE II, NEW DELHI. PAN : AAHPB7681B VS. ITO, WARD 22 (4), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M.S. SAHNI, ADVOCATE REVENUE BY : SHRI RAM BILASH MEENA, SR.DR ORDER PER A.D. JAIN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2007-08 AGAINST THE ORDER DATED 02.04.2012 PASSED BY T HE CIT (A)-XI, NEW DELHI, UPHOLDING THE ASSESSMENT OF THE ASSESSEES INCOME FROM LICENCE FEE AS INCOME FROM HOUSE PROPERTY, INSTEAD OF BUSINESS INCOME, AS CLAIMED BY THE ASSESSEE. 2. THE FACTS LEADING TO THE PRESENT APPEAL ARE THAT T HE ASSESSEE WAS ENGAGED IN THE BUSINESS OF JOB WORK FOR AUTO BATTER IES IN A PORTION OF THE BUSINESS PREMISES NO.B-93, OKHLA INDL. AREA, NEW DELHI. THE ASSESSEE HAD DECLARED GROSS RECEIPTS OF ` 7,31,500/- FROM JOB WORK, AND OF ` 14,51,600/- AS INCOME FROM LICENCE FEE, AS AGAINST G ROSS RECEIPTS OF ` 12,99,500/- FROM JOB WORK AND ` 5,83,500/- AS INCOME ITA NO.4121/DEL/2012 2 FROM LICENCE FEE, IN THE IMMEDIATELY PRECEDING ASSESSME NT YEAR. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE WAS THE OWNER OF A FACTORY SHED MEASURING 1210 SQ. YARDS , OUT OF WHICH HE WAS IN POSSESSION OF AN AREA OF 135 SQ. YARDS WHERE HE WAS RUNNIN G A PROPRIETARY BUSINESS OF M/S SUPREME AUTO WORKS. THE R EMAINING PORTION OF THE FACTORY PREMISES WAS FOUND TO BE IN THE POSSESSION OF OTHER PERSONS, FROM WHOM, THE ASSESSEE WAS CHARGING LICENC E FEE. THE ASSESSING OFFICER TREATED THE LICENCE FEE AS INCOME FROM HOUSE PROPERTY, FOLLOWING THE TRIBUNAL ORDERS IN THE ASSESSEE S OWN CASE, FOR A.Y.S 1990-91 TO 1993-94. 3. THE LD. CIT (A) CONFIRMED THE AFORESAID ACTION OF THE ASSESSING OFFICER. 4. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTEND ED THAT THE ASSESSEE HAS CHALLENGED THE AFORESAID TRIBUNAL ORDER S BEFORE THE HONBLE HIGH COURT AND THE APPEALS OF THE ASSESSEE ARE P ENDING DISPOSAL BEFORE THE HONBLE HIGH COURT, HAVING BEEN A DMITTED ON 30.10.2006. THE LD. COUNSEL FOR THE ASSESSEE HAS, FURTHE R, PLACED RELIANCE ON COMMISSIONER OF INCOME-TAX VS. D.S. PROMO TERS AND DEVELOPERS PVT. LTD., 330 ITR 291 (DEL), WHEREIN IT HAS BEEN HELD THAT INCOME FROM PROPERTY OWNED BY THE ASSESSEE ON PROPERTY TAKEN ON LEASE, IS ASSESSABLE AS BUSINESS INCOME. 5. THE LD. DR, ON THE OTHER HAND, HAS PLACED STRONG R ELIANCE ON THE IMPUGNED ORDER, CONTENDING THAT THE FINDINGS OF THE TRIBUNAL IN THE ASSESSEES CASE FOR THE EARLIER YEARS ARE AS YET UNDISTURBED AND SO, THERE IS NO WARRANT TO UPSET THE ORDERS OF THE AUTHORI TIES BELOW. ITA NO.4121/DEL/2012 3 6. WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE MATERI AL ON RECORD. UNDISPUTEDLY, FOR A.Y.S 1990-91 TO 1993-94 , THE TRIBUNAL HAS HELD THE LICENCE FEE TO BE INCOME OF THE ASSESSEE FROM HOUSE PROPERTY. IT IS THE VERY SAME LICENCE FEE EARNED BY THE ASSESSEE DU RING THE YEAR UNDER CONSIDERATION, WHICH IS UNDER CHALLENGE HEREIN. THE FACTS HAVE NOT BEEN SHOWN TO BE ANY DIFFERENT FOR THE YEAR UNDE R CONSIDERATION AS FROM THOSE BEFORE THE TRIBUNAL FOR THE EARLIER YEARS 1990-91 TO 1993- 94. THOUGH THE ASSESSEE IS IN APPEAL AGAINST THE TRIBUNA L ORDERS, THOSE TRIBUNAL ORDERS HAVE NOT BEEN SHOWN TO HAVE BEEN STAYED BY THE HONBLE HIGH COURT. 7. IN THESE FACTS, WE DO NOT FIND ANY ERROR WITH THE ORD ER OF THE LD. CIT (A), WHICH WE HEREBY CONFIRM. 8. APROPOS D.S. PROMOTERS AND DEVELOPERS PVT. LTD. (SUPR A), THE FACTS THEREIN ARE ENTIRELY DIFFERENT, INASMUCH AS IN T HAT CASE, IN THE EARLIER YEARS, THE TRIBUNAL IS NOT SHOWN TO HAVE HELD THE LICENCE FEE TO BE INCOME FROM HOUSE PROPERTY. 9. IN VIEW OF THE ABOVE, THE GRIEVANCE OF THE ASSESSEE RA ISED BY WAY OF THE GROUNDS OF APPEAL TAKEN IS REJECTED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DI SMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 12.10.20 12. SD/- SD/- [G.D. AGRAWAL] [A.D. JAIN] VICE PRESIDENT JUDICIAL MEMBER DATED, 12.10.2012. DK ITA NO.4121/DEL/2012 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES