ITO 9(2)(4), MUMBAI V. PELICAN INVESTMENT P.LTD, MUMBAI

ITA 4371/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71524 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 30-10-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 27-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Business expenditure
• Section: 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH, MUMBAI , BEFORE SHRI H.L.KARWA , PRESIDENT & SHRI N.K.BILLAIYA , AM ITA N O. 437 1 / MUM/ 20 1 2 ( ASSESSMENT YEAR : 20 0 9 - 20 10 ) ITO 9(2)(4) , MUMBAI - 400 020 VS. M/S PELICAN INVESTMENT PVT. LTD., 1, SANTOS HOUSE, ROAD NO.3, SAHAR VILLAGE, VILE PARLE (E), MUMBAI - 99 PAN/GIR NO. : A A A C P 7857 K ( APPELLANT ) .. ( RESPONDENT ) /REVENUE BY : SHRI SANJEEV JAIN /ASSESSEE BY : NONE DATE OF HEARING : TH DATE OF PRONOUNCEMENT : 30 TH OCTOBER, 2013 O R D E R PER N.K.BILLAIYA , AM : THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF THE CIT(A) - 20 , MUMBAI , DATED 11 - 4 - 2012 , PERTAINING TO ASSESSMENT YEAR 20 0 9 - 20 10 . 2 . THE REVENUE HAS RAISED FOLLOWING THREE SUBSTANTI VE GROUNDS OF APPEAL : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 84,04,557/ - REGARDING RENT AND COMPENSATION RECEIVED FROM SUB - LEASED PROPERTY AND OFFERED AS BUSINESS INCOME WHIL E AO COMPUTED THE SAME AS INCOME FROM HOUSE PROPERTY AS DISCUSSED BY THE A.O IN THE ASSESSMENT ORDER. ITA NO. 437 1 / 1 2 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.7,85,330 / - REGARDING DISALLOWANCE O F INTEREST ON SHOP DEPOSITS. THE LD.CIT (A) HAS FOLLOWED THE DECISION OF CIT(A) - IX AND HON'BLE ITAT, MUMBAI, IN ASSESSEE'S OWN CASE FOR AY 1990 - 91 TO 1992 - 93 AND 2002 - 03 AND ALLOWED THE APPEAL OF ASSESSEE. THE SAME ISSUE WAS INVOLVED IN AY 2003 - 04, 2004 - 05 , AND 2005 - 06 WHERE THE ITAT GRANTED RELIEF TO THE ASSESSEE. HOWEVER THE DEPARTMENT DID NOT ACCEPT SAME AND APPEAL U / S 260A WAS FILED FOR ALL THESE AYS ON THIS ISSUE. 3. ON THE FACTS AND IN CIRCUMSTANCES THE CASE AND IN LAW, THE LD. CIT(A) ERRED I N ALLO W ING EXPENSES OF RS.21, 15,725/ - AS BUSINESS EXPENDITURE WITHOUT APPRECIATING THAT A.O HAD COMPUTED THE INCOME UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' BASED ON THE HON'BLE SUPREME COURT'S DECISION IN CIT VS SHAMBHU INVESTMENT P. LTD. 263 ITR 143. 3 . S O FAR AS GRIEVANCE RAISED VIDE GROUND NO.1 IS CONCERNED, THE CIT(A) HAS FOLLOWED THE DECISION OF ITS PREDECESSOR IN ASSESSEES OWN CASE OF A.Y.2003 - 04, 2004 - 05 & 2005 - 06, WHICH HAVE BEEN CONFIRMED BY THE TRIBUNAL. 3.1 WE HAVE CAREFULLY PERUSED THE GRIEVAN CE OF THE REVENUE. WE FIND THAT THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2003 - 04 IN ITA NO.5134/M/2007, FOR A.Y. 2004 - 05 IN ITA NO.1611/M/2008 AND FOR A.Y. 2005 - 06 IN ITA NO.4730/M/2008, HAS HELD THAT THE RENT AND COMPENSATION RECEIVED BY THE ASSESSEE IS TO BE TAXED AS INCOME FROM BUSINESS. SINCE THE CIT(A) HAS FOLLOWED THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA) , THEREFORE, WE DO NOT FIND ANY MERIT IN THIS GRIEVANCE OF THE REVENUE. GROUND NO.1 IS ACCORDINGLY DISMISSED. 4 . GROUND NO. 2 RELATES TO DELETION OF THE ADDITION OF RS. 7,85,330/ - REGARDING DISALLOWANCE OF INTEREST ON SHOPS DEPOSITS. ITA NO. 437 1 / 1 2 3 4.1 THE CIT(A) HAS CONSIDERED THIS ISSUE IN PARA 4 OF PAGE 2 OF HIS ORDER AND IN PARA S 4.1 & 4.2 HAS FOLLOWED THE DECISION OF THE TRIBUNAL IN ASS ESSEES OWN CASE FOR EARLIER ASSESSMENT YEAR. 4.2 WE FIND THAT THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2003 - 04 IN ITA NO. 5134/M/2003 HAS CONSIDERED THE SIMILAR ISSUE IN PARA 5 AT PAGE 3 OF ITS ORDER AND IN PARA 7 HAS HELD THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE EARLIER YEAR IN ITA NO.5415/B/94, DATED 27 - 5 - 2002 . A S THE CIT(A) HAS FOLLOWED THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER ASSESSMENT YEAR, HENCE, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF THE CIT(A). GROUND NO. 2 IS ACCORDINGLY DISMISSED. 5 . THE THIRD GRIEVANCE OF THE REVENUE RELATES TO DELETION OF THE ADDITION AT RS. 21,15,725/ - . 5.1 THIS ISSUE HAS BEEN CONSIDERED BY THE CIT(A) IN PARA 6.1 AND 6.2 OF HIS ORDER, WHEREIN THE CIT(A) HAS FOLLOWED THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER ASSESSMENT YEAR. 5.2 WE FIND THAT THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.YS. 2003 - 04, 2004 - 05 & 2005 - 06 HAS DECIDED THIS I SSUE IN FAVOUR OF THE ASSESSEE VIDE ITA NO S . 5134/M/2007, 1611/M/2008 AND 4730/M/2008, RESPECTIVELY. AS THE CIT(A) HAS FOLLOWED THE FINDINGS OF THE TRIBUNAL IN ASSESSEES OWN CASE, THEREFORE, NO INTERFERENCE IS CALLED FOR. G ROUND NO. 3 IS ACCORDINGLY DISMIS SED. ITA NO. 437 1 / 1 2 4 6 . RESULTANTLY , THE APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 30/10 / 2013 . SD/ - ( ) ( H.L.KARWA ) SD/ - ( ) ( N.K.BILLAIYA ) / PRESIDENT / ACCOUNTANT MEMBER MUMBAI ; DATED : 30/10/ 2013 /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI