ROYAL BUSINESS CENTRE P. LTD, MUMBAI V. ITO WD 1(3)(1), MUMBAI

ITA 4489/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1190 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 29-06-2016
• Court: TRIBUNAL
• Department Lawyers: BEENA SANTOSH
• Keywords: Business income; Rule of consistency

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NO.4489/M/2016 (AY 2013 - 2014) ROYAL BUSINESS CENTRE PVT LTD., 301, MARINE CHAMBERS, 43, NEW MARINE LINES, MUMBAI 400 020. / VS. ITO - WARD 1(3)(1), MUMBAI. ./ PAN : AAACR3188D ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI DEEPAK TRALSHAWALA / RESPONDENT BY : MS. BEENA SANTOSH, DR / DATE OF HEARING : 29.03.2017 / DATE OF PRONOUNCEMENT : 12 .04.2017 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 29.6.2016 IS AGAINST THE ORDER OF THE CIT (A) - 3, MUMBAI DATED 27.04.2016 FOR THE ASSESSMENT YEAR 2013 - 2014. 2. IN THIS APPEAL, ASSESSEE RAISED TWO GROUNDS IN TOTO AND THEY REVOLVE AROUND THE FINDING OF THE CIT (A) IN HOLDING THAT THE BUSINESS INCOME OF THE ASSESSEE IS CHARGEABLE TO TAX UNDER THE HEAD INCOME FROM THE HOUSE PROPERTY. IN THIS REGARD, AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BROUGHT MY ATTENTION TO THE LIST OF DECISIONS OF THE TRIBUNAL IN THE ASSESSEE S OWN CASES FOR THE AYS 2006 - 07 TO 2010 - 2011 AND SUBMITTED THAT SIMILAR ISSUE CAME UP FOR ADJUDICATION BY THE TRIBUNAL AND THE MATTER IS DECIDED IN FAVOUR OF THE ASSESSEE IN ALL THE SAID AYS. IT IS PRAYED THAT CONSIDERING THE COMMONALITY OF THE ISSUE, TH IS APPEAL MAY BE DECIDED IN ASSESSEES FAVOUR. 3. AFTER HEARING THE LD REPRESENTATIVES OF BOTH THE PARTIES AND ON PERUSAL OF THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED DECISIONS OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE AY S 2006 - 07 TO 2010 - 11 (SUPRA), I FIND, THE TRIBUNAL ALREADY DECIDED THE ISSUE, RAISED IDENTICALLY IN ALL THE SAID AYS, IN FAVOUR OF THE 2 ASSESSEE. CONSIDERING THE COMMONALITY OF THE ISSUE AS WELL AS THE FOLLOWING T HE PRINCIPLE OF CONSISTENCY AND FOR THE SAKE OF COMPLETENESS OF THIS ORDER, I FIND IT RELEVANT TO EXTRACT THE DECISION OF THE TRIBUNAL FOR THE AY 2010 - 11 IN ITA NO.7652/M/2013, DATED 8.6.2015. RELEVANT PARAS 5 TO 7 OF THE SAID TRIBUNALS ORDER (SUPRA) READ AS UNDER: - 5. AT THE TIME OF HEARING LD COUNSEL APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT APART FROM THE FACT THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER YEARS, LATER DECISION OF HONBLE SUPREME COURT IN THE CASE OF M/S. CHENNAI PROPERTIES (CIVIL APP EAL NOS. 4491 TO 4493 OF 2004 DATED 9.4.2015) ALSO SQUARELY COVERS THE ISSUE WHEREIN THE COURT OBSERVED THAT MEMORANDUM AND ARTICLES OF ASSOCIATION FOR LETTING OF THE PROPERTY IS ONE OF THE ACTIVITIES AND INCOME THERE FROM HAS TO BE TREATED AS INCOME FROM BUSINESS. HE THUS SUPPORTED THE ORDER PASSED BY LD CIT (A). 6. ON THE OTHER HAND, LD DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER AND REITERATED HIS CONTENTION THAT MERE LETTING OUT OF THE PROPERTY WOULD NOT GIVE RIS E TO BUSINESS INCOME. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. IT IS NOT IN DISPUTE THAT LETTING OUT THE PROPERTY IS ONE OF THE OBJECTS OF THE ASSESSEE - COMPANY. IT IS ALSO NOT DISPUTED BY LD DEPARTMENTAL REPRESENTATIV E THAT IDENTICAL ISSUE WAS CONSIDERED BY THE ITAT IN ASSESSEES OWN CASE FOR EARLIER YEARS, IN FAVOUR OF THE ASSESSEE. SINCE THE VIEW TAKEN BY THE LD CIT (A) IS IN CONSONANCE WITH THE VIEW TAKEN BY THE ITAT AS WELL AS HONBLE APEX COURT (CITED SUPRA), WE D O NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY LD CIT (A) AND THEREFORE THE APPEAL FILED BY THE REVENUE IS DISMISSED...... 4. CONSIDERING THE SETTLED NATURE OF THE ISSUE, THE GROUNDS RAISED BY THE ASSESSEE SHOULD BE ALLOWED IN ITS FAVOUR. ACCORD INGLY I ORDER. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNC ED IN THE OPEN COUR T O N 1 2 T H APRIL , 2017. S D / - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBAI ; 12.04.2017 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 3 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI