UNIQUE CONSTRUCITON & DEVELOPERS, MUMBAI V. ASST CIT CIR 15(2), MUMBAI

ITA 4576/MUM/2013

• Counselvise Citation: 457619914 RSA 2013
• Duration Of Justice: 1 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 10-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH RANJAN PRASAD
• Assessee Lawyers: ARATI VISSANJI
• Section: 143(3)

Judgement Text

F IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ./ I.T.A. NO. 4576 /MUM/2013 ( / ASSESSMENT YEAR 2010-11 UNIQUE CONSTRUCTIONS & DEVELOPERS, 77, UDYOG BHAVAN, SONAWALA LANE, GOREGAON (EAST), MUMBAI 400 063. / VS. THE ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 15(2), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400020. ./ PAN : AABFU7020P ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO. 4941 /MUM/2013 ( / ASSESSMENT YEAR 2010-11 THE ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 15(2), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400020. / VS. UNIQUE CONSTRUCTIONS & DEVELOPERS, 77, UDYOG BHAVAN, SONAWALA LANE, GOREGAON (EAST), MUMBAI 400 063. ./ PAN : AABFU7020P ( / APPELLANT ) .. ( / RESPONDENT ) A SSESSEE BY MS. ARATI VISSANJI R E SPONDENT BY : SHRI RAJESH RANJAN PRASAD / DATE OF HEARING : 15-01-2015 / DATE OF PRONOUNCEMENT : 23-04-2015 [ ITA 4576/M/13 & 4941/M/13 2 !' / O R D E R PER R.C. SHARMA, AM : THESE ARE THE CROSS APPEALS FILED BY THE ASSESSEE A ND REVENUE ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A) -26, MUMBA I DATED 18-04-2013 FOR A.Y. 2010-11 IN THE MATTER OF ORDER U/S 143(3) OF T HE INCOME TAX ACT, 1961. 2. THE GRIEVANCE OF THE ASSESSEE AND REVENUE RELATE S TO THE TREATMENT OF RENT RECEIVED FROM LETTING OUT OF BUILDING AND AMEN ITIES, WHETHER LIABLE TO TAX AS INCOME FROM HOUSE PROPERTY OR INCOME FROM BUS INESS. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNE RSHIP FIRM CONSTITUTED FOR DEVELOPMENT AND CONSTRUCTION OF COMMERCIAL PREMISE NAMED GARDENIA IN BANDRA KURLA COMPLEX OF MUMBAI. THE ASSESSEE GAVE T HIS COMMERCIAL PREMISES ON LEAVE AND LICENSE BASIS TO CENTRUM GROU P OF CONCERNS. ALONG WITH THIS AGREEMENT ASSESSEE ALSO ENTERED INTO SEPA RATE AGREEMENT FOR AMENITIES. ASSESSEE TREATED THE ENTIRE RECEIPT AS R ENT AND OFFERED THE INCOME UNDER THE HEAD 'INCOME FROM THE HOUSE PROPERTY. AO TREATED THE ENTIRE RECEIPT AS INCOME FROM BUSINESS. BY THE IMPUGNED ORDER, THE LD. CIT(A) TREATED THE LEAVE AND LICENSE AMOUNT FROM BUILDING AS INCOME F ROM HOUSE PROPERTY WHEREAS UPHELD THE RECEIPTS FROM AMENITIES AS INCO ME FROM BUSINESS. 4. THE LD. A.R. PLACED ON RECORD ORDER OF THE TRIBU NAL IN ASSESSEES OWN CASE IN ITA NO. 1397/MUM/2012 & ITA 2696/MUM/2012 F OR ASSESSMENT YEARS 2008-09 & 2009-10 DATED 24-07-2013 WHEREIN TH E ENTIRE INCOME WAS HELD TO BE ASSESSABLE AS INCOME FROM HOUSE PROPERT Y AFTER HAVING THE FOLLOWING OBSERVATION:- RESPECTIVELY FOLLOWING PRINCIPLES LAID DOWN, PARTI CULARLY PRINCIPLES SET OUT IN PARA 5 ABOVE, THE AMENITIES AGREEMENT IS INC IDENTAL TO LETTING OUT OF COMMERCIAL BUILDING AND AS NO SERVICES ARE BEING RENDERED, THE ENTIRE RECEIPT HAS TO BE CONSIDERED AS PART OF RENT OF THE BUILDING. ITA 4576/M/13 & 4941/M/13 3 MOREOVER, THE PRINCIPLE LAID DOWN BY THE HONBLE SU PREME COURT IN THE CASE OF SHAMBHU INVESTMENT PVT. LTD. VS. CIT 263 IT R 143 ALSO SUPPORTS THE ABOVE OPINION. ACCORDINGLY, THE CIT(A )S ORDER IS MODIFIED TO THAT EXTENT AND THE ASSESSEES GROUNDS ARE ALLOW ED. A.O. IS DIRECTED TO ASSESS THE ENTIRE RECEIPT, BOTH ON LEAVER AND LI CENSE AND AMENITIES, AS INCOME FROM HOUSE PROPERTY ONLY. 5. WE HAVE CAREFULLY GONE THROUGH THE ENTIRE ORDER OF THE TRIBUNAL AND FACTS AND CIRCUMSTANCES ARE SAME WHEREIN THE TRIBUN AL BY FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF SH AMBHU INVESTMENTS PVT. LTD. VS. CIT, 263 ITR 143 HELD THAT THE ENTIRE INCO ME FROM BUILDING AS WELL AS AMENITIES WAS ASSESSABLE AS INCOME FROM HOUSE PROPE RTY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED WHEREAS APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD APRIL, 2015. !' # $% &! ' 23-04-2015 ( ) SD/- SD/- (VIVEK VARMA) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER $ 5 MUMBAI ; &! DATED 23-04-2015 [ .=../ RK , SR. PS ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. > () / THE CIT(A) CONCERNED,, MUMBAI 4. > / CIT -CONCERNED, MUMBAI 5. AB( ==CD , CD , $ 5 / DR, ITAT, MUMBAI E BENCH 6. (FG H / GUARD FILE. ' / BY ORDER, A = //TRUE COPY// (/') * ( DY./ASSTT. REGISTRAR) , $ 5 / ITAT, MUMBAI