IMAGE, Cuttack V. ITO, Cuttack

ITA 482/CTK/2013

• Counselvise Citation: 48222114 RSA 2013
• Duration Of Justice: 1 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2015
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 11-11-2013
• Court: TRIBUNAL
• Keywords: Business income

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH , CUTTACK [ , . . , BEFORE SHRI SUNIL KUMAR YADAV , J M & SHRI B.P.JAIN , A M ./ ITA NO. 482 /CTK/201 3 ( [ [ / ASSESSMENT YEAR : 200 8 - 09 ) M/S IMAGES, SRIKUNJA APARTMENT, FLAT NO.308, RING ROAD, KHANNAGAR, CUTTACK VS. ITO, WARD - 2(1), CUTTACK ./ ./ PAN/GIR NO. : A ACFI 1324 F ( / APPELLANT ) .. ( / RESPONDENT ) [ /ASSESSEE BY : NONE /REVENUE BY : SHRI K.K.NATH / DATE OF HEARING : 2 5 TH MAY , 201 5 / DATE OF PRONOUNCEMENT 27 TH MA Y ,2015 / O R D E R PER SUNIL KUMAR YADAV (J.M) : THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A ) , CUTTACK DATED 13 - 8 - 2013 FOR THE ASSESSMENT YEAR 200 8 - 09 , INTER ALIA , ON FOLLOWING GROUNDS : - (A) FOR THAT THE ORDERS OF THE FORUMS BELOW ARE ARBITRARY, UNJ UST AND UNLAWFUL IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE BUSINESS OF THE FIRM SHOULD NOT HAVE BEEN TREATED AS AN AOP REFUSING TO GRANT REGISTRATION TO THE FIRM. IN FACT THE DEED OF PARTNERSHIP CONSTITUTED BY THE PARTNERS HAD CATEGORICALLY STATED THAT IN ADDITION TO TAKING EQUAL SHARE THEY HAVE COMPLETED THE CONSTRUCTION OF THE BUILDING JOINTLY ONLY FOR LETTING OUT PURPOSE IN THE MANNER OF CONTRIBUTING LAND, CAPITAL AND SHARE SUPERVISION ETC. WHICH SHOULD NOT HAVE BEEN IGNORED BY THE FORUMS BELOW. (B) FOR THAT THE LD, CIT(APPEALS) PASSED THE ORDER IN MOST RIDICULOUS MANNER STATING THAT NO EVIDENCE WAS FOUND TO TREAT RENTAL INCOME AS BUSINESS INCOME COLLECTED IN EQUAL PROPORTION BY FOUR PARTNERS IS MOST UNLAWFUL, OBSERVATION AND ORDER PASSED WITHOU T GIVING ANY OPPORTUNITY AND MAKING ITA NO. 482 /13 2 ORDER AFTER THE CONFRONTATION OF THE ISSUES, THEREFORE THE ORDER PASSED IS TO BE QUASHED AND VACATED. (C ) FOR THAT UPHOLDING OF THE ORDER OF THE A.O. BY THE LD. CIT (APPEALS) CONFIRMING THE STATUS AS AN AOP HAS NOT BROU GHT ANY EVIDENCE TO DISPUTE AND DISBELIEVE THE EXISTENCE OF PARTNERSHIP BUSINESS WHICH HAS BROADLY STATED IN THE PROVISIONS OF THE STATUTE THAT THE BUSINESS OF PARTNERSHIP IS CARRIED ON BY THE PARTNERS TO SHARE THE PROFIT CARRIED ON BY ALL OR ANY OF THEM A CTING FOR ALL FOR THE PURPOSE OF SHARING THE PROFIT TO HOLD THE BUSINESS OF PARTNERSHIP WHICH SHOULD NOT HAVE BEEN DISBELIEVED AND DISPUTED THE CARDINAL PRINCIPLES DRAWN IN THE STATUTE. (D ) FOR THAT THE BUSINESS ACTIVITIES HAVE ALREADY BEEN DECIDED BY THE HON'BLE HIGH COURT OF ORISSA WHICH WAS PRODUCED BEFORE THE LD. CIT (A) AND STATED THE LAW THAT THE BUSINESS AN ACTIVITY IS CAPABLE OF PRODUCING PROFIT WHICH CAN BE TAXED SO THE VIOLATION OF THE ORDER OF THE HON'BLE HIGH COURT OF ORISSA SHOULD NOT HAVE BEE N MADE. (E ) FOR THAT THE GROUNDS URGED STATING THEREIN THAT THE RENTAL INCOME DERIVED FROM GUEST HOUSE PROVIDING FITTINGS AND FIXTURES ETC. SHOULD HAVE BEEN CONSIDERED AND AMOUNTS OF DEDUCTION SHOULD HAVE BEEN ALLOWED WHEN THE PROPERTY IS USED FOR GUEST H OUSE PURPOSES BY THE OCCUPANTS ALLOTTED TO THE PUBLIC SECTOR UNDERTAKINGS THUS THE CLAIM OF REMUNERATION, INTEREST AND SHARE ETC. SHOULD HAVE BEEN ALLOWED DULY BY THE APPELLANT FIRM. (F ) FOR THAT THE INVESTMENT IN PRODUCING LOAN CARRYING ON CONSTRUCTION O F BUILDING AND USE OF AN ASSETS AS FOR COMMERCIAL PURPOSES PROVIDING GUEST HOUSE FACILITIES ARE OF THE BUSINESS CONNECTED IN ORDER TO HOLD PARTNERSHIP BUSINESS SHOULD HAVE BEEN DULY CONSIDERED AND EXAMINED, THEREFORE THE ORDER PASSED IN MOST IRREGULAR MANN ER HAS TO BE QUASHED AND VACATED. THEREFORE THERE WAS NO BASIS TO DENY THE STATUS OF PARTNERSHIP. 2. THIS APPEAL WAS LISTED FOR HEARING ON 2 5 - 5 - 2015 , HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE . FROM THE PERUSAL OF THE RECORD, WE FIND THAT NOTICE O F HEARING WAS DULY SERVED UPON THE ASSESSEE AS THE AD CARD IS PLACED ON RECORD. SINCE THE ASSESSEE DOES NOT APPEAR DESPITE ITA NO. 482 /13 3 VALID SERVICE OF NOTICE OF HEARING, WE HAVE NO OPTION BUT TO HEAR THE APPEAL EX - PARTE . 3 . WE HAVE CAREFULLY GONE THROUGH THE ORDER O F THE CIT(A) AND GROUNDS RAISED BEFORE HIM AND WE FIND THAT THE CIT(A) HAS PROPERLY ADJUDICATED THE ISSUES RAISED BEFORE HIM AND SINCE NO INFIRMITY HAS BEEN POINTED OUT THEREIN, WE, THEREFORE, CONFIRM THE ORDER OF CIT(A). 4 . IN THE RESULT, APPEAL OF THE A SSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 / 05 / 201 5 . SD/ - SD/ - ( . . ) ( B. P. JAIN ) ( ) ( SUNIL KUMAR YADAV) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 27 /0 5 / 201 5 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, CUTTACK 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT , CUTTACK 6. [ / GUARD FILE. //TRUE COPY//