DCIT 10(2)(2), MUMBAI V. M.S LUVISH INFOTECH PORJECTS P.LTD, MUMBAI

ITA 4833/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7821 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 28-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Assessee Lawyers: NEHA ANCHALIA
• Keywords: Business income; Depreciation; Rule of consistency; Unabsorbed depreciation
• Section: 143(3)

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SH. B. R. BASKARAN , AM & SH. SANDEEP GOSAIN, JM ./ I.T.A. NO . 4833/MUM/2015 ( / ASSESSMENT YEAR: 2011 - 12 ) DCIT 10(2)(2) R. NO. 216 - A, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 20 / VS. M.S. LUVISH INFOTECH PROJECTS PVT. LTD. CTS 102/2 SANI ARMAA RAUT LANE, NEAR ISKCON TEMPLE, JUHU VILE PARLE(W), MUMBAI - 400020 ./ ./ PAN NO. A AECM6285C ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI T. A. KHAN / RESPONDENTBY : MS. NEHA ANCHALIA & SHRI MAHAVEER JAIN / DATE OF HEARING : 21/12 /2017 / DATE OF PRONOUNCEMENT : 22/12/2017 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE REVENUE IS AGAINST THE ORDER OF LD. CIT (APPEAL) 17, MUMBAI DATED 02.06.15 F OR AY 2011 - 12 ON THE GROUNDS MENTIONED HEREIN BELOW: - 2 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THE RENTAL RECEIPTS AS BUSINESS RECEIPTS WITHOUT CONSIDERING THAT THE ASSESSEE HAS RECEIVED THE RENT FOR ALLOWING USE OF THE PROPERTY AND NOT FOR CARRYING OUT ANY SYSTEMATIC ACTIVITY WHICH IS THE PRE - CONDITION FOR BUSINESS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THE RENTAL RECEIPTS AS BUSINESS RECEIPTS BY RELYING ON THE DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RUNWAL DEVELOPERS PVT. LTD. WITHOUT APPRECIATING THAT IN THE C ASE CITED SUPRA, BUSINESS CONDUCTING FEES AND BUSINESS FACILITY CHARGES COLLECTED FROM THE OCCUPANTS WERE TREATED AS RENT AND HELD TAXABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND HENCE, THE RELIANCE IS MISPLACED. 3. ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THE RENTAL RECEIPTS AS BUSINESS RECEIPTS BY RELYING ON THE DECISION OF THE ITAT IN THE CASE OF M/S. KRISHNA LAND DEVELOPERS PVT. LTD. WITHOUT APPRECIATING THAT THE FACTS OF THE SAID CASE ARE C OMPLETELY DISTINGUISHABLE FROM THE FACTS OF THE PRESENT CASE AS IN THAT CASE THE ISSUE 3 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. WAS WHETHER RENTAL RECEIPTS OF STP ARE ELIGIBLE FOR DEDUCTION U/S.801A(4)(III) OF THE ACT. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A ) HAS ERRED IN HOLDING THAT THE RENTAL INCOME FROM THE BUILDING IS TAXABLE AS BUSINESS INCOME BY REFERRING TO THE SPECIFICATIONS OF THE STRUCTURE AND AMENITIES WITHOUT APPRECIATING THAT SUCH AMENITIES HAVE BEEN PROVIDED BY THE ASSESSEE AS THE BUILDING IS A COMMERCIAL COMPLEX WHICH IS BEING COMMERCIALLY EXPLOITED BY THE TENANT AND NOT BY THE ASSESSEE. 5. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. C1T(A) HAS ERRED IN HOLDING INTEREST INCOME ON ADVANCES AND OTHER INCOME AS BUSINESS INCOME WITHOUT APPRECIATING THAT THE ASSESSEE IS NOT CARRYING OUT BUSINESS OF FINANCING AND HENCE, THE INTEREST RECEIVED ON ACCOUNT OF ADVANCES TO SISTER CONCERNS IS LIABLE TO BE TAXED AS 'INCOME FROM OTHER SOURCES' 6. 'ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE AND IN LAW, THE LD. C1T(A) HAS ERRED IN HOLDING INTEREST ON FIXED DEPOSITS WITH BANK AND INTEREST ON CORPUS DEPOSIT AS BUSINESS RECEIPTS WITHOUT APPRECIATING THAT SUCH INTEREST HAS NO IMMEDIATE NEXUS WITH THE ASSESSEE'S BUSINESS.' 4 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. 7. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING THE A.O TO ALLOW SET OFF UNABSORBED DEPRECIATION WITHOUT APPRECIATING THE STAND TAKEN BY THE DEPARTMENT CONSISTENTLY IN THE ASSESSEE'S OWN CASE THAT THE RE NTAL INCOME SHOWN BY THE ASSESSEE UNDER THE HEAD 'BUSINESS INCOME' WAS ACTUALLY ASSESSABLE UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY'. 8. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE A.O. BE RESTORED. 2. THE B RIEF FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY IS ENGAGED IN THE LEASE RENTAL. THE RETURN OF INCOME FOR THE Y EAR UNDER APPEAL WAS FILED ON 29.0 . 11 DECLARING TOTAL INCOME AT RS. NIL AFTER CLAIMING SET OFF OF UNABSORBED DEPRECIATION. THE CASE W AS SELECTED FOR SCRUTINY AND AFTER SERVING STATUTORY NOTICES AND SEEKING REPLY, ORDER OF ASSESSMENT U/S 143(3) W AS COMPLETED BY THE LD. AO ON 27.12.13 DETERMINING THE TOTAL INCOME AT RS. 20,754 / - . THE LD. AO COMPUTED THE TOTAL INCOME OF THE ASSESSEE BY HO LDING THE RENTAL AS INCOME FROM HOUSE PROPERTY AND ALSO DETERMINED THE INTEREST INCOME AS INCOME FROM OTHER SOURCES. 5 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. AGGRIEVED BY THE ORDER OF AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) AFTER CONSIDERING THE CASE OF BOTH THE PARTIES PA RTLY ALLOWED THE APPEAL OF THE ASSESSEE. NOW BEFORE US, THE REVENUE HAS PREFERRED THE PRESENT APPEAL BY RAISING THE ABOVE GROUNDS. GROUND NO. (1 TO 4 ) 3. SINCE ALL THE ABOVE GROUNDS RAISED BY THE REVENUE ARE INTER - CONNECTED AND INTER - RELATED AND RELATES TO CHA LLENGING THE ORDER OF LD. CIT(A) IN HOLDING THE RENTAL RECEIPTS AS BUSINESS RECEIPTS, THEREFORE WE THOUGHT IT FIT TO DISPOSE OF THE SAME THROUGH THE PRESENT COMMON ORDER. 4. WE HAVE HEARD COUNSELS FOR BOTH THE PARTIES AT LENGTH AND WE H AVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. BEFORE WE DECIDE THE MERITS OF THE CASE, IT IS NECESSARY TO EVALUATE THE ORDERS PASSED BY LD. CIT(A). THE LD. CIT(A) HAS DEALT WITH THE ABOVE GROUNDS RAISE D BY THE REVENUE IN ITS DETAILED ORDER. THE OPERATIVE PORTION OF THE ORDER OF LD. CIT(A) IS 6 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. CONTAINED IN PARA NO. 1.3 OF ITS ORDER AND THE SAME IS REPRODUCED BELOW: - 1.3 DECISION 1.3.1 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND CONTENTION OF THE LD. AR OF THE APPELLANT AND ALSO CAREFULLY GONE THROUGH THE RECORDS. I FIND THAT SIMILAR ISSUE AROSE FOR THE CONSIDERATION OF MY AND MY LD. PREDECESSOR IN THE EA RLIER YEAR WHO VIDE ORDER NO. CI T(A)/IT - 44 & 47/2012 - 13, DATED 07.01.2013 HAS ALLOWED THE GROUND OF APPEAL. THE ID. AO HAS FOLLOWED HIS EARLIER ORDERS AND FACTS REMAINING SAME, I FIND NO REASON TO DIFFER FROM THE MATERIAL FINDING GIVEN BY MY ID. PREDECESSOR. RESPECTFULLY FOLLOWING THE ORDERS OF MY LD. PREDECESSORS IN THE APPELLANT'S OWN CASE, THE LD. AO IS DIRECTED TO ALLOW THE CLAIM OF THE APPELLANT. THIS GROUND OF APPEAL IS THUS ALLOWED. THE LD. AR SUBMITTED BEFORE US THAT THE PRESENT GROUNDS ARE IDENTICAL TO THE GROUNDS DECIDED BY THE COORDINATE BENCH OF HONBLE ITAT IN ITA NO. 1133,558 &724/HYD/2010 & ITA NOS.1010/HYD/2009 & ITA NO.308/HYD/2012 FOR AY 2004 - 05 TO 7 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. 2008 - 09 IN ASSESSEES OWN CASE. THE OPERATIV E PORTION OF THE ORDER OF HONBLE ITAT IS REPRODUCED BELOW: - 5. WE HAVE CAREFULLY HEARD THE RIVAL CONTENTIONS AND PERUSED RELEVANT MATERIAL ON RECORD INCLUDING CITED CASE LAWS. AT THE OUTSET, WE ARE INCLINED TO REPRODUCE THE MAIN OBJECTS OF THE ASSESSEE C OMPANY AS EVIDENT FROM COPY OF MEMORANDUM OF ASSOCIATION PLACED ON RECORD: - A. THE MAIN OBJECTS TO BE PURSUED BY THE COMPANY ON ITS INCORPORATION ARE: TO PURCHASE, ACQUIRE, TAKE ON LEASE OR IN EXCHANGE OR IN ANY OTHER LAWFUL MANNER ANY AREA, LAND, BUILDI NGS, STRUCTURE AND TURN THE SAME INTO ACCOUNT, DEVELOP THE SAME AND DISPOSE OF OR MAINTAIN THE SAME AND TO BUILD HI - TECH PARKS, SOFTWARE DEVELOPMENT ZONES, SOFTWARE TECHNOLOGY PARKS, PORTS, BIO - TECH PARKS, INDUSTRIAL ESTATES, INDUSTRIAL PARKS, TOWNSHIPS, M ARKETS OR OTHER BUILDINGS, RESIDENTIAL AND COMMERCIAL OR CONVENIENCES, DRAINAGE FACILITY ELECTRIC, TELEPHONIC, TELEVISION INSTALLATIONS AND TO DEAL WITH THE SAME IN AN MANNER WHATSOEVER AND 8 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. BY ADVANCING MONEY TO AND ENTERING INTO CONTRACTS AND ARRANGEMENTS OF ALL KINDS WITH BUILDERS, TENANTS AND OTHERS. TO CONSTRUCT, ERECT, BUILD, LET OUT, REPAIR, RE - MODEL, DEMOLISH, DEVELOP, IMPROVE, GRADES, CURVE, PAVE, MACADAMIZE, CEMENT AND MAINTAIN BUILDINGS, STRUCTURE, HI - TECH PARKS, HOUSES, APARTMENTS & HOSPITALS. FURTHER, THE RENTAL INCOME EARNED BY THE ASSESSEE IS THE ONLY SOURCE OF ITS INCOME AS EVIDENT FROM THE FINANCIAL STATEMENTS OF THE IMPUGNED AY PLACED ON RECORD. THE HONBLE SUPREME COURT IN THE CITED CASE OF CHENNAI PROPERTIES & INVESTMENTS LIMITED (SUPRA) HAVE HELD THAT IF THE MAIN OBJECTIVE OF THE ASSESSEE WAS TO MAKE EARNING BY LEASING OF PROPERTY AND THE LEASING WAS THE MAIN SOURCE OF INCOME, THEN LEASE INCOME EARNED BY THE ASSESSEE SHALL BE TAXED UNDER THE HEAD BUSINESS AND PROFESSION. THE CONCLUDING PORTION FROM THE CITED JUDGMENT IS EXTRACTED BELOW: - WE ARE CONSCIOUS OF THE AFORESAID DICTA LAID DOWN IN THE CONSTITUTION BENCH JUDGMENT. IT IS FOR THIS REASON, WE HAVE, AT THE BEGINNING OF THIS JUDGMENT, STATED THE CIRCUMSTANCES OF THE PRESENT CASE FRO M WHICH WE ARRIVE AT IRRESISTIBLE CONCLUSION THAT IN THIS CASE, LETTING OF THE PROPERTIES IS IN FACT IS THE BUSINESS OF THE ASSESSEE. 9 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. THE ASSESSEE THEREFORE, RIGHTLY DISCLOSED THE INCOME UNDER THE HEAD INCOME FROM BUSINESS. IT CANNOT BE TREATED AS 'INCOME FROM THE HOUSE PROPERTY'. WE, ACCORDINGLY, ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT OF THE HIGH COURT AND RESTORE THAT OF THE INCOME TAX APPELLATE TRIBUNAL. NO ORDERS AS TO COSTS. WE FIND THAT THE FACTS OF THE PRESENT CASE ARE IDENTICAL IN NATURE SINC E THE MAIN OBJECTIVE OF THE ASSESSEE COMPANY WAS TO DEAL IN REAL ESTATE OF VARIED NATURE AND THE RENTAL INCOME WAS THE MAIN SOURCE OF INCOME FOR THE ASSESSEE. OUR VIEW IS FURTHER FORTIFIED BY THE CITED CBDT CIRCULAR NO. 16/2017 AND JUDGMENT OF THIS TRIBUNA L RENDERED IN THE CASE OF ASSESSEES SISTER CONCERN UNDER IDENTICAL SITUATION. EVEN OTHERWISE, THE REVENUE HAS ACCEPTED THE STAND OF ASSESSEE IN SEVERAL OTHER YEARS AND RULE OF CONSISTENCY DEMANDS THAT SIMILAR STAND BE TAKEN UNDER IDENTICAL CIRCUMSTANCES. THEREFORE, WE CONCLUDE THAT RENTAL INCOME EARNED BY THE ASSESSEE WAS CHARGEABLE UNDER THE HEAD BUSINESS INCOME ONLY AS AGAINST INCOME FROM HOUSE PROPERTY TAKEN BY LOWER AUTHORITIES . RESULTANTLY, THIS GROUND OF ASSESSEES APPEAL SUCCEEDS. 10 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. AFTER HAVING GON E THROUGH THE FACTS OF THE PRESENT CASE AS WELL AS CONSIDERING THE ORDERS PASSED BY REVENUE AUTHORITIES AND HONBLE ITAT AS MENTIONED ABOVE IN ASSESSEES OWN CASE , WE FIND THAT THE IDENTICAL ISSUE HAS ALREADY BEEN DECIDED BY THE HONBLE ITA T IN ASSESSEES OWN CASE IN ITA NO. 1133,558 &724/HYD/2010 & ITA NOS.1010/HYD/2009 & ITA NO.308/HYD/2012 FOR AY 2004 - 05 TO 2008 - 09. MOREOVER, N O NEW FACTS OR CONTRARY JUDGMENTS HAVE BEEN BROUGHT ON RECORD BEFORE US I N ORDER TO CONTROVERT OR REBUT THE FINDI NGS SO RECORDED BY LD CIT (A) . THEREFORE, THERE ARE NO REASON S FOR US TO INTERFERE INTO OR DEVIATE FROM THE FINDINGS RECORDED BY THE LD. CIT (A). HENCE , WE ARE OF THE CONSIDERED VIEW THAT THE FINDINGS SO RECORDED BY THE LD. CIT (A) ARE JUDICIOUS AND ARE WE LL REASONED. RESULTANTLY, THESE GROUND S RAISED BY THE REVENUE STANDS DISMISSED . GROUND NO. 5 5 . THIS GROUND RAISED BY THE REVENUE RELATES TO CHALLENGING THE ORDER OF LD. CIT(A) IN HOLDING INTEREST INCOME ON ADVANCES 11 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. TO SISTER CONCERNS AND OTHER INCOME AS BUSINESS INCOME WITHOUT APPRECIATING THAT THE ASSESSEE IS NOT CARRYING OUT BUSINESS OF FINANCING AND HENCE, THE INTEREST RECEIVED ON ACCOUNT OF ADVANCES TO SISTER CONCERNS IS LIABLE TO BE TAXED AS 'INCOME FROM OTHER SOURCES' 6 . WE HAVE HEARD COUNSELS F OR BOTH THE PARTIES AT LENGTH AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. BEFORE WE DECIDE THE MERITS OF THE CASE, IT IS NECESSARY TO EVALUATE THE ORDERS PASSED BY LD. CIT(A). THE LD. CIT(A) HAS DEALT WITH THE ABOVE GROUNDS RAISED BY THE REVENUE IN ITS DETAILED ORDER. THE OPERATIVE PORTION OF THE ORDER OF LD. CIT(A) IS CONTAINED IN PARA NO. 2.3 OF ITS ORDER AND THE SAME IS REPRODUCED BELOW: - 2.3. DECISION 2.3.1 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND CONTENTION OF THE LD. AR OF THE APPELLANT AND ALSO CAREFULLY GONE THROUGH THE RECORDS. I FIND THAT SIMILAR ISSUE AROSE FOR THE CONSIDERATION OF MY AND MY LEARNED 12 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. PREDECESSOR IN THE EARLIER YEARS, THE ISSUE IN HAND WAS PARTLY ALLOWED FOR AY 2007 - 08 AND IS DISMISSED FOR AY 2009 - 10. RESPECTFULLY FOLLOWING THE ORDERS OF MY LEARNED PREDECESSORS IN THE APPELLANT'S OWN CASE, THE LD. AO IS DIRECTED TO DISALLOW INTEREST ONLY ON INTEREST FREE ADVANCES TO ITS SISTER CONC ERN IN THE YEAR UNDER CONSIDERATION. THIS GROUND OF APPEAL IS THUS PARTLY ALLOWED. THE LD. AR SUBMITTED BEFORE US THAT THE PRESENT GROUND IS IDENTICAL TO THE GROUNDS DECIDED BY THE COORDINATE BENCH OF HONBLE ITAT IN ITA NO. 1992/M/13 FOR AY 2009 - 10 IN ASSESSEES OWN CASE. THE OPERATIVE PORTION OF THE ORDER OF HONBLE ITAT CONTAINED IN PARA NO. 8 AND THE SAME IS REPRODUCED BELOW: - 8. THE SOLITARY ISSUE INVOLVED IN ASSESSEES APPEAL ITA NO. 1992/MUM/2013 FOR AY 2009 - 10 IS DISALLOWANCE OF INTEREST EXPEND ITURE ON LOANS ADVANCED TO SISTER CONCERNS SINCE LD. CIT(A), IN THIS YEAR, HAS GRANTED PARTIAL RELIEF TO THE ASSESSEE BY HOLDING THAT RENTAL INCOME WAS ASSESSABLE UNDER THE HEAD BUSINESS INCOME. SINCE, WE HAVE ALREADY RESTORED THE IDENTICAL 13 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. ISSUE IN EARLIE R YEARS TO THE FILE OF LD. AO, TAKING THE SAME STAND, THIS ISSUE IS ALSO REMITTED BACK TO THE FILE OF LD. AO WITH SIMILAR DIRECTIONS. RESULTANTLY, THE ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES. AFTER HAVING GONE THROUGH THE FACTS OF THE PRESENT CASE AS WELL AS CONSIDERING THE ORDERS PASSED BY REVENUE AUTHORITIES AND HONBLE ITAT AS MENTIONED ABOVE IN ASSESSEES OWN CASE , WE FIND THAT THE IDENTICAL ISSUE HAS ALREADY BEEN DECIDED BY THE HONBLE ITAT IN ASSESSEES OWN CASE IN ITA NO. 1 992/M/ 13 FOR AY 2009 - 10 . THEREFORE TAKING THE SAME STAND, THIS ISSUE IS REMITTED BACK TO THE FILE OF AO WITH SIMILAR DIRECTIONS AS ARE CONTAINED IN ITA NO. 1992/M/13 FOR AY 2009 - 10. RESULTANTLY, THIS GROUND RAISED BY THE REVENUE STANDS ALLOWED FOR STATISTICAL P URPOSES. GROUND NO. 6 7 . THIS GROUND RAISED BY THE REVENUE RELATES TO CHALLENGING THE ORDER OF LD. CIT(A) IN HOLDING INTEREST ON FIXED DEPOSITS WITH 14 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. BANK AND INTEREST ON CORPUS DEPOSIT AS BUSINESS RECEIPTS WITHOUT APPRECIATING THAT SUCH INTEREST HAS NO IMMEDIATE NEXU S WITH THE ASSESSEE'S BUSINESS. 8 . WE HAVE HEARD COUNSELS FOR BOTH THE PARTIES AT LENGTH AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. BEFORE WE DECIDE THE MERITS OF THE CASE, IT IS NECESSARY TO EVALUATE THE ORDERS PASSED BY LD. CIT(A). THE LD. CIT(A) HAS DEALT WITH THE ABOVE GROUNDS RAISED BY THE REVENUE IN ITS DETAILED ORDER. THE OPERATIVE PORTION OF THE ORDER OF LD. CIT(A) IS CONTAINED IN PARA NO. 3 .3 OF ITS ORDER AND THE SAME IS REPRODUCED BELOW: - 3.3 DECISION 3.3.1 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND CONTENTIONS OF THE LD. AR OF THE APPELLANT AND ALSO CAREFULLY GONE THROUGH THE RECORDS. I FIND THAT SIMILAR ISSUE AROSE FOR THE CONSIDERATION OF MY AND LEARNED PREDECESSOR IN THE EARLIER YEARS WHEREIN THIS GROUND WAS DECIDED IN FAVOUR OF THE APPELLANT. RESPECTFULLY FOLLOWING THE ORDERS OF MY LD. PREDECESSORS IN THE 15 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. APPELLANT'S OWN CASE, THE LD. AO IS DIRECTED TO ALLOW THE C LAIM OF THE APPELLANT. THIS GROUND OF APPEAL IS THUS ALLOWED. THE LD. AR SUBMITTED BEFORE US THAT THE PRESENT GROUND IS IDENTICAL TO THE GROUNDS DECIDED BY THE COORDINATE BENCH OF HONBLE ITAT IN ITA NO. 2745 /M/13 AND 2748/M/13 FOR AY 2007 - 08 & 2009 - 10 IN ASSESSEES OWN CASE. THE OPERATIVE PORTION OF THE ORDER OF HONBLE ITAT CONTAINED IN PARA NO. 11 AND THE SAME IS REPRODUCED BELOW: - 11. IN REVENUES APPEAL ITA NOS. 2745/MUM/2013 & 2748/MUM/2013 FOR AYS. 2007 - 08 & 2009 - 10, IDENTICAL WORDED GROUNDS HAS BEEN RAISED. THE REVENUE IS AGGRIEVED BY THE STAND OF LD. CIT(A) THAT CERTAIN INTEREST INCOME EARNED BY THE ASSESSEE ON ADVANCES AND FDRS WAS ASSESSABLE UNDER THE HEAD BUSINESS INCOME AS AGAINST INCOME FROM OTHER SOURCES TAKEN BY LD. AO. SINCE, WE HAVE RE STORED THE ISSUE OF INTEREST IN ALL OTHER APPEALS TO THE FILE OF LD. AO, THE SAME IS ALSO RESTORED BACK TO THE FILE OF LD. AO TO RE - ADJUDICATE THE SAME IN THE LIGHT OF OUR DECISION IN THIS APPEAL. 16 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. RESULTANTLY BOTH THESE APPEALS STANDS ALLOWED FOR STATISTIC AL PURPOSES. AFTER HAVING GONE THROUGH THE FACTS OF THE PRESENT CASE AS WELL AS CONSIDERING THE ORDERS PASSED BY REVENUE AUTHORITIES AND HONBLE ITAT AS MENTIONED ABOVE IN ASSESSEES OWN CASE , WE FIND THAT THE IDENTICAL ISSUE HAS ALREADY BEEN DECIDED BY THE HONBLE ITAT IN ASSESSEES OWN CASE IN ITA NO. 2745 & 2748 /M/13 FOR AY 2007 - 08 & 2009 - 10. THEREFORE TAKING THE SAME STAND, THIS ISSUE IS REMITTED BACK TO THE FILE OF AO WITH SIMILAR DIREC TIONS AS ARE CONTAINED IN ITA NO. 2745 & 2748/M/13 FOR AY 2007 - 08 & 2009 - 10 . RESULTANTLY, THIS GROUND RAISED BY THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. GROUND NO. 7 9 . THIS GROUND RAISED BY THE REVENUE RELATES TO CHALLENGING THE ORDER OF L D. CIT(A) IN DIRECTING THE A.O TO ALLOW SET OFF UNABSORBED DEPRECIATION WITHOUT APPRECIATING THE STAND TAKEN BY THE DEPARTMENT CONSISTENTLY IN THE ASSESSEE'S OWN CASE THAT THE RENTAL INCOME SHOWN BY THE ASSESSEE UNDER THE HEAD 'BUSINESS 17 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. INCOME' WAS ACTUALLY ASSESSABLE UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY'. 10 . WE HAVE HEARD COUNSELS FOR BOTH THE PARTIES AT LENGTH AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. BEFORE WE DECIDE THE M ERITS OF THE CASE, IT IS NECESSARY TO EVALUATE THE ORDERS PASSED BY LD. CIT(A). THE LD. CIT(A) HAS DEALT WITH THE ABOVE GROUNDS RAISED BY THE REVENUE IN ITS DETAILED ORDER. THE OPERATIVE PORTION OF THE ORDER OF LD. CIT(A) IS CONTAINED IN PARA NO. 4 .3 OF I TS ORDER AND THE SAME IS REPRODUCED BELOW: - 4.3 DECISION 4.3.1 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND CONTENTION OF THE LD. AR OF THE APPELLANT AND RECORDS. THE LD. AO IS DIRECTED TO COMPUTE THE INCOME AS PER THE DIRECTION ABOVE AND ALLOW THE SET OFF BUSINESS LOSS IF ANY AS PER LAW. THIS GROUND OF APPEAL IS THUS ALLOWED FOR STATISTICAL PURPOSES. 18 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. AFTER HAVING GONE THROUGH THE FACTS OF THE PRESENT CASE AS WELL AS CONSIDERING THE ORDERS PASSED BY REVENUE AUTHORITIES, WE FIND THAT LD. CIT(A) HAS RIG HTLY DIRECTED THE AO TO COMPUTE THE INCOME AND ALLOW THE SET OFF OF BUSINESS LOSS IF ANY AS PER LAW. MOREOVER, N O NEW FACTS OR CONTRARY JUDGMENTS HAVE BEEN BROUGHT ON RECORD BEFORE US I N ORDER TO CONTROVERT OR REBUT THE FINDINGS SO RECORDED BY LD CIT (A) . THEREFORE, THERE ARE NO REASON S FOR US TO INTERFERE INTO OR DEVIATE FROM THE FINDINGS RECORDED BY THE LD. CIT (A). HENCE , WE ARE OF THE CONSIDERED VIEW THAT THE FINDINGS SO RECORDED BY THE LD. CIT (A) ARE JUDICIOUS AND ARE WE LL REASONED. RESULTANTLY, THIS GROUND RAISED BY THE REVENUE STANDS DISMISSED . GROUND NO.8 . 11 . THIS GROUND IS GENERAL IN NATURE, THUS REQUIRES NO SPECIFIC ADJUDICATION. 12 . IN THE NET RESU LT, THE APPEAL FILED BY THE REVENUE STANDS D ISPOSED O F F IN TERMS OF ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND DEC , 2017 SD/ - SD/ - ( B. R. BASKARAN ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 22 . 12 .201 7 19 I.T.A. NO. 4833 /MUM/201 5 M/S LUVISH INFOTECH PROJECTS PVT. LTD. SR.PS . DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI