ROXY THEATRES P.LTD, MUMBAI V. ITO 5(3)(1), MUMBAI

ITA 5206/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8432 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 09-08-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA S ANJARIA
• Assessee Lawyers: PRADEEP SHARMA
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR, HON'BLE ACCOUNTANT MEMBER ITA NO. 5204, 5205 & 5206 /MUM/201 7 (A.Y S : 2012 - 13, 2011 - 12 & 2009 - 10) M/S. ROXY THEATRES PVT. LTD., 5 TH FLOOR, THE JEWEL, MAMA PARAMANAND MARG, OPERA HOUSE, MUMBAI 400 004 PAN: AADCR 0705 P V. INCOME TAX OFFICER WARD 5(3)(1) AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400 020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRADEEP SHARMA DEPARTMENT BY : SHRI CHAITANYA S. ANJARIA DATE OF HEARING : 03.04 .2019 DATE OF PRONOUNCEMENT : 03 .04 .2019 O R D E R PER C. N. PRASAD (JM) 1. THESE THREE APPEALS ARE FILED BY THE ASSESSEE AGAINST DIFFERENT ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 10, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 21.06.2017 FOR THE A.YS. 2009 - 10, 2011 - 12 AND 2012 - 13. 2. FIRST WE TAKE UP THE APPEA LS IN ITA.NO. 5206 /MUM/2017 AND ITA.NO.5205/MUM/ 201 7 FOR THE A .YS. 2009 - 10 AND 2011 - 12 RESPECTIVELY. 2 ITA NO. 5204, 5205 & 5206/MUM/2017 (A.YS: 2012 - 13, 2011 - 12 & 2009 - 10) M/S. ROXY THEATRES PVT. LTD., THE ASSESSMENTS FOR A.YS. 2009 - 10 AND 2011 - 12 WERE COMPLETED U/S.143(3) OF THE ACT BY ORDERS DATED 07.12.2011 AND 29.10.2013 RESPECTIVELY. WHILE COMPLETING THE ASSESSMENTS THE ASSESSING OFFICER TREATED RENTALS/PROCEEDS FROM EXHIBITION OF FILMS FROM THEATRE AS INCOME FROM HOUSE P ROPERTY AS AGAINST THE CLAIM OF THE ASSESSEE UNDER THE HEAD INCOME FROM BUSINESS . THESE ASSESSMENTS WERE CHALLENGED BEFORE THE LD.CIT(A) AND THE LD.CIT(A) BY ORDER DATED 15.05.2012 FOR THE A.Y. 2009 - 10 SUSTAINED THE ASSESSMENT MADE BY THE ASSESSING OFF ICER IN TREATING THE SAID INCOME UNDER THE HEAD INCOME FROM THE HOUSE PROPERTY . HOWEVER, FOR A .YS. 2010 - 11 AND 2011 - 12 THE LD.CIT(A) BY ORDERS DATED 10.09.2013 AND 10.09.2014 HELD THAT THE SAID INCOME SHOULD BE ASSESSED UNDER THE HEAD INCOME FROM BUSINESS . BOTH ASSESSEE AND REVENUE PREFERRED APPEALS BEFORE THE TRIBUNAL IN ITA.NO. 5201/MUM/2012, ITA.NO.6271/MUM/2013 AND ITA.NO. 7046/MUM/2014 FOR A.YS. 2009 - 10, 2010 - 11 AND 2011 - 12 . 3. MEANWHILE CONSEQUENTIAL ORDERS FOR A.YS. 2009 - 10 TO 2011 - 12 WERE PA SSED BY THE ASSESSING OFFICER GIVING EFFECT TO THE ORDER S OF THE LD.CIT(A) . HOWEVER, A GAINST TH E CONSEQUENTIAL ORDER PASSED FOR A.Y.2011 - 12 THE ASSESSEE PREFERRED APPEAL BEFORE THE LD.CIT(A) . THE ASSESSEE ALSO FILED APPEAL FOR A.Y. 2009 - 10 AGAINST 154 OR DER PASSED BY THE ASSESSING OFFICER REJECTING TO MODIFY THE CONSEQUENTIAL ORDER DATED 3 ITA NO. 5204, 5205 & 5206/MUM/2017 (A.YS: 2012 - 13, 2011 - 12 & 2009 - 10) M/S. ROXY THEATRES PVT. LTD., 24.10.2013 PASSED GIVING EFFECT TO LD.CIT(A) ORDER DATED 15.05.2012. THE LD.CIT(A) DISMISSED TH ESE APPEALS OF THE ASSESSEE AGAINST WHICH ORDER S THE PRESENT APPEALS HAVE BEEN FILED FOR A.Y S . 2009 - 10 AND 2011 - 12 BEFORE THE TRIBUNAL . WE NOTICED THAT T HE TRIBUNAL SUBSEQUENTLY BY ORDER DATED 14.09.2016 DISPOSED OFF THE APPEALS FILED BY THE ASSESSEE AND REVENUE AGAINST THE ORDERS OF THE LD.CIT(A) DATED 15.05.2012, 10.09.2013 AND 10.09.2014 FOR A.YS. 2009 - 10 TO 2011 - 12 RESTORING THE ISSUE TO THE FILE OF THE ASSESSING OFFICER AND TO EXAMINE THE ISSUE IN THE LIGHT O F THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENTS LTD., V. CIT [373 ITR 673]. THEREFORE, S INCE THE TRIBUNAL SET ASIDE THE APPEALS FOR THE A .YS. 2009 - 10, 2010 - 11 AND 2011 - 12 TO THE FILE OF THE ASSESSING OFFICER FOR EXAMIN ING THE I SSUE IN THE LIGHT OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENTS LTD., V. CIT (SUPRA) , THE CONSEQUENTIAL ORDER S PASSED BY THE ASSESSING OFFICER GIVING EFFECT TO THE LD.CIT(A) ORDER S BEC AME INFRUCTUOUS AND CONSE QUENTLY THE APPEALS FILED BY THE ASSESSEE BEFORE THE TRIBUNAL ARISE OUT OF SUCH CONSEQUENTIAL ORDER S OF THE LD.ASSESSING OFFICER ALSO BEC AME INFRUCTUOUS. HENCE THE APPEALS IN ITA.NO. 5206/MUM/2017 AND ITA.NO. 5205/MUM/2017 FOR A.Y. 2009 - 10 AND 2011 - 12 ARE DISMISSED AS INFRUCTUOUS. 4 ITA NO. 5204, 5205 & 5206/MUM/2017 (A.YS: 2012 - 13, 2011 - 12 & 2009 - 10) M/S. ROXY THEATRES PVT. LTD., 4. NOW COMING TO THE APPEAL FILED BY THE ASSESSEE IN ITA.NO. 5204/MUM/2017 FOR THE A.Y. 2012 - 13 ARISING OUT OF THE ORDER PASSED BY THE LD.CIT(A) DATE D 21.06.2017 , REFERRING TO THE FACT SHEET LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED THAT IN VIEW OF THE DECISION OF THE HON'BLE TRIBUNAL IN ASSESSEES CASE FOR THE A .YS. 2009 - 10 TO 2011 - 12 DATED 14.09.2016 THE IMPUGNED ISSUES STANDS DECIDED IN FAVOUR OF THE ASSESSEE , SINCE THE ISSUE IS COVERED BY THE HON'BLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENTS LTD., V. CIT (SUPRA). 5. LD. DR VEHEMENTLY SUPPORTED THE O RDERS OF THE AUTHORITIES BELOW. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LD.CIT(A) REFERRING TO THE DECISION OF HIS PREDECESSOR IN ASSESSEES OWN CASE FOR THE A.Y. 2009 - 10 DIRECTED THE ASSESSING OFFICER TO COLLECT THE DETAILS SO AS TO SEPARATELY ASSESSEE THE RENT AND SERVICE CHARGES UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND INCOME FROM BUSINESS RESPECTIVELY. HOWEVER, WE FIND THAT THE TRIBUNAL FOR THE A .YS. 2009 - 10 TO 2011 - 12 BY ORDER DATED 14.09.2016 SET ASIDE THE APPEALS AND RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE CONTENTIONS OF THE ASSESSEE AND THE ISSUE IN APPEALS IN THE LIGHT OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENTS LTD., V. C IT (SUPRA). WE FIND 5 ITA NO. 5204, 5205 & 5206/MUM/2017 (A.YS: 2012 - 13, 2011 - 12 & 2009 - 10) M/S. ROXY THEATRES PVT. LTD., THAT EVEN FOR THIS ASSESSMENT YEAR I.E. A.Y. 2012 - 13 NEITHER THE ASSESSING OFFICER NOR THE LD.CIT(A) HAS EXAMINED THE ISSUE AND THE APPLICABILITY OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTME NTS LTD., V. CIT (SUPRA). IN THE CIRCUMSTANCES, FOLLOWING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE EARLIER A SSESSMENT Y EARS, WE RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE ISSUE AFRESH DENOVO, KEEPING IN VIEW THE DECISION S OF THE HON'BLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENTS LTD., V. CIT (SUPRA) AND RAYALA CORPORATION PVT. LTD., V. ACIT [386 ITR 500] AND T HUS, WE RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER ACCORDINGLY AND N EEDLESS TO SAY THAT THE ASSESSING OFFICER SHALL PROVIDE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, APPEALS FOR THE A .YS. 2009 - 10 AND 2011 - 12 ARE DISMISSED AS INFRUCTUOUS AND WHEREAS THE APPEAL FOR THE A.Y. 2012 - 13 IS ALLOWED FOR ST ATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 03 RD APRIL , 2019 SD/ - SD/ - (RAJESH KUMAR) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 03/ 04/2019 GIRIDHAR, SR.PS 6 ITA NO. 5204, 5205 & 5206/MUM/2017 (A.YS: 2012 - 13, 2011 - 12 & 2009 - 10) M/S. ROXY THEATRES PVT. LTD., 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, MUM