M/s. Sancheti Agencies, V. ITO, Wd 2(1), Nashik,

ITA 539/PUN/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3394 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 06-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJU AJWANI
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NO. 539/PN/2009 (ASSTT. YEAR : 2004-05) M/S. SANCHETI AGENCIES, KRISHNAKAMAL, NEW ADGAON, NAKA, PANCHWATI, NASHIK - 03 PAN: AAKFS 3267R . APPELLANT V. THE I.T.O., WD 2(1), NASHIK INCOME TAX OFFICE, WANI HOUSE, OPP. RUNANUBANDH MANGAL KARYALAYA, AGRA ROAD, NASHIK . RESPONDENT APPELLANT BY : NONE RESPONDENT BY : SMT. MANJU AJWANI ORDER PER D. KARUNAKARA RAO AM THIS APPEAL BY THE ASSESSEE IS FILED AGAINST THE ORD ER OF THE CIT(A)- II, NASHIK DATED 19.02.2009 FOR THE A.Y. 2004-05. GROUND S RAISED BY THE ASSESSEE READ AS UNDER :- 1. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW, THE HON. COMMISSIONER OF INCOME TAX, APPEALS-I I, NASHIK IS NOT JUSTIFIED IN HOLDING THAT THE INCOME FROM WAREHOUSING IS CHAR GEABLE TO TAX AS INCOME FROM HOUSE PROPERTY AS AGAINST CLAIM OF THE APPELLA NT THAT THE SAME IS CHARGEABLE UNDER THE HAD INCOME FROM BUSINESS. 2. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES O F THE CASE AS WELL AS LAW, THE HON. COMMISSIONER OF INCOME TAX, APPEALS-I I, NASHIK IS NOT JUSTIFIED IN HOLDING THAT THE INCOME FROM WAREHOUSING IS CHAR GEABLE TO TAX AS INCOME FROM HOUSE PROPERTY AND NOT INCOME FROM BUSINESS, P ARTICULARLY WHEN THE APPELLANT HAS RECEIVED THE INCOME FROM WAREHOUSING FOR THE VARIOUS SERVICES RENDERED BY THEM. 2. DURING THE TIME OF HEARING, THE LD. D.R. FOR REVEN UE FAIRLY MENTIONED THAT THE ISSUE IN QUESTION RELATE TO THE CHARGEABILITY OF THE INCOME EARNED FROM THE WAREHOUSING RENTALS UNDER CORRECT HEAD OF INCOME. IN TH IS REGARD, THE DR MENTIONED THAT THIS ISSUE HAS TO BE SENT TO THE FIL ES OF THE A.O FOR DECIDING AFRESH IN THE LIGHT OF BOMBAY HIGH COURT JUDGMENT IN THE CASE OF NUTAN WAREHOUSING CO. PVT. LTD. THERE IS NONE FOR THE ASSESSEE TO REPRESENT THE C ASE. FURTHER, THE DR BROUGHT ITA NO 539/PN/2009 SANCHETI AGENCIES, A.Y.2004-05 PAGE OF 3 2 TO OUR NOTICE THE ORDER OF THE TRIBUNAL IN THE SAID CAS E, REPORTED IN 106 TTJ 137, PUNE WHICH HAS BEEN SET ASIDE BY THE SAID HIGH COURT . THERE WAS NONE FOR THE ASSESSEE TO REPRESENT THE CASE. CONSIDERING THE FACT THAT THE MATTER IS NOW DECIDED BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF NUTAN WAREHOUSING CO. PVT. LTD. ITA NO. 1296 OF 2007 ORDER DATED 18-02-2010 ), WE ARE OF THE OPINION THAT THE ISSUE SHOULD BE REFERRED TO THE FILE OF THE A.O FOR DECIDING THE ISSUE AFRESH GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. FOR THE SAKE OF COMPLETENESS, PARA 9 OF THE SAID J UDGMENT OF THE HIGH COURT IN THE CASE OF NUTAN WAREHOUSING CO. PVT. LTD (SUPRA ) IS REPRODUCED AS UNDER. 9. SINCE THE TRIBUNAL HAS NOT CONSIDERED THIS ASPE CT OF THE CASE, WE ARE OF THE VIEW THAT IT WOULD BE APPROPRIATE AND PROPER TO SET ASIDE THE DECISION OF THE TRIBUNAL AND TO REMAND THE PROCEEDI NGS BACK TO THE ASSESSING OFFICER FOR A FRESH DETERMINATION AND ASS ESSMENT IN ACCORDANCE WITH LAW. WE ORDER ACCORDINGLY. UPON REMAND, IT IS CLARIFIE D THAT THE ASSESSING OFFICER SHALL NOT CONSIDER HIMSEL F TO BE BOUND BY THE DECISION OF THE TRIBUNAL DATED 19 TH MARCH, 2001 FOR ASSESSMENT YEARS 1994- 95, 1995-96 AND 1996-97, IN VIEW OF THE CONCESSION IN THOSE TERMS WHICH HAS BEEN MADE DURING THESE PROCEEDINGS BY THE ASSES SEE. IN ORDER TO FACILITATE A FRESH EXERCISE BEING CARRIED OUT IN T ERMS OF THE ORDER PASSED BY THIS COURT, THE IMPUGNED ORDER OF THE TRIBUNAL DATE D 31 ST AUGUST, 2006 IS SET ASIDE. HOWEVER, IT IS CLARIFIED THAT ALL THE RIGHTS AND CONTENTIONS OF THE ASSESSEE AND THE REVENUE ON ALL ASPECTS OF THE CASE ON MERITS ARE KEPT OPEN. THE ORDER OF REMAND, IT IS CLARIFIED SHALL ALSO BE WITH RESPECT TO THE DISALLOWANCE THAT HAS BEEN EFFECTED UNDER SECTION 4 0A(II) OF THE INCOME TAX ACT, 1961. IN VIEW OF THE ORDER OF REMAND, IT IS NOT NECESSARY FOR THIS COURT TO EXPRESS ANY VIEW ONE WAY OR THE OTHER ON THE QUESTIONS OF LAW INVOLVED. THE APPEAL IS ACCORDINGLY DISPOSED OF. N O COSTS. 4. RESPECTFULLY FOLLOWING THE ABOVE VERDICT OF THE J URISDICTIONAL HIGH COURT WE IN TURN AS WELL HEREBY RESTORE THESE GROUNDS BACK TO THE ST AGE OF THE ASSESSMENT TO BE DECIDED DE NOVO AS DIRECTED BY THE HON'BLE COURT AFT ER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDIN GLY, THE GROUNDS RAISED IN THE APPEAL OF THE ASSESSEE ARE SET ASIDE . 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13TH DAY OF AUGU ST 2010. SD/- SD/- (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER (D. KARUNAKARA RAO ) ACCOUNTANT MEMBER PUNE, DATED THE 13 TH AUGUST, 2010 ITA NO 539/PN/2009 SANCHETI AGENCIES, A.Y.2004-05 PAGE OF 3 3 US COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT- I, NASHIK 4. THE CIT(A)-II, NASHIK 4. THE D.R. B BENCH, PUNE 5. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE