DCIT CC 7(2), MUMBAI V. SHREEJI EXHIBITORS, MUMBAI

ITA 5511/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3494 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 03-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K KARDA M
• Assessee Lawyers: SHRI V MOHAN
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO. 5511/MUM/2015 (ASSESSMENT YEAR : 2011-12) THE DCIT CC-7(2), ROOM NO.655, AAYKAR BHAVAN,M.K.ROAD, MUMBAI 400 020 ..... APPELLANT VS. M/S. SHREEJI EXHIBITORS, OLD S NO.677, NEW S.NO.7A, NEAR TEMBA HOSPITL, BHAYADER(W) THANE 401 101 PAN:ABCFS 4464M .... RESPONDENT APPELLANT BY : SHRI A.K.KARDAM RESPONDENT BY : SHRI SHRI V. MOHA N DATE OF HEARING : 19/07/2016 DATE OF PRONOUNCEMENT : 19/08/2016 ORDER PER G.S.PANNU,A.M: THE CAPTIONED APPEAL FILED BY THE REVENUE PERTAINI NG TO ASSESSMENT YEAR 2011-12 IS DIRECTED AGAINST AN ORD ER PASSED BY CIT(A)- 49 MUMBAI DATED 09/09/2015, WHICH IN TURN ARISES OU T OF AN ORDER 2 ITA NO. 5511/MUM/2015 (ASSESSMENT YEAR : 2011-12 PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3 ) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 14/03/2014. 2. IN THIS APPEAL, THE ONLY ISSUE RELATES TO THE TAXABILITY OF INCOME RECEIVED BY THE ASSESSEE FROM SHOPPING MALL. THE R ESPONDENT ASSESSEE IS A PARTNERSHIP FIRM, WHICH HAD CONSTRUCTED A COMM ERCIAL COMPLEX AND LEASED OUT THE SAME. IT WAS ALSO RENTING MULTIPLEX WITH FIVE SCREENS. THE ASSESSEE WAS DERIVING RENTALS FROM VARIOUS PROP ERTIES IN THE SHOPPING MALL AND TREATED THE SAME AS INCOME FROM BUSINESS. THE ASSESSING OFFICER HOWEVER, FOLLOWING HIS STAND FOR EARLIER ASSESSMENT YEAR OF 2010-11, OF TREATED THE INCOME SO DERIVED AS TAXABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THE CIT(A) HAS SI NCE DISAGREED WITH THE ASSESSING OFFICER AND UPHELD THE PLEA OF THE AS SESSEE FOR TREATING SUCH INCOME AS INCOME FROM BUSINESS. IN COMING TO SUCH CONCLUSION, THE CIT(A) REFERRED TO THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2009-10, WHICH WAS RENDERE D VIDE ITA NOS. 640/MUM/2014 & 2196/M/2013 DATED 14/08/2015. THE TR IBUNAL IN ITS ORDER DATED 14/08/2015(SUPRA) HELD THAT INCOME/LOSS FROM THE PROPERTY WAS LIABLE TO BE TAXED AS BUSINESS INCOME/ LOSS IN THE PRESENT CASE AND NOT UNDER THE HEAD INCOME FROM HOUSE PROPE RTY. AGAINST SUCH A DECISION OF THE CIT(A), REVENUE IS IN FURTHE R APPEAL BEFORE THE TRIBUNAL. 3. BEFORE US, IT WAS A COMMON POINT BETWEEN THE PAR TIES THAT THE ORDER OF THE TRIBUNAL DATED 14/08/2015(SUPRA), WHIC H HAS BEEN RELIED UPON BY THE CIT(A), CONTINUES TO HOLD THE FIELD AS IT HAS NOT BEEN ALTERED BY ANY HIGHER AUTHORITY. THEREFORE, IN VIEW OF THE AFORESAID PRECEDENT, 3 ITA NO. 5511/MUM/2015 (ASSESSMENT YEAR : 2011-12 WE FIND NO ERROR ON THE PART OF THE CIT(A) IN UPHOL DING THE PLEA OF THE ASSESSEE. CONSEQUENTLY, THE APPEAL OF THE REVENUE I S DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 19/08/2016 SD/- SD/- (AMARJIT SINGH) (G.S. PANNU) JUDICIAL MEMBER ACCOCUNTANT MEMBER MUMBAI, DATED 1908/2016 VM , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI