Discovery Estates Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 5867/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2169 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 29-10-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANCHAL KHANDELWAL SENIOR
• Assessee Lawyers: NITIN MIDHA CAS; SUMAN SAPRA
• Keywords: Business income; Depreciation; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.5867/DEL./2015 (ASSESSMENT YEAR : 2012-13) M/S. DISCOVERY ESTATES PVT. LTD., VS. DCIT, CIRCLE 7 (2), 4/17B, MGF HOUSE, NEW DELHI. ASAF ALI ROAD, NEW DELHI 110 002. (PAN : AABCD4163D) (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. SUMAN SAPRA & SHRI NITIN MIDHA, CAS REVENUE BY : SMT. ANCHAL KHANDELWAL, SENIOR DR DATE OF HEARING : 30.08.2018 DATE OF ORDER : 31.08.2018 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, M/S. DISCOVERY ESTATES PVT. LTD. (H EREINAFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESEN T APPEAL, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 17.09.2015 PASSE D BY LD. CIT (APPEALS)-3, NEW DELHI QUA THE ASSESSMENT YEAR 2012 -13 ON THE GROUNDS INTER ALIA THAT :- ITA NO.5867/DEL./2015 2 GROUND NO.1: THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - III, NEW DELHI (HEREINAFTER REFERRED TO AS 'CIT(A)') HAS ERRED IN LAW AND IN THE FACT & CIRCUMSTANCES OF THE CASE BY PASSING THE ORDER DATED 17.09.2015 UNDER SECTION 250 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED T O AS 'THE ACT') IN GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE. GROUND NO.2: THE CIT(A) HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE IN HOLDING THAT THE AO IS CORRECT IN TREATING THE LEASE RENTAL INCOME EARNED BY THE APPELLANT FROM COMMERCIAL PROPERTIES AS INCOME FROM HOUSE PROPERTY INSTEAD OF BUSINESS INCOME AND CONFIRMING THE ASSES SED INCOME OF RS. 3,03,77,360/- AS AGAINST THE RETURNED INCOME OF RS.2,23,66,420 AND THEREBY CONFIRMING THE DEMAND OF RS. 36,97,060/- RAISED BY THE AO. GROUND NO.3: THE CIT(A) HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE CONCLUSION OF AO WITH REGARD TO THE TAXING OF RENTAL INCOME ON ACCOUNT OF COMMERCIA L MALL AS INCOME FROM HOUSE PROPERTY INSTEAD OF INCOM E FROM BUSINESS ON THE BASIS OF HON'BLE DELHI HIGH CO URT ORDER DATED 18.02.2013. THE APPELLANT CONTENDS THAT THE ORDER OF HONBLE DELHI HIGH COURT HAS NOT ATTAINED FINALITY AS THE APPELLANT HAS ALREADY FILED AN APPE AL IN THIS REGARD BEFORE HONBLE SUPREME COURT. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSEE IS INTO THE BUSI NESS OF CONSTRUCTION OF COMMERCIAL COMPLEX AND IS ALSO HAVI NG RENTAL INCOME. ASSESSEE HAS BEEN CLAIMING DEPRECIATION ON THE RENTAL PROPERTY. AO, FOLLOWING THE EARLIER YEAR DECISION IN ASSESSEES ITA NO.5867/DEL./2015 3 OWN CASE FOR AY 2007-08 TREATED AN AMOUNT OF RS.6,0 0,40,102/- BEING THE INCOME FROM HOUSE PROPERTY AND NOT INCOME FROM BUSINESS AND PROFESSION AND THEREBY ASSESSED THE TO TAL INCOME AT RS.3,03,77,360/-. 3. ASSESSEE CARRIED THE MATTER BY WAY OF APPEAL BEF ORE THE LD. CIT (A) WHO HAS ALSO DISMISSED THE APPEAL BY FOLLOW ING THE EARLIER YEAR DECISIONS PASSED IN ASSESSEES OWN CASE BY THE HONBLE JURISDICTIONAL HIGH COURT FOR AYS 2006-07 AND 2007- 08 CITED AS 356 ITR 159. FEELING AGGRIEVED, THE ASSESSEE HAS C OME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. AT THE VERY OUTSET, IT IS FAIRLY CONCEDED BY LD. AR FOR THE ASSESSEE THAT THE ISSUE INVOLVED IN THE PRESENT APP EAL HAS ALREADY BEEN DECIDED AGAINST THE ASSESSEE DURING THE EARLIE R YEARS BY THE TRIBUNAL AS WELL AS HONBLE HIGH COURT IN AY 2007-0 8 VIDE JUDGMENT CITED AS 356 ITR 159 AND THE SLP FILED BEF ORE HONBLE APEX COURT IS PENDING FOR HEARING. IN THESE CIRCUM STANCES, WE HAVE NO OPTION BUT EXCEPT TO FOLLOW THE DECISION RE NDERED BY THE HONBLE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE IN THE ITA NO.5867/DEL./2015 4 EARLIER YEARS AND THE INCOME CLAIMED BY THE ASSESSE E IS TREATED AS INCOME FROM HOUSE PROPERTY INSTEAD OF BUSINESS INCO ME AND AS SUCH, FINDING NO ILLEGALITY OR PERVERSITY IN THE IM PUGNED ORDER PASSED BY THE LD. CIT (A), PRESENT APPEAL FILED BY THE ASSESSEE IS HEREBY DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 31 ST DAY OF AUGUST, 2018. SD/- SD/- (N.K. BILLAIYA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 31 ST DAY OF AUGUST, 2018 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-3, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.