DCIT, CIR-7(2), KOLKATA, Kolkata V. M/s RBA Properties Ltd., Kolkata

ITA 598/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1434 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 12-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Assessee Lawyers: S L KOCHAR; ANIL KOCHAR ADVOCA
• Keywords: Business income; Rule of consistency
• Section: 263

Judgement Text

1 ITA NO.598/KOL/2015 M/S. RBA PROPERTIES LTD., AY 2011-12 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE .., /AND , ) [BEFORE SHRI A. T. VARKEY, JM & SHRI WASEEM AHMED, AM] I.T.A. NO. 598/KOL/2015 ASSESSMENT YEAR: 2011-12 DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-7(2), KOLKATA. VS. M/S. RBA PROPERTIES LTD. (PAN: AACCR0584P) APPELLANT RESPONDENT DATE OF HEARING 04.07.2017 DATE OF PRONOUNCEMENT 22.09.2017 FOR THE APPELLANT SHRI SAURABH KUMAR, ADDL. CIT, DR FOR THE RESPONDENT S/SHRI S.L. KOCHAR & ANIL KOCHAR , ADVOCATES ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL PREFERRED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-3, KOLKATA DATED 04.03.2015 FOR AY 2011-12. 2. THE MAIN GRIEVANCE OF THE REVENUE IS AGAINST THE ORDER OF LD. CIT(A) DIRECTING THE AO TO COMPUTE THE BUSINESS ARRANGEMENT FEE, MISCELL ANEOUS RECEIPTS AND OTHER INCOME DERIVED FROM PROPERTY UNDER THE HEAD INCOME FROM H OUSE PROPERTY. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE ACTIVITY OF LETTING OUT OF PROPERTY FOR A NUMBER OF YEARS. IN THE EARLIER ASS ESSMENT YEARS, THE HEAD UNDER WHICH VARIOUS RECEIPTS RELATING TO PROPERTY WERE CLAIMED BY THE ASSESSEE AS BUSINESS INCOME, WHICH WAS ACCEPTED BY THE AO FOR AY 2005-06. THE L D. CIT EXERCISING HIS JURISDICTION U/S. 263 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER R EFERRED TO AS THE ACT) DIRECTED THE AO TO TREAT THE RECEIPTS UNDER THE HEAD INCOME FROM H OUSE PROPERTY. THE ASSESSEE CHALLENGED THE ORDER OF CIT PASSED U/S. 263 OF THE ACT BEFORE THE TRIBUNAL AND THE TRIBUNAL WAS PLEASED TO DISMISS THE APPEAL OF THE ASSESSEE. THEREAFTER, AY 2005-06 ONWARDS, THE AO PURSUANT TO THE ORDER OF THE CIT PASSED U/S. 263 OF THE ACT ASS ESSED THE INCOME UNDER THE HEAD INCOME 2 ITA NO.598/KOL/2015 M/S. RBA PROPERTIES LTD., AY 2011-12 FROM HOUSE PROPERTY. THEREAFTER, ALL THE RECEIPTS FROM THE LETTING OUT OF PROPERTY WERE ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY . DEPARTURE FROM THIS HAPPENED IN AY 2009-10, WHEREIN THE AO TREATED THE SAID INCOME FROM AMENITIES PROVIDED TO THE TENANTS AND FACILITIES SUCH AS FURNITURE, AIR-CONDITIONER A ND OTHER AMENITIES UNDER THE HEAD INCOME FROM OTHER SOURCES WHICH WAS CHALLENGED BY THE ASS ESSEE BEFORE THE LD. CIT(A), WHO WAS PLEASED TO DIRECT THE AO TO TREAT THE ENTIRE RECEIP T ON ACCOUNT OF UTILITIES, BUSNESS ARRANGEMENTS FEE AND MISCELLANEOUS RECEIPT UNDER TH E HEAD INCOME FROM HOUSE PROPERTY WHICH ORDER OF LD. CIT(A) WAS LATER UPHELD BY THE T RIBUNAL VIDE ORDER DATED 26.08.2014. MEANWHILE IN THIS ASSESSMENT YEAR I.E. AY 2011-12, THE AO HAS TAKEN A VIEW THAT CERTAIN RECEIPTS LIKE BUSINESS ARRANGEMENT FEE, MISCELLANEO US RECEIPTS AND OTHER INCOME DERIVED FROM THE PROPERTY UNDER THE HEAD INCOME FROM OTHER SOURCES. WE NOTE THAT THE LD. CIT(A) HAS CLEARLY TAKEN NOTE OF THE FACT THAT FROM AY 200 5-06 ONWARDS, PURSUANT TO THE ORDER OF CIT PASSED U/S. 263 OF THE ACT, THE AFORESAID ENTIR E RECEIPTS WERE TAXED UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THEREAFTER, THE ASSE SSEE CLAIMED THE INCOME FROM HOUSE PROPERTY. WHEN THE FACTS PERMEATING THROUGHOUT THE EARLIER YEARS ARE THE SAME, AND THERE IS NO CHANGE IN LAW, PRINCIPLE OF CONSISTENCY HAS TO B E OBSERVED AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF RADHASOAMI SATSANG VS CIT (1992) 193 ITR 321 (SC). WE NOTE THAT THE LD. CIT(A) HAD GIVEN THE DIRECTION TO TREAT THE RECEIPTS OF THE ASSESSEE TAKING INTO CONSIDERATION THE TRIBUNALS ORDER UPHOLDING H IS ACTION FOR THE YEAR 2009-10, THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE LD. CIT(A) AND SO, WE CONFIRM THE SAME. THE APPEAL OF REVENUE IS DISMISSED. 4. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. ORDER IS PRONOUNCED IN THE OPEN COURT ON 22.09.2017 SD/- SD/- (WASEEM AHMED) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :22ND SEPTEMBER, 2017 JD.(SR.P.S.) 3 ITA NO.598/KOL/2015 M/S. RBA PROPERTIES LTD., AY 2011-12 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT DCIT, CIRCLE-7(2), KOLKATA 2 RESPONDENT M/S. RBA PROPERTIES LTD., 22, CAMAC ST REET (ABANINDRA NATH SARANI), KOLKATA-700 016. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY