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

ITA 6745/MUM/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9729 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 17-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Assessee Lawyers: V MOHAN
• Keywords: Business income
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD , JUDICIAL MEMBER ITA NO. 6745 /MUM/ 2016 : A.Y : 20 12 - 13 DCIT, CENTRAL CIRCLE - 7( 2 ), MUMBAI (APPELLANT) VS. M/S. SHREEJI EXHIBITORS OLD S. NO. 677(7A), NEW NO. 227, NR. TEMBA HOSPITAL, BHAYANDER (W), THANE 40 1 101. PAN : A BCFS4464M (RESPONDENT) ITA NO. 6746 /MUM/ 2016 : A.Y : 2012 - 13 DCIT, CENTRAL CIRCLE - 7(2), MUMBAI (APPELLANT) VS. M/S. SHREEJI ENTERPRISES OLD S. NO. 677, NEW S NO. 7A, NR. TEMBA HOSPITAL, BHAYANDER (W), THANE 401 101. PAN : ABIFS1322G (RESPONDENT) APPELLANT BY : SHRI V. JUSTIN RESPONDENT BY : SHRI V. MOHAN DATE OF HEARING : 0 4 / 07 /201 7 DATE OF PRONOUNCEMENT : 31 /0 7 /201 7 O R D E R PER G.S. PANNU , AM : THE CAPTIONED ARE TWO APPEAL S PREFERRED BY TWO DIFFERENT ASSESSEES PERTAINING TO ASSESSMENT YEAR 2012 - 13. SINCE THE TWO APPEALS INVOLVE A COMMON ISSUE, THEY HAVE BEEN CLUBBED AND HEARD 2 ITA NOS. 6745 & 6746/MUM/2016 M/S. SHREEJI EXHIBITORS & ANR. TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. IN BOTH THE APPEALS, THE COMMON ISSUE IS AS TO WHETHER THE INCOME DERIVED FROM LETTING OUT OF MULTIPLEXES/SHOPPING MALLS AND CINEMA THEATRES ALONGWITH AMENITIES IS ASSESSABLE UNDER THE HEAD INCOME FROM H OUSE PROPERTY OR AS BUSINESS INCOME. 3. AT THE TIME OF HEARING, IT WAS A COMMON POINT BETWEEN THE PARTIES THAT SIMILAR ISSUE CAME UP FOR THE FIRST TIME BEFORE THE TRIBUNAL IN THE CASE OF THE CAPTIONED ASSESSEES FOR ASSESSMENT YEAR 2009 - 10, WHEREIN VIDE ORDER IN ITA NOS. 640/M/2014 & 2196/M/2013 DATED 14.8.2015, THE STAND OF THE ASSESSEE WAS UPHELD AND THE AFORESAID INCOME WA S HELD TO BE ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS. IT WAS ALSO A COMMON POINT BETWEEN THE PARTIES THAT THE ORDER OF TH E TRIBUNAL DATED 14.8.2015 (SUPRA) HAS SINCE BEEN FOLLOWED BY THE TRIBUNAL WHILE ADJUDICATING THE APPEALS OF THE CAPTIONED ASSESSEES FOR ASSESSMENT YEAR 2010 - 11 IN ITA NOS. 1755 & 1756/M/2015 DATED 4.1.2017, COPIES OF WHICH HA VE BEEN PLACED ON RECORD. 4. IN THIS BACKGROUND, WE MAY FIRST REFER TO THE APPEAL IN ITA NO. 6745/MUM/2016 WHICH IS DIRECTED AGAINST THE ORDER OF THE CIT(A) - 49 , MUMBAI DATED 2 9 . 9 .201 6 , PERTAINING TO THE ASSESSMENT YEAR 20 12 - 13 , WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASS ESSING OFFICER DATED 3 1 .3.201 5 UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 3 ITA NOS. 6745 & 6746/MUM/2016 M/S. SHREEJI EXHIBITORS & ANR. 5. IN THIS APPEAL, THE RELEVANT FACTS ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN RUNNING MULTIPLEX THEATRE. THE ASSESSING OFFICER NOTED THAT ASSESSEE HAD DECLARED LEAVE & LICENCE INCOME ON ACCOUNT OF VARIOUS PROPERTIES SITUATED IN THE SHOPPING MALL AND INCOME THEREOF WAS DECLARED AS BUSINESS INCOME. THE ASSESSING OFFICER DIFFERED WITH THE ASSESSEE AND TREATED SUCH INCOME TO BE ASSESSABLE UNDE R THE HEAD INCOME FROM HOUSE PROPERTY. THE CIT(A) REFERRED TO THE DECISION OF THE TRIBUNAL IN THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2009 - 10 AND CONCLUDED THAT SUCH INCOME WAS ASSESSABLE AS BUSINESS INCOME AND THE CORRESPONDING EXPENDITURE AND DEP RECIATION WAS ALLOWABLE WHILE COMPUTING THE TOTAL INCOME. AGAINST SUCH A DECISION, REVENUE IS IN APPEAL BEFORE US. 6. EVEN WITH REGARD TO ITA NO. 6746/MUM/2016, WHICH IS DIRECTED AGAINST THE ORDER OF THE CIT(A) - 49 , MUMBAI DATED 29.9.2016 , PERTAINING TO T HE ASSESSMENT YEAR 2012 - 13 , WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER DATED 3 0 .3.2015 UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 , THE ISSUE RAISED IS SIMILAR. 7. SINCE THE ORDER OF THE TRIBUNAL IN ITA NOS. 640/M/2014 & 2196/M/2013 DATED 14.8.2015 (SUPRA), WHICH HAS BEEN RELIED UPON BY THE CIT(A), CONTINUES TO HOLD THE FIELD AND HAS NOT BEEN ALTERED BY ANY HIGHER AUTHORITY, THE DECISION OF CIT(A) IS LIABLE TO BE AFFIRMED. WE HOLD SO. 4 ITA NOS. 6745 & 6746/MUM/2016 M/S. SHREEJI EXHIBITORS & ANR. 8. IN THE RESULT, APPEALS OF THE REV ENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 1 S T JULY, 2017. SD/ - SD/ - (RAVISH SOOD) JUDICIAL MEMBER ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 3 1 S T JULY, 2017 * SSL * COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, A BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI