BALUWALA BUILDERS, MUMBAI V. ACIT 19(2), MUMBAI

ITA 6788/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3927 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 06-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREMANAND J
• Keywords: Business income; Depreciation
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM ./ I.T.A. NO. 6788 /MUM/20 12 ( / ASSESSMENT YEAR : 20 0 7 - 08 ) M/S BA LUWALA BUILDERS, C - 10, VIVEK APARTMENT, PODDAR ST., SANTACRUZ(W), MUMBAI - 400054 / VS. ASSTT. COMMISSIONER OF INCOME TAX 1 9 (2), BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI. ./ PAN : AAAFB4153D / ASSESSEE BY SH RI RAMESH IYER / REVENUE BY SHRI PREMANAND J / DATE OF HEARING : 1 0 .5.2016 / DATE OF PRONOUNCEMENT : 10. 5.2016 / O R D E R PER RAJESH KUMAR, A. M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 3.8.2012 OF COMMISSIONER OF INCOME TAX (APPEALS) - 3 5, MUMBAI (HEREINAFTER CALLED AS THE CIT(A) FOR ASSESSMENT YEAR 200 7 - 08 . 2. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL PERTAINS TO THE TREATMENT GIVEN BY THE TAX AUTHORITIES TO THE INCOME RECEIVED FROM LETTING OUT OF THE PROPERTY AS INCOME FROM OTHER SOURCES INSTEAD OF INCOME FROM HOUSE PROPERTY. 2 ITA NO. 6788 /MUM/ 20 12 3. THE ASSESSEE IS A PARTNERSHIP FIRM CARRYING ON BUSINESS OF BUILDERS AND DEVELOPERS. T HE ASSESSEE FILED RETURN OF INCOME AT RS.27,03,565/ - ON 31.10.2007. THE ASSESSEE AFTER CLAIMING DEDUCTION U/S 24 OF THE ACT SHOWN INCOME FROM HOUSE PROPERTY OF RS.30,86,161/ - . SUBSEQUENTLY, THE ASSESSING OFFICER SELECTED THE CASE FOR SCRUTINY AND COMP LETED THE ASSESSMENT U/S 143(3) DETERMINING THE TOTAL INCOME AT RS.41,87,362/ - . AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, WHO IN TURN UPHELD THE ACTION OF THE AO. FURTHER AGGRIEVED BY THE ORDER OF FIRST APPELLATE AUTHORITY, THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL. 4. BEFORE US, A T THE OUTSET , THE LD.AR SUBMITTED THAT AN IDENTICAL ISSUE HAD COME UP BEFORE THE SAME BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.2023/MUM/2012 (AY - 2008 - 09) AND THE TRIBUNAL VIDE ITS ORDER DATED 17.4.2013 DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THEREFORE, THE LD.AR SUBMITTED THAT THE ISSUE RAISED IN THIS APPEAL BE DECIDED IN FAVOUR OF THE ASSESSEE. 5. THE LD. DR REITERATED THE FACTS OF THE CAS E AND RELIED ON THE ORDERS OF AUTHORITIES BELOW. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT MATERIAL PLACED BEFORE US. WE FIND FROM THE RECORD THAT AN IDENTICAL ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE VIDE ORDER DATED 17.4.2013 PASSED IN 3 ITA NO. 6788 /MUM/ 20 12 ASSESSEES OWN CASE IN ITA NO.2023/MUM/2012 (AY - 2008 - 09). THE LD. DR COULD NOT BRING ANY MATERIAL CONTRARY TO THE SUBMISSIONS OF LD.AR AND ORDER OF THE TRIBUNAL. FOR THE SAKE OF CONVENIENCE, WE REPRODUCE THE RELEVANT PORTION OF THE AF OREMENTIONED ORDER : 8. IN HIS ANXIETY TO TAKE IT AS A BUSINESS INCOME, THE ASSESSING OFFICER BROUGHT THE ENTIRE RECEIPT UNDER ONE HEAD AND CIT(A) ALSO CONFIRMED THE SAME. SINCE WE HOLD THAT INCOME WAS ASSESSABLE AS INCOME FROM 'HOUSE PROPERTY' THE AO HAS DIRECTED TO EXCLUDE THE INCOME FROM FIXTURES AND FURNITURE ETC. WHICH ARE NOT EXACTLY INCOME FROM 'HOUSE PROPERTY' TO BE CONSIDERED AS 'INCOME FROM OTHER SOURCES' AND IN DOING SO HE HAS TO ALLOW NECESSARY CLAIM FOR DEPRECIATION, IF ANY. FURTHER, THE INCOM E RECEIVED ON BANNER ADVERTISEMENT ALSO SHOULD BE CONSIDERED AS 'INCOME FROM OTHER SOURCES' OR 'BUSINESS' AS FACTS MAY DECIDE AFTER DUE EXAMINATION. TO THE EXTENT OF COMPUTATION OF INCOME UNDER VARIOUS HEADS, WE RESTORE THE ISSUE TO THE FILE OF AO TO DO AC CORDINGLY, AFTER EXAMINATION OF THE FACTS AND GIVING DUE OPPORTUNITY TO ASSESSEE. WE FIND FROM THE ABOVE MENTIONED OBSERVATIONS OF THE TRIBUNAL, THE ISSUE IN HAND STANDS COVERED IN FAVOUR OF THE ASSESSEE. THEREFORE , RESPECTFULLY FOLLOWING THE TRIBUNAL S ORDER, WE SET ASIDE THE ORDER OF LD.CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE AO TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNC ED IN THE OPEN COURT ON 10TH MAY,2016 SD SD ( MAHAVIR SINGH ) ( RAJESH KUMAR ) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 10 . 5.2016 SR.P.S.:S RL 4 ITA NO. 6788 /MUM/ 20 12 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, TRUE COPY / (DY./ASSTT. R EGISTRAR) , / ITAT, MUMBAI