ITO, Trivandrum V. M/s Leela Towers, Trivandrum

ITA 711/COCH/2008

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52329 (ITAT-COCHIN)
• Duration Of Justice: 3 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 30-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 03-06-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAYAPRABHA
• Assessee Lawyers: T M SREEDHARAN
• Keywords: Revision of order
• Section: 263

Judgement Text

1 ITA NO.711/COCH/2008 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S.GANESAN (JM) & SHRI SANJAY ARORA (AM) I.T.A.NO. 711/COCH/20 0 8 ASSESSMENT YEAR 2006-07 V. NARAYANANKUTTY INCOME-TAX OFFICER, WARD 1(4), TRIVANDRUM VS. M/S TOWERS, TC 3/1791 - 1 PUNNAKATTU, PATTOM, PO TRIVANDRUM 695 004 (APPELLANT) (RESPONDENT) APPELLANT BY MS VIJAYAPRABHA, JR DR RESPONDENT BY SHRI T.M. S REEDHARAN DATE OF HEARING 30 - 11 - 2011 DATE OF PRONOUNCEMENT 2 2 - 12 - 2011 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX(A), TRIVANDRUM DATED 18- 02-2008 AND PERTAINS TO ASSESSMENT YEAR 2006-07. 2 ITA NO.711/COCH/2008 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS CLASS IFICATION OF INCOME FROM PROPERTY. 3. MS. VIJAYAPRABHA, THE LD.DR SUBMITTED THAT FOR E ARLIER ASSESSMENT YEAR THIS TRIBUNAL BY AN ORDER DATED 30- 06-2009 IN ITA NO.753/COCH/2007 REMANDED THE MATTER BACK TO THE FI LE OF THE ASSESSING OFFICER FOR RECONSIDERATION IN CONFORMITY WITH THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN ATTUKAL SHOPPIN G COMPLEX (P) LTD VS COMMISSIONER OF INCOME-TAX REPORTED IN (2003) 259 I TR 567. PURSUANT TO THE ORDER OF THE TRIBUNAL, THE ASSESSIN G OFFICER EXAMINED THE MATTER AND ASSESSED THE RENTAL INCOME AS INCOM E FROM HOUSE PROPERTY AND THE MISCELLANEOUS INCOME AS INCOME F ROM BUSINESS. ACCORDING TO THE LD.REPRESENTATIVE, THE REVENUE HAS ALREADY FILED AN APPEAL AGAINST THE ORDER OF THIS TRIBUNAL WHICH IS PENDING BEFORE THE HIGH COURT. THEREFORE, FOR THE YEAR UNDER CONSIDERA TION, THE MATTER NEEDS TO BE REAPPRECIATED ON THE BASIS OF THE MATER IAL AVAILABLE ON RECORD. ON A QUERY FROM THE BENCH AS TO WHETHER TH E RENTAL AGREEMENT IS SAME AS THAT OF THE EARLIER YEAR AND W HETHER THE TENANTS ARE SAME AS THAT OF THE EARLIER YEAR AND WHETHER TH E SUBJECT MATTER OF THE BUILDING IS SAME AS THAT OF EARLIER YEAR, THE L D.DR VERY FAIRLY CONCEDED THAT ALL THE ABOVE ASPECTS ARE SAME AS THA T OF THE EARLIER ASSESSMENT YEARS. HOWEVER, THE LD.DR SUBMITTED THAT THE MATTER NEEDS TO BE RE-EXAMINED. THEREFORE, ATLEAST THE MA TTER SHOULD BE 3 ITA NO.711/COCH/2008 REMITTED BACK TO THE ASSESSING OFFICER FOR RECONSID ERATION AS IT WAS DONE IN THE EARLIER ASSESSMENT YEAR. 4. ON THE CONTRARY, SHRI T.M. SREEDHARAN, THE LD.SE NIOR COUNSEL FOR THE ASSESSEE SUBMITTED THAT ADMITTEDLY THE FACTS AR E IDENTICAL TO THAT OF THE EARLIER YEAR. THE TENANTS ARE SAME; THE AGR EEMENT IS SAME; THE PROPERTY IS SAME AND THE SERVICES PROVIDED BY THE A SSESSEE ARE SAME AS THAT OF THE EARLIER YEAR. FOR THE ASSESSMENT YE AR 2005-06, THE COMMISSIONER OF INCOME-TAX(A) HELD THAT THE INCOME EARNED BY THE ASSESSEE AS LICENCE FEE IS TO BE ASSESSED AS INCOM E FROM BUSINESS AND NOT AS INCOME FROM OTHER SOURCES. ON FURTHER APPEAL BEFORE THIS TRIBUNAL FOR THE ASSESSMENT YEAR 2005-06 THIS TRIBU NAL HAS SET ASIDE THE ORDER OF ASSESSMENT AND REMANDED BACK THE MATTE R TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION. IN THE LIGHT OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF ATTUKAL SHOPPING C OMPLEX (P) LTD VS COMMISSIONER OF INCOME-TAX REPORTED IN (2003) 259 I TR 567. PURSUANT TO THE DIRECTION OF THE TRIBUNAL THE ASSES SING OFFICER FRAMED THE ASSESSMENT AFRESH ON 18-11-2010. THE ASSESSING OFFICER ACCEPTED THE RENT RECEIVED BY THE ASSESSEE AS INCOME FROM H OUSE PROPERTY. THE INCOME BY WAY OF LICENCE FEE OR SERVICE CHARGES IS ASSESSED AS INCOME FROM BUSINESS. SINCE THE FACTS ARE IDENTI CAL, ACCORDING TO THE LD. SENIOR COUNSEL, THE ORDER PASSED BY THE ASSESSI NG OFFICER FOR THE ASSESSMENT YEAR 2005-06 IN PURSUANCE TO THE DIRECTI ON OF THIS TRIBUNAL IS EQUALLY APPLICABLE FOR THE YEAR UNDER CONSIDERAT ION ALSO. 4 ITA NO.711/COCH/2008 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS ON EITH ER SIDE AND HAVE ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. NO DOUBT, THE VERY SAME ISSUE CAME UP BEFORE THE TRIBUNAL IN ASSE SSEES OWN CASE FOR THE ASSESSMENT YEARS 2005-06 IN ITA NO.753(COCH )/2007. THIS TRIBUNAL BY AN ORDER DATED 30-06-2009 REMANDED BACK THIS MATTER TO THE FILE OF THE ASSESSING OFFICER FOR RE-CONSIDERAT ION IN THE LIGHT OF JUDGMENT IN THE CASE OF JURISDICTIONAL HIGH COURT I N THE CASE OF ATTUKAL SHOPPING COMPLEX (P) LTD VS COMMISSIONER OF INCOME- TAX REPORTED IN (2003) 259 ITR 567. PURSUANT TO THE DIRECTION OF T HIS TRIBUNAL, THE ASSESSING OFFICER RE-EXAMINED THE MATTER AND FOUND THAT THE RENTAL INCOME RECEIVED BY THE ASSESSEE HAS TO BE ASSESSED AS INCOME FROM HOUSE PROPERTY. HOWEVER, THE LICENCE FEE AND SERVI CE CHARGES RECEIVED BY THE ASSESSEE HAS TO BE ASSESSED AS INC OME FROM BUSINESS. THIS ORDER O THE ASSESSING OFFICER WAS PASSED ON 18-11- 2010. IT IS NOT THE CASE OF THE REVENUE THAT THE O RDER OF THE ASSESSING OFFICER WAS SUBJECT MATTER OF ANY REVISION U/S 263 OF THE INCOME-TAX ACT. FOR THE YEAR UNDER CONSIDERATION, THE SUBJECT MATTER OF THE PROPERTY IS SAME; THE TENANTS AND SERVICES RENDERED BY THE ASSESSEE ARE ALSO SAME. WHEN THE TENANT, SERVICES RENDERED BY THE ASSESSEE AND SUBJECT MATTER OF THE PROPERTY ARE SAME AS THAT OF THE ASSESSMENT YEAR 2005-06, IN OUR OPINION, THE VIEW TAKEN BY THE ASSESSING OFFICER PURSUANT TO THE DIRECTION OF THIS TRIBUNAL IS EQUAL LY APPLICABLE FOR THE YEAR UNDER CONSIDERATION ALSO. THEREFORE, WE DO NO T FIND ANY MERIT IN THE CONTENTION OF THE LD.DR THAT THE MATTER NEEDS T O BE RECONSIDERED 5 ITA NO.711/COCH/2008 BY THE ASSESSING OFFICER ONCE AGAIN. ADMITTEDLY, T HIS TRIBUNAL REMANDED BACK THE MATTER TO THE FILE OF THE ASSESSI NG OFFICER FOR RECONSIDERATION FOR THE ASSESSMENT YEAR 2005-06 IN THE LIGHT OF THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CA SE OF ATTUKAL SHOPPING COMPLEX (P) LTD VS COMMISSIONER OF INCOME- TAX REPORTED IN (2003) 259 ITR 567 AND THE ASSESSING OFFICER RE-EXA MINED THE MATTER AFRESH AND FOUND THAT THE RENTAL INCOME HAS TO BE A SSESSED AS INCOME FROM BUSINESS AND LICENCE FEE AND SERVICES CHARGES HAVE TO BE ASSESSED AS INCOME FROM HOUSE PROPERTY. IN VI EW OF THE ABOVE FACTUAL ASPECTS, IN OUR OPINION, THE COMMISSIONER O F INCOME-TAX(A) HAS RIGHTLY FOUND THAT THE RENTAL INCOME HAS TO BE ASSESSED AS INCOME FROM HOUSE PROPERTY; HOWEVER, LICENCE FEE AND SERVICES CHARGES HAVE TO BE ASSESSED AS INCOME FROM BUSINES S. THEREFORE, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORD ER OF THE LOWER AUTHORITY. ACCORDINGLY WE HAVE NO HESITATION TO CO NFIRM THE SAME. 6. IN THE RESULT, THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A) IS CONFIRMED AND THE APPEAL OF THE REVENUE STANDS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND DECEMBER, 2012 SD/- SD/- (SANJAY ARORA) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER ERNAKULAM, DT : 22 ND DECEMBER, 2012 PK/- 6 ITA NO.711/COCH/2008 COPY FORWARDED TO: 1. V NARAYANANKUTTY, ITO, WD.1(4), TRIVANDUM 2. M/S LEELA TOWERS, TC 3/1701-1, PUNNAKATTU, PATTOM P O, TRIVANDUM-695 004 3. THE COMMISSIONER OF INCOME-TAX(A), TRIVANDRUM 4. THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL , COCHIN