DCIT 3 (1)(1), MUMBAI V. BANZAI ESTATES PVT. LTD., MUMBAI

ITA 7268/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6960 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 19-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAVITA P KAUSHIKLD
• Assessee Lawyers: ROHIT GOLECHA LD
• Keywords: Set aside
• Section: 143(3)

Judgement Text

ITA NO.7268/MUM/2018 M/S. BANZAI ESTATES PVT. LTD. ASSESSMENT YEAR :2012-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.7268/MUM/2018 ( / ASSESSMENT YEAR : 2012-13 ) DCIT 3(1)(1) ROOM NO. 607, 6 TH FLOOR, AAYKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. / VS. M/S. BANZAI ESTATES PVT. LTD. 49, BAJAJ BHAVAN NARIMAN POINT MUMBAI 400 021 . %& ./ ./PAN/GIR NO. AAACB-6915-C ( &( /APPELLANT ) : ( )*&( / RESPONDENT ) REVENUE BY : MS. KAVITA P. KAUSHIK-LD.DR ASSESSEE BY : SHRI ROHIT GOLECHA- LD. AR / DATE OF HEARING : 23/01/2020 / DATE OF PRONOUNCEMENT : 05/02/2020 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY REVENUE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2012-13 CONTEST THE ORDER OF LD. COMMIS SIONER OF INCOME- TAX (APPEALS)-9, MUMBAI, [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO. CIT(A)-9/CIR.4/TR-71/2015-16 DATED 10/10/2018 ON FOLLOWING GROUNDS OF APPEAL: - 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS RIGHT IN TREATING THE RENTAL INCOME DERI VED FROM THE PREMISES OWNED BY ITA NO.7268/MUM/2018 M/S. BANZAI ESTATES PVT. LTD. ASSESSMENT YEAR :2012-13 2 THE ASSESSEE IN MBC TOWER, CHENNAI AS INCOME ASSESS ABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY, WITHOUT APPRECIATING THAT INCOME EARNED FROM THE SAID PREMISES HAS BEEN DERIVED FROM EXPLOITATION OF PROPERTIES FOR COMMERCIAL BUSINESS ACTIVITIES WHICH IS IN THE NATURE OF BUSIN ESS INCOME ASSESSABLE UNDER THE INCOME FROM BUSINESS AS PER THE RATIO LAID DOWN B Y THE HON'BLE APEX COURT IN THE CASE OF SHAMBHU INVESTMENTS VS CIT IN 263 ITR 143 ( SC)? 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS RIGHT IN TREATING THE RENTAL INCOME DERI VED FROM LETTING OUT PROPERTIES TAKEN ON LEASE FROM OTHERS AS INCOME ASSESSABLE UND ER THE HEAD INCOME FROM HOUSE PROPERTY, WITHOUT APPRECIATING THAT THE ASSE SSEE IS FOLLOWING THE BUSINESS MODULE OF TAKING PROPERTIES ON RENT AND SUB-LETTING THE SAME AFTER FURNISHING & PROVIDING ENTIRE GAMUT OF FACILITIES ASSOCIATED WIT H SUCH PROPERTIES TO VARIOUS PARTIES WHICH IS NOTHING BUT A BUSINESS VENTURE AND IS ASSE SSABLE UNDER THE HEAD INCOME FROM BUSINESS? 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS RIGHT IN TREATING THE RENTAL INCOME DERI VED FROM LETTING OUT PROPERTIES (OWNED AND TAKEN ON LEASE FROM OTHERS) AS INCOME A SSESSABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY, WITHOUT APPRECIATING THAT THE RENTAL INCOME FROM THE SAID PROPERTIES WAS FURTHER ADVANCED FOR PURCHASE O F ANOTHER PROPERTY INSTEAD OF REPAYING THE EXISTING LOAN ON SAID PROPERTY WHICH I NDICATES THE PRUDENT BUSINESS APPROACH OF THE ASSESSEE? 4. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF ASSESSING OFFICER BE RESTORED. 2. THE LEARNED AUTHORIZED REPRESENTATIVE FOR ASSESS EE (AR), AT THE OUTSET, SUBMITTED THAT LD. CIT(A) HAS MERELY FOLLOW ED THE DECISION OF THIS TRIBUNAL RENDERED IN ASSESSEES OWN CASE FOR AYS 20 08-09, 2009-10 AND 2010-11, ITA NOS. 4452/M/2013 & ORS., COMMON OR DER DATED 31/05/2017 AND THEREFORE, THE ISSUE IS SQUARELY COV ERED IN ASSESSEES FAVOR BY EARLIER ORDER OF THE TRIBUNAL. THE REVENUE COULD NOT PLACE ON RECORD ANY MATERIAL TO ESTABLISH THAT THE SAID DECI SION IS NOT APPLICABLE TO THE FACTUAL MATRIX OR THE SAID DECISION HAS SUBSEQU ENTLY BEEN REVERSED BY ANY HIGHER JUDICIAL FORUM, IN ANY MANNER. 3.1 IN THE ABOVE BACKGROUND, WE FIND THAT THE ASSES SEE BEING RESIDENT CORPORATE ASSESSEE STATED TO BE ENGAGED IN HIRING A ND LEASING OF PROPERTIES WAS ASSESSED FOR YEAR UNDER CONSIDERATIO N U/S 143(3) ON ITA NO.7268/MUM/2018 M/S. BANZAI ESTATES PVT. LTD. ASSESSMENT YEAR :2012-13 3 14/03/2015 WHEREIN THE LOSS WAS DETERMINED AT RS.45 6.71 LACS AS AGAINST RETURNED LOSS OF RS.529.63 LACS FILED BY TH E ASSESSEE ON 27/09/2012. 3.2 DURING ASSESSMENT PROCEEDINGS, IT TRANSPIRED TH AT THE ASSESSEE EARNED RENTAL INCOME OF RS.304.86 LACS FROM SELF-OW NED PROPERTY SITUATED AT MBC TOWER, TTK ROAD, CHENNAI AND OFFERE D THE SAME AS INCOME FROM HOUSE PROPERTY. THE LD.AO, RELYING UPON ASSESSMENT OF EARLIER YEARS, CHOSE TO TAX THE SAME UNDER THE HEAD PROFIT & GAINS FROM BUSINESS / PROFESSION. 3.3 THE LD. CIT(A), FOLLOWING THE CITED DECISION OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR AYS 2008-09 TO 2010-11 COMM ON ORDER DATED 31/05/2017, DIRECTED LD. AO TO ASSESS THE SAME UNDE R THE HEAD INCOME FROM HOUSE PROPERTY AS OFFERED BY THE ASSESSEE . AGGRIEVED THE REVENUE IS UNDER FURTHER APPEAL BEFORE US. 4. AS EVIDENT FROM ABOVE-STATED FACTUAL MATRIX, THE LD. CIT(A) HAS MERELY FOLLOWED THE BINDING DECISION OF THIS TRIBUN AL FOR EARLIER YEARS AND THEREFORE, NO FAULT COULD BE FOUND IN THE SAME. THE REVENUE IS UNABLE TO ESTABLISH THAT THE SAID DECISION IS NOT APPLICABLE TO THE GIVEN FACTUAL MATRIX OR THE SAID DECISION HAS SUBSEQUENTLY BEEN R EVERSED BY ANY HIGHER JUDICIAL FORUM, IN ANY MANNER. THEREFORE, RE SPECTFULLY FOLLOWING THE CONSISTENT VIEW OF TRIBUNAL, WE DISMISS THE APPEAL. ITA NO.7268/MUM/2018 M/S. BANZAI ESTATES PVT. LTD. ASSESSMENT YEAR :2012-13 4 5. RESULTANTLY, THE APPEAL STANDS DISMISSED IN TERM S OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH FEBRUARY, 2020. SD/- SD/- (MAHAVIR SINGH) (M ANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 05/02/2020 SR.PS, JAISY VARGHESE !'! / COPY OF THE ORDER FORWARDED TO : 1. &( / THE APPELLANT 2. )*&( / THE RESPONDENT 3. 1 ( ) / THE CIT(A) 4. 1 / CIT CONCERNED 5. 23),4 , 4 , / DR, ITAT, MUMBAI 6. 3567 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.