Sri. KRISHNA BHOJWANI, MUMBAI V. ITO -19(3)-2, MUMBAI

ITA 7510/MUM/2005

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9270 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2010
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 19-10-2009
• Assessment Year: 2002-2003
• Appeal Filed On: 23-12-2005
• Court: TRIBUNAL
• Department Lawyers: VIKRAM GAUR
• Assessee Lawyers: YOGESH A THAR
• Keywords: Business income; Depreciation
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI R.K. PANDA, AM & SMT. ASHA VIJAYARAGHAVAN, JM I.T.A. NO. 7510/MUM/2005 (ASSESSMENT YEAR 2002-03) SHRI KRISHNA N. BHOJWANI SAMIR COMPLEX, FIRST FLOOR, ST. ANDREWS ROAD, BANDRA (W), MUMBAI-400 050 PAN: AIMPB4570C VS. INCOME-TAX OFFICER 19(3)-2 MUMBAI-20 APPELLANT RESPONDENT APPELLANT BY: MR. YOGESH A. THAR RESPONDENT BY: MR. VIKRAM GAUR O R D E R DATE OF HEARING: 20.01.2010 DATE OF ORDER: 22.01.2010 PER R.K. PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 5 TH SEPTEMBER, 2005 OF THE CIT(A)-XIX, MUMBAI RELATING TO ASSESSMENT YEAR 2002-03. 2. IN GROUNDS OF APPEAL NO. 1, THE ASSESSEE HAS CHALL ENGED THE ORDER OF THE CIT(A) IN UPHOLDING THE VALIDITY OF RE OPENING OF ASSESSMENT U/S. 147/148 OF THE INCOME-TAX ACT, 1961 (THE ACT) MADE BY THE ASSESSING OFFICER. THE LEARNED COUNSE L FOR THE ASSESSEE DID NOT PRESS THIS GROUND FOR WHICH THE LEARNED DR HAS NO OBJECTION. ACCORDINGLY THIS GROUND BY THE ASSESSEE IS DISMISSE D AS NOT PRESSED. 3. IN GROUNDS OF APPEAL NO. 2, THE ASSESSEE HAS CHALLE NGED THE ORDER OF THE CIT(A) IN HOLDING THAT THE LICENCE FEE S IN RESPECT OF COMPOSITE LETTING ACTIVITY CARRIED ON BY THE ASSESS EE ARE CHARGEABLE I.T.A. NO. 7510/MUM/2005 SHRI KRISHNA N. BHOJWANI ================== 2 TO TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY AS AGAINST BUSINESS INCOME TREATED BY THE ASSESSEE. 4. THE LEARNED COUNSEL FOR THE ASSESSEE FAIRLY CONCEDE D THAT THIS ISSUE HAS TO BE DECIDED AGAINST THE ASSESSEE IN VIE W OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF SHAMBHU INVESTMENTS REPORTED IN 263 ITR 143 (SC). IN VIEW OF THE ABOV E SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE, THIS GROUND B Y THE ASSESSEE IS DISMISSED. 5. IN GROUNDS OF APPEAL NO. 3, THE ASSESSEE CHALLENGED THE ORDER OF THE CIT(A) IN HOLDING THAT THE LICENCE FEES ARE NOT CHARGEABLE TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES. T HE LEARNED COUNSEL FOR THE ASSESSEE FAIRLY CONCEDED THAT THIS GROUND IS ALSO AGAINST THE ASSESSEE BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF SHAMBHU INVESTMENTS (SUPRA). IN VIEW O F THE ABOVE SUBMISSION BY THE LEARNED COUNSEL FOR THE ASSESSEE, THIS GROUND IS DISMISSED. 6. IN GROUNDS OF APPEAL NO. 4, THE ASSESSEE HAS CHALLE NGED THE ORDER OF THE CIT(A) IN NOT ALLOWING DEPRECIATION ON HOUSE PROPERTY. THE LEARNED COUNSEL FOR THE ASSESSEE FAIRLY CONCEDE D THAT SINCE INCOME FROM THE PROPERTY HAS TO BE TREATED AS INCOM E FROM THE HOUSE PROPERTY AND NOT AS A BUSINESS ASSET, THEREFO RE, NO DEPRECIATION COULD BE ALLOWED AND THE GROUND HAS TO BE DECIDED AGAINST THE ASSESSEE. IN VIEW OF THE ABOVE ADMISS ION BY THE LEARNED COUNSEL FOR THE ASSESSEE, THIS GROUND BY THE ASSESS EE IS DISMISSED. 7. GROUNDS OF APPEAL NO. 5 RELATES TO INTEREST U/S. 23 4B AND 234C OF THE ACT. SINCE THE CHARGING OF INTEREST U/ S. 234B AND 234C IS MANDATORY AND CONSEQUENTIAL IN NATURE, THIS GROUND BY THE ASSESSEE IS DISMISSED. I.T.A. NO. 7510/MUM/2005 SHRI KRISHNA N. BHOJWANI ================== 3 8. GROUNDS OF APPEAL NO. 6 RELATES TO INITIATION OF PE NALTY PROCEEDINGS. AFTER HEARING BOTH THE SIDES, WE ARE OF THE CONSIDERED OPINION THAT THIS GROUND IS PREMATURE IN NATURE AND THEREFORE, WE DISMISS THIS GROUND. 9. GROUNDS OF APPEAL NO. 7 BY THE ASSESSEE BEING GENER AL IN NATURE IS DISMISSED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 22 ND JANUARY, 2010. SD/- (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED 22 ND JANUARY, 2010 COPY TO: (1) THE APPELLANT, (2) THE RESPONDENT, (3) THE CIT(A)-XIX, MUMBAI, (4) THE CIT-19, MUMBAI, (5) THE DR, A BENCH, ITAT, MUMBAI. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI TPRAO