M.S GIFT HOLDING PVT. LTD, MUMBAI V. THE ITO 8(1)(4), MUMBAI

ITA 7731/MUM/2007

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8908 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 12-01-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 31-12-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: A K NAYAK
• Keywords: Gift
• Section: 143(3)

Judgement Text

I.T.A NO.7731 MUM/2007 ASSESSMENT YEAR: 2004-2005 1 IN THE INCOME TAX APPELLATE TRIBUNAL, G BENCH, MUMBAI. [ CORAM: PRAMOD KUMAR, AM AND V. DURGA RAO, JM ] I.T.A NO.7731 MUM/2007 ASSESSMENT YEAR: 2004-2005 GIFT HOLDING PVT. LTD. .. APPELLANT 1, MEERMAID, JUHU TARA ROAD, JUHU, MUMBAI-49 PA NO. AAACG 5854 F VS INCOME TAX OFFICER WARD 8(1)(4) ,. RESPONDEN T AAYAKAR BHAVAN, M.K. ROAD, MUMBAI. J.D.MISTRY, FOR THE APPELLANT A.K. NAYAK, FOR THE RESPONDENT O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSEE HAS CALLED INTO QUESTION CORRECTNESS OF CIT(A)S ORDER DATED 10 TH OCTOBER, 2007, IN THE MATTER OF ASSESSMENT UNDER SECTIO N 143(3) FOR THE ASSESSMENT YEAR 2004-05. 2. THE SHORT ISSUE THAT WE ARE REQUIRED TO ADJUDICA TE IN THIS APPEAL IS WHETHER THE COMMISSIONER (APPEALS) WAS JUSTIFIED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN COMPUTING THE INCOME UN DER THE HEAD INCOME FROM HOUSE PROPERTY IN RESPECT OF THE INCOME FROM SERVICE CHARGES EARNED BY THE ASSESSEE FOR PROVIDING BUSINESS CENTRE FACIL ITIES. 3. BRIEFLY STATED THE MATERIAL FACTS ARE LIKE THIS. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTIC ED THAT THE ASSESSEE HAD CREDITED AN AMOUNT OF ` .5,02,366/- BEING BUSINESS SERVICE CENTRE CHARGES. THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE DECISION OF I.T.A NO.7731 MUM/2007 ASSESSMENT YEAR: 2004-2005 2 THE HONBLE SUPREME COURT IN THE CASE OF M/S. SHAMB HU INVESTMENT (P)LTD V. CIT, 263 ITR 143(SC) SHOULD NOT BE APPLIED IN THIS CASE. IN REPLY, THE ASSESSEE HAS SUBMITTED THAT SINCE THE ASSESSEE HAS DERIVED INCOME FROM A COMMERCIAL ASSET, ITS INCOME SHOULD BE TREATED AS B USINESS INCOME. THE EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTABLE TO T HE ASSESSING OFFICER AND RELYING ON THE DECISION OF THE HONBLE SUPREME COUR T IN THE CASE OF SHAMBU INVESTMENT (P)LTD (SUPRA) THE INCOME FROM THE PROPE RTY WAS TREATED AS INCOME FROM HOUSE PROPERTY. AGGRIEVED, THE ASSESS EE CARRIED THE MATTER IN APPEAL BUT WITHOUT ANY SUCCESS. 4. LEARNED REPRESENTATIVES FAIRLY ACCEPT THAT THE I SSUE IS COVERED BY THE DECISION DATED 16TH OCTOBER, 2008 IN ITA NO.6330/M/ 2003 FOR THE ASSESSMENT YEAR 2001-02 IN ASSESSEES OWN CASE OF A CO-ORDINATE BENCH OF THIS TRIBUNAL, WHEREIN, UNDER SIMILAR FACTS AND CI RCUMSTANCES, THE INCOME RECEIVED BY THE ASSESSEE FROM LETTING OUT OF THE PR OPERTY HAS BEEN HELD TO BE INCOME FROM HOUSE PROPERTY. RESPECTFULLY FOLLO WING THE DECISION OF THE CO- ORDINATE BENCH OF THIS TRIBUNAL IN ASSESSEES OWN C ASE (SUPRA), WE UPHOLD THE ORDER OF THE CIT (A) AND DECLINE TO INTERFERE. 5. IN THE RESULT, THE APPEAL STANDS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 14 TH JANUARY, 2011 SD/- (V. DURGA RAO ) (JUDICIAL MEMBER) SD/- (PRAMOD KUMAR) (ACCOUNTANT MEMBER) MUMBAI, DATED 14 TH JANUARY, 2011 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),VIII, MUMBAI 4. COMMISSIONER OF INCOME TAX, MC-VIII , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH G, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI I.T.A NO.7731 MUM/2007 ASSESSMENT YEAR: 2004-2005 3 I.T.A NO.7731 MUM/2007 ASSESSMENT YEAR: 2004-2005 4