WEST PIONEER PROPERTIES (INDIA) PRIVATE LIMITED, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 5(3)(1), MUMBAI

MA 156/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6652 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 20-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T A KHAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH, MUMBAI , , , BEFORE SHRI RAJENDRA, AM AND SHRI RAM LAL NEGI, JM ./ MA NO. 156 / MUM/ 201 7 ( ARISING OUT OF ITA NO. 3104/MUM /201 5 ) ( / ASSESSMENT YEAR: 2010 - 11 ) M/S WEST PIONEER PROPERTIES (INDIA) PVT. LTD., 1002, 10 TH FLOOR, TOWER - 3, INDIABULLS FINANCE CENTRE, SENAPATI BAPAT MARG, ELPHINSTONE ROAD, MUMBAI - 400013 PAN: AAACW5756A VS. THE DY. COMMISSIONER OF INCOME TAX , CIRCLE 5 (3), (NOW DEPUTY COMMISIONER OF INCOME TAX, CIRCLE - 5(3)(1), AAYKAR BHAVAN, MUMBAI - 400020 (APPELLANT) (RESPONDENT) /ASSESSEE BY : SHRI ANUJ KISNADWA LA (AR) /REVENUE BY : SHRI T.A. KHAN (DR) / DATE OF HEARING : 16/02 /201 8 / DATE OF PRONOUNCEMENT : 14 /0 5 /2018 / O R D E R PER RAM LAL NEGI, JM THE ASSESSEE HAS FILED THE PRESENT MISC E LLANEOUS APPLICATION IN RESPECT OF ORDER DATED 20.01.2018 PASSED BY THE MUMBAI ITAT IN ASSESSEES CASE ITA NO 3104/MUM/2015 FOR THE A.Y. 2010 - 11 ON THE GROUND THAT THE ITAT HAS NOT ADJUDICATED GROUND NO. 2(A), 2(B) AND 2(C) HOLDING THAT THESE GROUNDS ARE R AISED AS ALTERNATIVE GROUNDS WITHOUT PREJUDICE TO GROUND NO 1 , IN RESPECT OF THE ADDITION ON ACCOUNT OF NOTIONAL INCOME AMOUNTING TO 7,37,68,263/ - FOR AY 2010 - 11. 2 M.A. NO . 1 56 /MUM/2017 ASSESSMENT YEAR S : 2010 - 11 2. IN VIEW OF THE AFORESAID FACTS THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT G ROUND NO 1(A) AND (B) DEAL WITH THE ISSUE WHETHER LEASE RENTAL INCOME IS TO BE TREATED AS INCOME FROM HOUSE PROPERTY OR INCOME FROM BUSINESS WHEREAS GROUND NO 2(A), 2(B) AND 2(C) ARE RAISED AGAINST TAXING THE NOTIONAL LEASE RENTAL INCOME CREDITED TO THE PR OFIT AND LOSS ACCOUNT IN ACCORDANCE WITH AS - 19. 3. THE LD. COUNSEL FURTHER SUBMITTED THAT THE TRIBUNAL HAS DECIDED THE SIMILAR ISSUE IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2009 - 10 BY FOLLOWING THE DECISION OF THE HONBLE BOMBAY HIGH COURT REND ERED IN THE CASE OF RELIANCE INDUSTRIES INFRASTRUCTURE LTD. 379 ITR 340 AND HELD THAT NOTIONAL LEASE RENTAL CREDITED TO THE P & L ACCOUNT SHOULD NOT BE INCLUDED WHILE DETERMINING INCOME OF THE ASSESSEE. 4. IN THE LIGHT OF THE AFORESAID FACTS, THE LD. COUNS EL FURTHER SUBMITTED THAT THE IMPUGNED ORDER DATED 20.01.2017 MAY BE RECALLED FOR FRESH HEARING OR THE GROUNDS WHICH WERE NOT ADJUDICATED VIDE THE SAID ORDER, MAY BE DECIDED BY FOLLOWING THE DECISION OF THE HONBLE HIGH COURT REFERRED ABOVE. 5 . AFTER HEARI NG THE LD. DEPARTMENTAL REPRESENTATIVE, WE PERUSED THE RELEVANT MATERIAL ON RECORD IN THE LIGHT OF THE SUBMISSIONS OF THE LD. COUNSEL. WE NOTICE THAT THE BENCH HAS TAKEN THESE GROUNDS AS ALTERNATIVE TO GROUNDS NO. 1(A) AND 1(B) , WHEREAS THE SAID GROUNDS AR E INDEPENDENT GROUNDS. IN OUR CONSIDERED OPINION, THIS IS A MISTAKE APPARENT WHICH IS REQUIRED TO BE RECTIFIED. WE ACCORDINGLY RE - CALL THE ORDER DATED 20.01.2017 FOR THE LIMITED PURPOSE OF 3 M.A. NO . 1 56 /MUM/2017 ASSESSMENT YEAR S : 2010 - 11 ADJUDICATING GROUND NO 2(A) TO 2(C) OF THE ASSESSEES APPEAL ITA N O . 3104/MUM/2015) . REGISTRY IS DIRECTED TO FIX THE MATTER BEFORE THE REGULAR BENCH. IN THE RESULT, MISC. APPLICATION FILED BY THE ASSESSEE FOR A SSESSMENT YEAR 2010 - 2011 IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH MAY , 2018 . SD/ - SD/ - ( RAJENDRA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 14 / 05 / 201 8 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A ) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI