SHREEJI ENTERPRISES, V. ASST CIT CEN CIR 43,

MA 210/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3781 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: misc
• Appeal Filed On: 07-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIDDARAMAPPA K NAVAR
• Assessee Lawyers: V MOHAN
• Keywords: Business income; Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER MA NO.210/M/2015 (ARISING OUT OF ITA NO.2196/M/2013 DATE OF DECISION :14.08.2015) ASSESSMENT YEAR: 2009-10 M/S. SHREEJI ENTERPRISES, OLD S.NO.677(7A), NEW S. NO.277, NEAR TEMBA HOSPITAL, FATAK ROAD, BHAYANDAR (WEST), THANE 401 101 PAN: ABIFS 1322G VS. ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -43, 659, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI - 400020 (APPELLANT) (RESPONDENT) MA NO.211/M/2015 (ARISING OUT OF ITA NO.640/M/2014 DATE OF DECISION:14.08.2015) ASSESSMENT YEAR: 2009-10 M/S. SHREEJI EXHIBITORS, OLD S.NO.677(7A), NEW S. NO.277, NEAR TEMBA HOSPITAL, FATAK ROAD, BHAYANDAR (WEST), THANE 401 101 PAN: ABCFS 4464M VS. ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -41, 659, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI - 400020 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI V. MOHAN, A.R. REVENUE BY : SHIDDARAMAPPA K. NAVAR, D.R. DATE OF HEARING : 04.12.2015 DATE OF PRONOUNCEMENT : 04.12.2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE ABOVE TITLED MISCELLANEOUS APPLICATIONS HAVE B EEN MOVED BY THE TWO DIFFERENT ASSESSEES FOR RECTIFICATION OF THE ORDER UNDER SECTION 254 OF THE ACT MA NOS.210 & 211/M/2015 (ARISING OUT OF ITA NOS.2196/M/2013 & 640/M/2014 DATE OF DECISION:14.08.2015) M/S. SHREEJI EXHIBITORS 2 PLEADING THAT A MISTAKE APPARENT ON RECORD HAS OCCU RRED IN THE COMMON ORDER DATED 14.08.15 PASSED IN ITA NOS.640/M/2014 & 2196/ M/2013. 2. THE ABOVE STATED ITA NOS.640/M/2014 & 2196/M/201 3 WERE DECIDED BY A COMMON ORDER DATED 14.08.15. THE ISSUE DECIDE D IN BOTH THE ABOVE STATED APPEALS WAS COMMON WHICH HAS BEEN MENTIONED IN PARA 2 OF THE ORDER DATED 14.08.15 WHICH READ AS UNDER: 2. THE COMMON ISSUE RAISED IN BOTH THE APPEALS IS AS TO WHETHER THE INCOME/LOSS FROM LETTING OUT OF MULTIPLEX/SHOPPING MALL AND CINEMA THEATRE ALONG WITH AMENITIES IS TO BE ASSESSED UNDER HEAD ' INCOME FROM HOUSE PROPERTY' OR AS 'BUSINESS INCOME' OF THE ASSESSEE. 3. THE TRIBUNAL IN THE ORDER, DATED 14.08.15, HAS D ISCUSSED THE FACTS AND THE LAW APPLICABLE TO THE SET OF FACTS INVOLVED IN THE APPEAL IN DETAIL INCLUDING VARIOUS CASE LAWS AND FINALLY, RELYING UPON THE DEC ISION OF THE HONBLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES AN D INVESTMENT LTD. (2015) 373 ITR 673 (S.C.), HAS HELD THAT AS PER THE LAW LA ID DOWN BY THE HONBLE SUPREME COURT THAT WHERE AS PER THE MEMORANDUM OF A SSOCIATION, THE MAIN OBJECTS OF THE COMPANY WAS TO ACQUIRE AND HOLD THE PROPERTY AND TO LET OUT THE SAID PROPERTY, THEN THE EARNING OF INCOME BY LETTIN G OUT THOSE PROPERTIES IS TO BE TREATED AS BUSINESS INCOME OF THE ASSESSEE. THE TR IBUNAL, APPLYING THE SAID DECISION, HAS FINALLY CONCLUDED AS UNDER: THE FACTS OF THE CASE OF THE ASSESSEE BEFORE US AR E ON BETTER FOOTINGS. THE ASSESSEE'S OBJECTS ARE NOT IN RESPECT OF LETTIN G OF ANY PARTICULAR PROPERTY, BUT IT HAS THE MAIN OBJECTS OF ACQUIRING, CONSTRUCT ING, OPERATING AND MAINTAINING OF THE MULTIPLEXES, BUSINESS CENTER, MA RRIAGE HALLS ETC. THE VERY OBJECT IS THE COMMERCIALLY EXPLOITATION OF THE PROPERTIES. BESIDES THAT THE ASSESSEE IS ALSO PROVIDING HOSTS OF AMENITIES A ND FACILITIES, AS DISCUSSED ABOVE, WHICH AMOUNTS TO COMPOSITE BUSINESS ACTIVITY . THUS THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ABOVE NOTED DECISIONS OF THE HON'BLE SUPREME COURT. MA NOS.210 & 211/M/2015 (ARISING OUT OF ITA NOS.2196/M/2013 & 640/M/2014 DATE OF DECISION:14.08.2015) M/S. SHREEJI EXHIBITORS 3 WE THEREFORE HOLD THAT THE INCOME/LOSS FROM THE MUL TIPLEX IS LIABLE TO BE ASSESSED AS 'BUSINESS INCOME/LOSS AND NOT AS INCOME FROM HOUSE PROPERTY. THE ASSESSEE CONSEQUENTLY IS ALSO ENTITLED TO THE CLAIM OF DEDUCTIONS IN RESPECT OF EXPENDITURE INCURRED AND DEPRECIATION ON ASSETS ETC . IN RELATION TO SUCH INCOME. 4. NOW IN THE ABOVE APPLICATIONS MOVED BY THE ASSES SEES, IT HAS BEEN ASSERTED THAT IN THE ORDER DATED 14.08.15 IT HAS NO T BEEN SPECIFICALLY DIRECTED THAT THE RENT RECEIVED FROM VARIOUS SERVICES/AMENIT IES PROVIDED TO THEM IS TO BE ASSESSED AS BUSINESS INCOME/LOSS. 5. AS NARRATED ABOVE, THE VERY ISSUE HAS BEEN DISCU SSED IN DETAIL AND FINALLY AS REPRODUCED ABOVE, IT HAS BEEN SPECIFICALLY HELD THAT INCOME/LOSS FROM THE MULTIPLEX I.E. RENTAL INCOME + INCOME FROM PROVIDIN G HOSTS OF AMENITIES AND FACILITIES, AS DISCUSSED ABOVE IN THE BODY OF THE O RDER, IS A COMPOSITE BUSINESS ACTIVITY AND THAT THE INCOME OR LOSS FROM THE MULTI PLEX IS LIABLE TO BE ASSESSED AS BUSINESS INCOME/LOSS AND NOT INCOME FROM HOUSE P ROPERTY. 6. WE DO NOT FIND THAT ANYMORE RECTIFICATION IS NEE DED IN THE ORDER. ALL THE FACTS AND ISSUES INVOLVED AND THE CONCLUSION ARRIVE D CAN BE GATHERED FROM READING THE ORDER. IT IS NOT THE WHIMS AND WISHES OF THE ASSESSEE OR THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE A O) THAT THIS TRIBUNAL SHOULD WRITE THE ORDER IN A PARTICULAR MANNER. WHEN THE O RDER IS SELF SPEAKING DETAILED ONE AND THE FINDINGS ARRIVED AT ARE CLEAR, UNAMBIGU OUS AND DECIPHERABLE, THERE IS NO SCOPE OF ANY INTERFERENCE IN THE SAID ORDER O NLY BECAUSE THE ASSESSEE OR THE CONCERNED AO WANTS THAT THE CONCLUSION SHOULD B E WRITTEN IN A PARTICULAR MANNER. TO BE MORE CLEAR, IT HAS BEEN SPECIFICALLY HELD IN THE ORDER DATED 14.08.15 THAT THE LETTING OUT OF THE PROPERTY AND T HE PROVIDING HOSTS OF AMENITIES AND FACILITIES IS A COMPOSITE BUSINESS AC TIVITY AND THE INCOME THERE FROM IS TO BE ASSESSED AS BUSINESS INCOME AND NOT I NCOME FROM HOUSE PROPERTY. WE DO NOT FIND THAT ANYMORE CLARIFICATION IS NEEDED IN THIS RESPECT. HENCE, MA NOS.210 & 211/M/2015 (ARISING OUT OF ITA NOS.2196/M/2013 & 640/M/2014 DATE OF DECISION:14.08.2015) M/S. SHREEJI EXHIBITORS 4 THERE IS NO MERIT IN THE ABOVE MISCELLANEOUS APPLIC ATIONS MOVED BY THE RESPECTIVE ASSESSEES AND THE SAME ARE ACCORDINGLY D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04.12.2015. SD/- SD/- (R.C. SHARMA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 04.12.2015. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.