LAKSHMI BUILDER & DEVELOPERS, MUMBAI V. ACIT 31(2), MUMBAI

MA 218/MUM/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7049 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 26-03-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NISHANT SAMAIYA LD
• Assessee Lawyers: R C JAIN LD
• Keywords: Business income

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM MISCELLANEOUS APPLICATION NO.218/MUM/2019 [ARISING OUT OF I.T.A. NO.2997/MUM/2016] ( / ASSESSMENT YEAR: 2010-11) LAKSHMI BUILDER & DEVELOPERS A-102/103, SAVGAN HEIGHTS RTO LANE, FOUR BUNGLOWS NR.AMBEDKAR HALL ANDHERI(W), MUMBAI / VS. ASSISTANT COM MISSIONER OF INCOME TAX-31(2) PRATYAKSHKAR BHAWAN, C-13 4 TH FLOOR, BANDRA KURLA COMPLEX BANDRA(E), MUMBAI-400 051 ./ ./PAN/GIR NO. AABFL-4973-E ( /APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI R.C.JAIN, LD. AR R EVENUE BY : SHRI NISHANT SAMAIYA, LD. DR !' / DATE OF HEARING : 14/06/2019 #$ !' / DATE OF PRONOUNCEMENT : 31/07/2019 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 1. BY WAY OF THIS MISCELLANEOUS APPLICATION FOR ASS ESSMENT YEAR [AY] 2010-11, THE ASSESSEE SEEKS RECALL OF TRIBUNAL ORDE R PASSED IN ITA NO. 2997/MUM/2016 DATED 05/09/2018. 2 2.1 DRAWING OUR ATTENTION TO THE APPLICATION, LD. A UTHORIZED REPRESENTATIVE FOR ASSESSEE [AR], SHRI R.C.JAIN, SUBMITTED THAT DURING HEARING, THE ATTENTION WAS DRAWN TO THE RELEVANT CL AUSES OF PARTNERSHIP DEED TO SUBMIT THAT LEASING / RENTING OF PROPERTIES WAS NOT THE OBJECTIVE OF THE ASSESSEE AND THE INCOME FROM LEASING WAS NOT SU BSTANTIAL INCOME OF THE ASSESSEE AND THEREFORE, THE AFORESAID INCOME WA S ASSESSABLE AS INCOME FROM HOUSE PROPERTY AS SUPPORTED BY THE DECISION OF HONBLE SUPREME COURT RENDERED IN CHENNAI PROPERTIES & INVE STMENT LTD. (CA NO. 4494 OF 2014), RAYALA CORPORATION PVT. LTD. (CA NO. 6437 OF 2016) AND RAJ DADARKAR & ASSOCIATES (CA NO. 6455 OF 2017). THE SA ID DECISIONS, AS PER THE SUBMISSIONS OF LD. COUNSEL, HAVE REMAINED TO BE CONSIDERED BY THE BENCH RESULTING IN MISTAKE APPARENT FROM RECORD WIT HIN THE MEANING OF SECTION 254(2). OUR ATTENTION IS ALSO DRAWN TO THE OTHER DECISION IN CIT V/S GUNDECHA BUILDERS [ITA NI. 347 OF 2016] TO SUPPORT THE SAID SUBMISSIONS. 2.2 THE LD. COUNSEL, IN THE PLEADING, HAS FURTHER S UBMITTED THAT THE BENCH DID NOT APPRECIATE THE LEASE AGREEMENT AND THE SERV ICE CHARGES AGREEMENT IN THE PROPER PERSPECTIVE AND THE SERVICE AGREEMENT WAS TOTALLY DEPENDENT ON LEASE AGREEMENT AND COULD NOT STAND INDEPENDENT OF THE LEASE AGREEMENT. RELIANCE HAS BEEN PLACED ON THE DECISION RENDERED IN CIT V/S J.K. INVESTORS LTD. (ITA NO. 1089/2011). NON CONSID ERATION OF THE SAID DECISION, IN THE SUBMISSIONS OF LD. COUNSEL, WOULD CONSTITUTE MISTAKE APPARENT FROM RECORD. 2.3 IN PARA-7 OF THE APPLICATION, IT HAS BEEN SUBMI TTED THAT THE BENCH HAS NOT CONSIDERED THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE LD. CIT(A) WHICH WOULD CONSTITUTE MISTAKE APPARENT FROM RECORD . 3 IN THE ABOVE BACKGROUND, THE LD. COUNSEL SOUGHT REC ALL OF THE ORDER RELYING UPON THE DECISION IN HONDA SIEL POWER PRODUCTS LTD. V/S CIT (295 ITR 466). 3. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTH ER HAND, SUBMITTED THAT THE DECISION HAS BEEN RENDERED AFTER CAREFUL C ONSIDERATION OF THE FACTUAL MATRIX AND REVISITING THE ISSUE AGAIN WOULD AMOUNT TO REVIEW, WHICH IS NOT PERMISSIBLE UNDER LAW. 4. WE HAVE CAREFULLY CONSIDERED THE APPLICATION AND GONE THROUGH THE ORDER OF THE TRIBUNAL. UPON PERUSAL OF PARA 6.1 TO 6.3 OF THE ORDER, WE FIND THAT THE DECISION HAS BEEN RENDERED AFTER APPRECIAT ING THE PARTNERSHIP DEED, RELEVANT AGREEMENTS AND AFTER ANALYZING THE F INANCIAL STATEMENTS OF THE ASSESSEE. AT PARA 6.1, UPON PERUSAL OF DOCUMENT S, BENCH REACHED UPON A CONCLUSION THAT THE ASSESSEE DID NOT LET OUT THE PROPERTY SIMPLICITER BUT UNDERTOOK TO PROVIDE MAINTENANCE AND SERVICES O F VARIED NATURE. THE SAID CONCLUSION WOULD SHOW THAT IT WAS NOT MERELY A CASE OF LETTING OUT OF A PROPERTY. AT PARA 6.2, IT HAS BEEN NOTED THAT CERTA IN LEASED OUT PORTION WAS SOLD DURING THE YEAR WHICH HAS BEEN CREDITED TO PRO FIT & LOSS ACCOUNT AND OFFERED AS BUSINESS INCOME. THE SAID FACT WOULD DEM ONSTRATE THE INTENTION OF THE ASSESSEE. AT PARA 6.3, IT HAS BEEN CONCLUDED THAT THE MAIN OBJECTIVE OF THE ASSESSEE WAS NOT TO EARN LEASING INCOME BUT TO EXPLOIT THE PROPERTY COMMERCIALLY IN A BUSINESS-LIKE MANNER. THE LEASING WAS FOUND TO BE INTRINSIC PART OF TRADING OPERATIONS. THEREFORE, TH E DECISION HAS BEEN RENDERED UPON CAREFUL ANALYSIS OF THE FACTUAL MATRI X AND WE DO NOT FIND ANY MISTAKE APPARENT FROM RECORD WHICH WOULD REQUIRE RE CALL OF THE ORDER U/S 254(2) OF THE ACT. THE APPLICATION SEEKS NOTHING MO RE THAN REVIEW OF THE 4 ORDER, WHICH IS NOT PERMISSIBLE UNDER LAW. FINDING NO SUBSTANCE IN THE APPLICATION, WE DISMISS THE SAME. 5. IN RESULT, THE APPLICATION STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JULY, 2019. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) % %% % / JUDICIAL MEMBER % %% % / ACCOUNTANT MEMBER % MUMBAI; DATED : 31/07/2019 SR.PS:-JAISY VARGHESE / COPY OF THE ORDER FORWARDED TO : 1. $%& / THE APPELLANT 2. '(%& / THE RESPONDENT 3. )) ( $ ) / THE CIT(A) 4. )) / CIT CONCERNED 5. *+', , )$, , / DR, ITAT, MUMBAI 6. +./0 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.