GIFT HOLDINGS P. LTD, V. ITO 8(1)(4),

MA 251/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7567 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-01-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 29-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Assessee Lawyers: J D MISTRI
• Keywords: Gift; Business income; Rectification of order; Tangible material

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, B, MUMBAI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) GIFT HOLDING PRIVATE LIMITED, 1, MERMAID, JUHU TARA ROAD, JUHU, MUMBAI-400049 PAN: AABCG 5854 E INCOME TAX OFFICER, WARD 8(1)(4), 2 ND FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI-400020 APPLICANT V/S RESPONDENT DATE OF HEARING : 25.11.2011 DATE OF PRONOUNCEMENT : APPLICANT BY : SHRI J.D. MI STRI RESPONDENT BY : SHRI P.C.MAURY A O R D E R PER VIJAY PAL RAO (JM) THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PRONOUNCED ON 16.10.2008 OF THIS TRIBUNAL. 2. THE ASSESSEE HAS RAISED THREE-FOLD GRIEVANCES IN THIS MISCELLANEOUS APPLICATION AGAINST THE IMPUGNED ORDER OF THIS TRIBUNAL. THE FIRST GROUND RAISED BY THE MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 2 APPLICANT IS THAT THE IMPUGNED ORDER WAS NOT PASSED WITHIN THE PERIOD OF THREE MONTH FROM THE DATE OF HEARING. 3. WE HAVE HEARD THE LEARNED SR.COUNSEL SHRI J.D.MISTRI ON BEHALF OF THE ASSESSEE AND THE LEARN ED DR AT LENGTH. THE LD. SR.COUNSEL FOR THE ASSESSEE HA S SUBMITTED THAT AS PER THE PROVISIONS OF ACT, THE O RDER OF THE TRIBUNAL SHOULD BE PRONOUNCED WITHIN A PER IOD OF THREE MONTHS FROM THE DATE OF HEARING. HE HAS POINTED OUT THAT THE HEARING OF THE APPEAL IN THIS MATTER WAS CONCLUDED ON 24.1.2008 AND THE ORDER FINALLY WAS PRONOUNCED BY THE TRIBUNAL ON 16.10.200 8 WHICH IS BEYOND THE PERIOD OF THREE MONTHS FROM THE DATE OF CONCLUSION OF THE ARGUMENTS OF THE APPEAL . THUS, THE LD. SR.COUNSEL FOR THE ASSESSEE HAS SUBMI TTED THAT IN VIEW OF THE DECISION OF THE HONBLE JURISDI CTIONAL HIGH COURT IN THE CASE OF SHIVSAGAR VEG. RESTAURANT V/S ACIT (2009) 317 ITR 433 (BOM), THE IMPUGNED ORDER PRONOUNCED BELATEDLY IS NOT SUSTAINABLE AND LIABLE TO BE SET ASIDE/RECALL FOR FRESH HEARING. HE HAS ALSO RE FERRED THE DECISION OF THE HONBLE GOA BENCH OF BOMBAY HIG H COURT IN THE CASE OF SHRI PRADEEP K.P.SANGODKER V/S MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 3 STATE OF GOA AND DISTRICT CONSUMER DISPUTE REDRESSA L FORUM, ALTO PORVORIM IN WP NO.281 OF 2006 ORDER DAT ED 24.8.2006 AND SUBMITTED THAT THE JURISDICTIONAL HI GH COURT HAS ISSUED THE DIRECTIONS WHICH ARE APPLICABL E TO ALL THE QUASI-JUDICIAL AUTHORITIES/BODIES AND THE O RDER SHALL NOT BE DELAYED BEYOND TWO MONTHS FROM THE DAT E OF CONCLUSION OF ARGUMENTS. THE LD. SR.COUNSEL FO R THE ASSESSEE ALSO REFERRED THE MINUTES OF MEETING OF VICE-PRESIDENTS OF THIS TRIBUNAL HELD ON 26.2.2003 WHEREIN THE INSTRUCTIONS WERE ISSUED FOR DISPOSING OF THE APPEALS IN THE ENSUING MONTHS TO WHICH THE HEAR ING HAS BEEN CONCLUDED. THUS, THE LD. SR.COUNSEL HAS SUBMITTED THAT WHEN THERE IS A ABNORMAL DELAY IN PRONOUNCING THE ORDER THEN IT IS A SUFFICIENT REA SON FOR RECALLING OF THE IMPUGNED ORDER FOR FRESH HEARING. 4. ON THE OTHER HAND, THE LEARNED DR HAS OPPOSED CONTENTIONS OF THE LEARNED SR.COUNSEL FOR THE ASSES SEE AND SUBMITTED THAT THE ORDER IN THE ORDINARY COURSE HAS TO BE PRONOUNCED WITHIN A PERIOD OF TWO MONTHS AND NOT LATER THAN THREE MONTHS BUT IN THE CASES OF EXCEPTIONAL CIRCUMSTANCES, ONCE THE ORDER IS MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 4 PRONOUNCED EVEN AFTER THE EXPIRY OF THREE MONTHS, THE SAME CANNOT BE HELD AS ILLEGAL ON THE GROUND OF DEL AY. 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAS E PROCEEDINGS AS WELL AS RELEVANT PROVISIONS OF LAW. THE TIME PERIOD AND PROCEDURE FOR PRONOUNCEMENT HAS BE EN PRESCRIBED UNDER RULE 34 (5) AS UNDER : ORDER TO BE PRONOUNCED, SIGNED AND DATED 34. (1) (2) (3) (4) (5) THE PRONOUNCEMENT MAY BE IN ANY OF THE FOLLOWING MANNERS:- (A) THE BENCH MAY PRONOUNCE THE ORDER IMMEDIATELY UPON OF THE HEARING. (B) IN CASE WHERE THE ORDER IS NOT PRONOUNCED IMMEDIATELY ON THE CONCLUSION OF THE HEARING, THE BENCH SHALL GIVE A DATE FOR PRONOUNCEMENT. (C) IN A CASE WHERE NO DATE OF PRONOUNCEMENT IS GIVEN BY THE BENCH, EVERY ENDEAVOUR SHALL BE MADE BY THE BENCH TO PRONOUNCE ORDER WITHIN 60 DAYS FROM THE DATE ON WHICH THE HEARING OF THE CASE WAS CONCLUDED AND EXTRAORDINARY CIRCUMSTANCES CIRCUMSTANCES OF THE CASE, THE BENCH SHALL FIX A FUTURE DAY FOR PRONOUNCEMENT OF THE ORDER AND SUCH DATE SHALL NOT ORDINARILY BE A DAY BEYOND A FURTHER PERIOD OF 30 DAYS AND DUE NOTICE OF THE DAY SO FIXED SHALL BE GIVEN ON THE NOTICE BOARD. THUS, AS PER SUB-RULE (5) OF RULE 34 OF THE INCO ME TAX APPELLATE RULES,1963 IN CASE WHERE THE ORDE R IS MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 5 NOT PRONOUNCED IMMEDIATELY ON CONCLUSION OF THE HEARING AND NO DATE OF PRONOUNCEMENT IS GIVEN THEN EVERY ENDEAVOUR SHALL BE MADE BY THE BENCH TO PRONOUNCE THE ORDER WITHIN A PERIOD OF 60 DAYS FROM THE DATE ON WHICH THE HEARING OF THE CASE WAS CONCLUDED . THIS SUB-RULE FURTHER FACILITATE PROVIDES THAT THE PRONOUNCEMENT OF THE ORDER AFTER THE PERIOD OF 60 D AYS ORDINARILY BE WITHIN FURTHER PERIOD OF 30 DAYS PR OVIDES THAT DUE NOTICE OF THE DATE FIXED FOR PRONOUNCEMEN T SHALL BE GIVEN ON THE NOTICE BOARD. THUS, THE TERM ORDINARILY USED IN THE SUB-RULE (5) OF RULE 34 POST ULATE THAT THE TIME LIMIT OF FURTHER 30 DAYS IS NOT FIN AL BUT IS FLEXIBLE DEPENDING UPON THE NATURE AND CIRCUMSTANCES. THE PRONOUNCEMENT OF THE ORDER IS EXPECTED TO BE WITHIN A PERIOD OF 60 DAYS AND IN C ASE OF EXCEPTIONAL CIRCUMSTANCES, IT MAY BE PRONOUNC ED WITHIN A FURTHER PERIOD OF 30 DAYS. THE DECISION R ELIED ON BY THE LD. SR.COUNSEL FOR THE ASSESSEE FOR THE ASSESSEE ALSO DIRECTS THAT THE ORDER SHOULD BE PRONOUNCED WITHIN A PERIOD THREE MONTHS FROM THE D ATE ON WHICH THE CASE IS CLOSED FOR JUDGMENT. IT IS PERTINENT TO NOTE THAT IN THE CASE IN HAND, THERE A RE CERTAIN DEVELOPMENTS WITH RESPECT TO THE LONG LEAVE AND TRANSFER OF ONE OF THE MEMBER CONSTITUTION THE BENC H MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 6 WHO HAVE HEARD THE APPEAL. IT IS TRANSPIRED FROM THE RECORD THAT ONE OF THE MEMBERS SHRI D.K.SHRIVAST AVA, AM, SEATING IN THE BEACH WHO HEARD THE APPEAL OF THE ASSESSEE WAS TRANSFERRED FROM MUMBAI BENCHES TO AHMEDABAD BENCHES OF THIS TRIBUNAL. THEREFORE, IT APPEARS THAT DUE TO TRANSFER OF ONE OF THE MEMBERS OF THE BENCH WHO HAVE HEARD THE APPEAL, THERE EXISTS SOME EXTRA ORDINARY CIRCUMSTANCES WHICH LEAD TO THE DELAY IN PRONOUNCEMENT OF THE ORDER. IN THE ABSEN CE OF ANY TANGIBLE MATERIAL, GLARING FACTS AND CIRCUMSTANCES OF THE CASE TO SHOW THAT BY THE REASO N OF DELAY IN PRONOUNCEMENT OF THE ORDER, THE BENCH HA S IGNORED OR FAILED TO CONSIDER MATERIAL FACTS OR LEGAL POINT OF ARGUMENT OF THE ASSESSEE. MERELY BECAUSE, THERE IS A DELAY DUE TO SOME EXCEPTIONAL CIRCUMSTAN CES, WOULD NOT RENDER THE DECISION OF THE TRIBUNAL AS IL LEGAL OR VOID. THEREFORE, IN OUR VIEW WHEN THE ASSESSEE HAS NOT BROUGHT ON RECORD ANYTHING TO ESTABLISH PRIMA F ACIE THAT ANY MATERIAL FACT OR CONTENTION WAS LEFT WITHO UT CONSIDERING BY THE TRIBUNAL WHILE PASSING THE IMPUG NED ORDER. ACCORDINGLY, WE DO NOT AGREE WITH THE CONTENTIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE ON THIS POINT, THE SAME IS REJECTED. MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 7 6. THE NEXT POINT RAISED BY THE ASSESSEE IN THIS MISCE.PETITION IS THAT THE IMPUGNED ORDER HAS BEEN SIGNED BY THE MEMBERS WHO HAVE HEARD THE MATTER BU T HAS BEEN PRONOUNCED BY THE DIFFERENT MEMBER ON 16.10.2008. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT IT IS NOT PRACTICALLY POSSIBLE THAT THE IMPUGNED ORDER HAS BEEN SIGNED BY THE DIFFERENT MEMBERS AND PRONOUNCED BY THE DIFFERENT MEMBERS ON THE SAME DATE. 7. WE HAVE CAREFULLY GONE THROUGH THE APPEAL FILE AND FOUND THAT BEFORE PRONOUNCEMENT OF THE ORDER ON 16.10.2008 THE ORDER WAS SIGNED BY BOTH THE MEMBERS WHO HAVE HEARD THE APPEAL IN QUESTION. SINCE ONE O F THE MEMBERS WAS ALREADY TRANSFERRED WAS NOT AVAILAB LE AT MUMBAI, THEREFORE, ANOTHER ACCOUNTANT MEMBER SHR I R.S.SYAL WAS NOMINATED TO SUBSTITUTE D.K.SHRIVASTAV A, AM WHO WAS TRANSFERRED, THEREFORE, THERE IS NO ILLEGALITY OR DEFECT IN THE PROCESS OF PRONOUNCEMEN T OF THE IMPUGNED ORDER. ONCE, THE ORDER WAS READY FOR PRONOUNCEMENT AS SIGNED BY BOTH THE MEMBERS CONSISTING THE BENCH, THEN AS PER RULE 34(6) OF T HE INCOME TAX APPELLATE PROCEDURE RULES, 1963, THE OR DER MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 8 CAN BE PRONOUNCED BY SUCH MEMBERS AS MAY BE NOMINATED BY THE PRESIDENT, SR.VICE-PRESIDENT OR VI CE- PRESIDENT AS THE CASE MAY BE SUB-RULE (6) OF RULE 34 READS AS UNDER: RULE 34(6) 34. (1) . (2) . (3) .. (4) . (5). (6) THE ORDER OF THE BENCH SHALL ORDINARILY BE PRON OUNCED BY THE MEMBERS WHO HEARD THE APPEAL. HOWEVER, IF THE S AID MEMBERS OR ANY OF THEM IS OR ARE NOT AVAILABLE FOR PRONOUNCEMENT FOR ANY REASON, THEN THE ORDER WILL B E PRONOUNCED BY SUCH MEMBER OR MEMBERS AS MAY BE NOMINATED BY THE PRESIDENT, SENIOR VICE-PRESIDENT, VICE- PRESIDENT, OR SENIOR MEMBER, AS THE CASE MAY BE. THUS, IN THE CASE IN HAND, THE PROPER PROCEDURE WA S FOLLOWED FOR PRONOUNCEMENT OF THE ORDER BY SUBSTITU TING THE MEMBER WHO WAS NOT AVAILABLE FOR PRONOUNCEMENT BY THE REASONS OF HIS TRANSFER FROM MUMBAI TO AHMEDABAD. HENCE, WE DO NOT FIND ANY SUBSTANCE OR MERITS IN THE PETITION OF THE LEARNED COUNSEL FOR THE ASSESSEE. 8. THE LAST POINT RAISED BY THE ASSESSEE IN THE MISCELLANEOUS PETITION IS AGAINST THE FINDING OF T HIS MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 9 TRIBUNAL. THE LEARNED SR.COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE FINDING OF THE TRIBUNAL ARE ERRONEOUS AND AGAINST THE DECISION AS CITED BY THE ASSESSEE DURING THE HEARING OF THE APPEAL. THE. LD.SR.COUNSEL HAS SUBMITTED THAT THE ASSESSEE PLACE D ON RECORD 2 DECISIONS IN SUPPORT OF ITS CLAIM BUT T HIS TRIBUNAL HAS GIVEN FINDING IN THE IMPUGNED ORDER W HICH IS CONTRARY TO THE DECISIONS RELIED UPON BY THE ASSESSEE. HE HAS REITERATED THE CONTENTION ON MERIT S AND SUBMITTED THAT IN VIEW OF THE DECISION RELIED U PON BY THE ASSESSEE, THE CLAIM OF THE ASSESSEE SHOULD H AVE BEEN ALLOWED TO THAT PURPOSE, THE ORDER OF THE TRIB UNAL SHOULD BE RECALLED. 9. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT THE TRIBUNAL DECIDED THE ISSUE ON MERITS AFTER CONSIDERING THE CONTENTIONS OF BOTH PARTIES AND THEREFORE, THE SCOPE U/S 254(2), OF THE ACT THE TRIBUNAL CANNOT REVISE ITS ORDER. 10. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAREFULLY PERUSED THE RELEVANT MATERIAL AVAILABLE O N RECORD. THIS TRIBUNAL HAS DULY CONSIDERED ALL THE MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 10 CONTENTIONS AND DECISION RELIED UPON BY ASSESSEE I N THE IMPUGNED ORDER AND THEREAFTER GIVEN THE FINDING ON MERITS. IN PARAGRAPHS 6 TO 13, THE TRIBUNAL HAS RECORDED THE CONTENTIONS AS WELL AS THE DECISIONS RELIED UPON BY BOTH THE PARTIES AND THEREAFTER IN PARAGRAP HS 14-15, THE TRIBUNAL HAS GIVEN THE FINDING ON MERIT S WHICH ARE BASED ON EXCLUSIVE REASONINGS. PARAGRAPH S 6 TO 16 ARE REPRODUCED BELOW: 6. THE ASSESSEE RELIED ON THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT V/S. VST MOTORS, 226 TR 155(MAD.); CIT V/S NATIONAL STORAGE PVT. LTD. 66 ITR 596 (SC), CIT V/S NEW INDIA INDUSTRIAL LIMITED 201 ITR 208 (GUJ). 7. THE ASSESSEE ALSO SUBMITTED ALTERNATE GROUND THAT THEY HAVE INCURRED CERTAIN EXPENSES FOR PROVIDING CERTAIN SERVICES STIPULATED IN THE AGREEMENT THEREFORE, PORTION OF THE RECEIPTS SHOULD BE CONSIDERED AS HAVING BEEN TOWARDS SERVICES SO RENDERED AND THE SAME HAS TO BE EXCLUDED FROM BEING ASSESSED AS INCOME FROM HOUSE PROPERTY. 8. THE CIT(A) RELIED ON THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. INDIAN WAREHOUSING INDUSTRIES LTD. 258 ITR 93(MAD), WHEREIN IT HAS BEEN HELD THAT LETTING OUT OF WARE HOUSE SHOULD BE ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY. WHILE COMING TO THIS CONCLUSION, THE HONBLE MADRAS HIGH COURT HAS FOLLOWED THE DECISION OF THE HONBLE APEX COURT IN THE EASE OF EAST INDIA HOUSING AND LAND DEVELOPMENT TRUST LTD. VS. CIT 42 ITR 49(SC). THE CIT(A) ALSO RELIED ON THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE EASE OF CIT VS. SHAMBHU MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 11 INVESTMENT PVT. LTD(CAL.), WHEREIN IT HAS BEEN HELD THAT THE ASSESSING OFFICER WAS RIGHT IN COMPUTING RECEIPT FROM LETTING OUT TABLE SPACE AS INCOME FROM HOUSE PROPERTY. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 9. THE ID. COUNSEL FOR THE ASSESSEE SHRI J. MISTRI SUBMITTED THAT THE ASSESSEE WAS NOT ONLY PROVIDING SPACE BUT ALSO RENDERING CERTAIN SERVICES AS STIPULATED IN THE AGREEMENT. HE BROUGHT TO OUR NOTICE PARA-12 OF THE AGREEMENT (WHICH IS REPRODUCED HERE BELOW) WHEREIN IT IS STATED THAT TH E AGREEMENT RECORDED IS COMPOSITE, INDIVISIBLE AND INSEPARABLE. IT IS MUTUALLY AGREED AND DECLARED BY AND BETWEEN THE PARTIES HERETO THAT THE ALLOTMENT OF CABINS AND SPACE BY THE OWNERS TO THE CUSTOMERS FOR THE USE OF THE CUSTOMER AS AFORESAID IS INCIDENTAL TO THE AVAILING OF THE OFFICE FACILITIES, AMENITIES AND SERVICES MENTIONED HEREINABOVE AND AGREED TO BE PROVIDED BY THE OWNERS TO THE CUSTOMER AND THE CUSTOMER SHALL NOT BE ENTITLED TO AVAIL OF ONLY THE USE OF THE CABINS AND SPACE OR AVAIL THE OTHER FACILITIES SEPARATELY AND THE AGREEMENT HEREBY RECORDED IS COMPOSITE, INDIVISIBLE AND INSEPARABLE. 10. THE ASSESSEES COUNSEL SUBMITTED THAT THE PREMISES WHICH HAVE BEEN LET OUT IS FOR COMMERCIAL PREMISES, INCOME ARISING THERE FROM IS ASSESSABLE UNDER THE HEAD PROFITS AND GAINS FROM BUSINESS AND PROFESSION. THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE DECISIONS IN THE CASE OF CT VS. VST MOTORS PVT. LTD. (226 ITR 155(MAD), CIT VS. NATIONAL STORAGE PVT. LTD. 66 ITR 596 (SC) AND CIT VS. NEW INDIA INDUSTRIAL LTD. 201 ITR 208(GUJJ. MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 12 11. THE LD. COUNSEL FOR THE ASSESSEE THEREFORE SUBMITTED IN HIS ARGUMENTS IN SUPPORT OF HIS CONTENTION, THAT THE INCOME SHOULD BE TREATED AS BUSINESS INCOME FOR FOLLOWING REASONS; A) CONTROL OF PREMISE PAYMENTS WITH LESSEE I.E. ASSESSEE AND SINCE SECURITY OPENS AND CLOSES THE SHOP DURING WORKING HOURS. B) NO ADVERTISEMENT OR HOARDING OR SIGNAGE BY THE LESSEE I.E. RADHAKRISHNA FOODLAND PVT. LTD. HAS BEEN ALLOWED TO BE PUT UP AT ANY PERMANENT PLACE. C) TELEPHONE AND FAX FACILITIES HAVE BEEN PROVIDED BY THE ASSESSEE AND ELECTRICITY BILLS ARE REIMBURSED. D) STENOGRAPHER HAS BEEN PROVIDED BY THE ASSESSEE. E) THE CLAUSE 3(B), (E), (F), (G) AND (H) ALL GO TO THE SHOW THAT THERE IS AMALGAM OF VARIOUS SERVICES RENDERED BY THE ASSESSEE AND IT IS NOT JUST BARE PROPERTY WHICH IS GIVEN ON RENT. F) ALL THE 12 PREVIOUS ASSESSMENT YEARS, THE ASSESSING OFFICER HAS ASSESSED IT UNDER THE HEAD INCOME FROM BUSINESS AND ACCEPTED THE ASSESSEES CLAIM. 12. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE DECISION IN THE CASE OF ITAT CALCUTTA BENCH PFH MAL L & RETAIL MANAGEMENT LTD. VS. ITO (KOL. 119 LTD 337. THE ID. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT M/S SHAMBHU INVESTMENT HAS TO BE DISTINGUISHED AND SHALL NOT APPLY TO ASSESSEES CASE. 13. THE LD. DEPARTMENTAL REPRESENTATIVE ARGUED THAT IT IS TWO FLOOR OF CO-OPER ATIVE MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 13 HSG. SOCIETY WHICH IS RESIDENTIAL WHICH HAS BEEN LE T OUT TO RADHAKRISHNA FOODLAND PVT. LTD. AND NOT A COMMERCIAL ASSET. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE DECISION OF SHAMBHU INVESTMENTS PVT. LTD. REPORTED IN 263 JTR 143(SC) AND THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF A.R. COMPLEX VS. ITO, 212 CTR 328(MAD). THE LD. DEPARTMENTAL REPRESENTATIVE ALSO ARGUED THAT EACH ASSESSMENT YEAR IS SEPARATE BY ITSELF AND THEREFORE THE CONTENTION OF THE ASSESSEE THAT THE PROPERTY SHOULD BE ASSESSED UNDER THE HEAD BUSINESS INCOME AS THE SAME HAS BEEN CONSIDERED AS BUSINESS INCOME IN THE PAST ASSESSMENTS IS NOT CORRECT. 14. WE HAVE CAREFULLY CONSIDERED THE RELEVANT FACTS , THE. ARGUMENTS ADVANCED BY THE RIVAL PARTIES AND THE DECISIONS CITED. THE LD. COUNSEL FOR THE ASSESS EE RELIED ON THE DECISION OF THE KOLKATA ITAT IN THE CASE OF PFH MALL & RETAIL MANAGEMENT LTD. 110 LTD 337 IN SUPPORT OF THE CLAIM BUT WE FIND THAT THE FACTS OF THAT CASE ARE CLEARLY DISTINGUISHABLE TO T HE FACTS OF THE CASE BEFORE US. THE TRIBUNAL IN THAT CASE HAS FOUND AS UNDER: IN OUR VIEW, BEFORE ARRIVING AT ANY CONCLUSION ABOUT THE PARTICULAR HEAD UNDER WHICH THE INCOME DERIVED BY THE ASSESSEE IS REQUIRED TO BE ASSESSED, IT IS NECESSARY TO EXAMINE THE RELEVANT PROVISIONS OF THE AGREEMENTS THAT THE ASSESSEE HAD ENTERED INTO WITH THE USERS. IN ALL THE AGREEMENTS THE ASSESSEE IS SHOWN AS THE OWNER OF THE PREMISES IN WHICH THE SHOPPING MALLS / BUSINESS CENTERS ARE LOCATED AND THE OTHER PARTY TO THE AGREEMENT IS SHOWN AS UNDER. THE ASSESSEE, AS OWNERS OF THE PREMISES, HAS THE RESPONSIBILITY OF PROVIDING SECURITY, COMMUNICATION AND OTHER SERVICES AS SPECIFIED IN THE AGREEMENTS. THE AGREEMENTS WITH PANTALOON INDUSTRIES LTD., PFH ENTERTAINMENT LTD. AND PANTALOON FASHIONS (INDIA) LTD., ARE OPERATIVE OVER A PERIOD OF SIX YEARS COMMENCING FRONT 1.4.1999 AND THAT WITH PANTALOON MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 14 RETAIL (INDIA) LTD. IS MADE OPERATIVE FOR A PERIOD OF SEVEN YEARS COMMENCING FRONT THE DATE OF OFFICIAL LAUNCH OF THE MALL, OR, IN ANY CASE, ON OR BEFORE 15.3.2000, BY WHICH TIME THE OWNER WOULD ENDEAVOUR TO PROVIDE THE USER WITH ALL THE SERVICES AND FACILITIES AS MENTIONED IN THE AGREEMENT. THE AGREEMENT PROVIDE INTER ALIA THAT THE OWNER, I.E. THE ASSESSEE, WOULD KEEP OPEN THE BUSINESS CENTERS FROM 9 AM TO 10 PM [(10 AM TO 10PM AS PER THE AGREEMENT WITH PANTALOON RETAIL (INDIA) LTD.)] EVERY DAY. DURING THIS PERIOD THE ASSESSEE WOULD PROVIDE THE SERVICES AS MENTIONED IN THE AGREEMENTS AND WOULD PERMIT THE EMPLOYEES OF THE USER FREE ACCESS TO THE SAID SERVICES. IT HAS BEEN CLARIFIED IN THE AGREEMENTS THAT SIMILAR SERVICES A RE PROVIDED TO THE OTHER CLIENTS ALSO. THE OWNER WOULD DETERMINE THE PRECISE HOURS DURING WHICH THE STOCK- IN-TRADE OR WARES MAY BE BROUGHT INTO THE BUSINESS CENTERS TO OBVIATE ANY INCONVENIENCE TO THE USE OF THE SAID BUSINESS CENTRE AND TO FACILITATE FREE MOVEMENT OF THE VISITORS WITHIN THE SAID BUILDING. AS PER THE AGREEMENTS THE USER ARE NOT PERMITTED TO ALLOW ANY PERSON TO SLEEP OR STAY IN ANY PART OF THE BUILDING NOT TO USE THE SAME FOR RESIDENTIAL PURPOSES. THE AGREEMENTS SPECIFICALLY STIPULATE THA T THE USER IS ONLY GRANTED PERMISSIVE USE OF THE SERVICES AND FACILITIES PROVIDED IN THE PREMISES BY THE ASSESSEE. 15. BUT WE FIND THAT IN THE INSTANT CASE, THE ASSESSEE HAS IN REALITY GRANTED TENANCY TO THE CLIENTS EVEN THOUGH THE SAME IS TERMED AS CABIN SPACE. THERE IS NO RESTRICTION AS TO THE TIME PERI OD DURING WHICH THE CLIENTS CAN UTILIZE THE PREMISES A S HAS BEEN IN THE CASE BEFORE KOLKATA BENCH. IN THE CASE BEFORE KOLKATA BENCH THE OWNERSHIP OF THE PROPERTY CONTINUED TO BE WITH THE GRANTOR WHO MADE AVAILABLE THE SPACE TO THE CLIENTS FOR BUSINESS PURPOSES ONLY FROM 9 AM TO 10 PM. THE OWNER HAD FURTHER CONTROLLED THE MOVEMENT OF STOCK- IN- TRADE AND OTHER GOODS BY THE CLIENTS INTO THE PREMISES. THE USERS ARE NOT PERMITTED TO ALLOW ANY PERSON TO SLEEP OR TO STAY IN ANY PART OF THE BUILDING BEYOND MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 15 THE HOURS MENTIONED THEREIN. BUT IN THE INSTANT CASE THE CUSTOMER HAS BEEN GRANTED USE OF THE PREMISES FOR 60 MONTHS. THERE IS NO BAR ON THE TENANTS TO USE THE PREMISES DURING THE ENTIRETY OF THE 24 HOURS. FURTHER, THE ASSESSEE PROVIDES VARIOUS SERVICES LIKE FACILITY OF STENOGRAPHER, TEL EX, FAX. ETC. WHICH, IN OUR OPINION, IS ONLY SERVICES PROVIDED TO THE TENANTS WHICH WILL NOT ALTER THE BASIC CHARACTER OF THE AGREEMENT VIZ, TENANCY. IN THE CASE OF SHAMBU INVESTMENTS PVT. LTD., THE ASSESSEE HAD LET OUT PREMISES WITH ALL FURNITURE FIXTURES LIKE AIR- CONDITIONER, FOR BEING USED AS TABLE SPACE. IN THAT CASE ALSO THE OWNER IS TO PROVIDE SERVICES LIKE WATCH AND WARD STAFF, ELECTRICITY, WATER AND OTHER COMMON AMENITIES. ON THESE FACTS, THE HONBLE CALCUTTA HIGH COURT HAS FOLLOWED THAT THE RECEIPTS ARISING FROM LETTING OUT OF PROPERTY IS TO BE ASSESSED AS INCOME FROM HOUSE PROPERTY AND THIS DECISION HAS BEEN CONFIRMED BY THE SUPREME COURT IN THE CASE OF SHAMBHU PRASAD INVESTMENTS PRIVATE LTD., 263 ITR 143(SC). IN THE CASE OF CIT VS. CHENNAI PROPERTIES AND INVESTMENTS LIMITED (274 ITR 117) BEFORE THE HONBLE MADRAS HIGH COURT THE ASSESSEE WAS FORMED WITH THE MAIN OBJECT FOR ACQUIRING AND HOLDING CERTAIN IMMOVABLE PROPERTY AND LETTING OUT OF SUCH PROPERTY. HOWEVER, THE HONBLE MADRAS HIGH COURT AFTER CONSIDERING THE VARIOUS DECISIONS HELD THAT THE ASSESSEE IS THE OWNER OF THE BUILDING AN WAS ONLY EXPLOITING THE PROPERTY AS OWNER AND LEASING THE SAME AND REALIZE THE RENT. HENCE, THE COURT HELD THAT THE RENT IS ASSESSABLE AS INCOME FROM HOUSE PROPERTY. 16. IN THE CIRCUMSTANCES, WE ARE OF THE OPINION THA T THE FACTS ON WHICH DECISION OF THE KOLKATA BENCH, I N THE CASE OF PFH MALL & RETAIL MANAGEMENT LTD. WAS RENDERED ARE DISTINGUISHABLE AND THE RATIO OF THE DECISION OF THE SUPREME COURT IN THE CASE OF SHAMBHU PRASAD INVESTMENT PVT. LTD. , 263 ITR 143 IS APPLICABLE TO THE CASE OF THE ASSESSEE, THEREFORE, THE INCOME RECEIVED BY THE ASSESSEE FROM LETTING OUT OF PROPERTY TO M/S RADHAKRISHNA MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 16 FOODLAND PVT. LTD. HAS BEEN CORRECTLY ASSESSED AS INCOME FROM HOUSE PROPERTY. THUS, THE RELEVANT PARA OF THE IMPUGNED ORDER HAS EXPRESSLY MADE IT CLEAR THAT THIS TRIBUNAL HAS D ULY CONSIDERED ALL THE CONTENTIONS AND THE DECISION RE LIED UPON BY THE LD. SR.COUNSEL FOR THE ASSESSEE. THERE FORE, ONCE THE FINDINGS GIVEN ON MERITS, AFTER CONSIDERIN G THE RELEVANT RECORDS AS WELL AS FACTS THEN EVEN IF THE SAID FINDINGS OF THIS TRIBUNAL IS NOT SUSTAINABLE WOULD NOT BRING THE CASE UNDER THE SCOPE OF SECTION 254(2) OF THE INCOME TAX ACT, 1961. THE TRIBUNAL CANNOT RE- APPRECIATE AND EVALUATE THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE PROCEEDINGS U/S 254(2) OF THE ACT . THE SCOPE OF SEC 254(2) IS VERY LIMITED AND CIRCUMSCRIB ED. FOR EXERCISING THE JURISDICTIONAL U/S 254(2), IT IS THE MANDATORY CONDITION THAT SUCH MISTAKE SHOULD BE WID E APPARENT, MANIFEST AND PATENT AND NOT SOMETHING WHI CH COULD BE INVOLVED SERIOUS CIRCUMSTANCES OF DISPUTES OF QUESTION OF FACTS OR LAW AND CAN BE ESTABLISHED BY LONG DRAWN PROCESS AND REASONING ON THE POINT TO BE RECTIFIED. A PATENT MISTAKE AS WELL AS EVIDENT ERR OR, WHICH DOES NOT REQUIRE AN ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENTS TO ESTABLISH CAN BE SAID TO B E AN ERROR APPARENT ON THE FACE OF THE RECORDS AND CAN B E MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 17 RECTIFIED UNDER THE AMBIT OF SECTION 254(2). IT IS WELL SETTLED THAT SEC 254(2) DOES NOT CONFER POWER ON TH E TRIBUNAL TO REVIEW IS EARLIER ORDER. THUS, THE TRI BUNAL HAS NO POWER TO REVIEW ITS ORDER PASSED ON MERIT AN D IN THE GRAB OF RECTIFICATION OF MISTAKE NO ORDER CAN B E PASSED U/S 254(2) WHICH AMOUNTS TO REVERSAL OF THE ORDER PASSED AFTER DISCUSSING ALL THE FACTS AND STA TUTORY PROVISIONS IN DETAIL. THEREFORE, WE DO NOT FIND AN Y MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 11. IT IS PERTINENT TO MENTIONED HERE THAT THE ASSESSEE HAS FILED APPEAL AGAINST THE ORDER DATED 16.10.2010 PASSED BY THIS TRIBUNAL BEFORE THE HONB LE JURISDICTIONAL HIGH COURT CHALLENGING THE LEGALITY, VALIDITY AND PROPRIETY OF THE ORDER PASSED BY THIS TRIBUNAL AND THE MATTER IS SUB-JUDICE BEFORE THE HONBLE JURISDICTIONAL HIGH AND WAITING FOR OUTCOME OF THE APPEAL. THE HONBLE CALCUTTA HIGH COURT IN TH E IDENTICAL SITUATION WHILE DECIDING AN APPLICATION GA NO.2492 OF 2010 IN APPEAL ITA NO.24 OF 2010 IN TH E CASE OF PANKAJ RATHI V/S THE CIT VIDE ORDER DATED 18.8.2010 HAS OBSERVED AS UNDER : MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 18 THE COURT :- IN THIS CASE, MRS. DASGUPTA (NEE BANERJEE) APPEARING FOR THE APPELLANT HAS FAIRLY SUBMITTED THAT HIS CLIENT HAS TAKEN A DECISION TO WITHDRAW THE MISCELLANEOUS APPLICATION PENDING BEFORE THE LEARNED TRIBUNAL. NEEDLESS TO MENTION, PARALLEL PROCEEDING FOR ACHIEVING THE SAME PURPOSE CANNOT BE ALLOWED TO BE DONE IN A SELF-SAME MATTER, WHICH HAS EXACTLY BEEN DONE IN THIS CASE. THIS BEING THE POSITION, WE FEEL FOR THE ENDS OF JUSTICE HEARING OF THE MATTER SHOULD BE POSTPONED. IN VIEW OF THE SUBMISSION AS AFORESAID, NO ORDER NEED BE PASSED ON THIS APPLICATION. HOWEVER, LIBERT Y IS GIVEN TO MS. DASGUPTAS (NEE BANERJEE) CLIENT TO DO WHAT HAVE BEEN STATED BEFORE US. ONCE THE ORDER OF WITHDRAWAL IS PLACED BEFORE THIS COURT THE MATTE R PENDING BEFORE THIS COURT WILL BE TAKEN UP FOR CONSIDERATION. THE APPLICATION IS THUS DISPOSED OF. 12. WE MAY GAINFULLY TAKES THE SUPPORT OF THE DECIS ION OF THE SPECIAL BENCH OF THIS TRIBUNAL IN TATA COMMUNICATION LTD. V/S JCIT (2009) 121 ITD 384 (MUM)(SB) IN WHICH IT HAS BEEN OBSERVED AND HELD (PAGE 406,PARA 19 AND 20): 19. IT MAY FURTHER BE POINTED OUT THAT LEGAL QUESTION RELATING TO ENTITLEMENT OF THE ASSESSEE T O DEDUCTION UNDER SECTION 80IA OF THE INCOME-TAX ACT HAS ALREADY BEEN ADMITTED BY THE BOMBAY HONBLE HIGH COURT, AS PER ORDER DATED 24-11-2008 IN INCOME TAX APPEAL NO. 73/2008. THE SUBSTANTIAL QUESTION FRAMED BY THEIR LORDSHIPS IS AS UNDER:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE APPELLANT IS ENTITLED TO A DEDUCTION UNDER SECTION 80-IA OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) IN RESPECT OF THE TWO EARTH STATIONS SET UP AT HALISAHAR(CALCUTTA ) MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 19 AND KORATTUR (MADRAS) DURING THE RELEVANT ASSESSMENT YEAR. 20. WE ARE OF THE OPINION THAT WHEN QUESTION IS PENDING THE BEFORE THE HONBLE BOMBAY HIGH COURT, IT IS NOT RIGHT FOR THE ASSESSEE TO AGITATE SAME OR PART OF THE QUESTION BEFORE THE TRIBUNAL. THE ASSESSEE HAS NOW TO SHOW THE HONBLE HIGH COURT THAT THE CONDITIONS OF SECTION 80-IA ARE SATISFIE D ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE AND THAT HE IS ENTITLED TO RELIEF UNDER THE ABOVE SECTION. AS FAR AS TRIBUNAL IS CONCERNED, QUESTION HAS ALREADY BEEN DECIDED AND THE TRIBUNAL IS NOW FUNCTUS OFFICIO , SO FAR AS DEDUCTION OF ELIGIBILITY OF SECTION 80IA IS CONCERNED. IT IS FOR THEIR LORDSHIP S OF HONBLE BOMBAY HIGH COURT TO ADJUDICATE ON THE CORRECTNESS OR OTHERWISE OF THE DECISION OF THE TRIBUNAL. IN THIS VIEW OF THE MATTER, AS ALSO BEARI NG IN MIND THE ENTIRETY OF THE PRECEDING DISCUSSIONS , WE ARE OF THE CONSIDERED VIEW THAT THE RECTIFICATI ON PETITION FILED BY THE ASSESSEE UNDER SECTION 254(2) OF THE ACT MUST FAIL. NO INTERFERENCE IS THUS CALLE D FOR. THEREFORE WHEN THE IMPUGNED ORDER IS SUBJUDICED IN THE HONBLE HIGH COURT AS APPEAL OF ASSESSEE IN IT A(L) NO.2218/10 ADMITTED VIDE ORDER DATED 14.12.2010 THE N THIS MISCELLANEOUS APPLICATION FOR FRESH HEARING OF THE APPEAL IS NOT MAINTAINABLE AND HENCE REJECTED. 13. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. MA NO.251/MUM/2011 ARISING OUT OF ITA NO. 6330/MUM/2003 (ASSESSMENT YEAR : 2001-02) 20 ORDER PRONOUNCED IN OPEN COURT ON 4 TH JAN 2012. SD SD ( R.S.SYAL) (VIJAY P AL RAO) ACCOUNTANT MEMBER JUDICIAL MEMB ER MUMBAI, DATED 4 TH JAN, 2012 SRL: COPY TO: 1. APPLICANT 2. RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT,MUMB AI