GAURI SONS, V. ITO 12(3)(1),

MA 257/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9417 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2005-2006
• Appeal Filed On: 26-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: NARAYAN ATAL
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI G BENCH MUMBAI BENCHES, MUMBAI BEFORE & SHRI VIJAY PAL RAO, JM & SHRI RAJENDRA, A M MISCELLANEOUS APPLICATION NO. 257/MUM/2012 ARISING OUT OF ITA NO. 2026/MUM/2010 (ASST YEAR 2005-06 ) M/S GAURISONS 161 C MITTAL TOWERS NARIMAN POINT MUMBAI 21 VS THE INCOME TAX OFFICER WARD 12(3)(1), MUMBAI (APPLICANT) (RESPONDENT) PAN NO. AAAFG1167C ASSESSEE BY SH NARAYANATAL REVENUE BY SH N K MEHTA DT.OF HEARING 28 TH SEPT 2012 DT OF PRONOUNCEMENT 3 RD OCT 2012 PER VIJAY PAL RAO, JM BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSE SSEE IS SEEKING RECALLING OF THE ORDER DATED 28 TH DEC 2011 OF THIS TRIBUNAL WITH RESPECT TO THE ISSU E OF TREATING THE RENTAL INCOME FROM THE PREMISES IN QUESTION AS INCO ME FROM OTHER SOURCE INSTEAD OF BUSINESS INCOME CLAIMED BY THE ASSESSEE. 2 THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THIS TRIBUNAL HAS DECIDED THE ISSUE AGAINST THE ASSESSEE BY CONSIDERING WRONG FAC TS THAT THE ASSESSEE HAS NOT CARRIED OUT ANY BUSINESS WHEREAS IN THE EARLIER ORD ERS, THE ASSESSING OFFICER HAS ACCEPTED THE RENTAL INCOME FROM LEASING OUT OF WARE HOUSE AS BUSINESS INCOME OF THE ASSESSEE. THEREFORE, THE DECISION IN THE CASE OF SHAMBHU INVESTMENTS VS CIT REPORTED IN 263 ITR 143 AS RELIED UPON BY THE TRIBU NAL IS NOT APPLICABLE IN THE CASE OF THE ASSESSEE BECAUSE THE ASSESSEE IS THE OWNER OF T HE PROPERTY IN QUESTION. THUS, MA 257/M/2012 M/S GAURISONS . 2 THE LD AR HAS CONTENDED THAT WHEN THE REVENUE HAD A CCEPTED THE ASSESSEES BUSINESS AS BUSINESS OF TAKING AND PROVIDING WAREHO USE FACILITIES, THEN THE RENTAL INCOME FROM THE PREMISES IN QUESTION CANNOT BE TREA TED AS INCOME FROM OTHER SOURCES. 2.1 ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE TRIBUNAL HAS CONSIDERED THE RELEVANT FACTS AS WELL AS THE CONTENTION OF THE PARTIES. THEREFORE, WHEN THE ISSUE HAS BEEN DECIDED ON MERIT, THE SAME CANNOT BE REVIE WED UNDER THE PROVISIONS OF SEC. 254(2). 3 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE RELEVANT MATERIAL ON RECORD. DURING THE HEARING OF THE APPEAL, THE LD AR HAS CONTENDED BEFORE THE TRIBUNAL THAT THE ASSESSEE IS ENGAGED IN THE BUSINE SS OF TAKING AND PROVIDING WAREHOUSE FACILITIES. APART FROM THE RENT RECEIVED FROM THE GODOWN AT BYCULLA, THE ASSESSEE RECEIVED A SUM OF ` 1,20,000/- AS COMPENSATION FOR SHARING OF ITS OFFI CE PREMISES FROM MBK ENTERPRISES. THE ASSESSEES ARG UMENT AS WELL AS OF RELEVANT FACTS WERE DULY CONSIDERED BY THE TRIBUNAL AND THEREAFTER A FINDING HAS BEEN GIVEN ON MERIT IN PARA 7 AS UNDER: 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE RECORD. UNDISPUTEDLY, THE ASSESSEE HAS NOT CARRIED O UT ANY BUSINESS EXCEPT THE RECEIPT OF SUBLETTING OF THE PREMISES IN QUESTION AND SOME INTEREST, DIVIDEND INCOME. EVEN IN THE EARLIER YEARS AS WELL A S IN THE SUBSEQUENT YEARS NO BUSINESS ACTIVITY WAS CARRIED, OUT BY, THE ASSES SEE WHICH CLEARLY SUGGESTS THAT THE ASSESSEE HAS DISCONTINUED ITS BUSINESS ACTIVITY. UNDER THESE CIRCUMSTANCES, THE INCOME FROM SUBLETTING OF HE PREMI SES, IN OUR VIEWS, HAS RIGHTLY BEEN ASSESSED BY THE LOWER AUTHORITY AS INCO ME FROM OTHER SOURCES. THE CIT(A) HAS, DISCUSSED HE ISSUE IN DETAILED AND CONFIRMED THE TREATMENT OF THE INCOME AS INCOME FROM OTHER SOURCES BY FOLLOWING T HE DECISION IN THE CASE OF CIT V/S SHAMBHU INVESTMENT (P ) LTD. (SUPRA) . THE DECISION RELIED UPON BY THE ASSESSEE CANNOT BE APPLIED TO THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE WHEN THE ASSESSEE HAS DISCONTINUED THE BUSINESS ACTIVITIES, ACCORDINGLY, WE DO NOT FIND ANY REASON TO INTERFERE W ITH THE IMPUGNED OF THE ID CIT(A) QUA THIS ISSUE THE SAME IS UPHELD. MA 257/M/2012 M/S GAURISONS . 3 4 IT IS CLEAR FROM THE RELEVANT PART OF THE ORDER O F THIS TRIBUNAL THAT THE FINDING HAS BEEN GIVEN AFTER CONSIDERING THE RELEVANT FACTS AND LEGAL PROPOSITION ON THE POINT. THEREFORE, ONCE THE FIND HAS BEEN GIVEN ON T HE MERITS OF THE CASE, THE SAME CANNOT BE REVIEWED BY RE-APPRECIATING THE FACTS AND EVIDENCES UNDER THE PROCEEDINGS U/S 254(2). 5 EVEN OTHER OTHERWISE, WE FIND THE SCOPE OF SEC 25 4(2) IS VERY LIMITED AND CIRCUMSCRIBED. FOR EXERCISING THE JURISDICTIONAL U/ S 254(2), IT IS THE MANDATORY CONDITION THAT SUCH MISTAKE SHOULD BE WIDE APPARENT , MANIFEST AND PATENT AND NOT SOMETHING WHICH COULD BE INVOLVED SERIOUS CIRCUMSTA NCES OF DISPUTES OF QUESTION OF FACTS OR LAW AND CAN BE ESTABLISHED BY LONG DRAWN P ROCESS AND REASONING ON THE POINT TO BE RECTIFIED. A PATENT MISTAKE AS WELL AS EVIDENT ERROR, WHICH DOES NOT REQUIRE AN ELABORATE DISCUSSION OF EVIDENCE OR ARGU MENTS TO ESTABLISH CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORDS AND CAN BE RECTIFIED UNDER THE AMBIT OF SECTION 254(2). IT IS WELL SETTLED THAT S EC 254(2) DOES NOT CONFER POWER ON THE TRIBUNAL TO REVIEW IS EARLIER ORDER. THUS, THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER PASSED ON MERIT AND IN THE GRAB OF RECTIFICAT ION OF MISTAKE NO ORDER CAN BE PASSED U/S 254(2) WHICH AMOUNTS TO REVERSAL OF THE ORDER PASSED AFTER DISCUSSING ALL THE FACTS AND STATUTORY PROVISIONS IN DETAIL. THER EFORE, WE DO NOT FIND ANY MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 6 I N THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 3 RD DAY OF OCT 2012. SD/- SD /- ( RAJENDRA ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 3 RD OCT 2012 MA 257/M/2012 M/S GAURISONS . 4 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI