ITO 16(1)(1), V. BATRA GULATI HOTELS,

MA 300/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0992 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 17-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K VYAS
• Assessee Lawyers: G P MEHTA

Judgement Text

B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI .. , !'# $ $ $ $ %$ $, & !'# !' BEFORE SHRI P.M. JAGTAP, AM AND SHRI VIJAY PAL RAO, JM %$%$ $'( 300 /MUM/2012 ARISING OUT OF ITA NO. 655/MUM/2009 ( &( + $,+ &( + $,+ &( + $,+ &( + $,+ / / / / ASSESSMENT YEAR : 2005-06) INCOME TAX OFFICER- 16(1)(1), MATRU MANDIR, TARDEO ROAD, MUMBAI 400 007. ( ( ( ( / VS. M/S BATRA GULATI HOTELS, C/O G.P. MEHTA & CO., CAS, 807, TULSIANI CHAMBERS, 212, NARIMAN POINT, MUMBAI 400 021. #. !./ PAN : AADFB 5800 E (APPLICANT) .. RESPONDENT ) DEPARTMENT BY : SHRI K.K. VYAS ASSESSEE BY : SHRI G.P. MEHTA !($ / / // / DATE OF HEARING : 02-8-2013 01, / / DATE OF PRONOUNCEMENT : 02-8-2013 '2 / O R D E R PER P.M. JAGTAP, A.M . : BY THIS MISC. APPLICATION, THE REVENUE IS SEEKING R ECTIFICATION OF THE MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DATED 25 TH JUNE, 2010 PASSED IN ITA NO. 655/MUM/2009. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS SUBMITTED BY THE REVENUE IN THE PRESENT MISC. APPLICATION AND FURTHER REITERATED BY THE LD. D.R. AT THE TIME OF H EARING BEFORE US, THE TRIBUNAL IN ITS ORDER DATED 25 TH JUNE, 2010 (SUPRA) HAD ACCEPTED THE ALTERNATIVE CL AIM OF THE ASSESSEE AND HELD THAT RENTAL INCOME CAN REASONABLY BE BIFUR CATED AS 80% FOR LAND AND BUILDING WHICH CAN BE TAXED UNDER THE HEAD INCOME FROM HOUS E PROPERTY AND 20% FOR OTHER ASSETS WHICH CAN BE TAXED UNDER THE HEAD INCOME FR OM OTHER SOURCES WITHOUT APPRECIATING THE FACT THAT RENT OF RS. 8,28,800/- R ECEIVED FROM JACARANDA REST AND RENT OF RS. 12,42,000/- RECEIVED TOWARDS FIT OUTS, FURNI TURE & FIXTURES WERE NOT A COMPOSITE MA 300/MUM/2012 2 RENT. IN THIS REGARD, IT IS OBSERVED THAT THIS ISS UE WAS DECIDED BY THE TRIBUNAL IN PARA 8 OF ITS ORDER WHICH READS AS UNDER:- .WE, HOWEVER, FIND MERIT IN THE ALTERNATIVE CONTEN TION RAISED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE RENT ATTRIBUTABLE TO THE BJ4JPG HAS TO BE BROUGHT TO TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY WHEREAS THE RENT ATTRIBUTABLE TO OTHER ASSETS SUCH AS FURNITURE, FIX TURES AND OTHER EQUIPMENTS IS CHARGEABLE TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES. IN THIS REGARD, THE ID. DR. HAS RAISED AN OBJECTION STATING THAT TH ERE IS NO SUCH BIFURCATION OF RENT MADE IN THE RELEVANT AGREEMENT. HOWEVER, THE U NDISPUTED FACT IS THAT THE RENT RECEIVED BY THE ASSESSEE WAS COMPOSITE ONE FOR BUILDING AS WELL AS FOR FURNITURE, FIXTURES AND OTHER EQUIPMENTS AVAILABLE THEREIN AND THE BIFURCATION OF RENT FOR BUILDING AND FOR OTHER ASSETS, IN OUR OPIN ION, CAN BE REASONABLY BE MADE ON THE BASIS OF WRITTEN DOWN VALUE OF THE SAID ASSE TS WHICH ARE INDICATIVE OF THE QUANTUM OF INVESTMENT MADE BY THE ASSESSEE IN THE S AID ASSET. THE SCHEDULE OF FIXED ASSETS AS ON 31.3.05 IS GIVEN ON PAGE NO. 71 OF THE PAPER BOOK WHICH SHOWS THAT WDV OF LAND AND BUILDING IS RS.L.51 CROR ES AS AGAINST THE WDV OF OTHER ASSETS WHICH IS EXTENT OF R .0.34 CRORES. ON THIS BASIS, THE RENTAL INCOME, IN OUR OPINION, CAN REASONABLY BE BFFURCAT4D AS 80% FO R LAND AND BUILDING AND 20% FOR OTHER ASSETS AND HE SAME CAN BE TAXED UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND INCOME FROM OTHER SOURCES RES PECTIVELY. 3. IT IS MANIFEST FROM THE RELEVANT PORTION OF THE TRIBUNALS ORDER EXTRACTED ABOVE THAT THERE WAS NOTHING BROUGHT ON RECORD TO DISPUTE THE CLAIM OF THE ASSESSEE OF HAVING RECEIVED COMPOSITE RENT FOR BUILDING AS WELL AS FUR NITURE, FIXTURES AND OTHER EQUIPMENTS. EVEN AT THE TIME OF HEARING BEFORE US, THE LD. D.R. HAS NOT BE ABLE TO POINT OUT FROM THE MATERIAL AVAILABLE ON RECORD THAT THE RENT RECEIVED BY THE ASSESSEE WAS NOT A COMPOSITE ONE AS ALLEGED IN THE PRESENT MISC. APP LICATION. WE, THEREFORE, FIND NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TR IBUNAL AS ALLEGED BY THE REVENUE IN THE PRESENT MISC. APPLICATION AND DISMISS THE SAME BEING DEVOID OF MERIT. 4. IN THE RESULT, THE MISC. APPLICATIONS FI LED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 02-08-2013 . . '2 / 01, 3'(4 02-08-2013 1 / SD/- SD/- (VIJAY PAL RAO) ( P.M. JAGTAP ) !'# / JUDICIAL MEMBER & !'# / ACCOUNTANT MEMBER MUMBAI ; 3'( DATED 02-08-2013. MA 300/MUM/2012 3 $.&(.!./ RK , SR. PS '2 / ;&<% =%, '2 / ;&<% =%, '2 / ;&<% =%, '2 / ;&<% =%,/ COPY OF THE ORDER FORWARDED TO : 1. .> / THE APPELLANT 2. ;?.> / THE RESPONDENT. 3. @ () / THE CIT(A)- CONCERNED, MUMBAI CONCERNED 4. @ / CIT CONCERNED, MUMBAI CONCERNED 5. %$C ;&&( , , / DR, ITAT, MUMBAI C BENCH 6. D+ E / GUARD FILE. '2(! '2(! '2(! '2(! / BY ORDER, !?% ;& //TRUE COPY// F F F F/ // /!G !G !G !G ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI