P C Combines Pvt. Ltd., Kolkata V. ITO, WD-8(3), KOLKATA, Kolkata

MA 43/KOL/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3684 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 18-09-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 09-06-2015
• Court: TRIBUNAL
• Keywords: Business income; Rule of consistency; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI M. BALAGANES H, AM] M. A. NO. 43/KOL/2015 IN I.T.A NO. 1631/KOL/2012 ASSESSMENT YEAR: 2006-07 & M. A. NO. 44/KOL/2015 IN I.T.A NO. 1710/KOL/2012 ASSESSMENT YEAR: 2006-07 P. C. COMBINES PVT. LTD. VS. INCOME-TAX OFFICER , WD-8(3), KOLKATA (PAN:AAACN8754H) ( APPLICANT ) ( RESPONDENT ) DATE OF HEARING : 20.11.2015 DATE OF PRONOUNCEMENT: 20.11.2015 FOR THE APPLICANT: SHRI J. M. THARD, ADVOCATE FOR THE RESPONDENT: SHRI NILOY BARAN SOM, JCIT, SR. DR ORDER PER MAHAVIR SINGH, JM: FIRST WE TAKE UP MA NO. 43/KOL/2015. BY THIS MISC. APPLICATION THE ASSESSEE HAS POINTED OUT THAT THERE IS A MISTAKE APPARENT FROM R ECORD IN THE ORDER OF THE TRIBUNAL DATED 30.04.2015. ACCORDING TO LD. COUNSEL, THE ARGUMENT OF THE ASSESSEE IS THAT ALL ALONG IN THE CASE OF THE ASSESSEE THE INCOME FROM BUSINESS CENTRE IS ASSESSED AS BUSINESS INCOME AND EVEN UNDER THE RULE OF CONSISTENCY THIS SHOULD BE ASSESSED AS BUSINESS INCOME AND ONLY IN THIS YEAR THE AO HAS ASSESSED THE SAME AS RENTAL INCOME. BEFORE THE TRIBUNAL, ACCORDING TO LD. COUNSEL, IT WAS ARGUED THAT FOLLOWING THE RULE OF CONSISTENCY THE I NCOME OF THE BUSINESS CENTRE SHOULD BE ASSESSED AS BUSINESS INCOME BUT TRIBUNAL HAS NOT GI VEN ANY FINDING ON THIS PLEA. LD. COUNSEL FOR THE ASSESSEE TOOK US TO PARA 9 AND 10 OF TRIBUN ALS ORDER WHEREIN HE REFERRED TO THE TRIBUNALS FINDING RECORDED AS UNDER: 9) AS REGARDS GROUND NO.3 THE BRIEF FACTS OF THE C ASE ARE THAT THE ASSESSEE IS IN RECEIPT OF RS.1,80,000/- FROM M/S. P. C. ENTERPRISES PVT. LTD. IT WAS STATED BY THE ASSESSEE THAT THE SAID COMPANY IS ENGAGED IN REAL ESTATE ACTIVITIES A ND THE COMPANY WAS ENGAGED IN LETTING OUT THE FLAT FOR CARRYING ON THEIR BUSINESS. AO AF TER CONSIDERING THE EXPLANATIONS MADE BY THE ASSESSEE REJECTED THE SAME AND CONSIDERED RS .1,80,000/- AS INCOME DERIVED FROM HOUSE PROPERTY. THE LD. CIT(A) CONFIRMED THE ACTIO N OF AO. 10) WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. IN VIEW OF OUR DECISION IN GROUND NO.2 HEREINABOVE THE INCOME ASSE SSABLE FOR THE RENT RECEIVED AMOUNTING TO RS.1,80,000/- FROM P. C. ENTERPRISES P VT. LTD. IS ESSENTIALLY TO BE ASSESSED AS INCOME FROM HOUSE PROPERTY. WE FIND NO INFIRMIT Y IN THE ORDER OF LD. CIT(A) IN THIS REGARD AND HE HAS RIGHTLY DIRECTED THE AO TO ALLOW THE STATUTORY DEDUCTIONS AS ALLOWABLE. THUS GROUND NO.3 OF THE ASSESSEE IS DISMISSED. 2 MA NO.43 & 44/K/2015 P. C. COMBINES PVT. LTD. A. Y 2006-07 ONCE THIS FACT WAS BEFORE THE ITAT, THE SAME SHOULD HAVE ADJUDICATED ON THIS ALSO. ACCORDING TO LD. COUNSEL, THERE IS A MISTAKE APPARENT FROM RE CORD IN NOT ADJUDICATING THE ISSUE DESPITE THE FACT THAT ARGUMENT WAS NOTED. 2. ON THE OTHER HAND, THE LD. SR. DR SUPPORTED THE ORDER OF THE TRIBUNAL. 3. AFTER HEARING BOTH THE SIDES, WE FIND THAT TRIBU NAL HAS NOT GIVEN ANY DECISION ON THE PRINCIPLE OF RULE OF CONSISTENCY DESPITE THE FACT T HAT IN EARLIER YEAR THE ASSESSEES INCOME WAS ASSESSED AS BUSINESS INCOME AND NOT INCOME FROM HOU SE PROPERTY. EVEN THE TRIBUNAL HAS RECORDED THE FACT THAT THE ASSESSEE IS ENGAGED IN L ETTING OUT THE FLATS FOR CARRYING ON ITS BUSINESS AND DESPITE THE TRIBUNAL HAS GIVEN A FINDING THAT T HE INCOME SHOULD BE ASSESSED AS INCOME FROM HOUSE PROPERTY. WE FIND THAT THERE IS A MISTAKE AP PARENT FROM RECORD AND WE RECALL THE ORDER OF TRIBUNAL AND REGISTRY IS DIRECTED TO FIX THE APPEAL IN DUE COURSE. 4. NOW, COMING TO MA NO. 44/KOL/2015 IN ITA NO.1710 /KOL/2012. THE ASSESSEE STATED THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS. 3 LACS AND PRECISELY THE TAX EFFECT IS ONLY RS.2,07,433/-. AT THE TIME OF HEARING TRIBUNAL HAD ACCEPTED THAT THIS IS A LOW TAX EFFECT CASE BUT WHEN ORDER WAS RECEIVED BY ASSESSEE IT WAS ON MERIT S AND THERE WAS NO CHANCE TO ARGUE THE CASE. WE FIND THAT THE COMPUTATION OF LOW TAX EFFECT WAS AVAILABLE IN FILE AS GIVEN BY THE ASSESSEE WHICH COMES TO RS.2,07,433/- AND WHICH IS BELOW TAX EFFECT IN TERM OF CIRCULAR NO. 2 OF 2011. ACCORDING TO US, THERE IS A MISTAKE APPARENT FROM R ECORD IN THE ORDER OF TRIBUNAL AND WE RECALL OUR ORDER DATED 30.04.2015 AND REGISTRY IS DIRECTED TO FIX THE APPEAL IN DUE COURSE. 5. IN THE RESULT, MISC. APPLICATIONS OF ASSESSEE AR E ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- (M. BALAGANESH) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 20TH NOVEMBER, 2015 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPLICANT : P. C. COMBINES PVT. LTD., 5F, EVERES T, 46/C, CHOWRINGHEE ROAD, KOLKATA-700 071. 2 RESPONDENT ITO, WARD-8(3), KOLKATA. 3. THE CIT(A) , KOLKATA 4. ACIT, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASSTT. REGISTRAR .