PROLIFIC CONSULTANCY SERVICES PVT. LTD. (NOW KNOWN AS PROLIFIC VENTURES PVT. LTD.), MUMBAI V. ITO 8(2)(4), MUMBAI

MA 82/MUM/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4790 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 05-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PAVAN K BEERLA SR
• Assessee Lawyers: FIROZ B ANDHYARUJINA
• Keywords: Business income
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER MA NO.81/M/2016 (ARISING OUT OF ITA NO.2367/M/2011 DATE OF DECISION : 14.08.2013) ASSESSMENT YEAR: 2003-04 MA NO.82/M/2016 (ARISING OUT OF ITA NO.3426/M/2010 DATE OF DECISION : 14.08.2013) ASSESSMENT YEAR: 2004-05 MA NO.83/M/2016 (ARISING OUT OF ITA NO.3425/M/2010 DATE OF DECISION : 14.08.2013) ASSESSMENT YEAR: 2005-06 MA NO.84/M/2016 (ARISING OUT OF ITA NO.3424/M/2010 DATE OF DECISION : 14.08.2013) ASSESSMENT YEAR: 2006-07 MA NO.85/M/2016 (ARISING OUT OF ITA NO.8143/M/2011 DATE OF DECISION : 14.08.2013) ASSESSMENT YEAR: 2007-08 MA NO.86/M/2016 (ARISING OUT OF ITA NO.458/M/2012 DATE OF DECISION: 14.08.2013) ASSESSMENT YEAR: 2008-09 M/S. PROLIFIC CONSULTANCY SERVICES PVT. LTD., (NOW KNOWN AS PROLIFIC VENTURES PVT. LTD.), WILSON HOUSE, NAGARDAS ROAD, ANDHERI (E), MUMBAI 400 069 PAN: AACCP5402E VS. INCOME TAX OFFICER, WARD 8(2)(4), MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI FIROZ B. ANDHYARUJINA, A.R. REVENUE BY : SHRI PAVAN K. BEERLA, SR. A.R. DATE OF HEARING : 26.08.2016 DATE OF PRONOUNCEMENT : 19.09.2016 MA NO.81 TO 86/M/2016 M/S. PROLIFIC CONSULTANCY SERVICES PVT. LTD. 2 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE ABOVE CAPTIONED MISCELLANEOUS APPLICATIONS HAV E BEEN MOVED BY THE ASSESSEE UNDER SECTION 254(2) OF THE ACT PLEADI NG THAT AN ERROR APPARENT ON RECORD HAS OCCURRED IN THE COMMON ORDER DATED 14.08 .13 PASSED IN RELATION TO ITA NOS.2367/M/2011 AND OTHERS AS MENTIONED ABOVE R ELATING TO ASSESSMENT YEARS 2003-04 TO 2008-09. THE ISSUE INVOLVED IN TH E ABOVE STATED APPEALS WAS AS TO THE RENTAL INCOME EARNED BY THE ASSESSEE FROM SUBLEASE OF THE PROPERTY WHICH WAS TAKEN ON LEASE BY THE ASSESSEE WHETHER TO BE ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY OR AS BUSINESS I NCOME OF THE ASSESSEE. THE TRIBUNAL, AFTER CONSIDERING THE RELEVANT SUBMIS SIONS OF THE PARTIES, VIDE ORDER DATED 14.08.13 HELD THAT THE RENTAL INCOME EA RNED BY THE ASSESSEE FROM SUBLEASE OF THE PREMISES WAS TO BE ASSESSED AS INCO ME FROM HOUSE PROPERTY. HOWEVER, THE TRIBUNAL HAD ACCEPTED THE CONTENTION O F THE ASSESSEE THAT THE INCOME IN RELATION TO ANY SERVICES PROVIDED BY THE ASSESSEE WAS TO BE ASSESSED AS INCOME FROM OTHER SOURCES. 2. NOW THROUGH THE PRESENT MISCELLANEOUS PETITIONS, THE ASSESSEE HAS COME WITH THE PLEADING THAT IN THE LIGHT OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTME NTS LTD. (CIVIL APPEAL NO.4494 OF 2004 & OTHERS) DECIDED VIDE ORDER DATED APRIL 9, 2015; THE RENTAL INCOME EARNED BY THE ASSESSEE FROM SUBLEASE OF THE PROPERTY IS REQUIRED TO BE ASSESSED AS BUSINESS INCOME OF THE ASSESSEE. IT IS THE SAY OF THE LD. COUNSEL FOR THE ASSESSEE THAT IN THE SUBSEQUENT DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENTS LT D. (SUPRA), THE CORRECT LEGAL POSITION HAS BEEN STATED AND THAT THE DECISIO N OF THE HONBLE SUPREME COURT IS THE LAW OF THE LAND. THEREFORE A MISTAKE HAS OCCURRED IN THE ORDER DATED 14.08.2013 (SUPRA) OF THIS TRIBUNAL. HE HAS ALSO RELIED UPON THE CBDT CIRCULAR NO.68 DATED 17.11.1971 TO CONTEND THAT A M ISTAKE ARISING AS A RESULT OF MA NO.81 TO 86/M/2016 M/S. PROLIFIC CONSULTANCY SERVICES PVT. LTD. 3 SUBSEQUENT INTERPRETATION OF LAW BY THE HONBLE SUP REME COURT WOULD CONSTITUTE A MISTAKE APPARENT FROM RECORDS AND IN T HAT EVENT RECTIFICATORY ACTION UNDER SECTION 154 OF THE ACT WOULD BE IN ORDER. TH E LD. COUNSEL HAS ALSO BROUGHT OUR ATTENTION TO THE SUBSEQUENT ORDER OF TH E TRIBUNAL IN THE OWN CASE OF THE ASSESSEE FOR A.Y. 2009-10 WHEREIN THE TRIBUNAL WHILE RELYING UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F CHENNAI PROPERTIES & INVESTMENTS LTD. (SUPRA) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE LD. COUNSEL HAS FURTHER RELIED UPON A SUBSEQUENT DE CISION OF THE HONBLE SUPREME COURT IN THE CASE OF M/S. RAYALA CORPORATI ON PVT. LTD. VS. ACIT (CIVIL APPEAL NO.6437 OF 2016 & OTHERS) VIDE ORDER DATED AUGUST 11, 2016 AND HAS THEREFORE SUBMITTED THAT SINCE THE INCOME EARNE D BY THE ASSESSEE DURING THE YEAR WAS ONLY FROM SUBLEASING OF THE PREMISES, HENC E THE SAID INCOME WAS REQUIRED TO BE ASSESSED AS BUSINESS INCOME OF THE A SSESSEE AND NOT UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THE LD. COUNSEL , THUS, HAS STRESSED THAT EVEN THE SUBSEQUENT DECISION OF THE HONBLE SUPREME COURT WOULD OPERATE AS IF IT WAS THE LAW OF LAND AT THE TIME OF ADJUDICATI ON OF THE ISSUE BY THE TRIBUNAL ON A DATE PRIOR TO THE DECISION OF THE HONBLE SUPR EME COURT AND IF THE LOWER AUTHORITIES HAVE INTERPRETED A CERTAIN PROVISION IN CONTRAVENTION TO THE INTERPRETATION DONE BY THE HONBLE SUPREME COURT, T HEN SUCH INTERPRETATION WILL BE A MISTAKE APPARENT ON RECORD AND CAN BE REC TIFIED UNDER SECTION 254(2) OF THE ACT. 3. ON THE OTHER HAND, THE LD. D.R. HAS STATED THAT THERE IS NO MISTAKE APPARENT ON RECORD AND THAT NO RECTIFICATION IS REQ UIRED IN ORDER DATED 14.08.2013 OF THIS TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND HAV E ALSO GONE THROUGH THE APPLICATIONS OF THE ASSESSEE, ORDER OF THE TRIBUNAL DATED 14.08.13 (SUPRA) AND SUBSEQUENT ORDER OF THE CO-ORDINATE BENCH OF THE TR IBUNAL DATED 27.05.15 AND THE RELEVANT CASE LAWS RELIED UPON BY THE LD. COUNS EL FOR THE ASSESSEE. THERE MA NO.81 TO 86/M/2016 M/S. PROLIFIC CONSULTANCY SERVICES PVT. LTD. 4 IS NO DISAGREEMENT TO THE CONTENTION OF THE LD. COU NSEL FOR THE ASSESSEE THAT THE LAW DECLARED BY THE HONBLE SUPREME COURT IS TH E LAW OF THE LAND AND THE SAME IS BINDING ON ALL SUBORDINATE COURTS INCLUDING THIS TRIBUNAL. WE, FURTHER, FIND THAT THE HONBLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENTS LTD. (SUPRA) HAS HELD THAT FROM THE FA CTS AND CIRCUMSTANCES OF THE CASE BEFORE THEM, AN IRRESISTIBLE CONCLUSION WAS TH AT THE LETTING OF THE PROPERTY WAS IN FACT THE BUSINESS OF THE ASSESSEE. HOWEVER, WE FIND THAT THE FACTS IN THE CASE OF CHENNAI PROPERTIES & INVESTMENTS LTD. (SU PRA) WERE ENTIRELY DIFFERENT AS THAT OF THE CASE OF THE ASSESSEE. IN CASE OF CHENNAI PROPERTIES & INVESTMENTS LTD. (SUPRA) IN THE MEMORANDUM OF ASSO CIATION OF THE APPELLANT COMPANY, IT WAS MENTIONED THAT THE MAIN OBJECT OF T HE APPELLANT COMPANY WAS TO ACQUIRE AND HOLD THE PROPERTY KNOWN AS CHENNAI HOUSE AND FIRHAVIN ESTATE AND TO LET OUT THOSE PROPERTIES AS WELL AS MAKE ADVANCE UPON THE SECURITIES AND LANDS AND BUILDINGS OR OTHER PROPERT IES OR ANY INTEREST THEREIN. THE HONBLE SUPREME COURT EMPHASIZED THAT HOLDING T HE AFORESAID PROPERTIES AND EARNING INCOME BY LETTING OUT THOSE PROPERTIES WAS THE MAIN OBJECTIVE OF THE COMPANY. THE HONBLE SUPREME COURT ALSO RELIED UPON ITS EARLIER DECISION IN THE CASE OF KARANPURA DEVELOPMENT COMPANY LTD. VS. CIT 44 ITR 362 (SC) WHEREIN THE FACTS WERE THAT THE ASSESSEE COMPA NY WAS FORMED WITH THE OBJECT, INTER ALIA OF ACQUIRING AND DISPOSING OF THE UNDERGROUND COAL MINING RIGHTS IN CERTAIN COAL FIELDS AND IT WAS DOING THE ACTIVITIES OF ACQUIRING COAL MINING LEASES OVER LARGE AREAS, DEVELOPING THEM AS COAL FIELDS AND THEN SUBLEASING THEM TO COLLIERIES AND OTHER COMPANIES A ND THUS LEASING OUT OF THE COAL FIELDS TO THE COLLIERIES AND OTHER COMPANIES W AS BUSINESS OF THE ASSESSEE. THE HONBLE SUPREME COURT HELD THAT IN CASE OF A CO MPANY WITH ITS PROFESSED OBJECTS AND THE MANNER OF ITS ACTIVITIES AND THE NA TURE OF ITS DEALINGS WITH ITS PROPERTY, IT WAS POSSIBLE TO SAY ON WHICH SIDE THE OPERATIONS FALL AND TO WHAT HEAD THE INCOME WAS TO BE ASSIGNED. APPLYING THE S AID PRINCIPLE, THE HONBLE SUPREME COURT TREATED THE INCOME OF THE ASSESSEE IN THAT CASE AS BUSINESS INCOME OF THE ASSESSEE. WE MAY FURTHER POINT OUT THAT THE HONBLE SUPREME MA NO.81 TO 86/M/2016 M/S. PROLIFIC CONSULTANCY SERVICES PVT. LTD. 5 COURT HAS FURTHER OBSERVED THAT THE FACTS OF THE CA SE BEFORE THEM [CHENNAI PROPERTIES & INVESTMENTS LTD. (SUPRA)] WERE DISTING UISHABLE SO FAR AS THE OBSERVATIONS OF THE HONBLE SUPREME COURT IN THE CA SE OF THE EAST INDIA HOUSING LAND DEVELOPMENT TRUST LTD. VS. CIT (1961) 42 ITR 49 AS WELL AS THE CONSTITUTIONAL BENCH DECISION IN THE CASE OF S ULTAN BROTHERS PVT. LTD. VS. CIT (1964) 5 STR 807 WERE CONCERNED. IT HAS ALSO BEEN DISCUSSED BY THE HONBLE SUPREME COURT THAT IN THE CASE OF EAST IND IA HOUSING LAND DEVELOPMENT TRUST LTD. VS. CIT (SUPRA) THE FACTS W ERE THAT THE COMPANY WAS INCORPORATED WITH THE OBJECT OF BUYING AND DEVELOPI NG LANDED PROPERTIES AND PROMOTING AND DEVELOPING MARKETS. THUS, THE MAIN OB JECTIVE OF THE COMPANY WAS TO DEVELOP THE LANDED PROPERTIES INTO MARKETS. IT SO HAPPENED THAT SOME SHOPS AND STALLS, WHICH WERE DEVELOPED BY IT, HAD B EEN RENTED OUT AND INCOME WAS DERIVED FROM THE RENTING OF THE SAID SHOPS AND STALLS. IN THOSE FACTS, THE QUESTION AROSE FOR CONSIDERATION WAS AS TO WHETHER THE RENTAL INCOME THAT WAS RECEIVED WAS TO BE TREATED AS INCOME FROM THE HOUS E PROPERTY OR THE INCOME FROM THE BUSINESS. HONBLE SUPREME COURT WHILE HOL DING THAT THE INCOME SHOULD BE TREATED AS INCOME FROM THE HOUSE PROPERT Y, RESTED ITS DECISION IN THE CONTEXT OF THE MAIN OBJECTIVE OF THE COMPANY AN D TOOK NOTE OF THE FACT THAT LETTING OUT OF THE PROPERTY WAS NOT THE OBJECT OF T HE COMPANY AT ALL. THE COURT WAS THEREFORE, OF THE OPINION THAT THE CHARACTER OF THAT INCOME WHICH WAS FROM THE HOUSE PROPERTY HAD NOT ALTERED BECAUSE IT WAS R ECEIVED BY THE COMPANY FORMED WITH THE OBJECT OF DEVELOPING AND SETTING UP PROPERTIES. THE HONBLE SUPREME COURT FURTHER OBSERVED THAT IN THE CASE OF SULTAN BROTHERS (P) LTD. THE CONSTITUTIONAL BENCH OF THE SUPREME COURT HAS C LARIFIED THAT MERELY AN ENTRY IN THE OBJECT CLAUSE SHOWING A PARTICULAR OBJ ECT WOULD NOT BE THE DETERMINATIVE FACTOR TO ARRIVE AT AN CONCLUSION WHE THER THE INCOME IS TO BE TREATED AS INCOME FROM BUSINESS AND SUCH A QUESTION WOULD DEPE ND UPON THE CIRCUMSTANCES OF EACH CASE, VIZ., WHETHER A PARTICULAR LETTING IS BUSINESS OR NOT. THIS HAS BEEN SO STATED IN THE FOLLOWING WORDS: - MA NO.81 TO 86/M/2016 M/S. PROLIFIC CONSULTANCY SERVICES PVT. LTD. 6 'WE THINK EACH CASE HAS TO BE LOOKED AT FROM A BUSI NESSMAN'S POINT OF VIEW TO FIND OUT WHETHER THE LETTING WAS THE DOING OF A BUSINESS OR THE EXPLOITATION OF HIS PROPERTY BY AN OWNER. WE DO NOT FURTHER THINK THAT A THING CAN BY ITS VERY NATURE BE A COMMERCIAL ASSET. A COMMERCIAL ASSET IS ONLY AN ASSET USED IN A BUSIN ESS AND NOTHING ELSE, AND BUSINESS MAY BE CARRIED ON WITH PRACTICALLY ALL THINGS. THER EFORE, IT IS NOT POSSIBLE TO SAY THAT A PARTICULAR ACTIVITY IS BUSINESS BECAUSE IT IS CONCE RNED WITH AN ASSET WITH WHICH TRADE IS COMMONLY CARRIED ON. WE FIND NOTHING IN THE CASES R EFERRED, TO SUPPORT THE PROPOSITION THAT CERTAIN ASSETS ARE COMMERCIAL ASSETS IN THEIR VERY NATURE.' 5. NOW COMING TO THE DECISION OF THE TRIBUNAL DATED 14.08.13 IN THE CASE OF THE ASSESSEE, WE FIND THAT FOLLOWING SPECIFIC OBSER VATIONS HAVE BEEN MADE BY THE TRIBUNAL RELATING TO THE CASE OF THE ASSESSEE. SINCE THE ASSESSEE IS DEEMED OWNER OF THE PROPERTY AND HAD RECEIVED RENTAL INCOME, THE SAME HAS BEEN RIGHTLY HELD ASSESSABLE A S INCOME FROM HOUSE PROPERTY. IT IS NOT A CASE OF COMMERCIAL EXPLOITATION OF THE PROPERTY IN WHICH CASE IT COULD BE ASSESSED AS INCOME FROM BUSINESS. THE ASSESSEE HAS SIMPLY SUB LEASED THE PROPERTY TO ENJOY THE RENTAL INCOME. IT IS ALSO NO T A CASE OF ORGANIZED ACTIVITIES OF TAKING PROPERTIES ON LEASE AND LETTING OUT. THE AS SESSEE HAD TAKEN ON LEASE ONE BUILDING WHICH HAD BEEN SUB-LEASED TO TENANTS AND, THEREFORE, THE RENTAL INCOME HAS TO BE ASSESSED AS INCOME FROM HOUSE PROPERTY. WE ACCORDINGLY UPHOLD THE DECISION OF AUTHORITIES BELOW TO ASSESS THE RENTAL INCOME AS INCOME FROM HOUSE PROPERTY. 6. WHILE GIVING A FACTUAL FINDING IN THIS RESPECT, THE TRIBUNAL NOTED THAT THE INCOME FROM SUBLEASE OF THE PREMISES WAS TO BE ASSE SSED AS RENTAL INCOME OF THE ASSESSEE. THIS TRIBUNAL ALSO TOOK NOTE OF THE SERVICES PROVIDED BY THE ASSESSEE ALONG WITH RENTING OF THE BUILDING. WE HA VE ALSO NOTED THE DETAILS OF SERVICES AS ENUMERATED IN THE ORDER AND HAVE FOUND THAT MOST OF THOSE ARE GENERAL IN NATURE WHICH A LANDLORD IS SUPPOSED TO P ROVIDE TO HIS TENANTS. WE FIND THAT THE TRIBUNAL HAS ALSO HELD THAT THE SAID SERVICES RENDERED BY THE ASSESSEE WAS NOT PART OF ANY ORGANIZED ACTIVITY WIT H A VIEW TO EARN SUCH INCOME AND HELD THAT THE INCOME FROM SERVICES ON TH E FACTS OF THE CASE HAS TO BE ASSESSED AS INCOME FROM OTHER SOURCES AND ALL EX PENSES INCURRED BY THE ASSESSEE FOR EARNING OF SUCH INCOME HAS TO BE ALLOW ED AS DEDUCTION UNDER SECTION 57 OF THE INCOME TAX ACT. IT WAS ALSO HELD THAT IF ANY EXPENDITURE IN RELATION TO SERVICES WHICH IS ALSO INCLUDED IN RELA TION TO EXPENSES ON REPAIR AND MAINTENANCE OF THE PORTION OF THE BUILDING LET OUT, SUCH EXPENSES HAVE TO BE MA NO.81 TO 86/M/2016 M/S. PROLIFIC CONSULTANCY SERVICES PVT. LTD. 7 EXCLUDED AS THE SAME WERE ALREADY COVERED IN THE ST ATUTORY ALLOWANCE UNDER SECTION 24(C) OF THE INCOME TAX ACT WHILE COMPUTING THE HOUSE PROPERTY INCOME. THE ABOVE NARRATED PART OF THE ORDER OF TH E TRIBUNAL REVEALS BEYOND DOUBT THAT THE TRIBUNAL HAS WELL CONSIDERED THE PRO POSITION OF LAW THAT IF AN INCOME IS EARNED FROM THE BUSINESS ACTIVITY OF LETT ING OUT OF THE PROPERTIES OR THE COMMERCIAL EXPLOITATION OF THE PROPERTY BY WAY OF ORGANIZED ACTIVITIES OF TAKING PROPERTIES ON LEASE AND LETTING OUT ETC. THE N THE INCOME IS TO BE ASSESSED AS BUSINESS INCOME OF THE ASSESSEE AS HELD SUBSEQUE NTLY BY THE HONBLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENTS LTD. (SUPRA). IT IS PERTINENT TO MENTION HERE THAT THE HONBLE SU PREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENTS LTD. (SUPRA) HAS RELIED UPON ANOTHER DECISION OF THE TRIBUNAL OF THE HONBLE SUPREME COU RT IN THE CASE OF KARANPURA DEVELOPMENT COMPANY LTD. (SUPRA) WHICH WAS WELL CONSIDERED BY THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER DA TED 14.08.13. HENCE, THE PROPOSITION OF LAW AS LAID DOWN SUBSEQUENTLY BY THE HONBLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENTS LTD. (SUPRA) AND FURTHER IN THE CASE OF M/S. RAYALA CORPORATION PVT. LTD. (SUPRA) HAS ALREADY BEEN TAKEN INTO CONSIDERATION WHILE PASSING THE IMPUGNED ORDER BY T HE TRIBUNAL BECAUSE IN THE SUBSEQUENT DECISION OF THE HONBLE SUPREME COURT, T HE EARLIER DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF KARANPURA DEV ELOPMENT COMPANY LTD. (SUPRA) HAS BEEN RELIED UPON WHICH WAS WELL C ONSIDERED BY THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER. HOWEVER, THE TRI BUNAL IN ITS WISDOM HAS HELD THAT THE FACTS OF THE CASE OF THE ASSESSEE DO NOT SUGGEST THAT THE ASSESSEE WAS IN THE BUSINESS OF COMMERCIAL EXPLOITATION OF T HE PROPERTY OR LEASING OUT OF THE PROPERTIES AND HELD THAT THE INCOME EARNED BY T HE ASSESSEE FROM THE SUBLEASE OF THE PREMISES WAS SIMPLE CASE OF LETTING OUT OF THE PROPERTY AND THUS INCOME THERE FROM WAS ASSESSABLE UNDER THE HEAD IN COME FROM THE HOUSE PROPERTY. MA NO.81 TO 86/M/2016 M/S. PROLIFIC CONSULTANCY SERVICES PVT. LTD. 8 7. WE FURTHER FIND THAT THE MAIN OBJECTS OF THE ASS ESSEE IN THIS CASE ARE PROVIDING ADVISORY, CONSULTANCY AND TECHNICAL SERVI CES IN THE AREA OF REAL ESTATE AND PROPERTIES SUCH AS ARCHITECTURAL, CIVIL CONSTRU CTION, MAINTENANCE AND RELATED SERVICES. NONE OF THE ABOVE OBJECTS SUGGEST THAT L ETTING OUT OF THE PREMISES WAS THE BUSINESS ACTIVITY OF THE ASSESSEE. WE MAY FURTHER POINT OUT THAT THE PREMISES IN QUESTION EVEN HAVE NOT BEEN DEVELOPED B Y THE ASSESSEE. THE PREMISES IN QUESTION HAS BEEN TAKEN ON LEASE BY THE ASSESSEE AND FURTHER SUBLETTED. THE FACTS OF THE CASE OF THE ASSESSEE, IN OUR VIEW, ARE IDENTICAL TO THAT OF THE CASE BEFORE THE HONBLE SUPREME COURT I N THE CASE OF EAST INDIA HOUSING LAND DEVELOPMENT TRUST LTD. (SUPRA) AS DIS CUSSED ABOVE WHEREIN THE HONBLE SUPREME COURT HAS HELD THAT WHEN LETTIN G OUT OF THE PROPERTY WAS NOT THE OBJECT OF THE COMPANY THEN RENTAL INCOME CA N NOT BE ASSESSED AS BUSINESS INCOME. IN THE CASE IN HAND IT IS NEITH ER THE OBJECT NOR THE BUSINESS ACTIVITY OF THE ASSESSEE COMPANY TO TAKE ON LEASE A ND SUB LET THE PROPERTIES. SO FAR AS THE RELIANCE OF THE LD. COUNSEL ON THE DECIS ION OF THE HONBLE SUPREME COURT IN THE CASE OF M/S. RAYALA CORPORATION PVT. LTD. (SUPRA) IS CONCERNED; WE FIND THAT THE FACTS WERE ALSO DIFFERENT IN THE S AID CASE. THE HONBLE SUPREME COURT IN PARA 5 OF THE SAID ORDER HAS OBSER VED THAT AS PER THE MEMORANDUM OF ASSOCIATION, THE BUSINESS OF THE COMP ANY WAS TO DEAL INTO REAL ESTATE AND ALSO TO EARN INCOME BY WAY OF RENT BY LE ASING OR RENTING THE PROPERTIES BELONGING TO THE ASSESSEE COMPANY. THE CONTENTION OF THE REVENUE WAS THAT LEASING AND LETTING OUT OF SHOPS AND PROPE RTIES WAS NOT THE MAIN BUSINESS OF THE ASSESSEE AS PER MEMORANDUM OF ASSOC IATION. IT WAS THE CONTENTION OF THE REVENUE THAT RENT SHOULD BE THE M AIN SOURCE OF INCOME OR THE PURPOSE FOR WHICH THE COMPANY IS INCORPORATED SHOUL D BE TO EARN INCOME FROM RENT SO AS TO MAKE THE RENTAL INCOME TO BE TAXED UN DER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION. THE HONBLE SUPRE ME COURT REJECTED THE ABOVE CONTENTION AND HELD THAT SINCE THE ASSESSEE C OMPANY HAD STOPPED ALL OTHER ACTIVITIES EXCEPT THE BUSINESS ACTIVITY OF LE ASING ITS PROPERTY OR EARNING RENT THERE FROM AND THEREFORE THE BUSINESS OF THE C OMPANY WAS TO LEASE ITS MA NO.81 TO 86/M/2016 M/S. PROLIFIC CONSULTANCY SERVICES PVT. LTD. 9 PROPERTY AND TO EARN RENT AND THEREFORE THE INCOME SO EARNED SHOULD BE TREATED AS ITS BUSINESS INCOME. THE DISTINGUISHABLE FACT I N THE CASE OF M/S. RAYALA CORPORATION PVT. LTD. (SUPRA) WAS THAT AS PER MEMO RANDUM OF ASSOCIATION OF THAT COMPANY, ONE OF THE OBJECTS WAS TO EARN INCOME BY WAY OF RENT BY LEASING OR RENTING THE PROPERTIES BELONGING TO THE ASSESSEE COMPANY. THE HONBLE SUPREME COURT, THUS, HELD THAT RENTING OF THE PROPE RTY WAS PART OF THE BUSINESS ACTIVITY OF THE ASSESSEE. HOWEVER, IN THE CASE IN HAND, THE TRIBUNAL AFTER APPRECIATION OF FACTS HAS HELD THAT THE SUB LEASING OF THE PROPERTY WAS NOT PART OF THE BUSINESS ACTIVITY OF THE ASSESSEE. THE TRIB UNAL, AS THE FACTS WERE AVAILABLE BEFORE IT, HAS GIVEN A CATEGORICAL FACTUA L FINDING UPON WHICH THE RELEVANT CASE LAWS HAVE BEEN RELIED UPON. WITH DUE RESPECT TO THE ALL CASE LAWS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE, WE FIND NO MISTAKE APPARENT ON RECORD IN THIS CASE AS THE SAID CASE LAWS ARE NO T APPLICABLE BECAUSE THE FACTUAL FINDING GIVEN BY THE TRIBUNAL IS CONTRARY T O THE FACTS OF THE CASES BEFORE THE HONBLE SUPREME COURT AS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE. SO FAR THE RELIANCE OF THE LD. COUNSEL ON THE SUBSE QUENT DECISION OF THE TRIBUNAL IS CONCERNED, IN OUR VIEW, ANY FINDING ARR IVED BY A CO-ORDINATE BENCH OF THE TRIBUNAL IN SUBSEQUENT DECISION CAN NOT BE H ELD TO BE A REASON ENOUGH TO HOLD THAT THERE WAS ANY MISTAKE IN THE EARLIER ORDE R OF DIFFERENT BENCH OF THE TRIBUNAL. MOREOVER, WE DEEM IT FIT TO MENTION FURT HER HERE THAT THIS TRIBUNAL HAS NO POWER TO REVIEW ETC. IF THE ASSESSEE HAS AN Y GRIEVANCE AGAINST THE IMPUGNED ORDER, PROPER COURSE TO AGITATE THE SAME I S BY FILING AN APPEAL BEFORE THE NEXT APPELLATE AUTHORITY I.E. THE HONBLE BOMBA Y HIGH COURT, BUT, NOT WITH THE PRESENT APPLICATION UNDER SECTION 254(2) OF THE ACT. THE TRIBUNAL, VIDE IMPUGNED ORDER, HAS NOT ONLY CONSIDERED THE SUBMISS IONS OF THE ASSESSEE BUT HAS GIVEN A CATEGORICAL FINDING ON ALL OF THE ISSUE S WHICH WERE RAISED BEFORE THE TRIBUNAL BY THE LD. COUNSEL FOR THE ASSESSEE. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX VS RAMESH ELECTRIC AND TRADING CO. 1993 203 ITR 497 (BOM.), WHILE RELYING UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF T. S. BALARAM , ITO V. VOLKART MA NO.81 TO 86/M/2016 M/S. PROLIFIC CONSULTANCY SERVICES PVT. LTD. 10 BROTHERS [1971] 82 ITR 50 AND FURTHER RELYING UPON THE DECISIONS OF THE VARIOUS HIGH COURTS HAS CATEGORICALLY HELD THAT THE POWER OF RECTIFICATION UNDER SECTION 254(2) OF THE INCOME-TAX ACT CAN BE EXERCIS ED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND P ATENT; MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH R EQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. THE TRIBUNAL, UNDE R SUCH CIRCUMSTANCES, HAS NO JURISDICTION UNDER SECTION 254(2) TO PASS THE SE COND ORDER. 8. IN VIEW OF OUR ABOVE OBSERVATIONS AND THE LEGAL POSITION AS STATED ABOVE, WE DO NOT FIND ANY MERIT IN THESE APPLICATIONS AND THE SAME ARE ACCORDINGLY HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19.09.2016. SD/- SD/- (SANJAY ARORA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 19.09.2016. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.