DCIT, CHENNAI V. Suryavardhan Estates Pvt. Ltd., CHENNAI

MA 94/CHNY/2018

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1471 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-10-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 27-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S SRIDHAR
• Keywords: Business income
• Section: 263; 28

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . , . , BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY, JUDICIAL MEMBER M.P. NO. 94/CHNY/2018 [IN I.T.A.NO.462/CHNY/2014 & C.O. NO. 36/CHNY/2017] / ASSESSMENT YEAR :2012-13 THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 6(2), CHENNAI. VS. M/S. SURYAVARDHAN ESTATES PVT. LTD., 6 TH FLOOR, DHUN BUILDING, NO. 827, ANNASALAI, CHENNAI 600 002. [PAN: AAJCS5120M] ( /APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI CLEMENT RAMESH KUMAR, ADDL. CIT / RESPONDENT BY : SHRI S. SRIDHAR, ADVOCATE / DATE OF HEARING : 03.08.2018 /DATE OF PRONOUNCEMENT : 08.10.2018 / O R D E R PER DUVVURU RL REDDY, JUDICIAL MEMBER: THIS MISCELLANEOUS PETITION IS FILED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL IN I.T.A. NO. 462/CHNY/2017 & C.O. NO. 36/CHNY/2017 DATED 17.10.2017 SEEKING TO RECTIFY ITS ORDER SINCE THE TRIBUNAL HAS OBSERVED THAT THE INCOME FROM CORAMANDAL PLAZA WAS ASSESSED AS BUSINESS INCOME UNDER SECTION 28 OF THE ACT BY THE REVENUE IS LEGALLY AND FACTUALLY NOT CORRECT AS THE ASSESSING OFFICER HAS NOT ASSESSED THE INCOME FROM CORAMANDAL PLAZA AS BUSINESS INCOME. SINCE, THERE IS A MISTAKE APPARENT M.P. NO.94/CHNY/18 2 FROM THE ORDER OF THE TRIBUNAL, THE LD. DR PLEADED THAT THE ORDER OF THE TRIBUNAL MAY BE RECALLED FOR FRESH ADJUDICATION OF THE ABOVE ISSUE. 2. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE HAS NOT SERIOUSLY OBJECTED TO THE ABOVE SUBMISSIONS OF THE LD. DR. 3. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE ORDER OF THE TRIBUNAL. VIDE ORDER DATED 17.10.2017 IN I.T.A. NO. 462/CHNY/2017, THE TRIBUNAL HAS OBSERVED IN PARA 3 PAGE NO. 12 READS AS UNDER: COMING TO THE RENTAL VALUE, BASED ON FACTUAL LETTING OR OTHERWISE, OF THE UNSOLD SHOPS AT THE SHOPPING COMPLEX COROMANDAL PLAZA. THE REVENUYE HAS ALREADY ASSESSED THE RENTAL (ANNUAL) INCOME OF THESE SHOPS, BEING REGULARLY LET, AS A PART OF THE ASSESSEES BUSINESS INCOME U/S 28. WHERE, THEN, WE MAY ASK, IS THE QUESTION OF THE REVENUE, CONTRADICTING ITS OWN STAND, SEEKING AN ASSESSMENT OF THE LETTABLE VALUE OR THE RENT RECEIVED AS INCOME FROM HOUSE PROPERTY U/S. 22? WHERE IT CONSIDERS THE AOS STAND AS UNTENABLE IN LAW, THE ONLY COURSE AVAILABLE TO IT IN LAW IS THE PROVISION OF HIS ORDER U/S. 263 4. THE LD. DR VEHEMENTLY ARGUED THAT THE ASSESSING OFFICER HAS NOT ASSESSED HE INCOME FROM CORAMANDAL PLAZA AS BUSINESS INCOME AND SUBMITTED THAT THE OBSERVATIONS OF THE TRIBUNAL THAT THE REVENUE HAS ALREADY ASSESSED THE RENTAL (ANNUAL) INCOME OF THESE HOPS, BEING REGULARLY LET, AS A PART OF ASSESSEES BUSINESS INCOME UNDER SECTION 28 OF THE ACT IS NOT CORRECT. WE HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER AS WELL AS APPELLATE ORDER AND FIND THAT AT PAGE 6 OF THE ASSESSMENT ORDER, THE ASSESSING OFFICER DETERMINED THE ANNUAL LETTING VALUE AS M.P. NO.94/CHNY/18 3 INCOME FROM HOUSE PROPERTY AND NOT BUSINESS INCOME AS OBSERVED BY THE TRIBUNAL. WHEREAS, BEFORE THE LD. CIT(A), THE ASSESSEE HAS AGITATED THAT THE SAID INCOME SHOULD BE ASSESSED AS INCOME FROM BUSINESS AND NOT AS AN INCOME FROM HOUSE PROPERTY, WHICH WAS AGREED BY THE LD. CIT(A) AND DELETED THE NOTIONAL ALV, AGAINST WHICH THE REVENUE PREFERRED FURTHER APPEAL BEFORE THE TRIBUNAL. THUS, WE FIND THAT THERE IS A FACTUAL MISTAKE APPARENT FROM THE ORDER OF THE TRIBUNAL ON THIS ISSUE AND ACCORDINGLY, WE RECALL THE ORDER OF THE TRIBUNAL DATED 17.10.2017 FOR LIMITED PURPOSE TO ADJUDICATE THE ABOVE ISSUE. ACCORDINGLY, WE DIRECT THE REGISTRY TO POST THE APPEAL FOR HEARING ON REGULAR COURSE BY SERVING NOTICE OF HEARING TO BOTH THE PARTIES. 5. IN THE RESULT, THE MP FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED ON 8 TH OCTOBER, 2018 AT CHENNAI. SD/- SD/- (ABRAHAM P. GEORGE) ACCOUNTANT MEMBER (DUVVURU RL REDDY) JUDICIAL MEMBER CHENNAI, DATED, THE 08.10.2018 VM/- /COPY TO: 1. / APPELLANT, 2. / RESPONDENT, 3. ( ) /CIT(A), 4. /CIT, 5. /DR & 6. /GF.