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2023 (1) TMI 1301 - AT - Income TaxCorrect head of income - characterization of receipts - lease rental income earned - “income from business” or “income from house property” - HELD THAT:- Tribunal upheld the action of Ld. CIT(A) by passing the order in M/s. Mindspace Business Park Pvt. Ltd [2022 (9) TMI 1022 - ITAT MUMBAI] taking note of the CBDT Circular No. 16/2017 dated 25.04.2017 which clarified that the income arising from letting out of premises/developed space along with amenities in an Industrial Park/SEZ need to be charged to tax under head “Profit and Gains from Business”, and was pleased to allow the claim of that assessee. Depreciation on assets claimed in reassessment proceedings - whether an assessee can neither claim nor be allowed a deduction that was not claimed in the original return? - As we upheld the action of Ld. CIT(A) allowing the assessee to change the head of income in an abated assessment year pursuant to a notice of AO u/s 153A of the Act, (ie. change of rental income from “income from house property” to ‘income from business profession’), the AO is directed to re-compute the depreciation claimed by the assessee treating AY. 2016-17 as the first year in which the claim has been made and for that adopt the original cost of asset for computing the profit arising out of this business. And the AO is directed to compute the depreciation claimed by the assessee in accordance to the law. Disallowance of interest expenses which was attributable to borrowed fund for making payment - It is noted that the Ld. CIT(A) has allowed the interest expenditure by following the decision of Tribunal orders in Assessee’s own case on this issue from AY. 2006-07 to AY. 2008-09 [2017 (11) TMI 719 - ITAT MUMBAI] and he further noted the Tribunal orders Assessee’s own case from AY. 2009- 10 to AY. 2011-12; and moreover, the Ld. AR brought to our notice that this Tribunal has allowed this issue up to AY. 2015-16 [2022 (11) TMI 1406 - ITAT MUMBAI] - Therefore, we confirm the action of the Ld. CIT(A) and dismiss the appeal of the revenue. Since there is no change of facts or law, revenue appeal dismissed.
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