Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2019 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (9) TMI 1057 - AT - Income TaxCorrect head of income - income earned from letting out various shops/stalls in shopping malls - income from “profits and gains from business and profession” or “income from house property” - HELD THAT:- Where the assessee company developed shopping malls and business centers on properties owned by it and let out same by providing host of facilities in said business centre, income derived there from was business income, as held in the case of A.C.I.T. - VS- STELLER DEVELOPER (P.) LTD. 2015 (8) TMI 460 - ITAT MUMBAI] Again, where the assessee's main objects were acquiring, constructing, operating and maintaining of multiplexes, business centres, etc., income derived from such activities is to be treated as business income and not income from house property as held by the Coordinate Bench of ITAT Mumbai in the case of SHREEJI EXHIBITORS -VS- A.C.I.T. [2015 (8) TMI 886 - ITAT MUMBAI] . Therefore, it is settled law that the income earned by the assessee from letting out various shops/stalls in shopping malls constructed by them is to be treated as business income and not as income from house property. Addition u/s 68 - whether creditor was having creditworthiness to substantiate her investment in share capital/premium worth - HELD THAT:- AO accepted the claim of the assessee in A.Y. 2011-12, in respect of share capital/premium of ₹ 90,00,000/-, therefore balance claim of ₹ 1,50,00,000/- in the assessment year under consideration is also genuine, as there is no change in the facts and in the nature of amount. We note that it is a well settled legal position that factual matters which permeate through more than one assessment year, if the Revenue has accepted a particular view or proposition in the past, it is not open for the Revenue to take a entirely contrary or different stand in a later year on the same issue, involving identical facts unless and until a cogent case is made out by the Assessing Officer on the basis of change in facts We are of the view that the above cited precedents on principle of consistency are squarely applicable to the assessee under consideration. Therefore, we note that there is no infirmity in the order passed by the ld CIT(A). We note that the identity of the Share Capital Subscriber, Mrs. Davina Mary Lyngwa is not in dispute, since she had identified herself before held AO in compliance to summons under Section 131 of the Act, issued to her. The fact that the notice under Section 133(6) of the Act calling for information from her as well as summon issued under Section 131 were well served upon her at her residential address at D/o Late Sh. F.G. Franklin, Mission Compound Road, Mawkhar, Shillong-02. Even the Ld. AO had not disputed the identify of Mrs. Davina Mary Lyngwa. Further, Mrs. Davina Mary Lyngwa had duly confirmed the investment made by her during the above assessment year in the shares of the Assessee Company. Details of investments, including the investments made during the above assessment year, that the said share capital subscriber, Smt. Davina Mary Lyngwa, is a person of considerable means. The fact that she had got 7 properties at various places in Meghalaya apart from Guest Houses etc. has not been disproved by the Ld AO. Apart from this, Mrs. Davina Mary Lyngwa had also confirmed her sources of income, during the course of deposition. Addition on account of parking fees - as during the assessment proceedings the AO treated 20% of parking fees on account of personal expenses and added to the total income of the assessee - HELD THAT:- We note that assessment of the assessee was carried out by the AO under section 143 (3) of the Act, and not under section 144 of the Act, therefore, without rejecting the books of account of the assessee, the adhoc disallowance to the tune is not permitted. Therefore, we do not find any infirmity in the order passed by the learned CIT(A), his order on this issue is hereby accepted and the grounds of Revenue are dismissed.
|