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2020 (1) TMI 872 - HC - Income TaxCorrect head of income - rental income received - income from business or Income from House Property - Tribunal held assessee had exploited its property commercially by way of complex commercial activities - HELD THAT:- The object of the Respondent – Assessee is clearly to acquire, develop, let out the commercial complex. It is clear from the objects with which the assessee was incorporated to derive income from running and maintaining the shopping mall. The Respondent – Assessee has provided even marketing and promotional activities and also organising various events and programs. This being done by the Respondent – Assessee also in the context of the revenue sharing agreement copies of which have been placed on record. A perusal of one such agreement shows that the Appellant – Revenue receives not only license fee of the amounts specified therein and percentage of net revenue. In some of the agreements the compensation is either license fee or percentage of net revenue, whichever is higher. Intention of the Assessee is also a material circumstance and the objects of Association, the kind of services rendered clearly point out that the Income is from Business. All the factors cumulatively taken demonstrate that the assessee had intended to enter into a Business of renting out commercial space to interested parties. The other income is only an income which is a dividend income from the deposits received from the Business income. Therefore, considering all these factors which have been enumerated above and referred to by the Tribunal, the findings rendered by the Tribunal on assessment of the factual position before it that the income in question has to be treated as Business Income cannot be called perverse assessment of facts, necessary test for such determination have been employed by the Tribunal. Therefore, the question of law as proposed has to be answered against the Appellant – Revenue Unpaid service tax u/s 43B - HELD THAT:- It is an agreed position at the bar that the issue stands covered against the Appellant – Revenue in view of the following decisions of Ovira Logistics P.Ltd [2015 (4) TMI 684 - BOMBAY HIGH COURT] , also it is informed that even SLP against the decision in the above case have also been dismissed by the Supreme Court. Also Tops Security Ltd. [2018 (9) TMI 799 - BOMBAY HIGH COURT] and Knight Frank (India) (P.) Ltd. - . [2016 (8) TMI 1096 - BOMBAY HIGH COURT] - Decided against Revenue.
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