TMI Blog2012 (3) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the ld. Sr.Counsel for the assessee. Therefore, once the findings given on merits, after considering the relevant records as well as facts then even if the said findings of this Tribunal is not sustainable would not bring the case under the scope of section 254(2) of the Income Tax Act, 1961. - MA No.251/Mum/2011 - - - Dated:- 4-1-2012 - SHRI R.S. SYAL, SHRI VIJAY PAL RAO, JJ. Applicant by : Shri J.D. Mistri Respondent by : Shri P.C.Maurya O R D E R PER VIJAY PAL RAO (JM) This Miscellaneous Application by the assessee is directed against the order pronounced on 16.10.2008 of this Tribunal. 2. The assessee has raised three-fold grievances in this Miscellaneous application against the impugned order of this Tribunal . The first ground raised by the applicant is that the impugned order was not passed within the period of three month from the date of hearing. 3. We have heard the learned Sr.Counsel Shri J.D.Mistri on behalf of the assessee and the learned DR at length. The ld. Sr.Counsel for the assessee has submitted that as per the provisions of Act, the order of the Tribunal should be pronounced within a period of three months from the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mediately on the conclusion of the hearing, the Bench shal l give a date for pronouncement. (c) In a case where no date of pronouncement is given by the Bench, every endeavour shall be made by the Bench to pronounce order within 60 days from the date on which the hearing of the case was concluded and extraordinary circumstances circumstances of the case, the Bench shall fix a future day for pronouncement of the order and such date shall not ordinarily be a day beyond a further period of 30 days and due notice of the day so fixed shall be given on the notice board. Thus, as per Sub-rule (5) of Rule 34 of the Income Tax Appel late Rules,1963 in case where the order is not pronounced immediately on conclusion of the hearing and no date of pronouncement is given then every endeavour shall be made by the Bench to pronounce the order within a period of 60 days from the date on which the hearing of the case was concluded. This Sub-rule further facilitate provides that the pronouncement of the order after the period of 60 days ordinarily be within further period of 30 days provides that due notice of the date fixed for pronouncement shall be given on the notice board. Thus, the term ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at before pronouncement of the order on 16.10.2008 the order was signed by both the Members who have heard the appeal in question. Since one of the Members was already transferred was not available at Mumbai, therefore, another Accountant Member Shri R.S.Syal was nominated to substitute D.K.Shrivastava, AM who was transferred, therefore, there is no illegality or defect in the process of pronouncement of the impugned order. Once, the order was ready for pronouncement as signed by both the Members consisting the Bench, then as per Rule 34(6) of the Income Tax Appellate Procedure Rules, 1963, the order can be pronounced by such Members as may be nominated by the President, Sr.Vice-President or Vice- President as the case may be Sub-Rule (6) of Rule 34 reads as under: Rule 34(6) 34. (1) . (2) . (3) .. (4) . (5) . (6) The order of the Bench shall ordinarily be pronounced by the Members who heard the appeal. However, if the said Members or any of them is or are not available for pronouncement for any reason, then the order will be pronounced by such Member or Members as may be nominated by the President, Senior Vice-President, Vice- President, or Senior Member, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing assessed as income from house property. 8. The CIT(A) relied on the decision of Hon ble Madras High Court in the case of CIT Vs. Indian Warehousing Industries Ltd. 258 ITR 93(Mad), wherein it has been held that letting out of ware house should be assessed under the head income from house property. While coming to this conclusion, the Hon ble Madras High Court has followed the decision of the Hon ble Apex Court in the ease of East India Housing and Land Development Trust Ltd. Vs. CIT 42 ITR 49(SC). The CIT(A) also relied on the decision of the Hon ble Calcutta High Court in the ease of CIT Vs. Shambhu Investment Pvt. Ltd(Cal.), wherein it has been held that the Assessing Officer was right in computing receipt from letting out table space as income from house property. Aggrieved, the assessee is in appeal before us. 9. The Id. Counsel for the assessee Shri J. Mistri submitted that the assessee was not only providing space but also rendering certain services as stipulated in the agreement. He brought to our notice Para-12 of the agreement (which is reproduced here below) wherein it is stated that the agreement recorded is composite, indivisible and inseparable. It is mutu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oodland Pvt. Ltd. and not a commercial asset. The ld. Departmental Representative relied on the decision of Shambhu Investments Pvt. Ltd. reported in 263 JTR 143(SC) and the decision of Hon ble Madras High Court in the case of A.R. Complex Vs. ITO, 212 CTR 328(Mad). The ld. Departmental Representative also argued that each assessment year is separate by itself and therefore the contention of the assessee that the property should be assessed under the head business income as the same has been considered as business income in the past assessments is not correct. 14. We have careful ly considered the relevant facts, the. arguments advanced by the rival parties and the decisions cited. The ld. Counsel for the assessee rel ied on the decision of the Kolkata ITAT in the case of PFH Mal l Retail Management Ltd. 110 lTD 337 in support of the claim but we find that the facts of that case are clearly distinguishable to the facts of the case before us. The Tribunal in that case has found as under: In our view, before arriving at any conclusion about the particular head under which the income derived by the assessee is required to be assessed, it is necessary to examine the relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the clients for business purposes only from 9 am to 10 pm. The owner had further control led the movement of stock- in- trade and other goods by the clients into the premises. The users are not permitted to al low any person to sleep or to stay in any part of the building beyond the hours mentioned therein. But in the instant case the customer has been granted use of the premises for 60 months. There is no bar on the tenants to use the premises during the entirety of the 24 hours. Further, the assessee provides various services like facility of stenographer, telex, fax. etc. which, in our opinion, is only services provided to the tenants which will not alter the basic character of the agreement viz, tenancy. In the case of Shambu Investments Pvt. Ltd., the assessee had let out premises with al l furniture fixtures like air- conditioner, for being used as table space . In that case also the owner is to provide services like watch and ward staff, electricity, water and other common amenities. On these facts, the Hon ble Calcutta High Court has followed that the receipts arising from letting out of property is to be assessed as income from house property and this decision has been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2). It is well settled that sec 254(2) does not confer power on the Tribunal to review is earlier order. Thus, the Tribunal has no power to review its order passed on merit and in the grab of rectification of mistake no order can be passed u/s 254(2) which amounts to reversal of the order passed after discussing all the facts and statutory provisions in detail . Therefore, we do not find any merit in the Miscellaneous Application fi led by the assessee. 11. It is pertinent to mentioned here that the assessee has fi led appeal against the order dated 16.10.2010 passed by this Tribunal before the Hon ble Jurisdictional High Court challenging the legality, validity and propriety of the order passed by this Tribunal and the matter is sub-judice before the Hon ble Jurisdictional High and waiting for outcome of the appeal . The Hon ble Calcutta High Court in the identical situation while deciding an application GA No.2492 of 2010 in appeal ITA No.24 of 2010 in the case of Pankaj Rathi V/s The CIT vide order dated 18.8.2010 has observed as under : The Court :- In this case, Mrs. Dasgupta (nee Banerjee) appearing for the appellant has fairly submitted that his client has taken a dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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