TMI Blog2014 (1) TMI 1440X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of municipal taxes - Held that:- If the amount has been paid on or before the due date of filing the return of income u/s 139, then the same has to be allowed u/s 43B - Decided in favour of assessee. Interest income - Held that:- The substantial income of the assessee is from the activity of advancing the loan and in the form of interest - This income has been offered by the assessee as business income which has been accepted by the Revenue since 2003-04 to 2011- 12 except the assessment year 2007-08 - When the Revenue has consistently accepted the interest income as business income of the assessee then in the absence of any change in the facts and circumstances a different view is not permissible for the assessment year under consideration - Decided in favour of assessee. - I.T.A. No.1511/Mum/2012 - - - Dated:- 28-10-2013 - Shri Vijay Pal Rao, JM And Shri D. Karunakara Rao, AM,JJ. For the Petitioner : Dr. Manjunath Karkihalli For the Respondent : Shri Vimal Punmiya ORDER Per : Vijay Pal Rao, JM This appeal by the assessee is directed against the order dated 19.1.2012 of Commissioner of Income Tax(Appeals) for the assessment year 2007-08. 2. The ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to abroad for inspection and import of gym equipment. Therefore, after obtaining the IEC and RBI codes for the purpose of requisite gym equipments were imported. This entire exercise of developing the premises as fitness centre clearly shows that the assessee has carried out al l these work as commercial venture. The assessee has not leased out the premises rather it had entered into business agreement with four different parties and maintenance of gym with the assessee. The Ld. A.R has further contended that it has not received lease rent rather received compensation. He has referred the clause 3 of the business centre agreement which reads as under: 3. The company hereby agrees to al low, and render to the client the following facilities, amenities, conveniences and services during the period of this agreement Viz. (a) To occupy and use the premises for itself, its employees, servants, visitors, customers, affiliates, associate etc. as incidental to availing of the facilities. (b) To use of the furniture, fixture and fitting provided in the said premises, details of which are provided in annexure A (Page 94) as per the agreement of date executed between M/s Mukta Stee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maining assessment years the return of income of the assessee has been accepted u/s 143(1). The Ld. A.R has also relied upon the decision of Hon ble Calcutta High Court in case of CIT Vs Ganga Properties Ltd. 62 Taxman 285 as well as order of this Tribunal dated 30.6.2011 in case of ITO Vs Shanaya Enterprises in ITA No. 3648/M/2010. On the other hand, the Ld. D.R has relied upon the orders of the authorities below as well as the decision in case of Shambhu Investment (supra). 6. We have considered the rival submissions as well as relevant material on record. The issue of treating the rental income whether business or income from other sources for allowing the premises equipped with fitness equipments and other facilities as fitness centre is a highly debatable issue. Thus, this issue has to be decided on the peculiar facts of the case we note that this is not a case of simple letting out of a premises but the assessee has developed and prepared the premises as a fitness centre/gymnasium by installing the all requisite equipments, machines and other facilities. Therefore, the primary purpose and intention of the assessee to lease out the assets comprising the premises as well as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain expenses were disallowed. On appeal, the CIT(A) has confirmed the action of the A.O. 9. Before us the Ld. A.R of the assessee has submitted that the assessee is in the business of money lending right from the beginning. He has referred the details of the loans given by the assessee from the assessment year 2003-04 to 2007-08 and submitted that the money lending is a regular business activity of the assessee and the interest income earned by the assessee has been accepted by the department from the assessment years 2003-04 to 2011-12 except the assessment year under consideration. He has relied upon the decision of Hon ble Calcutta High Court in case of CIT Vs Hindustan Motors Ltd. 192 ITR 619 as well as the decision in case of CIT Vs Ess Jay Enterprises (P) Ltd. 173 Taxman 1. The Ld. A.R has thus, submitted that when the interest from loan and advances is a substantial and regular business activity of the assessee since its inception and the Revenue has consistently accepted the same then for the assessment year under consideration the A.O cannot take a different view. He has pointed out that the assessee has deployed its more than 90% of funds for advancing the loan which g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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