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TMI Blog2015 (6) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of set off of short term capital loss against short term capital gains. (3) Rental income from property treated as business income instead of income from house property. 2. The appeal has been filed with a delay of 26 days. The assessee has filed application for condonation of delay supported by affidavit. After perusal of the same, we are satisfied that the delay in filing of the appeal is caused due to medical exigencies. The delay in filing of the appeal is condoned and the appeal is admitted to be heard on merits. 3. The facts in brief as emanating from records are: The assessee is a non-resident individual. The assessee filed her return of income for assessment year 2007-08 on 27.07.2007 declaring loss of Rs. 4,15,520/-. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. Now, the assessee has come in second appeal before the Tribunal assailing the findings of the First Appellate Authority. 5. Shri K.M. Mohandass, CA, appearing on behalf of the assessee, submitted that the First Appellate Authority has erred in confirming the disallowance made by the Assessing Officer under Section 14A r.w. Rule 8D. The Ld. A.R. contended that the provisions of Rule 8D does not apply in the assessment year 2007- 08. In support of his submission, he relied on the decision of Hon'ble Bombay High Court in the case of Godrej and Boyce Mfg. Co. Ltd vs. Dy. CIT (328 ITR 81). With respect to setting off of short term capital loss against short term capital gains, the Ld. A.R. contended that the loss on sale of fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court of India in the case of Goetze (India) Ltd. (supra) has categorically held that the A.O. has no power to entertain fresh claim of the assessee other than by way of revised return of income. On the issue of treating rental income under the head "income from business", the Ld. D.R. submitted that the assessee has been showing income under the head "business income". There is no change in the agreement with the tenants. The tenants in the TDS certificate have shown the amount as contract payment and not as "rent". The assessee cannot change the head of income in arbitrary manner to suit its convenience and claim statutory deductions. 7. We have heard the submissions made by the representatives of both sides and have perused the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for accepting such claim of the assessee. Accordingly, we remit this issue back to the file of the Assessing Officer with a direction to consider the revised computation furnished by the assessee. This ground of the appeal is allowed for statistical purposes. 9. The third issue in the appeal is with regard to treating rental income from property under the head "income from house property" instead of income from business. It is an admitted fact that in the earlier assessment years, the assessee has been admitting the rental income under the head "income from business". For the assessment year under appeal the assessee changed the head from the business income to "income from house property". The assessee has placed reliance on the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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