TMI Blog2011 (7) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... That the appellant craves for permission to add, delete or amend the grounds of appeal before or at the time of hearing of appeal. 2. Earlier these appeals were decided by the Tribunal vide its order dated 11.4.2008, a copy of which is placed by the assessee in its paper book at pages 12 to 16. The said appeals of department were decided in favour of assessee exparte qua the assessee on the ground that for A.Y. 2003-04 the income earned by the assessee from plinth was directed to be assessed by the ld. CIT(A) in the nature of Income from business or profession and depreciation was directed to be granted @ 10% and in the departmental appeal filed before the Tribunal the only ground raised by the revenue was with regard to rate of depreciation and assessability of the income received from plinth as Income from business or profession was not challenged. 3. Later on department vide its miscellaneous applications dated 8.12.2008 sought recall of the aforementioned order dated 11.4.2008 and during the course of hearing of such miscellaneous applications, it was submitted by ld. DR that Tribunal order in respect of A.Y. 2003-04 has already recalled its order vide order pron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought adjournment on the ground that she has been assigned D Bench on 5.7.2011 and the files were to be reconstructed and the assessee is in Panipat, therefore, some more time is required to submit the details. 8. The application filed by the ld. DR was considered. It was found that necessary documents to decide the appeal are already filed by ld. AR. The ld. DR who has sought adjournment was not present at the time of hearing. Therefore, it was found that tax effect in the present case was less than ₹ 2 lakh as per calculation submitted by the assessee. Therefore, the departmental appeals are liable to be dismissed. 9. Further on merits also it was found that the issue is squarely covered in favour of the assessee by the aforementioned orders of the Tribunal. For the sake of convenience order dated 25.10.2010 for A.Y. 2003-04 in ITA No. 4282/Del/2006 and order dated 15.4.2010 for A.Y. 2006- 07 in ITA No. 3679/Del/2009 are reproduced below: ITA No. 4282/Del/2006 This appeal by the revenue is directed against the order of the ld. CIT(A) dated 16.10.2006 pertaining to the A.Y. 2003-04. 2. The issue raised is that ld. CIT(A) erred in law in directing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the assessment order as well as order of ld. CIT(A) and also the arguments raised by the ld. DR. It has been clearly recorded in the order of ld. CIT(A) that for A.Y. 2003-04, such income was held by him to be assessable under the head income from business or profession and depreciation was granted at the rate of 10%. Though such order was subject matter of further appeal, the only ground which was raised by revenue was with respect to rate of depreciation. Thus, for that assessment year the revenue had accepted the claim of the assessee that such income is assessable under the head income from business or profession . No new facts have been brought on record to take a different view from the earlier taken by the department and in the present appeal, there is no issue regarding date of depreciation. Therefore, we do not find any infirmity in the order of the ld. CIT(A) vide which it has been held that such income was assessable under the head income from business or profession . We uphold his order and departmental appeals are dismissed. 7. Again in assessee s own case in ITA No. 3679/Del/2009 for assessment in 2006-07, the ITAT, Delhi Bench vide order dated 15.4.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f godowns and plinths constituted business income and the same shall be allowed accordingly. In A.Y. 2002-03, assessee s return was accepted u/s 143(1). Thereafter, the assessment was reopened u/s 148 where AO treated the assessee s income as Income from house property . Aggrieved, assessee preferred first appeal where CIT(A) allowed the same as business income directing the AO to allow the expenses claimed by the assessee under the head business income . Aggrieved, revenue preferred appeal before ITAT challenging the CIT(A) s decision. Revenue preferred appeal only on the ground of depreciation. Revenue s appeal was dismissed. In A.Y. 2003-04 also, the AO and CIT(A) both repeated their orders. Revenue again preferred the appeal in which no ground was taken about nature of business. In assessment years 2004-05 and 2005-06, same action was repeated and revenue did not raise the issue about the nature of income. ITAT upheld the order of CIT(A) by following observations: 5. We have carefully considered the facts of the case, gone through the assessment order as well as order of ld. CIT(A) and also the arguments raised by the ld. DR. It has been clearly recorded in the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been consciously not taking the ground on this behalf. Though the technical issues of res judicata does not apply to income-tax proceedings, however, Hon ble Supreme Court has clearly held that unless there are new facts or change of facts, consistent view should not be deviated from. It has not been pleaded by ld. DR there is any change in facts. In view thereof, we are unable to accept the proposition of the Department. The issue about rental income being treated in the hands of assessee as income from business, we see no reason to deviate from this finding. In view of the above, we uphold the order of the CIT(A) and dismiss the revenue s appeal. 5. In the result, the appeal filed by the revenue is dismissed. Order pronounced in the open court on this 15 th day of April, 2010. 10. In view of above discussion, we dismiss the appeals filed by the revenue ex-parte qua the ld. DR not only on account of low tax effect but also on the ground that issue is squarely covered in favour of assessee by the aforementioned two decisions of the Tribunal in the case of assessee itself. 11. In the result, both the departmental appeals are dismissed. Order pronounced i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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