TMI Blog2011 (8) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... was made only on the ground that the income is assessable under the head “House Property”. Consequent to our decision in ground no.1, we direct the Assessing Officer to allow both the expenditure claimed as well as the claim for deduction under section 80IA(4)(iii). Consequently, we set aside the order passed by the Commissioner (Appeals) and allow the ground no.2 and 3 raised by the assessee. As the income in question is assessable under the head “Income From Business”, the addition made under section 23(1)(a) is to be necessarily deleted - ITA no. 1057/Mum./2010 - - - Dated:- 12-8-2011 - SHRI, J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYRAGHAVAN, JUDICIAL MEMBER For the Appellant : Mr. Rakesh Joshi For the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestments P. Ltd. v/s CIT, 263 ITR 143 (SC), held that the income is assessable under the Income From House Property . Thereafter, the Assessing Officer determined the annual value in accordance with section 23(1)(a) and made the addition. The annual value was fixed at ` 69,47,100. 4. The assessee, being aggrieved by the stand so taken by the Assessing Officer, carried the matter in first appeal, but without any success. Still aggrieved, the assessee is in further appeal before the Tribunal, raising following grounds:- 1. On the facts and circumstances of the case as well as in law, the learned CIT(A) has erred in confirming the action of Assessing Officer in treating the business centre income as income from house property instead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be carried out. The choice of the assessee is limited and the assessee had to provide in addition to the infrastructure facilities, optical fiber wire cabling inside the entire premises, instal V-SAT and also obtained high speed dedicated lease lines. He submits that the business centre facilities like waiting room, conference room, valet parking, reception, canteen, 24 hours securities, internal facilities, high speed lift, power back-up, etc., were provided and basic intention of the assessee was not only earn rental income but to run the premises on I.T. Park as Service Centre . He pointed out that only in such cases, the assessee would get better returns. He pleaded that the Assessing Officer as well as the Commissioner (Appeals) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deduction under section 80IA(4)(iii) of the Act was denied by the Revenue authorities on the ground that the assessee had no business income. He submits that this is also consequential to ground no.1. 8. On ground no.4, which is on the alternative issue of determination of annual letting value under section 23(1)(a), learned Counsel submits that, the issue is covered in favour of the assessee by the Full Bench judgment of Hon'ble Delhi High Court in CIT v/s Moni Kumar Subba Ors., (2011) 333 ITR 38 (Del.). He also relied on the decision of a co-ordinate bench of the Tribunal in DCIT v/s Reclamation Realty India P. Ltd., ITA no.1411/ Mum./2007, etc., order dated 4th January 2011, and submits that the Assessing Officer has to take a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 13. The undisputed fact is that the property in question is an I.T. Park, with all infrastructure facilities and services. This is not a simple building. The Ministry of Commerce and Industries, notifies certain building as I.T. Park only if various facilities and infrastructure, as specified by the Department, are provided. It is an undisputed fact that all the technical requirements, infrastructures, facilities and services are being provided in this building and it was only for this reason that not only the Ministry of Commerce Industries, but also the CBDT notified the same as an I.T. Park which entitles the assessee to earn certain incentives. The intention of the assessee while purchasing the property is to participate in the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the head Income From Business Profession . The Special Leave Petition filed by the Revenue against this judgment was rejected by the Hon'ble Supreme Court which is reported as 264 ITR (St.) 36. Coming to the decision of the Mumbai Bench of the Tribunal in Harvindarpal Mehta (supra), the Tribunal, in this decision, after considering the judgment in Shambhu Investments P. Ltd., held that the income earned from business centre is to be assessed under the head Income From Business Profession . The decision of Mumbai Bench of the Tribunal in Shanaya Enterprises (supra) held that when the property is used for specific purposes and in the nature of providing complex services, the income is taxable under the head Income From Business ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
