TMI Blog2010 (9) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... ors or to acquire any land, building or any other immovable property by purchase, lease, exchange or otherwise to construct, develop into business complexes, godowns, cold storage, ice factory, factory premises, residential or commercial building or otherwise and to sell, exchange, let, lease or sublet or retain it. In the year 1991, a part of the cold storage was let out to Bajaj Auto Ltd. and Maharashtra Scooters Ltd. and the assessee-company was being continuously assessed as such under s. 143(3) of the IT Act, 1961 (in short the Act ) in the Central Circle upto asst. yr. 1999-2000 and thereafter for asst. yr. 2000-01, it was assessed before the Asstt. CIT, Range-I, Lucknow. The rent and service charges from Bajaj Auto Ltd. and Maharashtra Scooters Ltd. were being treated as the business income as the assessee was to provide parking facilities to the vehicle carrier trucks of the said two companies and common areas, cleaning and electricity and security were also to be provided to these two companies. During the assessment year under consideration, the assessee has shown a net loss of ₹ 1,57,032 from the cold storage. The assessee-company has shown rental income of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year too the learned AO has not brought on record any new fact as to why any departure from the earlier years' stand has been taken. Thus it is in the interests of natural justice and to maintain consistency while administering justice as held by the Hon'ble apex Court in the case of Radhasoami Satsang vs. CIT (1991) 100 CTR (SC) 267: (1992) 193 ITR 321(SC) in the present year too the relief is to be allowed to the assessee company. The copies of the order for the earlier assessment years i.e., 1998-99 and 2000-01 as well as the Tribunal order in the case of M/s Goel Builders is being attached herewith in the paper book filed along with these submissions. 6. The learned CIT(A) accepted the above submissions of the assessee and held that although the principles of res judicata do not apply to income-tax proceedings, but the principles of consistency have to be followed while administering justice. While holding so, the learned CIT(A) has followed the decisions of Hon'ble Supreme Court in Radhasoami Satsang vs. CIT (1991) 100 CTR (SC) 267: (1992) 193 ITR 321(SC), CIT vs. Narendra Doshi (2002) 174 CTR (SC) 411: (2002) 254 ITR 606(SC), and CIT vs. Shivsagar Estate (20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Agrawal, advocate, learned counsel appearing for the assessee reiterated the submissions made before the lower authorities. He further submitted that the property in question is a commercial asset of the company. The assessee entered into an agreement with Bajaj Auto Ltd. and Maharashtra Scooters Ltd. in the year 1991 to let out a part of the cold storage on rent. The assessee-company was deriving this income since 1991 and was assessed under s. 143(3) in Central Circle till 1999-2000 and thereafter from asst. yr. 2000-01 in Asstt. CIT, Range-I, Lucknow and the source of this income was treated as business income . Shri Yogesh Agrawal, advocate, learned counsel for the assessee also relied on the decision of the Tribunal, A Bench, Lucknow in the case of assessee's sister concern Goel Builders in ITA No. 1096/All/1999, ITA No. 107/Luck/2000, ITA No. 394/Luck/2002, ITA No. 413/Luck/2003 and ITA No. 318/Luck/2004, dt. 6th Sept., 2004. The above decision of the Tribunal has been affirmed by the Hon'ble Allahabad High Court, Lucknow Bench, Lucknow in IT Appeal No. 127 of 2005 along with IT Appeal Nos. 128, 129, 130 and 131, all of the year 2005 vide their judgment dt. 24th Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... io laid down by the Hon'ble Supreme Court in the case of Radhasoami Satsang (supra) held as under : We agree that the principles of res judicata does not apply to income-tax proceedings, but at the same time, the Hon'ble Supreme Court in the case of Radhasoami Satsang vs. CIT (1991) 100 CTR (SC) 267: (1992) 193 ITR 321(SC) has also enunciated the principles of consistency while administering the justice. It is observed that M/s Goel Builders is assessee's sister concern. In that case certain vacant space in Goel Complex, Lucknow was let out in asst. yr. 1986-87. The rental income was offered for taxation under the head Profits and gains of business or profession . Right from asst. yrs. 1986-87 to 1992-93, the Department accepted the claim of the assessee to the effect that the income was taxable under the head Profits and gains of business or profession . While the assessment order for asst. yr. 1990-91 was framed under s. 143(3), the orders for the other years were passed under s. 143(1)(a) of the Act. In the asst. yrs. 1993-94 and 1994-95, the AO taxed the income under the head Income from house property . However, on appeal, the learned CIT(A) accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and gains of business or profession.' The Tribunal's judgment is affirmed. The appeals are dismissed. 11.1 In our view, the decision of the jurisdictional High Court in the case of Goel Builders (supra) is squarely applicable to the facts of the present case. The Hon'ble High Court has categorically held that the principle of consistency is a rule in general, but for cogent reason or on justifiable ground the Revenue has got right to depart from its earlier practice and take a different view, which shall be determined upon the facts and circumstances of each case. In the instant case, the AO has not brought any material on record while taking a different view in the year under consideration. In the case of Goel Builders (supra), the Hon'ble jurisdictional High Court has further categorically held that it would not be appropriate to change the view in subsequent years except on justifiable ground like, change of circumstances or non-consideration of relevant material or statutory provisions or failure on the part of assessing or appellate authority to exercise jurisdiction for extraneous reason or small amount of revenue involved or other justifiable gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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