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2016 (11) TMI 204

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..... hold that there was any mistake in the earlier order of different Bench of the Tribunal. Moreover, we deem it fit to mention further here that this Tribunal has no power to review etc. If the assessee has any grievance against the impugned order, proper course to agitate the same is by filing an appeal before the next appellate authority i.e. the Hon’ble Bombay High Court, but, not with the present application under section 254(2) of the Act. The Tribunal, vide impugned order, has not only considered the submissions of the assessee but has given a categorical finding on all of the issues which were raised before the Tribunal by the Ld. Counsel for the assessee - MA No.81, 82, 83, 84, 85, 86/M/2016, Arising out of ITA No.2367, 8143/M/2011, Arising out of ITA No.3424, 3425, 3426/M/2010, Arising out of ITA No.458/M/2012 - - - Dated:- 19-9-2016 - SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER For The Assessee : Shri Firoz B. Andhyarujina, A.R. For The Revenue : Shri Pavan K. Beerla, Sr. A.R. ORDER Per Sanjay Garg, Judicial Member: The above captioned miscellaneous applications have been moved by the assessee under section 254(2) .....

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..... lied upon a subsequent decision of the Hon ble Supreme Court in the case of M/s. Rayala Corporation Pvt. Ltd. vs. ACIT (civil appeal No.6437 of 2016 others) vide order dated August 11, 2016 and has therefore submitted that since the income earned by the assessee during the year was only from subleasing of the premises, hence the said income was required to be assessed as business income of the assessee and not under the head income from house property . The Ld. Counsel, thus, has stressed that even the subsequent decision of the Hon ble Supreme Court would operate as if it was the law of land at the time of adjudication of the issue by the Tribunal on a date prior to the decision of the Hon ble Supreme Court and if the lower authorities have interpreted a certain provision in contravention to the interpretation done by the Hon ble Supreme Court, then such interpretation will be a mistake apparent on record and can be rectified under section 254(2) of the Act. 3. On the other hand, the Ld. D.R. has stated that there is no mistake apparent on record and that no rectification is required in order dated 14.08.2013 of this Tribunal. 4. We have considered the rival contentions .....

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..... iple, the Hon ble Supreme Court treated the income of the assessee in that case as business income of the assessee. We may further point out that the Hon ble Supreme Court has further observed that the facts of the case before them [Chennai Properties Investments Ltd. (supra)] were distinguishable so far as the observations of the Hon ble Supreme Court in the case of the East India Housing Land Development Trust Ltd. vs. CIT (1961) 42 ITR 49 as well as the constitutional bench decision in the case of Sultan Brothers Pvt. Ltd. vs. CIT (1964) 5 STR 807 were concerned. It has also been discussed by the Hon ble Supreme Court that in the case of East India Housing Land Development Trust Ltd. vs. CIT (supra) the facts were that the company was incorporated with the object of buying and developing landed properties and promoting and developing markets. Thus, the main objective of the company was to develop the landed properties into markets. It so happened that some shops and stalls, which were developed by it, had been rented out and income was derived from the renting of the said shops and stalls. In those facts, the question arose for consideration was as to whether the renta .....

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..... is also not a case of organized activities of taking properties on lease and letting out. The assessee had taken on lease one building which had been sub-leased to tenants and, therefore, the rental income has to be assessed as income from house property. We accordingly uphold the decision of authorities below to assess the rental income as income from house property. 6. While giving a factual finding in this respect, the Tribunal noted that the income from sublease of the premises was to be assessed as rental income of the assessee. This Tribunal also took note of the services provided by the assessee along with renting of the building. We have also noted the details of services as enumerated in the order and have found that most of those are general in nature which a landlord is supposed to provide to his tenants. We find that the Tribunal has also held that the said services rendered by the assessee was not part of any organized activity with a view to earn such income and held that the income from services on the facts of the case has to be assessed as income from other sources and all expenses incurred by the assessee for earning of such income has to be allowed as deduct .....

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..... isory, consultancy and technical services in the area of real estate and properties such as architectural, civil construction, maintenance and related services. None of the above objects suggest that letting out of the premises was the business activity of the assessee. We may further point out that the premises in question even have not been developed by the assessee. The premises in question has been taken on lease by the assessee and further subletted. The facts of the case of the assessee, in our view, are identical to that of the case before the Hon ble Supreme Court in the case of East India Housing Land Development Trust Ltd. (supra) as discussed above wherein the Hon ble Supreme Court has held that when letting out of the property was not the object of the company then rental income can not be assessed as business income . In the case in hand it is neither the object nor the business activity of the assessee company to take on lease and sub let the properties. So far as the reliance of the Ld. Counsel on the decision of the Hon ble Supreme Court in the case of M/s. Rayala Corporation Pvt. Ltd. (supra) is concerned; we find that the facts were also different in the said .....

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..... re was any mistake in the earlier order of different Bench of the Tribunal. Moreover, we deem it fit to mention further here that this Tribunal has no power to review etc. If the assessee has any grievance against the impugned order, proper course to agitate the same is by filing an appeal before the next appellate authority i.e. the Hon ble Bombay High Court, but, not with the present application under section 254(2) of the Act. The Tribunal, vide impugned order, has not only considered the submissions of the assessee but has given a categorical finding on all of the issues which were raised before the Tribunal by the Ld. Counsel for the assessee. The Hon ble Bombay High Court in the case of Commissioner Of Income-Tax vs Ramesh Electric And Trading Co. 1993 203 ITR 497 (Bom.), while relying upon the decision of the Hon ble Supreme Court in the case of T. S. Balaram, ITO v. Volkart Brothers [1971] 82 ITR 50 and further relying upon the decisions of the various High Courts has categorically held that the power of rectification under section 254(2) of the Income-tax Act can be exercised only when the mistake which is sought to be rectified is an obvious and patent; mistake which .....

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