TMI Blog2017 (2) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... M AND SHRI RAJESH KUMAR, AM For The Applicant : Shri Prakash Jotwani For The Respondent : Shri T A Khan ORDER PER RAJESH KUMAR, A. M: This is an appeal filed by the assessee challenging the order dated 19.2.2015 passed by the ld.CIT(A)-10, Mumbai against confirming the order of AO treating income from leasing of furniture, fixtures, plant , machinery and others amounting to ₹ 91,01,461/- as income from house property instead of business income as declared by the assessee and thereby disallowing depreciation on the same amounting to ₹ 72,99,113/-. 2. The facts of the case are that the assessee filed its return of income on 30.9.2011 declaring total income of ₹ 94,86,773/-. Thereafter the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) of the Act assessing the total income at ₹ 143,08,570/-. In arriving at this conclusion the assessing officer placed reliance on the decision of Hon ble Apex Court in the case of Shambhu Investment Ltd V/s CIT reported in 273 ITR 143(SC). 3. Aggrieved by the order of the AO, the assessee preferred an appeal before the ld.CIT(A), who after considering the relevant contentions and on perusal of the record available before him upheld the action of the AO by observing and holding as under (para 5.1): 5.1 I have carefully considered the facts and circumstances of the case, statement of facts, relevant assessment order, written submission, relied upon case laws and the arguments made by the LAR before the undersigned. The o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down by the Hori'ble Supreme Court in the instant case, it is noted that during the year the appellant has simply let out the property alongwith some furniture and fixtures etc. to other parties without involving himself in any complex commercial activities, therefore, under these circumstances, the AO has correctly taxed the entire income under the head house property. 4. Aggrieved by the order of the ld.CIT(A) the assessee is in appeal before this Tribunal. Before us the ld.AR submitted that the lower authorities have miserably failed to appreciate the facts in correct perspective as the assessee was in the business of real estate including letting out properties and other items of furniture and plant machinery and accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as income from property and rightly confirmed by FAA. Finally he requested the bench to uphold the orders of FAA. 6. We have carefully considered the rival contentions and perused the material placed before us including the orders of the authorities below and the case laws relied upon by the rival parties. We find that the assessee has entered into two separate agreements. One for renting out the premises and another for leasing the infrastructure and amenities which included the air conditioners, plant and machinery and furniture etc, the income from which was shown as business income after claiming depreciation on the said items and expenses connected therewith. The reliance was placed by the AO in the case of M/s Shambhu Investment P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty'. We, accordingly, allow this appeal and set aside the judgment of the High Court and restore that of the Income Tax Appellate Tribunal. No orders as to costs. In the case of Shambhu Investment (supra), the Hon ble Supreme Court has held that if there is no exploitation of property by letting it out and then it is taxable under the head income from house property. But in the present case the various items of amenities and infrastructures as produced by the assessee were exploited. 7. In our opinion, the ratio laid down in the case of Shambhu Investment (supra) is not applicable to the case of the assessee and is cleary distinguishable. We, therefore, respectfully following the ratio laid down in the case of Chennai Propert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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