TMI Blog2017 (7) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... y’ or a ‘business income’, depends upon facts and circumstances of each case and different views are possible as per various judgements, referred to above based upon the evidence and material on record. The issue is highly debatable and as such, ld. Pr. CIT was not justified in setting aside the assessment order by invoking jurisdiction under section 263 of the Act. We do not agree with the view of ld. Pr. CIT in invoking jurisdiction under section 263 of the Act. Accordingly, we set aside and quash the order under section 263 of the Act dated 25.02.2016 and restore the assessment order dated 14.01.2014. Appeal of the assessee is allowed. - ITA No. 312/CHD/2016 - - - Dated:- 30-11-2016 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND Ms.ANNAPURNA GUPTA, ACCOUNTANT MEMBER For The Appellant : Shri Tej Mohan Singh For The Respondent : Shri Ravi Sarangal ORDER PER BHAVNESH SAINI,JM This appeal by assessee has been directed against the order of ld. Pr. CIT, Panchkula dated 25.02.2016 for assessment year 2011-12 under section 263 of the Income Tax Act. 2. Briefly the facts of the case are that assessee is a firm, filed return of income at ₹ 2,62 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Air Conditioning Plant, generator, fire fighting system, electric panel, lifts, escalator etc. This is purely a business activity and not related to income from rent or house property . The tenants have deducted TDS on the rent which can be verified. The assessee suffered business loss in this activity and claimed set off. 3(i) Hon'ble Supreme Court in the case of Chennai Properties Investment Vs CIT 373 ITR 673 has held that, letting of properties and carried out activities in such a manner to earn income is income from business . The assessee since 2006, has been claiming same income from business which have been accepted. The rule of consistency do apply to the income tax proceedings and assessee relied upon judgement of the Delhi High Court in the case of ARJ Securities Printers 264 ITR 276, CIT Vs Escorts Ltd. 198 Taxman 222 and judgement of Hon'ble Supreme Court in the case of Radhasoami Satsang Vs CIT 193 ITR 121. It was also pointed out that in assessment year 2008-09 the department tried to disturb the opinion in this case under section 147 of IT Act but later on, dropped the proceedings and accepted the computation of income filed by the assessee. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessable income. In assessment year 2008-09, the Assessing Officer despite accepting the claim of the assessee that it has earned income on account of business income in the order under section 143(3), reopened the assessment for assessment year 2008-09 and passed the order under section 143(3)/148 of the Act dated 12.03.2013 in which the Assessing Officer considered the identical issue, whether for providing other facilities, it is business income of the assessee. The assessee filed detailed reply before Assessing Officer and also filed copies of the lease deed executed between the assessee and the tenants. The assessee claimed that it has earned income from these facilities as income from business which have been accepted by the Assessing Officer on the basis of the details and material produced before the Assessing Officer. 5(i) These facts, therefore, clearly proved on record that the copies of the lease deed were already available on record of the Revenue Department in earlier years. The Assessing Officer has examined the issue in detail not only in various years but in preceding assessment year 2008-09 under section 148 of the Act, and accepted the claim of the assessee t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the assessee. This decision of the Income-tax Officer could not be held to be erroneous simply because in his order he did not make an elaborate discussion in that regard. Moreover, in the instant case, the Commissioner himself, even after initiating proceedings for revision and hearing the assessee, 'could not say that the allowance of the claim of the assessee was erroneous and that the expenditure was not revenue expenditure but an expenditure of capital nature. He simply asked the Income-tax Officer to re-examine the matter. That was not permissible. The Tribunal was justifi es in setting aside the order passed by the Commissioner of Income-tax under section 263. 7. Ld. Pr. CIT did not accept contention of the assessee that in earlier years on the same issue, Revenue Department has accepted in the assessment orders under section 143(3) and under section 143(3)/148 of the Act that income received on account of providing other facilities to the tenant was business income. The ld. Pr. CIT in this regard noted that mistake committed by the Assessing Officer in earlier years cannot be formed basis for continuing the same mistake for the subsequent years. Findings of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also order of ITAT Mumbai Bench in the case of M/s Levish Products Pvt. Ltd. Vs DCIT 175 TTJ 153 in which it was held as under : Assessee-company having developed a shopping mall and let out the same along with host of services/facilities/amenities viz., infrastructure facilities, escalators, power backup, central air-conditioning, lifts, maintenance of common area and a whole lot of other facilities, the basic intention is to commercially exploit the property which is one of the main objects of the company and, therefore, the income from letting out of multiplex is assessable as business income and not as income from house property. 8. Since in the case of the assessee, it is not in dispute that assessee is engaged in Real Estate business and also running Minerwa Multiplex and Capital Cinema, therefore, assessee firm since beginning, had been disclosing rental income for letting out the properties/space and was also earning business income on account of providing other facilities to the occupants/tenants. Therefore, providing other facilities to the tenants/occupants is, in-fact business of the assessee and since beginning, it has been showing as business incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest of revenue. The view of the Assessing Officer have been accepted by the Revenue Department itself in preceding many assessment years, therefore, could not be said that the view taken by the Assessing Officer is unsustainable in law. The ld. counsel for the assessee, therefore, rightly contended that the proceedings under section 263 of the Act have been initiated on mere change of opinion on the same identical facts and circumstances of this case as is considered by the Revenue Department in earlier year as well as in the assessment year under appeal. As is noted above, Assessing Officer has considered this issue at assessment stage by calling for information from the assessee. The claim of the assessee is consistent as have been made in earlier years, therefore, in the absence of any new material against the assessee, Revenue Department cannot be allowed to take a contrary view in subsequent year. Such approach is not permissible under the law. 10(i) We may also note here that ld. Pr. CIT has not pointed out in the impugned order as to how the assessment order passed by the Assessing Officer was erroneous and prejudicial to the interest of revenue. The ld. Pr. CIT, with ..... 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