TMI Blog2017 (8) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the Act was without any valid reason or justification. Moreover, the details of the rents along with the agreements with the tenants were called for by the AO during the course of assessment proceedings and only after examining the same the assessment order u/s 143(3) was framed. - Decided in favour of assessee. - I.T.A. No.5300/Mum/2014 - - - Dated:- 21-8-2017 - SHRI D.T.GARASIA, JM AND SHRI RAJESH KUMAR, AM For The Assessee : Shri Neel Khandelwal For The Revenue : Shri N P Singh ORDER PER RAJESH KUMAR, A. M: The captioned is appeal by the assessee pertaining to assessment year 2011-12. The appeal is directed against the order of the Commissioner of Income Tax-14, Mumbai, dated 26.06.2014 passed u/s 263 of the Income Tax Act, 1961 which in turn have arisen from an order passed by the Assessing Officer under section 143(3) of the Act. 2. Grounds of appeal taken by the assessee are as under : ( 1) In law and in the facts and circumstances of the case, the order u/s 263, passed by the Hon ble. Commissioner of Income tax-14, Mumbai is bad in law and is required to be quashed; ( 2) In law and in the facts and circumstances of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, it is clear that some questions desired to be asked from the assessee as to why the assessee has offer income from house property rather than to be assessed as business in respect of rental income received from the commercial property. Apparently the AO has failed to ask the question desired to be raised on this point 5. The said notice u/s 263 of the Act was replied by the assessee vide letter dated 30.5.2014 which is reproduced as under : 30.5.2014 Under Instructions from and on behalf of our above named client we have to say and submit as under:- We refer to Your Honour's office notice u/s 263 of Income Tax Act dated 12.05.2014 bearing reference no. CIT-14/Notice u/s. 263/2014-15. The main contention raised by Your Honour in the appeal is that the assessee has offered rent income received from commercial property as Income from House Property rather than to be assessed as Business Income. In this regard we have to say and submit the following: '1. Rent Income is assessable as House Property Income as all the conditions of section 22 is fulfilled by the assessee as follows: a. Property let out is building( residential and commer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the AO has ignored the fact that the assessee was involved in organized activities of hiring the properties in various parts of Bombay. The said were leased out and accepting huge refundable securities and as result of motive of the assessee was to earn profit. In this background of the matter, the CIT set aside the assessment with a direction to look into the mater, whether the profit assessable as business income or income from other sources and take the decision as per law. 6. The ld. Counsel vehemently submitted before us that the jurisdiction u/s 263 of the Act has been invoked by the CIT without having any valid authority under law as the necessary conditions precedent for invoking the revisionary power have not been satisfied. The ld. AR submitted that in respect of profit from Deck Plaza, Central MIDC, Mumbai, the rent received from this building was as per the deed if lease entered into the earlier years and was being offered to tax under the income from house property and was being accepted by the revenue and therefore there was no reason for the revenue to take a different view from what has been taken and accepted in the past. The ld. AR submitted by referring to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and rent details and only for the purpose of verification of rent received from the properties held by assessee. The AO has not gone into whether the income received constituted the business receipts or to be assessed under the head income from house property or income held under the head income from other sources. The AO has completely failed to discharge his the duties cast upon him by the Statute. The AO has not analysed and appreciated the facts correctly. The ld. DR also submitted that each year is a separate and distinct year and each year is a separate unit for the purpose of calculation of income tax and hence the provision of principle of resjudicatta is not applicable to the income tax proceedings. It is not necessary for the AO to follow the system followed in the earlier year. 8. We have heard the rival submissions and perused the material placed on record including the impugned orders, case law as relied upon by the parties. We find that in this case the assessee has been receiving rental income from the six properties which are being shown under the head income from house property and has been accepted by the department in the earlier years. In some cases, the agr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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