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TMI Blog2017 (8) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... nder : (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 case, the order u/s 263, passed by the Hon'ble. Commissioner of Income tax-14, Mumbai erred in holding that the assessment order passed u/s 143(3) on 27.12.2013 is erroneous and prejudicial to the interest of the revenue. (3) 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 erred in saying "after considering he above fact, I have no hesitation to issue of taxing the license fee as business income or income fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the commercial purpose. Further, it has also be noted that invariably, the assessee has received substantial amount as interest free refundable security deposits in respect of all these six properties. It is also worth noting that the assessee has got an organized business in the form of hiring on commercial property in different part of the Bombay City. From the above 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 repl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he city. 8. As per principle of consistency, opinion taken in one year cannot be changed in another year. 9. Act provides for a separate head of Income 10. No expenditure incurred by Assessee. No expenditure like salary, conveyance, electricity charges incurred by the assessee. 11. Properties not held as Stock in trade 12. TDS deducted u/s. 194I 13. 263 is not Applicable in the said case. a. Agreements and relevant details was duly verified by the Assessing Officer b. The Assessment order is not a erroneous order The above points are elaborated as below: Annexure A: Details of properties rented Out Annexure B: Rent Income Assessable as House Property Income Annexure C: Applicability of Section 263 Your ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pages 27 and 28 of the paper book that the details of all these properties were furnished vide letter dated 22.7.2013 para 6 in reply to questionnaire point no.4 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the AO has called for the informations/details and after considering the contentions of the assessee passed the assessment order, then the decision taken by the AO cannot be held to be erroneous and prejudicial to the interest of revenue. In support of this contentions, the ld. AR placed reliance on the following case laws: a) CIT V/s Gabriel India Ltd. 1993 203 ITR 108 Bom; b) CIT V/s Reliance Communiction 240 taxmann 651(Bom) 7. On the other hand, the ld. DR while controverting to the arguments advanced by the ld. AR contended that the case of the assessee was selected for scrutiny for the purpose of verification of TDS received on the rent and interest and therefore the AO called for the necessary records and rent details and on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ld. CIT has simply stated that the AO should have examined the issue whether the income from property was assessable under the head income from house property or business income. The CIT was also completely failed to point out as to how the assessment u/s 143(3) of the Act was erroneous so as to be prejudicial to the interest of the revenue and therefore the power exercised by the Commissioner u/s 263 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. The case of the assessee is supported by the decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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