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TMI Blog2017 (9) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... of treating the same as income from "Business & Profession'. 2. On the facts and in the circumstances of the case, Ld. CIT(A) has erred in ignoring the principles of consistency and facts that the assessee had shown its lease receipts under the head "Business Income" over the years. 3. The order of Ld. CIT(A) is erroneous and is not tenable on facts and in law. 4. The appellant craves leave for reserving the right to amend, modify, alter or add any ground(s) of appeal at any time before or during the hearing of this appeal. 2. The brief facts of the case are that the assessee filed its return of income on 29.9.2011 declaring total income of Rs. 3,34,83,800/- relating to assessment year 2011-12. The case of the assesssee was selec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged its accounting practice with a sole objective to reduce its tax liability as the assessee has claimed deduction 4(a) of the Income Tax Act, 1961 out of the income from the House Property. Since the assessee has shown its lease receipts under the head business income over the years and the same has been accepted by Department, the lease receipts of Rs. 1,05,26,484/- received by the assessee in the year under consideration is treated as business income of the assessee, AO observed that identical addition made in the previous assessment year 2010-11 and in first appeal, the same was deleted by the CIT(A)-III, New Delhi vide his appellate order in appeal no. 200/11-12/CIT(A)-III dated 16.08.2013. However, the department has filed second app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 18.2.2013 of Delhi High Court in the case of CIT vs. Discovery Estate Pvt. Ltd. (356 ITR 0159); judgement dated 25.3.2015 of Hon'ble Delhi High Court in the case of CIT vs. Niagara Hotels & Builders (P) Ltd. (ITA No. 43/2014); Detail for the assessment year 2009-10 to 2012-13 in respect of disputed issues under consideration in the case of the assessee; Detail for the assessment year 2009-10 to 2012-13 in respect of disputed issues under consideration in the case of Unity Projects Pvt. Ltd. (sister concern of the assessee); copy of the consolidated order dated 28.1.2016 of ITAT in the assessee own case for the AY 2009- 10 & 2010-11 in appeal no. 5736&5737/Del/2013; copy of the orders of CIT(A) in the assessee own case for the AY 2009-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. CIT(A)-III, New Delhi for AY 2009-10 and 2010-11. I find that the Ld. CIT(A) vide his order dated 14.8.2013 for the AY 2009-10 vide para no. 10.4 of his order has given his findings as under:- "10.4 It is a trite law that each head of income is separate and distinct and if certain income of the assessee falls under a particular head, it is not possible for the assessee as well as by the Revenue to take the income from one head of income to another head. Even for Real Estate businessman rental income from property held as stock in trade is assessable under the head Income from House Property from the period of ownership. In my humble view, there is no rider in the Chapter IV(c) or other provision of the Income Tax Act which pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e particular source. of income; they are all specific and deal with various heads in which an item of income, profits and means of an assessee falls. These sections are mutually exclusive and where an item of income falls specifically under one head, it has to be charged under that head and no other. " In view of the above decision whose facts are similar to that of appellant, in my opinion rental income of RS.62,46,373 as earned by the appellant is assessable under the head "Income from House Property". In coming to the' above conclusion I also rely on the decision in the cases of S. Sohan Singh vs Income Tax Officer 16 ITRD 272 (Delhi Tribunal), and Matru Ashish Co-operative Housing Society Ltd. v. Income Tax Officer (2012) 27 taxm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome as house property and allow the deduction for payment of house tax of Rs. 1,67,660/-. These grounds of appeal are allowed." 6.1 In view of the above, we are of the considered view that by following the rule of consistency for the assessment year 2009-10 & 2010-11, the Ld. CIT(A) in the present assessment year i.e. 2011- 12 has rightly directed the AO to treat the income as house property and allow the deduction for payment of house tax, which does not need any interference on our part. Even otherwise, we further note that the Hon'ble High Court of Delhi in the case of New Delhi Hotels Ltd. vs. ACIT in ITA No. 238-240/2013 dated 17.5.2013 has held that rental income derived from unsold flats which are shown as stock-in-trade in the boo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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