TMI Blog2018 (3) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessee by : Sanjay Swami, AR Revenue by : Saurabhkumar Rai, DR ORDER Per Mahavir Singh, JM These appeals by two different Assessee are arising out of the different orders of Commissioner of Income Tax (Appeals)-52, Mumbai, [in short CIT(A)] in appeal No. CIT(A)-52/IT/AC-CC-4(1)/26 30 /2015-16 dated 29.06.2016 22-06-2016. The Assessments were framed by the Asst. Commissioner of Income Tax, Circle 23, Mumbai (in short ACIT) for the assessment year 2012-13 vide order dated 09-03-2015 11-03-2015 under section 143(3) of the Income Tax Act, 1961 (hereinafter the Act ). 2. The only common issue in these two appeals of different assessee is against the order of CIT(A) confirming the action of AO in charging deemed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the unsold stock i.e. closing stock is assessable as deemed rent in the hands of the assessee, assessed the same as deemed income. The CIT(A) confirming the action of the AO by observing in Para 19 and 20 as under - 19. It would be seen from the above that the Hon'ble Supreme Court has held that for deciding the issue whether income from a property is to be assessed as business income or income from house property, the deciding factor is the nature of the activity of the assessee and the nature of the operations in relation to the property. In the case of East India Housing and Land Development Trust Ltd., the assessee-company was incorporated with the object of buying and developing landed properties and promoting and develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings that it is engaged in thc business of construction of properties and sale thereof. In fact, in the submissions, the appellant has also admitted that it was never its intention to earn income by letting out the premises. Therefore, the ratio of the decision of Hon'ble Supreme Court in the case of East India Housing and Land Development Trust Ltd. is squarely applicable to the facts of the present case. Further, the facts in the present case are identical to the facts in the case of Ansal Housing Finance Leasing Co. Ltd. decided by the Hon'ble Delhi High Court, and, therefore, the said decision is also squarely applicable to the present case. 20. In view of the discussion in the foregoing paragraphs, I hold that the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... landlord, but on the ownership. The incidence of charge is because of the fact of ownership. Undoubtedly, the decision in Vikram Cotton indicates that in ITA 18/99, 56,57,105, 107,109,114,177/01, 88/02 111, 321,498/03,227,336,529,690/04,212/05 Page 11 every case, the Court has to discern the intention of the assessee; in this case the intention of the assessee was to hold the properties till they were sold. The capacity of being an owner was not diminished one whit, because the assessee carried on business of developing, building and selling flats in housing estates. The argument that income tax is levied not on the actual receipt (which never arose in this case) but on a notional basis, i.e. ALV and that it is therefore not sanctioned by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occupation for business purpose. This contention is, therefore, ITA 18/99, 56,57,105, 107,109,114,177/01, 88/02 111, 321,498/03,227,336,529,690/04,212/05 Page 12 rejected. Thus, this question is answered in favour of the revenue, and against the assessee. 15. The next question which arises, is deduction under Section 32 AB on interest income. This arises for consideration in ITA Nos. 18/1999, 56/2001 and 114/2001. In all the concerned years the assessee had claimed benefit under Section 32 AB (1)(b) contending that it had utilized amounts during the previous year for purchase of new machinery or plant. The Appellate Commissioner had allowed its claim, and in some instances, the Tribunal did so. The revenue urges that the assessee was n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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