TMI Blog2019 (2) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... ( ld.CIT(A) for short) dated 28.04.2017 and pertains to the assessment years (A.Y.) 2013-14 and 2014-15. 2. The common grounds of appeal read as under: (i) Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred on facts and in law in not upholding the action taken by the AO in treating the rental income from Operating Family Entertainment Center cum Mall and Maintenance Charges amounting to ₹ 11,54,78,977/- (Rs.11,39,49,851/- for A.Y. 2014- 15) and ₹ 4,38,39,422/- (Rs.4,16,51,261/- for A.Y. 2014-15) respectively as Income from House Property against the assessee's claim of Profit and Gains from Business or Profession (ii) Whether on the facts and in the circumstances of the case and in law, The Ld.CIT(A) has erred on facts and in law in completely ignoring the decision of the Hon'ble Supreme Court in the case of Shambhu Investment (P) Ltd vs CIT(2003) 184CTP (SC) 91: (2003) 263 ITR 143(SC) wherein it is held that income derived by an assessee by letting out furnished premises on monthly rent basis to various parties alongwith various services, is assessable as income from property and not business income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contentions of the appellant as well as materials on record have being considered. The same issue had come up for consideration in appeal for A.Y 200809, wherein the CIT ('A)-16, Mumbai had followed his own order on similar issue in A.Y 2007-08 vide his order dated 16.09.2010 in Appeal No CIT (A)-161IT- 36912009-10 he held that income from the commercial complex is to be treated as income from business and the interest income is to be treated as income from other sources. In A.Y 2009-10, in Appeal order dated 09.11.2012 in Appeal No CIT(A)- 161ACIT(OSD)8(1)/IT-17112011-12 it was held that ...income shown in the schedule '0' as 'other income' includes interest received, apart from miscellaneous income and the latter includes primarily helmet income, media barrier deal promotion cash income, atrium corporate deal, lost and fqundi leasing DG set income etc. and the latter have being directed to be treated as business income in the earlier years appellate orders. Since the facts and the circumstances remain the same in the present year under appeal viz. A.Y 2009-10 following the order of my predecessor CIT(A)'s in A.Y 2007-08 and 2008-09 the Assessing officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the course of its business carried on by them of operating and running the malls is a commercial activity and as rightly held by the Id. CIT(A), the said income primarily arising from the exploitation of commercial assets by way of complex commercial activity constituted the business income of the assessee company. It is observed that the decision of the co-ordinate bench of this Tribunal in the case of Ws. Khandelzval Estate P. Ltd (supra) cited by the id. Counsel for the assessee also supports the case of the assessee. In the said case, the income received by the assessee from the operation of shopping malls in the form of rent and service charges was held to be business income of the ITA 8390/M/10, ITA 1435, ITA 1436/m/12 ITA 1430/15 assessee by the Tribunal holding that giving space with services and facilities of varied and wide nature would definitely constitute a business and the relationship between the parties in such case is distinguished from that merely of a landlord and tenant relationship. We therefore find no infirmity in the impugned orders of the id. CIT(A) treating the operational income received by the assesse companies from running of malls in the form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent/Assessee by way of rent is a business income. The deviation is from the Assessment Year 2007-08. One of the ground raised is that there is demerger of the Company and that is why the Assessing Officer has right to revisit the facts and arrive at an independent conclusion. 9. The Company which is demerged is E-City Entertainment Pvt. Ltd. The properties of the said demerged Company are divided in the present Assessing Companies. It is not disputed that E-City Entertainment was assessed till the Assessment Year 2005-06 and the income derived by the said Company by way of rent was always assessed as 'business income'. 10. There is no dispute with the proposition that the principle of res judicata would not apply, however principle of consistency has to be considered. 11. Even in a case of Sultan Brothers (P.) Ltd. (referred to supra ), the Apex Court has observed that a small entry in the object clause showing a particular object would not be a determinative factor to arrive at a conclusion, whether the income is to be treated as 'income from business' and as such a question would depend upon the circumstances of each case i.e. whether particu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties of the Assessee Company, as well as, terms and conditions of the relevant agreements, under which the commercial space in the mall was given on hire by the Assessee Companies to the concerned parties. It also considered the various services provided by the Assessing Companies during the course of operation and running of the Family Entertainment Centre-cum-malls. On appreciation of facts, the Commissioner (Appeals) and the Tribunal have concurrently arrived at a conclusion that the intention of the Assessing Companies was to commercially exploit the property by way of complex commercial activities and it was not a case of letting out the property simplicitor. The rental income and the service charges thus were received by the Assessee Company as business income during the course of business carried out by them of operating and running a Mall as a commercial activity. The facts of the present case are much similar to the case of Chennai Properties and Investments Ltd. (referred to supra ). 16. We find that the appreciation of evidence by the Commissioner (Appeals) and Tribunal is not perverse and the finding arrived at by them is plausible one. 10. Respectfully followi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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