TMI Blog2019 (3) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... o or deviate from the findings so recorded by the CIT(A). Hence, we are of the considered view that the findings so recorded by the CIT (A) are judicious and are well reasoned. Resultantly, these ground raised by the revenue stands dismissed. - I.T.A. No.1466/Mum/2017, I.T.A. No. 3565/Mum/2016 - - - Dated:- 1-3-2019 - Shri Sandeep Gosain, JM And Shri G. Manjunatha, AM For the Appellant : Sh. Anandi Verma (DR) For the Respondent : Dr. K. Shivaram Sh. Sashank Dundu (ARs) ORDER PER SHRI SANDEEP GOSAIN, JUDICIAL MEMBER: These two appeals filed by the revenue as well as assessee are against the order of Ld. CIT(A) 44, dated 14.12.16 17.03.16 for AY 2012-13 2011-12 respectively. 2. Since all the issues involved in these two appeals are common, therefore, they have been clubbed, heard together and a consolidated order is being passed for the sake of convenience and brevity. ITA No. 1466/Mum/2017 (AY 2012-13) 3. First of all we take up revenue s appeal in ITA No. 1466/Mum/2017 for assessment year 2012-13 as lead case. The ground of appeal are mentioned herein below:- 1. On the facts and in the circumstances of the case, and in law, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved by the order of AO, assessee preferred appeal before Ld. CIT(A) and Ld. CIT(A) after considering the case of both the parties, allowed for statistical purposes the appeal of the assessee by holding that rental income earned by the assessee be treated under the head House property in AY 2012-13. Now before us, the revenue as well as assessee have preferred their respective appeals. Firstly we are dealing with the appeal filed by the revenue for AY 2012-13. Ground No. 1 2 5. These grounds raised by the revenue are inter connected and inter related and relates to challenging the order of Ld. CIT(A) in allowing the claim of the assessee to treat rental income as income from House Property instead of Business Income as assessed by the AO, therefore we thought it fit to dispose of the same by this common order. 6. Ld. DR appearing on behalf of the department relied upon the orders passed by AO and submitted that Ld. CIT(A) had erred in allowing the claim of assessee to treat rental income of ₹ 34,13,95,611/- as income from House Property instead of Business Income as assessed by the AO, without appreciating the fact that rental income was received f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter alia the following comments. Since the AO was of the view that the assessee was commercially exploiting his shops cum office complex, therefore the income of the assessee is liable to be treated as business income. Hence the AO declined the contention of the assessee and treated the income from business income despite income from house property. Undoubtedly the Ld CIT(A) has confirmed the same. The Ld. representative of the assessee has relied upon the law settled by the Hon'ble Bombay High Court in case of Commissioner of Income tax 12 Vs M/s Sane Doshi Enterprises decided on 9 April, 2015. Now it is to be seen whether the facts of the case is identical to the facts of this case or not. The said order perused which speaks that the assessee was engaged in the real estate business and constructed a compled viz. May Fair Tower. It is stated to be a partnership firm register under the Indian Partnership Act, 1932. He has also shown the rental income, but the authority treated the same as income from business. Therefore, the matter went up to the Jurisdictional High Court and the Hon'ble High Court in the case cited above decided the matter in favour of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee was to earn lease rental income and not to exploit the immovable property. 10. The Ld. DR had placed having reliance on the judgment of Hon ble Supreme Court in the case of Chennai Property (supra), wherein the Hon ble Supreme Court had held that since letting of the property was the business of the assessee and thus the income of rental would be treated as income under the head business and not as income from house property . While relying upon the above judgment, it was submitted by Ld. DR that in the present case also, the assessee is carrying out business and using immovable property by way of letting out space and earning rental income through it and thus the main intention of the assessee is to exploit the immovable property by way of commercial activity. It was further argued that since the premises are held as stock-in-trade, therefore the premises are being both sold and are being leased out on rent. Thus, the income be treated as business income of the assessee. 11. In order to rebut the contentions of the revenue, it was argued by Ld. AR that in the final computation of income, the assessee had treated the rental income as income from house prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar to that of the assessees, after considering the judgment of Chennai Properties and Investment Ltd vrs. CIT (2015) 373 ITR 673 (SC) as well as Sane Doshi Enterprises (2015) 377 ITR 165 (Bom HC) had held that the rental income from properties held in stock-in-trade should be assessed under the head Income from house property , when the intention of the assessee is to earn rental income. 14. In the case of Raj Dadarkar Associates Vrs. ACIT (2017) 81 taxmann.com 193 (SC), wherein it was held where assessee having obtained a property on lease, constructed various shops and stalls on it and gave same to various persons on sub-licencing basis, since assessee was not engaged in systematic or organized activity of providing services to occupiers of shops/stalls, income from sub-licensing was to be taxed as income from house property and not as business income. 15. Therefore, considering the various judgments cited by the respective parties, keeping in view the orders by the Coordinate Bench of ITAT in assessee s own case for AY 2010-11 and also the facts of the present case that assessee is in the business of development of real estate projects and letting of property is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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