TMI Blog2015 (5) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... ined other provisions of Act as applicable while computing the income under the head business . If there is diversion of borrowed funds as alleged by the DR, the AO shall point out the same and that portion of the interest to be disallowed, as it is not incurred for the purpose of business. We deem it fit to remit the issue back to the file of the Assessing Officer to decide the same afresh. Accordingly, we remit this issue back to the file of the Assessing Officer to reframe the assessment after considering the relevant provisions of the Act, as applicable while computing the income under head business . The grievance of the assessee is with regard to confirming the assessment of income earned from operations of running the IT Park ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Dr. Nischal, JCIT ORDER PER CHANDRA POOJARI, ACCOUNTANT MEMBER The appeals are filed by the assessee, Rishabh Infopark Pvt. Ltd. for the assessment years 2007-08 and 2008-09. For the assessment year 2009-10, the Revenue has filed the appeals and the cross objections are filed by the different assessees. They are directed against the different orders of the Commissioner of Income-tax(Appeals) for the respective assessment years. Since, the issue in these appeals are common in nature, they are clubbed together, heard together and disposed off by this common order for the sake of convenience. 2. The first common ground raised by the assessee in ITA Nos.831 832/Mds/2012 is with regard to whether the income from running a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roofing ix. Sound Proof, double glassed glass windows toughened for air velocity x. Closed circuit television xi. Parking for Two wheelers and Four Wheelers. xii. Grano flooring for carpeting xiii. 24 hours security and house keeping xiv. ATM xv. Landscaping. The Assessing Officer treated the income derived by the assessee from letting out of the IT Park as income from house property , though the assessee pleaded before the lower authorities that it should be treated as business income . Against this, the assessee went in appeal before the Commissioner of Income-tax(Appeals). On appeal, the Commissioner of Income-tax(Appeals) has confirmed the finding of the Assessing Officer. Aggrieved, the assessee is in appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Company Pvt. Ltd., ITA Nos. 995 to 997/Mds/2011. 5. In view of the above, we are inclined to hold that the income of the assessee from renting of I.T. Park is to be considered as business income only. Thus, the appeals filed by the assessee are allowed. 6. ITA No.1900 CO No.192/Mds/2012: In the appeal, the Revenue has challenged the direction of the Commissioner of Income-tax(Appeals) that the claim of interest u/s.24(b) is to be allowed to the extent of ₹ 4,74,01,314/- and only penalty interest is to be disallowed, though the assessee failed to substantiate that the interest expenditure was entirely towards capital borrowed for the purpose of construction of the property. There was borrowed funds for the purpose of inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. We have already held in ITA Nos.831 832/Mds/2012 for the assessment years 2007-08 and 2008-09 that the income of the assessee from renting of I.T. Park is to be considered as business income only and the Assessing Officer is directed to reframe the assessment in accordance with law. Accordingly, the cross objection is allowed for statistical purposes. 10. In the result, the appeal of the Revenue in ITA No.1900/Mds/2012 and the cross objection of the assessee in CO No.192/Mds/2012 are allowed for statistical purposes. 11. Now, we consider the Revenue s appeal in ITA No.1901/Mds/2012 and the assessee s crossobjection in CO No. 193/Mds/2012. The first ground in the appeal of the Revenue is that the Commissioner of Income-tax(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assesseeu/s.2(22)(e) of the Act. Aggrieved, the assessee went in appeal before the Commissioner of Income-tax(Appeals). On appeal, the Commissioner of Income-tax(Appeals), following the decision of the Tribunal, Delhi bench in the case of DCIT v. Miapo India Ltd.(116 TTJ 791) held that the Assessing Officer was not correct in taking into account the balance in the share premium account as it will profit for the purposes of deeming dividend under sec.2(22)(e) of the Act. Against this, the Revenue is in appeal before us. 13. We have heard both the sides and perused the material on record. We find that similar issue was considered by this Tribunal in the case of ACIT v. M/s. RR Industries Ltd. in ITA No.326/Mds/2013. Vide order dated 8.7.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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