TMI Blog2022 (3) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... ould further fortify the plea of the assessee on the non-applicability of provisions relating to ALV to the unsold apartments kept by assessee as stock-in-trade during the assessment year under consideration i.e., 2012-13. Further, we are in agreement with the arguments of ld. Senior DR that the CIT(A) has no power to set aside the assessment but he has referred back the issue for limited purpose of verification of Memorandum of Association and Article of Association i.e., aims and objects of the assessee company. With regard to the ground raised by Revenue on violation of Rule 46A of the Rules, we are of the view that these are vital documents and CIT(A) after admitting those and going through the same has held the income derived from unsold stock kept as stock- in-trade as 'business income'. We find no infirmity in directing the AO to verify these documents. Hence, these issues raised in regard to income assessed on account of residential apartment of unsold stock in the project of 'Victoria Towers', of the Revenue's appeal is dismissed. Assessment of notional ALV of shopping mall i.e., Coromandal Plaza - disallowance of depreciation - HELD THAT:- We a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above tax case appeals are allowed, the common impugned order is set aside and the matter is remanded to the Tribunal to be heard and decided afresh. It is open to both parties to raise all the issues, both factual as well as legal. Consequently, the substantial questions of law are left open. No costs. Consequently, the connected CMPs are closed. The Hon'ble High Court in Tax Case Appeal Nos. 537 538 of 2018 vide order dated 09.10.2020, directed as under:- 6. So far as the first substantial question of law framed for consideration, it relates to the rental receipts of the assessee with regard to letting out of the property and whether it needs to be treated as business income. This issue also need not be answered in the light of the fact that we have allowed the assessee's appeal in TCA Nos. 767 to 769 of 2019 by a common judgment dated 09.10.2020 i.e.. today, set aside the common order of the Tribunal and remanded the matter to the substantial question of law framed is left open and both the assessee as well as the Revenue can raise all the issues before the Tribunal. 3. At the outset, the ld. counsel for the assessee stated that the CO No. 36/Chny/2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m house property or income from business but should have directed to verify the same and allow the same as business income '. 2.3 The ld. CIT(A), under the powers of Rule 46A of the Income-tax Rules, ought to have given the assessing officer a reasonable opportunity to examine the issue before directing the AO to verify and simultaneously allowing it as 'business income'. 2.4 The ld. CIT(A) failed to note that he has no powers to set aside the issue and simultaneously allow the income as 'business income'. 2.5 The ld. CIT(A) failed to note that the AO has substantiated his contention stating that the assessee need not complete the construction of the house or occupy the same and it would be enough if he establishes that he had invested the entire net consideration within the stipulated period. 2.6 The Ld. CIT(A) erred in not following the binding decision of the Jurisdictional High Court in the case of Keyaram Hotels (P) Ltd., Vs ACIT 373 ITR 494 (Madras). SLP dismissed by Supreme Court vide 235 Taxmann 512 (SC) against HC's ruling that where assessee was not engaged in any business activity, rental income earned from letting out commerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose, this ground is allowed. Aggrieved, Revenue is in appeal on this very issue only before us. 8. The only grievance argued by ld. Senior DR is that the CIT(A) has admitted the additional evidence like Memorandum of Association and aims objects of the company in violation of provisions of Rule 46A of the Income Tax Rules, 1962 (hereinafter the 'Rules') and moreover he noted that the CIT(A) has set aside the issue to the file of the AO, for which he has no power. The ld. Senior DR apart from the above two grievances supported the order of the AO. 9. The ld. counsel for the assessee stated that the CIT(A) following the decision of Hon'ble Supreme Court in the case of Chennai Properties Investments Ltd., supra has directed the AO to compute the ALV of unsold flats and apartments which were shown as stock-in-trade as 'business income' instead of assessing the same as 'income from house property'. He supported the directions of CIT(A) in directing the AO to assess the income of the assessee 'business income' and also supported remanding the matter back for verification purpose only. He also admitted these evidences i.e., Memorandu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s connected to Ground II (B) raised qua the assessment of notional ALV of shopping mall i.e., Coromandal Plaza and consequently Ground No. III, disallowance of depreciation which was raised by assessee before CIT(A) reads as under:- a. The assessee has claimed depreciation @ 10% amounting to ₹ 1,24,81,645/- on parking facility of the Shopping Complex Coromandal Plaza and depreciation of ₹ 9,06,357/- on Plant and Machinery installed in the shopping complex Coromandal Plaza. b. The appellant has now made a prayer to the effect that the entire rental income earned from the Shopping Complex Coromandal Plaza be assessed as 'Income from Business' instead of 'Income from House Property'. Hence, the earlier claim of the appellant before the assessing officer for depreciation on a portion of the business assets namely parking facilities and certain plant and machinery installed in the commercial complex now becomes merged with the prayer for treating the entire rental income as Business Income. 13. The ld. counsel for the assessee drew our attention to the ground raised that CIT(A) has not decided the grounds raised and for this, he raised the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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