TMI Blog2022 (8) TMI 1399X X X X Extracts X X X X X X X X Extracts X X X X ..... s claimed that there is an agreement with M/s. Four Seasons Hospitality Pvt. Ltd. and according to which, revenue is shared by assessee company. However, ld. CIT (A) has found that assessee did not provide the agreement. In our considered opinion, the entire aspect needs to be examined properly in the light of the said agreement. Assessee will certainly need to provide cogent reply as to its business income why the tax audit report was not submitted and consequences will accordingly follow. Hence, we direct that the issue be remitted to the file of AO. AO is directed to consider the revised claim of the assessee as per law. Assessee appeal is allowed for statistical purposes. - ITA No. 7418/Del/2018 - - - Dated:- 11-8-2022 - SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER and SHRI YOGESH KUMAR US, JUDICIAL MEMBER For the Appellant : Shri R.S. Singhvi, CA, Shri Rajat Garg, CA, Shri Satyajeet Goel, CA For the Respondent : Md. Gayasuddin Ansari, Senior DR ORDER PER SHAMIM YAHYA, ACCOUNTANT MEMBER: This is an appeal filed by the assessee against the order of the CIT(A)-2, New Delhi pertaining to Assessment Year 2013-14. 2. The grounds of appeal taken by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g depreciation. Assessee has filed computation of assessable income in which rental income was declared as income from house property. Assessee company had also filed service-tax return, from which it was noted that the assessee was registered with the service tax for renting of immovable properties and declared rental income from renting activities and the tenant has also deducted TDS as payments for rental u/s 194-I of the Act. AO asked the assessee why the expenses claimed on rental activities including depreciation should not be disallowed. Assessee filed revised computation of income wherein rental income has been declared as business income. In support of the same, assessee submitted that in earlier year also, assessee had been in receipt of rental of immovable properties and declared the same as business income. It was further submitted that assessee company in AY 2010-11 appointed an expert experienced operating management agency, M/s. Four Seasons Hospitality Pvt. Ltd. for managing the business from the said premises in consideration of management licence basis. It was further submitted that the assessee based on the representation made by M/s. Four Seasons Hospitality P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rent Received by the assessee company is assessed as Income from House Property and deduction U/s 24 is allowable to the assessee company. In view of above Rental Income of the assessee company is computed as under: Rent Received Rs. 1,17,85,125/- Less: 30% for Repairs Rs. 35,35,538/- Income from House Property Rs. 82,49,588/- 5. Since the assessee during the assessment proceedings had filed the contention that the receipts are business receipts and no tax audit has been conducted by the assessee company. Accordingly penalty proceedings under section 271-8 are being initiated separately. 6. Since the assessee had filed their return of income after the end of financial year which is contravention of provision of section 139 for which penalty proceedings under section 271-/F are being initiated separately. 4. Against the above order, assessee appealed before the ld. CIT (A). Ld. CIT (A) noted the submissions of the assessee. He noted that income of the assessee was related to the revenue receipts received from M/s. Four Seasons Hospitality Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the threshold. Besides, he noted that assessee did not get its accounts audited u/s 44AB. The lessee made TDS u/s 194-I on the payments made to the assessee which is clear proof that assessee was receiving the income for letting out its property. He noted that the issue of fixed rent or rent linked to the receipts is not decisive factor in this case because the important issue is the activity from the income is earned. He further referred to Hon ble Supreme Court decision in the case of Goetze India Ltd. vs. CIT 284 ITR 323 wherein it was held that assessee cannot make a fresh claim before the AO without filing a revised return. He held that for cases referred by assessee, facts of the case are distinguishable from the facts of the assessee s case. Hence he confirmed the AO s action to assessee the rental income under the head income from house property. 5. Assessee has further pleaded that AO erred in determining the taxable income of Rs. 82,22,730/- without setting off carried forward of losses/depreciation of Rs. 15,60,692/- and consequently erred in determining the tax payable at Rs. 32,19,940/-. After noting the submissions of the assessee, ld. CIT (A) concluded as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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