ITO Ward 4, v. Inderjeet relhan & Others,

ITA 3923/DEL/2007 | 2004-2005
Pronouncement Date: 05-07-2011 | Result: Dismissed

Appeal Details

RSA Number 392320114 RSA 2007
Bench Delhi
Appeal Number ITA 3923/DEL/2007
Duration Of Justice 3 year(s) 9 month(s) 10 day(s)
Appellant ITO Ward 4,
Respondent Inderjeet relhan & Others,
Appeal Type Income Tax Appeal
Pronouncement Date 05-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 05-07-2011
Date Of Final Hearing 05-07-2011
Next Hearing Date 05-07-2011
Assessment Year 2004-2005
Appeal Filed On 25-09-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER & SHRI K.G. BANSAL ACCOUNTANT MEMBER ITA NOS. 3923 & 3924/DEL/2007 ASSESSMENT YEARS: 2004-05 & 2005-0 ITO VS. M/S INDERJEET RELHAN & OTHERS WARD 4 PANIPAT. PANIPAT. PAN NO. - (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ROHIT GARG SR. DR RESPONDENT BY : SH. JATIN RAHEJA CA ORDER PER BENCH : BOTH THESE APPEALS ARE FILED BY THE REVENUE AND TH EY ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF LD. CIT(A) DATED 18.07.2007 FOR ASSESSMENT YEARS 2004-05 & 2005-06. GROUNDS OF APPEAL FOR BOTH THE YEARS ARE IDENTICAL AND READ AS UNDER: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS ERRED IN LAW IN DIRECTING THE AO TO TREAT THE RENTAL INCOME FROM PLINTHS AS INCOME FROM BUSINESS INSTEAD OF INCOME FROM HOUSE PROPERTY. ITA NOS. 3923 & 3924/D/2007 2 2. THAT THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE REVENUE AS PER JUDGMENTS OF THE HONBLE HIGH COURTS IN THE CASES OF PAREKH TRADERS VS. CIT POONA 150- ITR-310 (BOM) RAMPUR INDUSTRIES LTD. VS. CIT 82- ITR-23 (ALL) AND SCINDIA POTTERIES PVT. LTD. VS. CI T 253-ITR-168 BY THE HONBLE DELHI HIGH COURT HOLDIN G THAT THE GODOWNS HAD CEASED TO BE COMMERCIAL ASSETS WHEN THEY WERE LET OUT TO OTHER CONCERN AND INCOME WAS TO BE TREATED AS INCOME FROM HOUSE PROPERTY. 3. THAT THE APPELLANT CRAVES FOR PERMISSION TO ADD DELETE OR AMEND THE GROUNDS OF APPEAL BEFORE OR AT THE TIM E OF HEARING OF APPEAL. 2. EARLIER THESE APPEALS WERE DECIDED BY THE TRIBUNAL VIDE ITS ORDER DATED 11.4.2008 A COPY OF WHICH IS PLACE D BY THE ASSESSEE IN ITS PAPER BOOK AT PAGES 12 TO 16. THE SAID APPEALS OF DEPARTMENT WERE DECIDED IN FAVOUR OF ASS ESSEE EX- PARTE QUA THE ASSESSEE ON THE GROUND THAT FOR A.Y. 2003-04 THE INCOME EARNED BY THE ASSESSEE FROM PLINTH WAS D IRECTED TO BE ASSESSED BY THE LD. CIT(A) IN THE NATURE OF INCOME FROM BUSINESS OR PROFESSION AND DEPRECIATION WAS DIRECT ED TO BE GRANTED @ 10% AND IN THE DEPARTMENTAL APPEAL FILED BEFORE THE TRIBUNAL THE ONLY GROUND RAISED BY THE REVENUE WAS WITH REGARD TO RATE OF DEPRECIATION AND ASSESSABILITY OF THE INCOME ITA NOS. 3923 & 3924/D/2007 3 RECEIVED FROM PLINTH AS INCOME FROM BUSINESS OR PR OFESSION WAS NOT CHALLENGED. 3. LATER ON DEPARTMENT VIDE ITS MISCELLANEOUS APPLI CATIONS DATED 8.12.2008 SOUGHT RECALL OF THE AFOREMENTIONED ORDER DATED 11.4.2008 AND DURING THE COURSE OF HEARING OF SUCH MISCELLANEOUS APPLICATIONS IT WAS SUBMITTED BY LD. DR THAT TRIBUNAL ORDER IN RESPECT OF A.Y. 2003-04 HAS ALREA DY RECALLED ITS ORDER VIDE ORDER PRONOUNCED ON 12.03.2010. LD. DR WAS REQUIRED TO SUBMIT THE COPY OF THE SAID ORDER AND T HE SAID ORDER WAS DATED 12.03.2010 IN MA NO. 642/DEL/2007. IT WAS OBSERVED THAT TRIBUNAL FOR A.Y. 2003-04 HAD RECALLE D ITS ORDER AND THEREFORE IT WAS OBSERVED THAT THE VERY BASIS OF TRIBUNAL ORDER FOR THE IMPUGNED YEARS CEASED TO EXIST AND VI DE ORDER DATED 1.10.2010 THE EARLIER ORDER FOR THE IMPUGNED YEARS DATED 11.04.2008 WAS RECALLED AND THESE APPEALS WER E FIXED FOR HEARING. 4. NOW IT IS THE CASE OF THE ASSESSEE THAT FOR A.Y . 2003-04 THE ISSUE HAS NOW BEEN DECIDED BY THE TRIBUNAL VIDE ITS ORDER DATED 25.10.2010 AND WHICH ORDER CLEARLY SHOWS THAT REVENUE DID NOT AGITATE THE ASSESSABILITY OF RENTAL INCOME RECEIVED BY ITA NOS. 3923 & 3924/D/2007 4 THE ASSESSEE AS INCOME FROM BUSINESS OR PROFESSION AND WHAT IS OBJECTED BY THE REVENUE IS RATE OF DEPRECIA TION TO BE GRANTED @ 10%. COPY OF SUCH ORDER HAS BEEN PLACED AT PAGES 7 TO 11 OF THE PAPER BOOK. THUS IT IS THE C ASE OF THE ASSESSEE THAT THE ISSUE RAISED IN THE PRESENT APPEA L IS SQUARELY COVERED BY THE AFOREMENTIONED ORDER. 5. FIRSTLY IT HAS BEEN THE CONTENTION OF THE ASSES SEE THAT THE REVENUE EFFECT IN BOTH THESE YEARS IS LESS THAN RS. 2 LAKH. HENCE DEPARTMENTAL APPEALS SHOULD BE DISMISSED. L D. COUNSEL OF THE ASSESSEE HAS PRODUCED BEFORE US A CH ART WHEREIN IT HAS BEEN SHOWN THAT THE INCOME FROM PLIN TH RECEIVED BY THE ASSESSEE FOR A.Y. 2004-05 IS ONLY A SUM OF RS. 2 15 290/- AND FOR A.Y. 2005-06 IS NIL. SECOND LY THE CONTENTION OF THE ASSESSEE IS THAT THE ISSUE IS NOW COVERED IN FAVOUR OF ASSESSEE NOT ONLY BY THE AFOREMENTIONED D ECISION OF TRIBUNAL DATED 25.10.2010 FOR A.Y. 2003-04 BUT ALSO BY THE DECISION OF TRIBUNAL IN THE CASE OF ASSESSEE FOR A. Y. 2006-07 VIDE ORDER DATED 15 TH APRIL 2010 IN ITA NO. 3679/DEL/2009 COPY OF WHICH IS PLACED AT PAGES 17 TO 20 OF THE PA PER BOOK. THUS IT IS THE CLAIM OF THE ASSESSEE THAT THE DEPA RTMENTAL APPEALS SHOULD BE DISMISSED. ITA NOS. 3923 & 3924/D/2007 5 6. THIS APPEAL WAS FIXED FOR HEARING ON 25.06.2011 WHEN THE HEARING WAS ADJOURNED TO 5.7.2011 AT THE REQUES T OF LD. DR WHEN LD. DR WAS REQUIRED TO INFORM ABOUT THE TAX EF FECT OF APPEAL AND LD. AR OF THE ASSESSEE WAS REQUIRED TO S UBMIT THE REQUIRED DOCUMENTS AS FILE OF THE TRIBUNAL WAS MISP LACED OR NOT TRACEABLE. 7. ON 5.7.2011 LD. AR HAS PLACED ON OUR RECORD ALL THE RELEVANT DOCUMENTS PERTAINING TO APPEALS AND THE AFOREMENTIONED ORDERS OF THE TRIBUNAL. HOWEVER LD . DR SOUGHT ADJOURNMENT ON THE GROUND THAT SHE HAS BEEN ASSIGNED D BENCH ON 5.7.2011 AND THE FILES WERE T O BE RECONSTRUCTED AND THE ASSESSEE IS IN PANIPAT THERE FORE SOME MORE TIME IS REQUIRED TO SUBMIT THE DETAILS. 8. THE APPLICATION FILED BY THE LD. DR WAS CONSIDER ED. IT WAS FOUND THAT NECESSARY DOCUMENTS TO DECIDE THE AP PEAL ARE ALREADY FILED BY LD. AR. THE LD. DR WHO HAS SOUGHT ADJOURNMENT WAS NOT PRESENT AT THE TIME OF HEARING. THEREFORE IT WAS FOUND THAT TAX EFFECT IN THE PRES ENT CASE WAS LESS THAN RS. 2 LAKH AS PER CALCULATION SUBMITTED B Y THE ITA NOS. 3923 & 3924/D/2007 6 ASSESSEE. THEREFORE THE DEPARTMENTAL APPEALS ARE LIABLE TO BE DISMISSED. 9. FURTHER ON MERITS ALSO IT WAS FOUND THAT THE ISS UE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE AFOREMENTIONED ORDERS OF THE TRIBUNAL. FOR THE SAK E OF CONVENIENCE ORDER DATED 25.10.2010 FOR A.Y. 2003-04 IN ITA NO. 4282/DEL/2006 AND ORDER DATED 15.4.2010 FOR A.Y . 2006- 07 IN ITA NO. 3679/DEL/2009 ARE REPRODUCED BELOW: ITA NO. 4282/DEL/2006 THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A) DATED 16.10.200 6 PERTAINING TO THE A.Y. 2003-04. 2. THE ISSUE RAISED IS THAT LD. CIT(A) ERRED IN LAW IN DIRECTING THE AO TO ALLOW DEPRECIATION @10% ON PLINTHS AMOUNTING TO RS. 21 77 922/- AS CLAIMED BY THE ASSESSEE AND DISALLOWED BY THE ASSESSING OFFICER. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE CONSTRUCTED CERTAIN PLINTHS AND PLINTHS AND GODOWNS AS PER THE SPECIFICATION AND REQUIREMENTS OF HAFED SPECIFICALLY FOR THE PURPOSE OF STORING OF FOOD GRAINS AND THESE PLINTHS AND PLINTHS AND GODOWNS WERE OF NO OTHER USE. THESE PLINTHS AND GODOWNS WERE FINALLY USED BY FCI FOR STORING FOOD GRAINS AS PER THE UNDERSTANDING ITA NOS. 3923 & 3924/D/2007 7 BETWEEN FCI AND HAFED. THE PLINTHS ARE SIMPLY THE PLATFORMS CONSTRUCTED ON THE LAND AND THERE IS NO WALL OR ROOF CONSTRUCTED ON THEM WHEREAS PLINTHS AND GODOWNS MEANS PLINTHS ON WHICH WALLS HAVE BEEN CONSTRUCTED AND THE ROOF OF CEMENT SHEETS IS MADE. THE ASSESSEE CLAIMED THE RENT RECEIVED FROM HAFED AS BUSINESS INCOME AND CLAIMED DEPRECIATION AND OTHER RELATED EXPENSES WHEREAS THE AO ASSESSED IT AS INCOME FROM HOUSE PROPERTY AND ALLOWED DEDUCTION U/S 24(A) FOR REPAIR AND MAINTENANCE. LATER ON BY ORDER U/S 154 DATED 30.12.2004 THE AO ALLOWED DEDUCTION ON ACCOUNT OF INTEREST AMOUNTING TO RS. 2034023/- ON BORROWED CAPITAL USED FOR CONSTRUCTION OF THE SAID COMMERCIA L PLINTHS AND PLINTHS AND GODOWNS. 4. UPON ASSESSEES APPEAL LD. CIT(A) REFERRED SEVERAL CASE LAWS AND HELD THAT: - THEREFORE THE CASE OF ASSESSEE IS COVERED BY THESE CASES. ASSESSES CASE IS ALSO COVERED BY THE CASE OF NARSINGHA CAR & CO. VS. CIT 113 ITR 712 (ORI) AND CIT VS. COSSIPORE PROPERTIES 107 ITR 965 (CAL.). THEREFORE IT IS HELD THAT THE RENTAL INCOME FROM PLINTHS AND PLINTHS AND GODOWNS IS ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS AND PROFESSION. ACCORDINGLY THE AO IS DIRECTED TO ALLOW THE DEPRECIATION @ 10% AS CLAIMED BY ITA NOS. 3923 & 3924/D/2007 8 THE APPELLANT. ACCORDINGLY THE GROUND OF APPEAL NO. 2 OF THE ASSESSEE IS ALLOWED. 5. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE SEVERAL TRIBUNAL DECISIONS IN ASSESSEE OWN CASE AS WELL AS IN GROUP CASES. WE FIND THAT IN ASSESSEES OWN CASE IN ITA NO. 3932 AND 3934/DEL/2007 FOR ASSESSMENT YEARS 2004-05 & 2005-06 THE ITAT DELHI BENCH VIDE ORDER DATED 11.4.2008 HAS HELD AS UNDER: - WE HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE GONE THROUGH THE ASSESSMENT ORDER AS WELL AS ORDER OF LD. CIT(A) AND ALSO THE ARGUMENTS RAISED BY THE LD. DR. IT HAS BEEN CLEARLY RECORDED IN THE ORDER OF LD. CIT(A) THAT FOR A.Y. 2003-04 SUCH INCOME WAS HELD BY HIM TO BE ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS OR PROFESSION AND DEPRECIATION WAS GRANTED AT THE RATE OF 10%. THOUGH SUCH ORDER WAS SUBJECT MATTER OF FURTHER APPEAL THE ONLY GROUND WHICH WAS RAISED BY REVENUE WAS WITH RESPECT TO RATE OF DEPRECIATION. THUS FOR THAT ASSESSMENT YEAR THE REVENUE ITA NOS. 3923 & 3924/D/2007 9 HAD ACCEPTED THE CLAIM OF THE ASSESSEE THAT SUCH INCOME IS ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS OR PROFESSION. NO NEW FACTS HAVE BEEN BROUGHT ON RECORD TO TAKE A DIFFERENT VIEW FROM THE EARLIER TAKEN BY THE DEPARTMENT AND IN THE PRESENT APPEAL THERE IS NO ISSUE REGARDING DATE OF DEPRECIATION. THEREFORE WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) VIDE WHICH IT HAS BEEN HELD THAT SUCH INCOME WAS ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS OR PROFESSION. WE UPHOLD HIS ORDER AND DEPARTMENTAL APPEALS ARE DISMISSED. 7. AGAIN IN ASSESSEES OWN CASE IN ITA NO. 3679/DEL/2009 FOR ASSESSMENT IN 2006-07 THE ITAT DELHI BENCH VIDE ORDER DATED 15.4.2010 HAS HELD AS UNDER: - WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THROUGH THE MATERIAL ON RECORD. WE ARE UNABLE TO AGREE WITH THE PROPOSITION OF LD. DR. RIGHT FROM A.Y. 2002-03 ONWARDS DEPARTMENT HAS ACCEPTED THE LD.CIT(A)S ORDER ON THE ISSUE OF ASSESSEES RENTAL INCOME BEING BUSINESS INCOME. IN A.Y. 2002-03 THE ASSESSEES ASSESSMENT WAS REOPENED AND INCOME WAS TREATED AS HOUSE ITA NOS. 3923 & 3924/D/2007 10 PROPERTY. HOWEVER THE DEPARTMENT HAS BEEN CONSCIOUSLY NOT TAKING THE GROUND ON THIS BEHALF. THOUGH THE TECHNICAL ISSUES OF RES JUDICATA DOES NOT APPLY TO INCOME TAX PROCEEDINGS HOWEVER HONBLE SUPREME COURT HAS CLEARLY HELD THAT UNLESS THESE ARE NEW FACTS OR CHANGE OF FACTS CONSISTENT VIEW SHOULD NOT BE DEVIATED FROM. IT HAS NOT BEEN PLEADED BY LD. DR THERE IS ANY CHANGE IN FACTS. IN VIEW THEREOF WE ARE UNABLE TO ACCEPT THE PROPOSITION OF THE DEPARTMENT. THE ISSUE ABOUT RENTAL INCOME BEING TREATED IN THE HANDS OF THE ASSESSEE AS INCOME FROM BUSINESS WE SEE NO REASON TO DEVIATE FROM THIS FINDING. IN VIEW OF THE ABOVE WE UPHOLD THE ORDER OF THE LD. CIT(A) AND DISMISS THE REVENUES APPEAL. 8. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS. FACTS IN THE PRESENT CASE IS IDENTICA L AND REVENUE HAS ONLY RAISED THE ISSUE OF DEPRECIATION. BOTH THE COUNSEL FAIRLY AGREED THAT THE ISSUE NOW STANDS COVERED IN FAVOUR OF THE ASSESSEE. HENCE WE UPHOLD THE ORDER OF THE LD. CIT(A) IN THIS REGARD. 9. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. ITA NOS. 3923 & 3924/D/2007 11 ORDER PRONOUNCED IN THE OPEN COURT ON 25.10.2010 UPON CONCLUSION OF HEARING. ITA NO. 3679/DEL./2009 ASSESSMENT YEAR: 200-07 THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(APPEALS) FOR THE A.Y. 20066-07 . THE SOLE GROUND RAISED IS AS UNDER: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW AND FACT IN DIRECTING THE AO TO ASSESS THE RENTAL INCOME AS INCOME FROM BUSINESS AND PROFESSION AS AGAINST INCOME FROM HOUSE PROPERTY ASSESSED BY THE AO AND FURTHER ERRED IN ALLOWING THE DEPRECIATION ON BUILDING AND OTHER EXPENSES AS CLAIMED BY THE ASSESSEE. 2. LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET CONTENDS THAT THE ISSUE IN QUESTION IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ITAT DECISIONS IN ITS OWN CASE IN THE ASSESSMENT YEARS 2002-03 TO 2005-06. IT HAS BEEN HELD THAT THE ASSESSEES INCOME RECEIVED BY WAY OF RENTING OF GODOWNS AND PLINTHS CONSTITUTED BUSINESS INCOME AND THE SAME SHALL BE ALLOWED ACCORDINGLY. IN A.Y. 2002-03 ASSESSEES RETURN WAS ACCEPTED U/S 143(1). THEREAFTER THE ASSESSMENT WAS REOPENED U/S 148 WHERE AO TREATED THE ASSESSEES INCOME AS ITA NOS. 3923 & 3924/D/2007 12 INCOME FROM HOUSE PROPERTY. AGGRIEVED ASSESSEE PREFERRED FIRST APPEAL WHERE CIT(A) ALLOWED THE SAME AS BUSINESS INCOME DIRECTING THE AO TO ALLOW THE EXPENSES CLAIMED BY THE ASSESSEE UNDER THE HEAD BUSINESS INCOME. AGGRIEVED REVENUE PREFERRED APPEAL BEFORE ITAT CHALLENGING THE CIT(A)S DECISION. REVENUE PREFERRED APPEAL ONLY ON THE GROUND OF DEPRECIATION. REVENUES APPEAL WAS DISMISSED. IN A.Y. 2003-04 ALSO THE AO AND CIT(A) BOTH REPEATED THEIR ORDERS. REVENUE AGAIN PREFERRED THE APPEAL IN WHICH NO GROUND WAS TAKEN ABOUT NATURE OF BUSINESS. IN ASSESSMENT YEARS 2004-05 AND 2005-06 SAME ACTION WAS REPEATED AND REVENUE DID NOT RAISE THE ISSUE ABOUT THE NATUR E OF INCOME. ITAT UPHELD THE ORDER OF CIT(A) BY FOLLOWING OBSERVATIONS: 5. WE HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE GONE THROUGH THE ASSESSMENT ORDER AS WELL AS ORDER OF LD. CIT(A) AND ALSO THE ARGUMENTS RAISED BY THE LD. DR. IT HAS BEEN CLEARLY RECORDED IN THE ORDER OF CIT(A) THAT FOR A.Y. 2003-04 SUCH INCOME WAS HELD BY HIM TO BE ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS OR PROFESSION AND DEPRECIATION WAS GRANTED AT THE RATE OF 10%. THOUGH SUCH ORDER WAS SUBJECT MATTER OF FURTHER APPEAL THE ONLY GROUND WHICH WAS RAISED BY REVENUE WAS WITH ITA NOS. 3923 & 3924/D/2007 13 RESPECT TO RATE OF DEPRECIATION. THUS FOR THAT ASSTT. YEAR THE REVENUE HAD ACCEPTED THE CLAIM OF THE ASSESSEE THAT SUCH INCOME IS ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS OR PROFESSION. NO NEW FACTS HAVE BEEN BROUGHT ON RECORD TO TAKE A DIFFERENT VIEW FROM THE EARLIER TAKEN BY THE DEPARTMENT AND IN THE PRESENT APPEAL THERE IS NO ISSUE REGARDING DATE OF DEPRECIATION. THEREFORE WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) VIDE WHICH IT HAS BEEN HELD THAT SUCH INCOME WAS ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS OR PROFESSION. WE UPHOLD HIS ORDER AND DEPARTMENTAL APPEALS ARE DISMISSED. IT WAS CONTENDED THAT THE DEPARTMENT HAS BEEN CONSISTENTLY ACCEPTING THE CIT(A)S ORDER HOLDING THE ASSESSEES RENTAL INCOME BEING BUSINESS INCOME. THE ISSUE STANDS SETTLED IN FAVOUR OF THE ASSESSEE. THEREFORE THE REVENUES APPEAL WILL BE DISMISSED. 3. LD. DR IN REPLY CONTENDS THAT IN ALL THESE YEARS DEPARTMENT IN THE ABOVE ASSTT. YEARS 2002- 03 TO 2005-06 HAD NOT CHALLENGED THE CIT(A)S ORDER ABOUT THE NATURE OF INCOME BEING BUSINESS INCOME. THE TRIBUNAL DECISIONS CANNOT BE CALLED AS SETTLING THE ISSUE AND DOES NOT APPLY AS RES-JUDICATA. THE ITA NOS. 3923 & 3924/D/2007 14 ASSESSEE BEING IN THE BUSINESS OF LETTING OUT OF GODOWNS THE SAME MAY BE RIGHTLY TREATED AS INCOME FROM HOUSE PROPERTY AND NOT BUSINESS INCOME. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT HONBLE SUPREME COURT IN THE CASE OF RADHSWAMI SATSANG VS. CIT: 193 ITR 321 HAS HELD THAT UNLESS THERE ARE CHANGE OF FACTS THE CONSISTENT VIEW FOLLOWED BY THE DEPARTMENT SHOULD NOT BE DEVIATED. THE DEPARTMENT HAS BEEN ACCEPTING THE CIT(A)S ORDER RIGHT FROM 2002-03 ONWARDS. THEREFORE THE RIGHT OF CONSISTENCY SUPPORTS THE ASSESSEES CASE. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THROUGH THE MATERIAL ON RECORD. WE ARE UNABLE TO AGREE WITH THE PROPOSITION OF LD. DR. RIGHT FROM A.Y. 2002-03 ONWARDS DEPARTMENT HAS ACCEPTED THE CIT(A)S ORDER ON THE ISSUE OF ASSESSEES RENTA L INCOME BEING BUSINESS INCOME. IN A.Y. 2002-03 THE ASSESSEES ASSESSMENT WAS REOPENED AND INCOME WAS TREATED AS HOUSE PROPERTY. HOWEVER THE DEPARTMENT HAS BEEN CONSCIOUSLY NOT TAKING THE GROUND ON THIS BEHALF. THOUGH THE TECHNICAL ISSUES OF RES JUDICATA DOES NOT APPLY TO INCOME-TAX PROCEEDINGS HOWEVER HONBLE SUPREME COURT HAS CLEARLY HELD THAT UNLESS THERE ARE NEW FACTS OR CHANGE OF FACTS CONSISTENT VIEW SHOULD NOT BE DEVIATED FROM. IT HAS NOT BEEN PLEADED BY LD. DR THERE IS ANY CHANGE IN FACTS. IN VIEW THEREOF WE ARE UNABLE TO ACCEPT THE PROPOSITION OF THE DEPARTMENT. THE ISSUE ABOUT RENTAL INCOME BEING TREATED IN THE ITA NOS. 3923 & 3924/D/2007 15 HANDS OF ASSESSEE AS INCOME FROM BUSINESS WE SEE NO REASON TO DEVIATE FROM THIS FINDING. IN VIEW OF THE ABOVE WE UPHOLD THE ORDER OF THE CIT(A) AND DISMISS THE REVENUES APPEAL. 5. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 15 TH DAY OF APRIL 2010. 10. IN VIEW OF ABOVE DISCUSSION WE DISMISS THE APP EALS FILED BY THE REVENUE EX-PARTE QUA THE LD. DR NOT ON LY ON ACCOUNT OF LOW TAX EFFECT BUT ALSO ON THE GROUND TH AT ISSUE IS SQUARELY COVERED IN FAVOUR OF ASSESSEE BY THE AFORE MENTIONED TWO DECISIONS OF THE TRIBUNAL IN THE CASE OF ASSESS EE ITSELF. 11. IN THE RESULT BOTH THE DEPARTMENTAL APPEALS AR E DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05.07.2011 SD/- SD/- (K.G. BANSAL) (I.P. BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 5.7.11 *KAVITA ITA NOS. 3923 & 3924/D/2007 16 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR