SENDRA MARBLE CO. P. LTD., Jaipur v. ITO, Jaipur

ITA 694/JPR/2016 | 2006-2007
Pronouncement Date: 19-10-2016 | Result: Partly Allowed

Appeal Details

RSA Number 69423114 RSA 2016
Assessee PAN AAFCS2571Q
Bench Jaipur
Appeal Number ITA 694/JPR/2016
Duration Of Justice 3 month(s) 20 day(s)
Appellant SENDRA MARBLE CO. P. LTD., Jaipur
Respondent ITO, Jaipur
Appeal Type Income Tax Appeal
Pronouncement Date 19-10-2016
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted Not Allotted
Tribunal Order Date 19-10-2016
Assessment Year 2006-2007
Appeal Filed On 29-06-2016
Judgment Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCHES (SMC) JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 694/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07 M/S. SENDRA MARBLE CO. (P) LTD. 301 MADRAMPURA ARCADE INTERNATIONAL AJMER ROAD JAIPUR CUKE VS. THE ITO WARD- 2 (2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAFCS 2571 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI SHRAWAN KUMAR GUPTA ADVOCATE (ADJOURNMENT APPLICATION REJECTED) JKTLO DH VKSJ LS@ REVENUE BY:SHRI R.A. VERMA ADDL. CIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 14/10/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 19 /10/2016 VKNS'K@ ORDER PER BHAGCHAND AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-I JAIPUR DATED 19-04-2016 FOR THE ASSESSMEN T YEAR 2006-07. 2.1 THE GROUND NO. 1 OF THE ASSESSEE IS REGARDING C ONFIRMING THE INITIATION OF PROCEEDINGS U/S 147 OF THE ACT BY THE AO WHICH HAS BEEN REJECTED BY THE LD. CIT(A) TAKING INTO CONSIDERATIO N ALL THE FACTS AND CIRCUMSTANCES OF THE CASE INCLUDING THE WRITTEN SUB MISSION OF THE ITA NO. 694/JP/2016 M/S. SENDRA MARBLE CO. (P) LTD. VS. ITO WARD- 2(2) JAIPUR . 2 ASSESSEE. I FIND NO MERIT IN THE ARGUMENTS ADVANCED BY THE LD. AR OF THE ASSESSEE AT THE TIME OF HEARING BEFORE THE BENCH. H ENCE THE SAME IS DISMISSED. 3.1 IN THE GROUND NOS. 2 AND 3 OF APPEAL THE ISSU E RAISED BY THE ASSESSEE IS REGARDING TREATING THE LEASE / RENTAL I NCOME AS INCOME FROM HOUSE PROPERTY AS AGAINST BUSINESS INCOME DECLARED BY THE ASSESSEE AND NOT ALLOWING THE BUSINESS EXPENDITURE. 3.2 AT THE OUTSET OF THE HEARING THE LD. AR OF THE ASSESSEE PRAYED THAT THIS ISSUE IS COVERED BY THE ORDER OF THIS ITAT JAIPUR BENCH VIDE ITS ORDER DATED 20-06-2016 IN ITA NO. 333/JP/2013 & 549 /JP/2014 FOR THE ASSESSMENT YEARS 2007-08 AND 2008-09. 3.3 THE LD. DR RELIED ON THE ORDERS OF THE LOWER AU THORITIES. 3.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. I FIND MERIT IN THE PRAYER OF THE ASSESSEE THAT THIS ISSUE HAS ALREADY BEEN DECIDED BY THIS BENCH IN FAV OUR OF THE ASSESSEE VIDE ITS ORDER DATED 02-06-2016 BY OBSERVING AS UND ER:- 3.6 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE INVOLVED I N BOTH THE APPEAL IS RELATING TO RENTAL INCOME/ LEASE INCOME RECEIVED BY THE ASSESSEE. THE ASSESSEE HAS DECLARED THE INCOME AS INCOME FROM BUSINESS AND THE AO HAS TREATED THE SAME AS INCOME FROM HOUSE PR OPERTY RELYING ON THE JUDGEMNET OF HON'BLE CHENNAI HIGH COURT IN THE CASE OF CIT VS. CHENNAI PROPERTIES AND INVESTMENT LTD. 266 ITR 685. THE LD. CIT(A) HAS CONFIRMED THE ACTION OF THE AO. IT I S OBSERVED THAT ITA NO. 694/JP/2016 M/S. SENDRA MARBLE CO. (P) LTD. VS. ITO WARD- 2(2) JAIPUR . 3 JUDGEMNET OF HON'BLE CHENNAI HIGH COURT IN THE CAS E OF CIT VS. CHENNAI PROPERTIES AND INVESTMENT LTD. (SUPRA) HAS BEEN REVERSED BY THE HON'BLE SUPREME COURT VIDE ITS ORDER DATED 09-04-2015 WHILE DECIDING THE CIVIL APPEAL NO. 4494 OF 2004 IN THE CASE OF M/S. CHENNAI PROPERTIES & INVESTMENT LTD. VS. CIT CENTRAL-III TAMIL NADU WHEREIN THE HON'BLE COURT HELD AS UNDER :- WE ARE CONSCIOUS OF THE AFORESAID DICTA LAID DOWN IN THE CONSTITUTION BENCH JUDGEMENT. IT IS FOR THIS REASON WE HAVE AT THE BEGINNING OF THIS JUDGMENT STATED THE CIRCUMSTANCE S OF THE PRESENT CASE FROM WHICH WE ARRIVE AT IRRESISTIBLE CONCLUSIO N THAT IN THIS CASE LETTING OF THE PROPERTIES IS IN FACT IS THE B USINESS OF THE ASSESSEE. THE ASSESSEE THEREFORE RIGHTLY DISCLOSED THE INCOME UNDER THE HEAD INCOME FROM BUSINESS. IT CANNOT BE T REATED AS INCOME FROM THE HOUSE PROPERTY. WE ACCORDINGLY ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT OF THE HIGH COURT AND RESTORE THAT OF THE INCOME TAX APPELLATE TRIBUNAL. NO ORDER S AS TO COSTS. CIVIL APPEAL NOS. 4491-4493 OF 2004 THE APPEALS ARE DISPOSED OF IN TERMS OF THE AFORESA ID ORDER IN CIVIL APPEAL NO. 4494 OF 2004. 3.7 THE LD. AR OF THE ASSESSEE HAS ALSO DRAWN OUR ATTENTION TOWARDS MEMORANDUM AND ARTICLE OF ASSOCIA TION OF THE ASSESSEE COMPANY WHEREIN THE MAIN OBJECTS TO BE PUR SUED BY THE ASSESSEE COMPANY WERE TO HOLD PURCHASE ACQUIRE T O TAKE ON LEASE OR IN ANY OTHER LAWFUL MANNER ANY AREA LAND BUILD INGS STRUCTURES AND TO SELL OR DEAL WITH OR BUILD DEVELOP MAINTAI N AND TO ACT AS AGENTS PROMOTERS MANGERS AND DEVELOPERS OF REAL E STATE LAND AND BUILDING AND ALSO TO LET OR DISPOSE OFF THE SAME ON INSTALMENT BASIS RENT- PURCHASE BASIS. IN VIEW OF THESE FACTS AND CI RCUMSTANCES OF THE CASE I AM OF THE CONSIDERED VIEW THAT THE FACT S OF THE ASSESSEE CASE ARE SIMILAR TO THE FACTS DECIDED BY THE HON'BL E SUPREME COURT IN THE CASE OF M/S. CHENNAI PROPERTIES AND INVESTME NTS LTD. VS. CIT-III TAMIL NADU (SUPRA). HENCE RESPECTFULLY FO LLOWING THE SAME I ALLOW BOTH THE APPEALS OF THE ASSESSEE. 4.0 IN THE RESULT THE APPEALS OF THE ASSESSEE ARE ALLOWED. ITA NO. 694/JP/2016 M/S. SENDRA MARBLE CO. (P) LTD. VS. ITO WARD- 2(2) JAIPUR . 4 IT IS ALSO NOTED THAT THE FACTS INVOLVED IN THE PRE SENT APPEAL I.E. ASSESSMENT YEAR 2006-07 ARE SIMILAR TO THE APPEALS OF THE ASS ESSEE FOR THE ASSESSMENT YEARS 2007-08 AND 2008-09 (SUPRA). HENCE RESPECTFU LLY FOLLOWING THE ITAT ORDER DATED 02-06-2016 OF THIS BENCH IN ASSESS EE'S OWN CASE FOR THE ASSESSMENT YEAR 2007-08 AND 2008-09 (SUPRA) I ALLO W THIS GROUND OF APPEAL OF THE ASSESSEE. 4.1 THE GROUND NO. 4 OF THE ASSESSEE IS REGARDING CHARGING OF INTEREST OF U/S 234A AND 234B OF THE ACT WHICH IS MANDATORY AND CONSEQUENTIAL IN NATURE. 5.0 IN THE RESULT THE APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 /10/ 2016. SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 19 /10/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S. SENDRA MARBLE CO. (P) LTD. JA IPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO WARD- 2 (2) JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR ITAT JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 694/JP/2016) VKNS'KKUQLKJ@ BY ORDER LGK;D IATHDKJ @ ASSISTANT. REGISTRAR