Sri. KRISHNA BHOJWANI, MUMBAI v. ITO -19(3)-2, MUMBAI

ITA 7510/MUM/2005 | 2002-2003
Pronouncement Date: 22-01-2010

Appeal Details

RSA Number 751019914 RSA 2005
Assessee PAN AIMPB4570C
Bench Mumbai
Appeal Number ITA 7510/MUM/2005
Duration Of Justice 4 year(s) 30 day(s)
Appellant Sri. KRISHNA BHOJWANI, MUMBAI
Respondent ITO -19(3)-2, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 22-01-2010
Appeal Filed By Assessee
Bench Allotted A
Tribunal Order Date 22-01-2010
Date Of Final Hearing 19-10-2009
Next Hearing Date 19-10-2009
Assessment Year 2002-2003
Appeal Filed On 23-12-2005
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH MUMBAI BEFORE SHRI R.K. PANDA AM & SMT. ASHA VIJAYARAGHAVAN JM I.T.A. NO. 7510/MUM/2005 (ASSESSMENT YEAR 2002-03) SHRI KRISHNA N. BHOJWANI SAMIR COMPLEX FIRST FLOOR ST. ANDREWS ROAD BANDRA (W) MUMBAI-400 050 PAN: AIMPB4570C VS. INCOME-TAX OFFICER 19(3)-2 MUMBAI-20 APPELLANT RESPONDENT APPELLANT BY: MR. YOGESH A. THAR RESPONDENT BY: MR. VIKRAM GAUR O R D E R DATE OF HEARING: 20.01.2010 DATE OF ORDER: 22.01.2010 PER R.K. PANDA AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 5 TH SEPTEMBER 2005 OF THE CIT(A)-XIX MUMBAI RELATING TO ASSESSMENT YEAR 2002-03. 2. IN GROUNDS OF APPEAL NO. 1 THE ASSESSEE HAS CHALL ENGED THE ORDER OF THE CIT(A) IN UPHOLDING THE VALIDITY OF RE OPENING OF ASSESSMENT U/S. 147/148 OF THE INCOME-TAX ACT 1961 (THE ACT) MADE BY THE ASSESSING OFFICER. THE LEARNED COUNSE L FOR THE ASSESSEE DID NOT PRESS THIS GROUND FOR WHICH THE LEARNED DR HAS NO OBJECTION. ACCORDINGLY THIS GROUND BY THE ASSESSEE IS DISMISSE D AS NOT PRESSED. 3. IN GROUNDS OF APPEAL NO. 2 THE ASSESSEE HAS CHALLE NGED THE ORDER OF THE CIT(A) IN HOLDING THAT THE LICENCE FEE S IN RESPECT OF COMPOSITE LETTING ACTIVITY CARRIED ON BY THE ASSESS EE ARE CHARGEABLE I.T.A. NO. 7510/MUM/2005 SHRI KRISHNA N. BHOJWANI ================== 2 TO TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY AS AGAINST BUSINESS INCOME TREATED BY THE ASSESSEE. 4. THE LEARNED COUNSEL FOR THE ASSESSEE FAIRLY CONCEDE D THAT THIS ISSUE HAS TO BE DECIDED AGAINST THE ASSESSEE IN VIE W OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF SHAMBHU INVESTMENTS REPORTED IN 263 ITR 143 (SC). IN VIEW OF THE ABOV E SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE THIS GROUND B Y THE ASSESSEE IS DISMISSED. 5. IN GROUNDS OF APPEAL NO. 3 THE ASSESSEE CHALLENGED THE ORDER OF THE CIT(A) IN HOLDING THAT THE LICENCE FEES ARE NOT CHARGEABLE TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES. T HE LEARNED COUNSEL FOR THE ASSESSEE FAIRLY CONCEDED THAT THIS GROUND IS ALSO AGAINST THE ASSESSEE BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF SHAMBHU INVESTMENTS (SUPRA). IN VIEW O F THE ABOVE SUBMISSION BY THE LEARNED COUNSEL FOR THE ASSESSEE THIS GROUND IS DISMISSED. 6. IN GROUNDS OF APPEAL NO. 4 THE ASSESSEE HAS CHALLE NGED THE ORDER OF THE CIT(A) IN NOT ALLOWING DEPRECIATION ON HOUSE PROPERTY. THE LEARNED COUNSEL FOR THE ASSESSEE FAIRLY CONCEDE D THAT SINCE INCOME FROM THE PROPERTY HAS TO BE TREATED AS INCOM E FROM THE HOUSE PROPERTY AND NOT AS A BUSINESS ASSET THEREFO RE NO DEPRECIATION COULD BE ALLOWED AND THE GROUND HAS TO BE DECIDED AGAINST THE ASSESSEE. IN VIEW OF THE ABOVE ADMISS ION BY THE LEARNED COUNSEL FOR THE ASSESSEE THIS GROUND BY THE ASSESS EE IS DISMISSED. 7. GROUNDS OF APPEAL NO. 5 RELATES TO INTEREST U/S. 23 4B AND 234C OF THE ACT. SINCE THE CHARGING OF INTEREST U/ S. 234B AND 234C IS MANDATORY AND CONSEQUENTIAL IN NATURE THIS GROUND BY THE ASSESSEE IS DISMISSED. I.T.A. NO. 7510/MUM/2005 SHRI KRISHNA N. BHOJWANI ================== 3 8. GROUNDS OF APPEAL NO. 6 RELATES TO INITIATION OF PE NALTY PROCEEDINGS. AFTER HEARING BOTH THE SIDES WE ARE OF THE CONSIDERED OPINION THAT THIS GROUND IS PREMATURE IN NATURE AND THEREFORE WE DISMISS THIS GROUND. 9. GROUNDS OF APPEAL NO. 7 BY THE ASSESSEE BEING GENER AL IN NATURE IS DISMISSED. 10. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 22 ND JANUARY 2010. SD/- (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI DATED 22 ND JANUARY 2010 COPY TO: (1) THE APPELLANT (2) THE RESPONDENT (3) THE CIT(A)-XIX MUMBAI (4) THE CIT-19 MUMBAI (5) THE DR A BENCH ITAT MUMBAI. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI TPRAO