TaxTMI 
TaxTMI 
2010 (2) TMI 397
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....the lease rentals received from Lipton Export Hindustan Lever were taxable under the head "Income from house property" and not under the head "Profits and gains of business or profession" ? II. Whether on the facts and in the circumstances of the case the Tribunal ignoring its own earlier orders was justified in law in holding that even the income from warehousing activity had to be taxed under the head "Income from house property" and not under the head "Profits and gains of business or profession" ? III. Whether on the facts and in the circumstances of the case the Tribunal was justified in law in upholding the disallowance of Rs. 23,27,592 under section 40A(2)(b) of the Act in respect of payment of Rs. 27,02,000 made to M/s. Shree ....
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....greed upon with the assessee. The lease agreement contains other usual clauses to which it may not be necessary to refer at this stage. 3. According to the assessee, up to the assessment year 1995-96 the income that was derived from the activity of the assessee was accepted and assessed as business income. During the course of the assessment proceedings for the assessment year 1995-96 the Assessing Officer came to the conclusion that the income received by the assessee was liable to be split up into rental income and income received from the rendering of service as a warehouseman. The rental income was assessed as income from house property. On this basis the assessment for 1994-95 was reopened and enhanced. The assessment was completed ....
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....ome-tax Appellate Tribunal while dealing with the case of the same assessee for the assessment year 2001-02 has not furnished any reasons whatsoever for differing with the earlier judgment of the Tribunal. Secondly, in the present case, the assessee is not a mere owner who has received income from investment in property and the letting out of the property was not the dominant purpose of the transaction. The assessee has been formed with the object of carrying on warehousing business and the dominant nature of the activities of the assessee related to the carrying on of the warehousing business. A licence has been obtained by the assessee under the Bombay Warehouses Act, 1959. 5. On the other hand, counsel appearing on behalf of the Reven....
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....the hearing of these proceedings we have considered the earlier judgment of the Tribunal. Ex facie, a perusal of the earlier judgment would show that that the Tribunal has not made a reference to the detailed terms and conditions of the warehousing agreements entered into by the assessee or to the lease agreement by which the factory came to be leased out. Consequently, upon considering the position in this regard counsel appearing on behalf of the assessee has fairly stated that the assessee would not consider that the earlier decision of the Tribunal be regarded as binding. In so far as the decision which is impugned in these proceedings is concerned, the Tribunal has basically relied upon the lease agreement dated March 18, 2001, between....
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....ature of the transaction since it is for the Tribunal to determine as to whether the transaction was a bare letting out of the asset or whether the assessee was carrying on a commercial activity involving warehousing operations. 9. Since the Tribunal has not considered this aspect of the case, we are of the view that it would be appropriate and proper to set aside the decision of the Tribunal and to remand the proceedings back to the Assessing Officer for a fresh determination and assessment in accordance with law. We order accordingly. Upon remand, it is clarified that the Assessing Officer shall not consider himself to be bound by the decision of the Tribunal dated March 19, 2001 for the assessment years 1994-95, 1995-96 and 1996....