TaxTMI 
TaxTMI 
2010 (12) TMI 658
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....sons given in para No.35:- "The first issue in Revenue's appeals for all the years is that the CIT(A) erred in directing the assessing officer to treat on service charges received from tenants for various services such as air conditioning, lift, etc. as business income and not under the head "Income from other sources". It is noticed that in deciding the issue CIT(A) followed the orders of the tribunal in assessee's own case for earlier assessment years. The Tribunal held that the service charges received by the assessee from its tenants in Express Towers for various services rendered by it were of the nature of business income and not income from other sources. In taking this view Tribunal relied on the decision of the jurisdictional High Court rendered in 137 ITR 339 (Bom). The SLP filed by the department against that judgment of the Bombay High Court was rejected by the Apex Court in 197 ITR (St.) 191 (SC). Facts being identical, respectfully following the precedent, we uphold the impugned order of this count. 4. As the issue involved in the year under consideration as well as all the material facts relevant thereto are similar to that of A.Y. 1996-97 to 1999-200....
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.... facts peculiar to the case. This, in our view is the correct appreciation of the factual position that prevailed in the case. The department has not made out a case that the rent received by the assessee was ......received from the old tenants. Further, the question of inclusion of notional advantage to the actual rent received by the assessee for computing the "Income from House Property" in CIT vs. JK Investors (Bombay) Ltd. 248 ITR 723(Bom). The Hon'ble jurisdictional High Court held that value of advantage like notional interest on deposit does not form part of actual rent as contemplated by s. 23(1)(b). In view of the above, we hold that the CIT(A) was justified in his action. The ground raised by the Revenue is rejected in all the three years under consideration." 7. As the issue involved in the year under consideration as well as all the material facts relevant thereto are similar to that of earlier years, we respectfully follow the order of the Tribunal for the said years and uphold the impugned order of the ld. CIT(A) giving relief to the assessee on this issue. Ground no. 2 of Revenue's appeal is accordingly dismissed. 8. In ground No.3 and 4, the Revenue....
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....o exit from the joint venture. He further noted that just 6 months prior to exit from the joint venture, the assessee had invested Rs.1.20 crores in the same shares at the face value of Rs.10/- per share. According to the A.O., there was no reason for reduction in the value of said shares from Rs.10/- to Rs.5.74 within a period of 6 months. The claim of the assessee for long term and short term capital loss as claimed in the return of income therefore was disallowed by the A.O. 10. The matter was carried before the ld. CIT(A) and it was argued on behalf of the assessee before him that incurring of loss by a new corporate entity entering the field of publication is a normal phenomenon of business of publishing industry. The assessee submitted that it was felt necessary in the year under consideration by both the joint venture partner to introduce additional funds in order to meet the loss and revive the business of the joint venture company. It was submitted that the assessee company, however, was not in a position to invest more funds in the joint venture company and it therefore offered to exit from the joint venture. It was submitted that the sale consideration of Rs.1.6 ....
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....s a negotiated price. The valuation of shares on 31.3.2000 in accordance with the balance of the company was only Rs.2 per share. Appellant has received more than Rs.5 per share. I also find that the transaction of sale of shares was undertaken with the involvement and approval of FIPB, the organization of the Government of India controlling investment by foreign corporate entities in India. It was only after approval from this agency that the transaction was finalized. The learned counsel of appellant has also informed that it was for this reason that till the time approval of FIPB was received, the sale consideration was kept in escrow account with Citi bank, who were also made a party to the entire transaction. To doubt the genuineness of such a transaction of appellant with a multinational giant in the publication industry on flimsy ground is not justified. The Assessing Officer has argued that appellant has not given sound reasons for taking the exit from joint venture. This is not the area where Assessing Officer can step into. That to my mind is an exclusive jurisdiction of the concerned party, being the appellant. The contention of appellant that only 6 months before shares....
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....for the assessee, on the other hand, strongly relied on the impugned order of the ld. CIT(A) in support of the assessee's case that the transaction of sale of shares was genuine transaction and the long term and short term capital loss arising there from was rightly claimed. He submitted that there was a global recession during the relevant period and since the joint venture company was continuously running into loss, additional funds were required to be infused for its survival. He submitted that a stage, however, came that it was not possible for the assessee as a joint venture partner to introduce more funds in the joint venture company. He submitted that an agreement therefore was arrived at between the assessee company and joint venture partner whereby the joint venture partner agreed to purchase shares held by the assessee company for lumpsum consideration of Rs.1.76 crores. He submitted that the said consideration giving a price of Rs.5.64 per share as against the book value of Rs.2/- per share was found to be quite attractive by the assessee company and a business decision was taken to make an exit from the joint venture by selling the shares to a joint venture partner. He ....
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....at the said transfer of shares was effected at a price of Rs.5.64 as against Rs.10/- per share paid by the assessee company itself while introducing additional funds just six months earlier. In this regard, it has been explained on behalf of the assessee company that there was an understanding between the joint venture partners to introduce the additional funds required by the joint venture company in equal proportion at a face value of Rs.10/- per share. Moreover, the additional funds were introduced by the assessee company in the joint venture company by way of purchase of shares @ Rs.10/- each for the survival and revival of the said company as an investor with no idea of making exit from the joint venture at that stage. The other objection of the A.O. was that the assessee failed to give any basis for the price of Rs.5.64 per share at which the shares in the joint venture company were sold by it to the joint venture partner. However, as rightly submitted on behalf of the assessee before the authorities below as well as before us, the book value of the shares of the joint venture company at the time of transfer was only Rs.2/- and this being the undisputed position, the price of....