TaxTMI 
TaxTMI 
2011 (9) TMI 729
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....ibunal allowed the appeal preferred by the Revenue and set aside the order of the Commissioner of Income-tax (Appeals). Being dissatisfied, the assessee has come up with the present appeal. The facts giving rise to filing of this appeal may be summed up thus: The assessee company is a property developer and builder. In course of its business activities, it constructed a building at 7, Camac Street, Kolkata - 17 in which there were some unsold flats which were appearing as stock-in-trade under the current assets in Schedule VI of the balance sheet furnished by the assessee and which were meant for sale. The costs of these unsold flats as appearing in the balance sheet was Rs.26,09,456/- and the assessee had shown the ....
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....eal before the Commissioner of Income-tax (Appeals) who, however, accepted the contention of the assessee and held that the appropriate head for the income derived by way of letting out the unsold flats should be income from house property and not business income. Being dissatisfied, the Revenue preferred an appeal before the Tribunal below and by the order impugned in this appeal, the said Tribunal has set aside the order passed by the Commissioner of Income-tax (Appeals) and restored the one passed by the Assessing Officer. The assessee has, thus, come up with this appeal under Section 260A of the Act. A Division Bench of this Court at the time of admission of this appeal formulated the following substantial questi....
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....ndirectly be covered by another head will not make the income taxable under the latter head. By relying upon the aforesaid principle, Mr. Khaitan contends that his client has a business of developing house property and the unsold flats in question being owned by his client, income derived from such unsold flats by way of letting out so long a buyer is not procured amounts to income from house property by letting out and cannot be a business income. According to Mr. Khaitan, the nature of the stock-in-trade declared by his client being house property simplicitor, the Assessing Officer has no other alternative but to assess the income by way of letting out of such property under the head 'income from house property'. According to Mr. ....
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....New India Industries Ltd. reported in (1993) 201 ITR 208 which was also relied upon by the Tribunal below. Mr. Nizamuddin, therefore, prays for dismissal of the appeal by affirming the order passed by the Tribunal below. After hearing the learned counsel for the parties and after going through the materials on record, we find that with regard to similar rental income in respect of unsold flats, the Assessing Officer in the past treated those income as income from house property and those decisions relating to earlier assessment years have attained finality. The moment in the proceedings under the Wealth Tax Act, the assessee contended that those unsold flats were stock-in-trade of its business and such contention was accepted by the....
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....oitation being unsold flats still owned by the assessee, the Commissioner of Income Tax (Appeals) rightly concluded that the same should be treated as income from house property by way of letting it out. In the case of Commissioner of Income-tax West Bengal III vs. Ajmera Industries Private Ltd. (1976) 103 ITR 245, relied upon by the Tribunal below, a Division Bench of this Court was considering a case where the assessee was carrying on business and in course of its trading activities, the assessee was using and exploiting non-factory building including its godowns. In such a fact, the Division Bench was of the view that non-factory building including the godowns clearly constituted commercial assets of the assessee and the finding ....