TaxTMI 
TaxTMI 
2012 (3) TMI 143
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....al on 16.10.2008 which is beyond the period of three months from the date of conclusion of the arguments of the appeal. Thus, the ld. Sr.Counsel for the assessee has submitted that in view of the decision of the Hon'ble Jurisdictional High Court in the case of Shivsagar Veg. Restaurant V/s ACIT (2009) 317 ITR 433 (Bom), the impugned order pronounced belatedly is not sustainable and liable to be set aside/recall for fresh hearing. He has also referred the decision of the Hon'ble Goa Bench of Bombay High Court in the case of Shri Pradeep K.P.Sangodker V/s State of Goa and District Consumer Dispute Redressal Forum, Alto Porvorim in WP No.281 of 2006 order dated 24.8.2006 and submitted that the jurisdictional High Court has issued the directions which are applicable to al l the quasi-judicial authorities/bodies and the order shall not be delayed beyond two months from the date of conclusion of arguments. The ld. Sr.Counsel for the assessee also referred the minutes of meeting of Vice-Presidents of this Tribunal held on 26.2.2003 wherein the instructions were issued for disposing of the appeals in the ensuing months to which the hearing has been concluded. Thus, the ld. Sr.Counsel has s....
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....d circumstances. The pronouncement of the order is expected to be within a period of 60 days and in case of exceptional circumstances, it may be pronounced within a further period of 30 days. The decision relied on by the ld. Sr.Counsel for the assessee for the assessee also directs that the order should be pronounced within a period three months from the date on which the case is closed for judgment. It is pertinent to note that in the case in hand, there are certain developments with respect to the long leave and transfer of one of the Member constitution the Bench who have heard the appeal . It is transpired from the record that one of the Members Shri D.K.Shrivastava, AM, seating in the Beach who heard the appeal of the assessee was transferred from Mumbai Benches to Ahmedabad Benches of this Tribunal . Therefore, it appears that due to transfer of one of the Members of the Bench who have heard the appeal, there exists some extra ordinary circumstances which lead to the delay in pronouncement of the order. In the absence of any tangible material , glaring facts and circumstances of the case to show that by the reason of delay in pronouncement of the order, the Bench has ignored....
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....t available for pronouncement by the reasons of his transfer from Mumbai to Ahmedabad. Hence, we do not find any substance or merits in the petition of the learned counsel for the assessee. 8. The last point raised by the assessee in the Miscellaneous Petition is against the finding of this Tribunal . The learned Sr.counsel for the assessee has contended that the finding of the Tribunal are erroneous and against the decision as cited by the assessee during the hearing of the appeal. The. ld. Sr.Counsel has submitted that the assessee placed on record 2 decisions in support of its claim but this Tribunal has given finding in the impugned order which is contrary to the decisions relied upon by the assessee. He has reiterated the contention on merits and submitted that in view of the decision relied upon by the assessee, the claim of the assessee should have been allowed to that purpose, the order of the Tribunal should be recalled. 9. On the other hand, the ld. DR has submitted that the Tribunal decided the issue on merits after considering the contentions of both parties and therefore, the scope u/s 254(2), of the Act the Tribunal cannot revise its order. 10. We have considered t....
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....omer as aforesaid is incidental to the availing of the office facilities, amenities and services mentioned hereinabove and agreed to be provided by the owners to the customer and the customer shall not be entitled to avail of only the use of the cabins and space or avail the other facilities separately and the agreement hereby recorded is composite, indivisible and inseparable." 10. The assessee's counsel submitted that the premises which have been let out is for commercial premises, income arising there from is assessable under the head "Profits and Gains from Business and Profession". The ld. counsel for the assessee relied upon the decisions in the case of CT Vs. VST Motors Pvt. Ltd. (226 ITR 155(Mad), CIT Vs. National Storage Pvt. Ltd. 66 ITR 596 (SC) and CIT Vs. New India Industrial Ltd. 201 ITR 208(Guj j. 11. The ld. Counsel for the assessee therefore submitted in his arguments in support of his contention, that 'the income should be treated as business income for following reasons; a) Control of premise payments with lessee i.e. assessee and since security opens and closes the shop during working hours. b) No advertisement or hoarding or signage by the lessee i.e.....
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....ch the shopping malls / business centers are located and the other party to the agreement is shown as under. The assessee, as owners of the premises, has the responsibility of providing security, communication and other services as specified in the agreements. The agreements with Pantaloon industries Ltd., PFH entertainment Ltd. and Pantaloon Fashions (India) Ltd., are operative over a period of six years commencing front 1.4.1999 and that with Pantaloon Retail (India) Ltd. is made operative for a period of seven years commencing front the date of official launch of the mal l, or, in any case, on or before 15.3.2000, by which time the owner would Endeavour to provide the user with al l the services and facilities as mentioned in the agreement. The agreement provide inter alia that the owner, i.e. the assessee, would keep open the business centers from 9 am to 10 pm [(10 am to 10pm as per the agreement with Pantaloon Retail (India) Ltd.)] every day. During this period the assessee would provide the services as mentioned in the agreements and would permit the employees of the user free access to the said services. It has been clarified in the agreements that similar services are prov....
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....Limited (274 ITR 117) before the Hon'ble Madras High Court the assessee was formed with the main object for acquiring and holding certain immovable property and letting out of such property. However, the Hon'ble Madras High Court after considering the various decisions held that the assessee is the owner of the building an was only exploiting the property as owner and leasing the same and real ize the rent. Hence, the court held that the rent is assessable as "income from House Property". 16. In the circumstances, we are of the opinion that the facts on which decision of the Kolkata Bench, in the case of PFH Mal l & Retail Management Ltd. was rendered are distinguishable and the ratio of the decision of the Supreme court in the case of Shambhu Prasad Investment Pvt. Ltd. , 263 ITR 143 is applicable to the case of the assessee, therefore, the income received by the assessee from letting out of property to M/s Radhakrishna Foodland Pvt. Ltd. has been correctly assessed as income from house property." Thus, the relevant para of the impugned order has expressly made it clear that this Tribunal has duly considered al l the contentions and the decision relied upon by the ld. Sr.Counsel....
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....annot be allowed to be done in a self-same matter, which has exactly been done in this case. This being the position, we feel for the ends of justice hearing of the matter should be postponed. In view of the submission as aforesaid, no order need be passed on this application. However, liberty is given to Ms. Dasgupta's (nee Banerjee) client to do what have been stated before us. Once the order of withdrawal is placed before this Court the matter pending before this Court will be taken up for Consideration. The application is thus disposed of." 12. We may gainfully takes the support of the decision of the Special Bench of this Tribunal in Tata Communication Ltd. V/s JCIT (2009) 121 ITD 384 (Mum)(SB) in which it has been observed and held (page 406,para 19 and 20): "19. It may further be pointed out that legal question relating to entitlement of the assessee to deduction under section 80IA of the Income-tax Act has already been admitted by the Bombay Hon'ble High Court, as per order dated 24-11-2008 in Income tax Appeal No. 73/2008. The substantial question framed by Their Lordships is as under:- Whether on the facts and in the circumstances of the case, the appellant is entitled....