AI Drafter 
TaxTMI 
TaxTMI 
2014 (10) TMI 538
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....under section 147 read with section 143(3) of the Act was bad in law, as the notice under section 143(2) of the Income Tax Act, 1961 was issued beyond the period of limitation provided under the proviso to section 143(2)? (2) Whether in the facts and circumstances of the case, and in law, the Tribunal erred in holding that the Appellant was owner of the shopping centre within the meaning of section 22 read with section 27 of the Income Tax Act, 1961? (3) Whether in the facts and circumstances of the case, and in law, the Tribunal was right in holding that the income earned by the Appellant from the shopping centre was required to be taxed under the head "Income from House Property" instead of the head "Profits and Gains from the Business or Profession" as claimed by the Appellant? (4) Whether on the facts and circumstances of the case, and in law, the order of the Tribunal, confirming the action of the Respondent, is perverse inasmuch as the same is based on surmises, conjectures and suspicions by taking into account incorrect, irrelevant and extraneous consideration while ignoring relevant materials and considerations?" All arguments that have been canvassed before us ....
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.... submits that pure findings of fact have been rendered by the tribunal and as last fact finding authority it was empowered in law to do so. The order passed in Income Tax Appeal is referred by her and she submits that from the admitted facts, the transaction can safely be culled out. The transaction definitely confers rights in or with respect to any building or part thereof by virtue of the transactions which is referred in clause (f) of section 269UA in that regard. She invited our attention to paragraph 28 of the tribunal's order. The tribunal according to her, has not omitted from consideration any relevant material. The most relevant and primary material was the terms and conditions subject to which the assessee was given possession of the market area. The terms have been referred in the order itself. The terms and conditions of the auction dated 11th March, 1993 according to Ms.Bharucha clearly show that the assessee was given possession of the market area and BMC did not have possession or control of the same. The assessee was at liberty to give various stalls/shops to third parties and only restriction was that the assessee must take written permission from the Municipa....
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.... 7. What we find from the record is that the terms and conditions of the auction have been referred to the agreement pursuant thereto and a copy of which was before the authorities. The assessee is a partnership firm. It was constituted under the deed of Partnership and main object was that it shall take premises on rent and sub-let them or any of business mutually agreed by the parties from time to time. The Maharashtra Housing and Area Development Authority constructed buildings under the scheme. The buildings were thereafter managed and administered by Shyam Sunder Co-operative Society, Ram Darshan Co-operative Society and Sindhu Co-operative Society at Jariwalla compound market, Opposite Navjeevan Post Office, Lamington Road, Mumbai 400 008. There was a reservation for Municipal retail market on the plot on which MHADA had put up the construction. Therefore, MHADA handed over the ground floor (stilt portion) of the above said buildings to BMC by recovering the necessary cost. The market department of Bombay Municipal Corporation auctioned the stilt portion administering 17,925 sq. ft. located on the ground floor of the buildings developed by MHADA under PNGP scheme. This was....
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....lusions of the tribunal. We find that the term "transfer" as defined under section 269UA (f) is in relation to any immovable property and there are two references thereto and which are to be found from the definition of the term immovable property i.e. in section 269UA (d). The immovable property means "any land or any building or part of a building and includes, where any land or any building or part of the building is to be transferred together with any machinery, plant, furniture, fittings or other things also and any rights in or with respect to any land or any building or a part of building whether or not including any machinery, plant, furniture fittings or other things therein which has been constructed or which has to be constructed, accruing or arising from any transaction including becoming a member of the Co-operative society or acquiring shares therein but such transaction was not by way of selling, exchange or lease of such land, building or part of building. It is in these circumstances that the term "transfer" is defined in clause (f) as stated above and effect of the same may be of transferring or accepting enjoyment of the property. 8. The tribunal extensively r....