2015 (7) TMI 950

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....perty at C-6, Corianthian, 17 Off Arthur Bunder Road, Colaba, Mumbai were used during the previous year for business activity of the assessee company." 3. "On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in observing that no notional addition can be made in the income under the head Income from house property in respect of the house property 10, Mistry Manor, 62A, Napean Sea Road, Mumbai and house property at C-6, Corianthian, 17 Off Arthur Bunder Road, Colaba, Mumbai, the above house properties having been used during the previous year for business activity of the assessee company." 4. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition made by the A.O. to the tune of Rs. 30,67,863/- disallowed u/s. 79 relying on the Apex Court's decision in the case of CIT vs. Italindia Cottont Co. Pvt. Ltd. (1988) 174 ITR 160 where it was held that the change in shareholding has to effected with a view to avoiding or reducing some liability to tax. This was provided in the then clause (b) of section 79 which has since been omitted w.e.f. 01.04.89 and hence the above mentioned Supreme Court decision....

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.... "After careful consideration *of the submission of the appellant, perusing the facts of the case including the impugned assessment order and other materials on record, this ground of appeal of the appellant is decided in favour of the appellant for the under mentioned reasons in respect of two different properties: Residential Property at 10, Mistry Manor, 62A, Napean Sea Road, Mumbai It is not in dispute that the said residential premises has been allotted by the company to its whole time director Smt. Anita Krishna (who is residing in Calcutta) so that she can look after business activity carried on by the appellant company in Mumbai. i) In the case of CIT vs. Delhi Cloth and General Mills Co. Ltd. (1966) 59 ITR 152 has held as under on page 155 of the report:- "These employees are engaged in the main business of the company and their residence in the buildings in dispute is incidental to their main occupation, that is, the carrying on of the business of the company. In true perspective, these buildings are part of the business equipment of the owner , or, in other words, it is the business asset of the owner". Similar view has been taken in following cases:- ....

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.... the order of tax authorities below. Ld. D.R. even though vehemently relied on the order of the Assessing Officer but could not adduce any cogent material or evidence before us, which may compel us to reverse the finding of the CIT(Appeals). It is not denied that the property No. 10, Mistry Manor, 62A, Napean Sea Road, Mumbai was allotted to Smt. Anita Krishna, Di rec tor so that she can look after business activity carried on by the assessee-company in Mumbai. Similarly in respect of property at C-6, Corianthian, 17 Off Arthur Bunder Road, Colaba, Mumbai, no evidence was brought to our knowledge by the ld. D.R. which may prove that the assessee was not having its Office there. We, accordingly, dismiss the Grounds No. 1 & 2 and confirm the order of the CIT(Appeals). 4. Ground No. 3 relates to the deletion of the addition made in respect of the aforesaid two properties. 5. After hearing the rival submissions and considering the material available on record we noted that this ground, in our opinion, is consequential in nature. Since we have already confirmed the order of CIT(Appeals) that both the properties acquired by the assessee during the year were being used for the purpo....

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....bsp;                                                   No. of shareholders                 Share capital   Old  New  Total   F.Y. 2004-05 (A.Y. 2005-06) 10 07 17 45,65,200/- F.Y. 2005-06 (A.Y. 2006-07) 17 13 30 71,95,540/- F.Y. 2006-07 (A.Y. 2007-08) 30 NIL  30 90,71,400/- It was submitted that section 79 is applicable where there is a change in the shareholding pattern in the case of assessee. But there was no change in the shareholding pattern. The old 10 shareholders who held the ent ire share capital as on 31.03.2004 continued to hold their shares on 31.03.2007 carrying 51% of voting power. According to the assessee what it to be considered in the shareholding pattern for the assessment year 2004-05 and the shareholding pattern for the assessment year 2007-08. The shareholding pattern for the assessment years 2004-05 and 2005-06 cannot be compared. The CIT(Appeal s) ultimately relying on th....