2016 (8) TMI 203

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....and the decisions relied upon. 3. The facts in brief are that the assessee, a partnership firm had disclosed rental income of Rs. 8,11,046 as business income in its profit and loss account and net income of Rs. 2,325 was shown as business income after claiming depreciation on go down building and other consequential expenses. The Assessing Officer did not agree and held the receipt as "income from house property". The same has been upheld by the Learned CIT(Appeals) which has been questioned before the ITAT. 4. In support of the ground, the Learned AR submitted that assessee is a partnership firm engaged in the business of warehousing as per the partnership deed and referred the copy of partnership deed made available at page Nos. 1 to 4 ....

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....rmissible on the basis of change of opinion and if notice under sec. 148 is issued without the jurisdictional foundation available under sec. 147 of the Act, the notice and subsequent proceedings will be invalid. 5. On merit, the Learned AR submitted that the issue raised is fully covered in favour of the assessee by the recent decision of the Hon'ble Supreme Court in the case of Chennai Properties & Investment Ltd. vs. CIT (2015) - 373 ITR 673 (SC) reversing the decision of Hon'ble Madras High Court reported in 266 ITR 685 (Mad.) followed by the Learned CIT(Appeals) for holding the rental income as income from the house properties. The Learned AR pointed out that throughout it has been remained the case of the assessee that it was....

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....ercial assets will constitute business income and not income from house property. The Learned CIT(Appeals) in the present case before us has followed the decision of Hon'ble Madras High Court in the case of CIT vs. Chennai Properties & Investments Ltd. - 266 ITR 685 (Mad.) to come to the conclusion that the rental income from letting out warehouse in the present case was not business income as claimed by the assessee but it was income from house property. The said decision has been reversed by the Hon'ble Supreme Court reported in (2015) 373 ITR 673 (SC) holding that income derived from letting of a business assets will constitute business income. In that case also, the assets let out was a business asset and the assessee had earned....