2016 (9) TMI 199

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....f the assessee as "Business Income" instead of "Income from House Property" by not appreciating the fact that the assessee is accounting the unsold flats as its stock in trade. 2. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in ignoring the fact that the assessee is in the business of developing building and construction of flats since the time of its inception. Therefore, any profit arises out of the sale of building and flats or renting out is to be assessed as business income. 3. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in relying on the High Court decision in assessee's own case in earlier year ignoring the fact that the department has not accepted the decision of the Hon'ble High Court on merits. However, in the light of the CBDT's Instruction No. 3/2011 due to low tax effect did not contest in the Hon'ble Supreme court. 4. The appellant craves to be allowed to add any fresh grounds of appeal and / or delete or amend any of the grounds of appeal. 3. The facts in brief are that the assessee had e-filed its original Return of income declaring income of Rs. 1,62,45,512/- on 19.10.2015. The same ....

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.... 6. At the time of hearing Ld. DR relied upon the order of the AO and reiterated the contentions raised by the Revenue in the grounds and requested that addition made by the AO may be upheld. 7. On the contrary, Ld. A.R. of the assessee relied upon the order of the ld. CIT(A). He draw our attention towards the Hon'ble High Court judgment dated 17.5.2013 passed in ITA No. 238-240/Del/2013 in the case of assessee titled as New Delhi Hotels Ltd. vs. ACIT wherein the Hon'ble High Court has allowed the deduction to the assessee which was later followed by the Ld. CIT(A) in his impugned order. Accordingly, he requested that by following the Hon'ble High Court of Delhi judgment dated 17.5.2013, as aforesaid, and by upholding the Ld. CIT(A)'s order, Appeal of the Revenue may be dismissed. 7. We have heard both parties and perused and considered the relevant records available with us especially the impugned order passed by the Ld. CIT(A). We find that Ld. First Appellate Authority has elaborately discussed the issue in dispute by considering the submissions of the assessee and adjudicated the issue in dispute vide para no. 4.1 to 4.2 at pages 3 to 5 in his impugned order. The said r....

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....of the assessee that the rental income is to be treated as Income from House Property. On further appeal by the department Hon'ble ITAT upheld the view of the AO. On appeal by the assessee against the decision of ITAT, Hon'ble Delhi High Court in ITA 238/2013, 23912013 and 240/2013 in decision dt. 17.05.2013 for the AY 2004-05, 2008-09 and 2009-10 upheld the view of the ld. CIT(A) that rental income should be assessed under the head Income from House Property as under :- "4. The Tribunal held that it would fall under the head of "profits and gains from business and profession", whereas it is the appellant/assessee's contention that it would fall within the head "income from house property". It appears that this issue is no longer debatable in view of the decision in the case of CIT v Ansal Housing Finance & Leasing Co. Ltd. decided on 31.10.2012 in ITA No. 18/1999. That decision has, subsequently, been followed in CIT v. Discovery Estates Pvt. Ltd (in ITA Nos. 1089/11 and 1090/2011) and CI v. Discovery Holding Pvt. Ltd.(in ITA No. 1097/2011) decided on 18.02.2013. One of the questions raised in Discovery Estates Pvt. Ltd and Discovery Holding Pvt. Ltd (supra) w....

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....usiness income as against assessee's claim of the same as Income from House Property. Ld. CIT(A) allowed the appeal of the assessee and upheld the claim of the assessee that the rental income is to be treated as Income from House Property. On further appeal by the department ITAT upheld the view of the AO. On appeal by the assessee against the decision of ITAT, Hon'ble Delhi High Court in ITA 238/2013, 239/2013 and 240/2013 in decision dt. 17.05.2013 for the AY 2004-05, 2008-09 and 2009-10 upheld the view of the ld. CIT(A) that rental income should be assessed under the head Income from House Property as under: "4. The Tribunal held that it would fall under the head of "profits and gains from business and profession", whereas it is the appellant/assessee's contention that it would fall within the head "income from house property". It appears that this issue is no longer debatable in view of the decision in the case of CIT v Ansal Housing Finance & Leasing Co. Ltd. decided on 31.10.2012 in ITA No. 18/1999. That decision has, subsequently, been followed in CIT v. Discovery Estates Pvt. Ltd (in ITA Nos. 1089/11 and 1090/2011) and CI v. Discovery Holding Pvt. Ltd.(in ITA No.....