2016 (11) TMI 208

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....EL)/98 for the Assessment Year (AY) 1994-95: "A Whether on the facts and in the circumstances of the case the ITAT was justified in law in deleting of the addition of Rs. 80,49,504/- by holding that the provision of Section 22 and 23 was not applicable to the properties owned by the Assessee? B. Whether on the facts and in the circumstances of the case the ITAT was correct in law allowing depreciation at the rate of 100% on shuttering material and tabular scaffolding in spite of the fact that each shuttering was incapable of being used independently?" 2. As far as question B is concerned, it is not in dispute that it stands answered in favour of the Assessee and against the Revenue by the decision dated 31st October 2012 of this Court....

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....pation is in the course of, and for the purpose of business, as a builder". 6. In CIT v. Ansal Housing Finance & Leasing Co. Ltd. (supra) this Court negatived both the above submissions of the Assessee. After discussing the decisions of the Supreme Court in Sultan Bros.(P) Ltd. v. CIT (supra) and Karan Pura Development Co. Ltd. v. CIT [1962] 44 ITR 362 (SC), this Court noted that the levy of income tax in the case of one holding house property is premised not on whether the Assessee carries on business as landlord, but on ownership. It was further observed as under: ".....The capacity of being an owner was not diminished one whit, because the assessee carried on business of developing, building and selling flats in housing estates. The a....

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....ne who is carrying on business, to be exempted from the levy of income tax was that such property should be used for the purpose of business. The intention of the lawmakers, in other words, was that occupation of one's own property, in the course of business, and for the purpose of business, i.e. an active use of the property, (instead of mere passive possession) qualifies as "own" occupation for business purpose. This contention is, therefore, rejected. Thus, this question is answered in favour of the revenue, and against the assessee." 8. As far as the decision in Chennai Properties & Investments Ltd v.CIT (supra) is concerned, in para 5 the Supreme Court noted that the main object of the Appellant Assessee in that case was "to purch....