2004 (7) TMI 26

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....f the request made by the respondent/assessee for assessing the receipts of the rent under the head "Profits and gains of business and for depreciation thereto", the respondent/assessee preferred an appeal before the Commissioner of Income-tax, who, by his order dated May 17, 1995, directed the Assessing Officer to assess the income derived from the building under the head "Profits and gains of business", paving the way for an appeal to the Tribunal by the Revenue. The Income-tax Appellate Tribunal, by order dated May 19, 2003, holding that there is no infirmity in the order of the appellate authority directing the Assessing Officer to assess the income derived from the building under the head "Profits and gains of business", instead of "I....

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....t/assessee is the owner of the building in question and that the respondent/assessee is trying to exploit the property as the owner by leasing out the same and realising by way of rent, the decision in CIT v. Chennai Properties and Investments Ltd. [2004] 266 ITR 685 (Mad) is not applicable to the instant case. It is further argued that, as held in CIT v. V.S.T. Motors P. Ltd. [1997] 226 ITR 155 (Mad), the fundamental position, viz., whether a particular building is a commercial asset or a house property has to be ascertained before the rental income is being assessed on the assessee. It is also brought to our notice that following the decision in CIT v. V.S.T. Motors P. Ltd. [1997] 226 ITR 155 (Mad) this court, in T.C. Nos. 43, 80 and 81....

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.... [1964] 51 ITR 353. A statutory burden is, therefore, cast on the revenue authorities, viz., the appellant herein, that they should satisfy whether the building or land in question is owned by the assessee, before invoking section 22 of the Act for the purpose of assessing the rental income of the property of the assessee as an income from the house property. That apart, the revenue authorities are also expected to go into the question whether there is any exploitation of the property by their owner by giving it away for rent, before assessing such rental income as an income from house property. From a perusal of the assessment order as well as that of the appellate authorities, we do not see any finding that the respondent/assessee is th....