TaxTMI 
TaxTMI 
TaxTMI 
2014 (2) TMI 1337
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....charges received by the appellant on let out of its factory, godown and warehouses and sheds to be income from house property and also by treating the interest income to be income from other sources, as against the claim that such income was income from business and also assessed as income from business by the AO and thereby compositely enhancing the income for the year by Rs. 982534/- as per para 5.1 of the appellate order on account of income from house property and directing the AO to recomputed the interest income as income from other sources. (2) That on the facts and in the circumstances of the case the assessment framed by the AO correctly treating the leave and M/s. Banwarilal Goel & Sons, AY:2005-06 licence charges received by the appellant to be income from business, the action of the CIT(A) to change the head of income and treat the leave and license charges to be income from house property is not contemporaneous to the facts of the case and the submissions made before him. (3) That on the facts and in the circumstances of the case the action of the CIT(A) to change the head of income from business income to house property income of the composite amount received by t....
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....es, drains, water tanks (overhead), drinking & industrial usage water supply lines, pumps, transformer, latrines with septic tanks, fire hydrants, HT/ LT room Cabling, switches, street lighting etc. The factory sheds and godowns are let out to different persons in very organized business manner by rendering all amenities and facilities. The assessee entered into leave & licence agreement with users of premises and earned income from that activity. But income so earned was taxed as business income and was accepted as such in previous year and also subsequent years. In the present year also, Assessing Officer accepted the said income as part of business income. When this issue came before CIT(A) in connection with some other issues, he was of the view that this income needs to be treated as income from house property. Accordingly, a show-cause notice was issued to the assessee calling upon the assessee to explain as to why the income should not be treated as income from house property as it is evident from the perusal of the order of CIT(A) itself. The assessee made submissions in support of its contention that it is not a case of rent simpliciter but it is a part of complex commerci....
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....ed by exploitation of its commercial assets. (ii) Since beginning, the appellant has shown the receipt of composite rent as business receipt which was accepted by the department. (iii) The appellant has rendered various services for providing all facilities and amenities to the hirer, i.e. internal roads, sewerage lines, latrines, septic tanks, drinking and industrial usage water supply, drains, water tank pumps, transformer and electric supply etc. (iv) The building under question is very old and requires regular repairs and maintenance. Ld Counsel for the assessee referred to the Hon'ble Calcutta High Court judgment in the case of CWT V Sun Jute Press (P) Ltd. (1993) 203 ITR 350 (Cal), wherein it is held that income earned from commercial assets was treated as business income. Our attention was also invited to Hon'ble Supreme Courts's recent judgment in the case of CIT V PFH Mall & Retail Mangt.P. Ltd. dated 04.09.2012(unreported) wherein once again emphasized on the principle of rule of consistency. Ld. counsel also pointed out that even after the order was passed by the CIT(A), Assessing officer in assessment order u/s143(3) of the Act continued to treat the ....
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....ental income or income from house property. In case, it is found that the main intention is to exploit the immovable property by way of complex commercial activities, in that event it must be held as business income". The view was expressed by Hon'ble Calcutta High Court and approved by Hon'ble Supreme Court in case of Shambhu Investment (P) Ltd.(Supra) In this view of the matter, it is clear that M/s. Banwarilal Goel & Sons, AY:2005-06 what is to be really seen is whether the property is exploited by way of complex commercial activity or not. In this backdrop, it is quite appropriate to refer to the observations made by the Hon'ble Supreme Court in the landmark judgment of Radhasoam y Satsang (supra), refrring to the case law of Hoystead V Commissioner of Taxation [1926] AC 155 (PC), wherein it is observed as under :- "Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would ha....
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.... accepted, we are of the considered view that there is no reason to uphold this deviation. In view of the above discussions, we uphold the grievance of the assessee and direct the Assessing Officer to treat the income in question as income from business as has been in preceding and subsequent assessment year. This issue of assessee's appeal is allowed. 7. In respect to second issue it is to be stated that this was heard on merits as a covered matter. The issue is applicability of section 40(a)(ia) of the Act to the amount paid during the year. The relevant ground no. 8 reads as under: "8) That on the facts and in the circumstances of the case the CIT(A) erred in upholding the action of the AO in making an addition of Rs. 184462/- u/s. 40(a)(ia) without directing the AO to allow the claim in the year of payment as per the provisions of section 40(a)(ia)." 8. At the outset, it is to be mentioned that assessee's Ld counsel Shri S. K. Tulsiyan already conceded as 'not pressed'. Since there is a noting in the ground and the notings are signed by the counsel for the assessee, we are of the view that this should not be adjudicated on merits as the assessee has himself ....