TaxTMI 
TaxTMI 
2021 (3) TMI 68
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....xpenditure incurred during the year against common area maintenance income and space selling income tax as income from business and profession." 3. The fact in brief is that return of income declaring total loss of Rs. (-)2,35,58,479/- was filed on 30th Sep, 2015. The case was subject to scrutiny assessment and notice u/s. 143(2) of the Act was issued on 21nd March, 2016. During the course of assessment, the Assessing Officer noticed that assessee has earned income from various let out properties and shown the same as business income by making reference to the earlier assessment year. The Assessing Officer has asked the assessee to explain why the income earned from various let out properties should not be treated as income from house property as treated in earlier assessment year. The assessee has submitted detailed submission produced at page No. 3 to 10 of the assessment order stating that assessee company was engaged in the business of construction, developing malls and shopping complex. It was also explained that assessee was operating and running fully equipped retail mall known as Gulmohar Park and assessee was having necessary staff, infrastructure and other equipment to....
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....ribunal while allowing the claim of the assessee for assessment year 2013-14 vide ITA No. 135/Ahd/2018 is reproduced as under:- "6. We have considered rival submissions and gone through the record carefully. We have also gone through order of the Tribunal in the assessee's own case for the assessment year 2010-11 and 2011-12. We find that issues raised in this year are similar to assessment year 2010-11 and 2011-12. Before us, this is not a vexed issue, because the assessee is continuously claiming the same claim right from the Asstt. Year 2009-10, and the Tribunal has also upheld the treatment of income earned by the assessee under the income from business or profession. The discussion made by the Tribunal while allowing the claim of the assessee reads as under: "7. We have noted that in assessee's own case for the assessment year 2009-10, the Assessing Officer himself has accepted the treatment of income in question as 'profits and gains from business or profession'. No doubt the principles of res judicata do not apply to the income-tax proceedings, but where a fundamental aspect permeating through different assessment years has been found as a f....
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....o be provided and the consideration received from those occupying the business premises is not simply as such rent for the premises. As we hold so, we find support from Hon'ble Supreme Court's judgment in the case of CIT vs. E-City Real Estate (P.) Ltd., [2018] 100 taxmann.com 94 (SC), wherein Their Lordships has, inter alia, observed as follows:- "14. In the present case, the facts are otherwise. The substantive income of the Assessee is from leasing out the shop/stalls. 15. The Tribunal in its Judgment, while appreciating the facts, has observed that the various malls are built by Assessee and are operated from the year 2001. The operational income received from the said activity, in the form of rent, and other service charges was consistently offered to tax as its business income in the earlier years and the same was accepted by the Department as a business income. After demerger, both the Assessee Companies took over the assets and liabilities of the demerged Company and continued the same business of operating and running the malls. The Tribunal has considered the nature of the business activities of the Assessee Company, as well as, terms and conditi....
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....from has to be treated as business income and not income from property. The income derived by the assessee cannot be regarded as simply from the exercise of property right. Where the assessee company has developed the shopping mall and let out the same by providing a variety of services, facilities and amenities in the mall, it can be found that the primary intention of the assessee was commercial exploitation of the property and where it has derived substantial part of its income by such activity, which constitutes its main business, the income so derived would be business income of the assessee. We, therefore, agree with the view of the Tribunal that the income derived by the assessee by letting out the shops in the mall has to be assessed as income from business and not as income from house property. 28. On the basis of the discussion above, we find that the amount received by the assessee company on letting out the shop rooms in the mall constructed by it has to be treated as business income and it has to be assessed to tax under the head "profits and gains of business" and not under the head "income from house property". The substantial question of law is answered in ....