TaxTMI 
TaxTMI 
2021 (4) TMI 238
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....ply to the facts of the appellant's case, which are as under:- Sr. No. Description (i) Makewaves Sea Resort Pvt. Ltd. v/s DCIT, Central Circle -4(1), Mumbai, ITA No. 36/MUM/2018 and 37/MUM/2018 decided on 20th March, 2019. (ii) Ferani Hotels Pvt. Ltd. v/s ACIT, Central Circle - 4(1) Mumbai, ITA No.6332/M/2016 decided on 21st December, 2018. (iii) ITO 2(1)(1), Mumbai v/s Arihant Estates Pvt. Ltd., Mumbai, ITA No. 6037/MUM/2016 decided on 27th June, 2018. (iv) M/s. C.R. Development Pvt. Ltd. v/s JCIT - 8(1)(OSD),Mumbai (ITA No. 4277/Mum/2012). (v) M/s. Runwal Constructions v. Asst. CIT, Central Circle - 4(1), Mumbai, (ITA. No. 5408- 5409/MUM/2016). (vi) Progressive Homes v/s ACIT, Circle-4(4), Mumbai, (ITA. No. 5082/MUM/2016). (vii) ACIT-15(2)(1). Mumbai v/s Haware Construction Pvt. Ltd. (ITA. No.3321/MUM/2016 & No.3172/MUM/2016). (viii) Haware Engineers & Builders Pvt. Ltd. v/s DCIT, Central Circle-4(2), Mumbai. (ITA. No.6332/M/2016). 2. The Brief facts of the case are that the assessee-company is engaged in the business of development of real estate, development of residential complex and malls. The assessee has filed the....
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....f addition of ALV of unsold flats, the submissions of the assessee and judicial decisions and observed at page 10 para-.5.9 of the order as under: "5.9. In view of the discussion in the foregoing paragraphs, I hold that the AO has rightly assessed deemed income from the unsold units in the hands of the appellant as per the provisions of Sec. 22 and 23 of the Act by adopting a rate of 7% of the investments made, 'in accordance with the decision of Radha Devi Dalmia (4 Taxman 183)(ALL HC). Accordingly, the addition of Rs. 1,20,19,841/- made by the AO after adopting the deemed rental income to be of Rs. 1,71,71,201/- is upheld and the ground of appeal taken by the appellant is rejected. Accordingly, this ground of appeal of the assessee is dismissed." 4. Aggrieved by the order of CIT(A), the assessee has filed the appeal before the Hon'ble Tribunal. 5. At the time of hearing, the Ld. AR submitted that the CIT(A)erred in confirming the action of AO in determining the ALV of the unoccupied flats and further overlooked the assessee's own case of Hon'ble Tribunal for the earlier Assessment years on the same issue granting the relief and prayed for allowing t....
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.... However, on the other hand, the Ld. Representative of the Department has refuted the said contention. On appraisal of the facts of the case and relevant record on the file, we noticed that the object of the assessee is deriving of income from Hotel Business and Construction. The assessee company is running a five star hotel in the name and style of The Carlton at Kodaikannal, Tamil Nadu, having rooms and other facilities. The assessee also derived income from dividend, share of profit from partnership firm and profit from sale of flats. The assessee failed to sold the flat which was being treated by him as stock in trade. The AO assessed the notional income and brought to tax as income as house property which has no doubt confirmed by CIT(A). It is to be seen whether the income of the assessee is liable to be treated as house property or business income. It is necessary to discuss the finding in the case of M/s. Runwal Constructions Vs. ACIT in ITA. No. 5409/M/2016 dated 22.02.2018 which has been given in para no. 7 to 10 and are hereby reproduced as under.:- "7. We have heard the rival submissions and perused the orders of the authorities below and the decisions relied u....
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....in our considered opinion, was absolutely unjustified in comparing the rental income with the dividend income on the shares or interest income on the deposits. Even otherwise, this question was not raised before the subordinate Tribunals and, all of sudden, the Tribunal started applying the analogy. 9. From the statement of the assessee, it would clearly appear that it was treating the property as 'stock-in trade'. Not only this, it will also be clear from the records that, except for the ground floor, which has been let out by the assessee, all other portions of the property constructed have been sold out. If that be so, the property, right from the beginning was a 'stock-in-trade'." 9. Similarly the Coordinate Bench has considered similar issue as to whether the unsold property which is held as stock in trade by the assessee can be assessed under the head 'income from house property' by notionally computing the annual letting value from such property and the Coordinate Bench considering the decision of the Hon'ble Delhi High Court in the case of Ansal Housing Finance & Leasing Co. Ltd. (supra) which the AO relied upon and the decision....
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....hese flats were neither given on rent nor the assessee has intention to earn rent by letting out the flats. The flats not sold was its stock-in-trade and income arising on its sale is liable to be taxed as business income. Accordingly, we do not find any justification in the order of AO for estimating rental income from these vacant flats u/s. 23 which is assessee's stock in trade as at the end of the year. Accordingly, the AO is directed to delete the addition made by estimating letting value of the flats u/s. 23 of the I.T. Act." 10. In the case on hand before us it is an undisputed fact that both assessees have treated the unsold flats as stock in trade in the books of account and the flats sold by them were assessed under the head 'income from business'. Thus, respectfully following the above said decisions we hold that the unsold flats which are stock in trade when they were sold they are assessable under the head 'income from business' when they are sold and therefore the AO is not correct in bringing to tax notional annual letting value in respect of those unsold flats under the head 'income from house property'. Thus, we direct the AO to delete t....
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....f the view that the finding of the CIT(A) on this issue is wrong against law and facts whereas the case of the assessee has duly been covered by the law mentioned above, therefore, by honoring the orders mentioned above. We deleted the addition raised by assessee on account of notional income of vacant flats. Accordingly, this issue is decided in favour of the assessee against the revenue." 9. The facts and the issue involved in the present case are similar to the facts of the case and the issue involved in the case of Ferani Hotels Pvt. Ltd. (supra). In the said case, the coordinate Bench has deleted the addition confirmed by the CIT(A) on account of notional rent determined by the AO by holding that the ALV of the unsold unit of assessee project is assessable under the head 'income from house property'. Since, the findings of the Ld. CIT(A) is not in accordance with the decision of the coordinate Bench rendered in the case of Ferani Hotels Pvt. Ltd. (supra), we respectfully following the decision of the coordinate Bench set aside the order of the Ld. CIT(A) and allow the appeal of the assessee and direct the AO to delete the addition made under the head 'inco....