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TaxTMI 
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TaxTMI 
2021 (9) TMI 543
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....ohar Park". It has filed return of income on 29.11.2014 declaring NIL income. The return was processed under section 143(1) of the Act, which was subsequently for selected for scrutiny assessment by issuing notice under section 143(2) of the Income Tax Act, 1961. During the assessment proceedings, it was noticed by the AO that the assessee has earned income from various let out properties and treated the same under the head "Income from Business". The ld.AO doubted the classification of income under this head, which according to the AO should have been under the head "Income from house property". The ld.AO accordingly issued show cause notice to the assessee as to why income from let out properties be not treated under the head "Income From house property". The assessee filed detailed submissions, which was reproduced by the AO in the impugned assessment order. It was interalia explained that the assessee derived business income for providing several services including leasing and other allied facilities as per the lease agreement. The business income of Rs. 1235.16 lacs have been derived not merely on leasing out the units but they have been derived by way of mall operating revenu....
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.....Year 2011-12. Despite Tribunal having taken consistent view in all three preceding assessment years, Revenue authorities instead of following orders of the Tribunal on the issue, continued to take a divergent view, which requires to be set aside and allow claim of the assessee in this year as well. On the other hand, the ld.DR supported orders of the Revenue authorities. 5. 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 to 2013-14. We find that issues raised before the Tribunal in this year are similar to pre-ceding three assessment years. In all these years, Tribunal has allowed claim of the assessee and directed the ld.AO to treat the income of the assessee as business income. Therefore, it would not be appropriate for us to deviate from the view taken in earlier years, without pointing out any material change in the facts and circumstances in subsequent year. Even, the ld.DR has not disputed about the decision of the Tribunal in the earlier years on the similar nor able to state how the facts in the earlier assessment years are different from ....
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.... material change in the facts and circumstances in a subsequent year. In any event, the maintenance charge for common area maintenance is only one of the segments of services provided to the unit holders in the mall. The common area maintenance is one aspect where costs are shared but that does not mean that all other services and amenities essential to smooth functioning and conducive to business, can be ignored for the purpose of ascertaining the nature of business model. It, therefore, cannot be said, on the facts and circumstances that all the services which have been provided to the unit holders have been separately taxed as business income. The fact remains that even though common area maintenance services are charged for certain services, there are larger number of services such as round-the-clock security, electrification, cleanliness, parking services and most of other services which are integrated and essential for successful operation of mall, consideration for which is included in the charges received from unit holders. The fact that these unit holders treat these charges as rent simpliciter and tax deducted at source under section 194-I cannot determine the question of....
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....al is not perverse and the finding arrived at by them is plausible one." 8. Specifically dealing with a materially similar question, the Hon'ble Kerala High Court in the case of CIT vs. Oberon Edifices & Estates (P) Ltd, reported in [2019] 103 taxmann.com 413 (Kerala), have, inter alia, observed as follows:- "27. In the instant case, it is not a letting out of property simpliciter, without anything more. A host of services are being provided by the assessee at the shopping mall. The assessee is engaged in a complex set of activities at the shopping mall. Management of the shopping mall is done by the assessee. The basic purpose is commercial exploitation of the property. The assessee has earned the income not merely by letting out the shop rooms but also by providing amenities and facilities at the shopping mall. Such amenities and facilities are not the basic facilities required for occupation of a shop room by a tenant. They are the special facilities for running the shopping mall and are meant to attract the customers and provide them the comfort and convenience of shopping. In cases where the income received is not from the bare letting out the property but on account of th....