TaxTMI 
TaxTMI 
2022 (8) TMI 1399
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....d law, the Ld. CIT (A) and the Ld. AO erred in misinterpreting the facts by treating the Revenue from Operation taxable under the head 'House Property' instead of considering it as Revenue From 'Business' despite the fact that in earlier years the same has been assessed as Income from Business and there was no change of facts warranting change of opinion. 2. That the CIT(A) & Ld. AO erred in holding that since the Revenue is assessable as "Rent" under Service Tax Act, the corresponding Revenue is also Taxable under Income Tax Act under head "income from House Property" ignoring the fact that the basis of determination of Income from House Property are materially different from use of premises defined under Service T....
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....r repairs has been claimed. AO further noted that assessee has claimed various expenses relating to rental income including depreciation. Assessee has filed computation of assessable income in which rental income was declared as income from house property. Assessee company had also filed service-tax return, from which it was noted that the assessee was registered with the service tax for renting of immovable properties and declared rental income from renting activities and the tenant has also deducted TDS as payments for rental u/s 194-I of the Act. AO asked the assessee why the expenses claimed on rental activities including depreciation should not be disallowed. Assessee filed revised computation of income wherein rental income has been d....
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....e assessee is also rejected as assessee is now accepting that the rental receipts are business receipts which is Rs. 1,17,85,125/- and in case, assessee's contention for sake of arguments if accepted, then the assessee company was required to get their accounts audited as the receipts were more than the prescribed limit as per the provisions of section 44AB of the Act. He further noted that assessee company had filled the tax audit column as nil and no tax audit report has been filed. It was further observed by the AO that in the IT filed by the assessee, depreciation on fixed assets were claimed at Rs. 18,88,764/- and no depreciation on building was claimed in the ITR which was claimed in computation of income and revised computation of in....
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....n of provision of section 139 for which penalty proceedings under section 271-/F are being initiated separately." 4. Against the above order, assessee appealed before the ld. CIT (A). Ld. CIT (A) noted the submissions of the assessee. He noted that income of the assessee was related to the revenue receipts received from M/s. Four Seasons Hospitality Pvt. Ltd.. It was submitted that assessee company received 20% of the revenue which fluctuates from month to month and has different terms for each source of revenue, viz., Golf Court, F&B, rooms etc. As per the terms and conditions of the agreement, M/s. Four Seasons Hospitality Pvt. Ltd. was involved in day to day management of the business affairs of the hotel/resort under instructions fro....
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....sessee in the business of running the hotel is not supported by any evidence. He also noted that the assessee has not submitted the copy of agreement between itself and M/s. Four Seasons Hospitality Pvt. Ltd. to determine the nature of activities to be performed by M/s. Four Seasons Hospitality Pvt. Ltd. and by the assessee, though in the written submission, it is mentioned that the copy of the agreement dated 1st July, 2009 is enclosed. Taking adverse inference, ld. CIT (A) rejected the assessee's claim at the threshold. Besides, he noted that assessee did not get its accounts audited u/s 44AB. The lessee made TDS u/s 194-I on the payments made to the assessee which is clear proof that assessee was receiving the income for letting out its ....
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..... 7. First, we note that authorities below have invoked the decision of Hon'ble Supreme Court in the case of Goetze India Ltd. (supra) wherein it has been held that a fresh claim cannot be made otherwise that by the revised return of income. In the same decision, it was held that in their order in that case, will not impinge upon the ITAT to admit claims otherwise of revised return. In according with the aforesaid Hon'ble Apex Court decision, we hold that revised claim needs to be accepted and examined as per law. Further we note that ld. CIT (A) has taken adverse inference also on the ground that written agreement has not been submitted by the assessee though mentioned that being submitted. We note that the issue of agreement was also b....