TaxTMI 
TaxTMI 
2023 (7) TMI 9
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.... disallowance of depreciation of Rs. 1,44,62,541/-claimed on let out building". 3. The brief facts of the case are that during the year under consideration, the assessee earned income of Rs. 7,14,14,205/- from its mall operating business, and offered the same to tax as its "business income". The assessee had also claimed business expenditure namely; administration, finance, other miscellaneous expenditure etc. against such business income. However, during the course of assessment, the Assessing Officer held that the aforesaid income earned by the assessee from letting out the space and house property is taxable as "income from house property" and cannot be taxed as "business income". 4. The assessee filed appeal before the ld. CIT(A) against the aforesaid classification done by ld. Assessing Officer. The ld. CIT(A) allowed the appeal of the assessee on the ground that the present issue whether such income forms part of "business income" or "income from house property" has been settled in favour of the assessee by Hon'ble ITAT for assessment years 2010-11 to 2013-14 vide ITA No. 3560/Ahd/2015 and ITA No. 135/Ahd/2018. While allowing the appeal of the assessee, the ld. CIT(A) has m....
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.... Before us, this is not a vexed issue, because the assesses 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 assesses 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 fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year. This is so held by the Hon'ble Supreme Court in the case of Radhasoamt Satsang v. CIT [1992] 193 ITR 321 (SC), In this perspective, when we approach the facts of the present case, we find that whether the income in question is to be....
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....ome 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 conditions of the relevant agreements, under which the commercial space in the mail on hire by the Assessee Companies to the concerned parties, considered the various services provided by the Assessing Companies during the course of operation and running of the Family Entertainment Centre-cum-; malls.. On appreciation of facts, the Commissioner (Appeals) and the Tribunal have concurrently arrived at a conclusion that the intention of the Assessing....
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.... income by such activity, the income so derived would be business income of the assesses. We, therefore, agree with the view of the Tribunal that the income derived by the assesses by letting out the shops in the mail 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 favour of the assessee and against the revenue." 9. In view of the above discussions, as also bearing in mind entirety of the case, we are of the considered view that the authorities below were indeed in error in treating the consideration received by the assessee for commercial space given in the mall to various persons as income from house property. We vacate the action of the authorities below and direct that the said income be treated as profits and gains from business or profession. As this core issue has been....