2016 (11) TMI 249 - AT - Income Tax

Operational income from mall - treated as capital gain or income from business - Held that - Issue under consideration is squarely covered by the order of the Tribunal in assessee s own case wherein Tribunal have held that operational income received by the assessee company from running of Malls in the form of rent and service charges are assessable as business income in place of income from house property. Respectfully following the order of the Tribunal we do not find any infirmity in this part of order of the Ld. CIT(A) accepting assessee s claim of income from business. Disallowance of interest expenses - Held that - In the instant case though the interest payable relates to share application money taken in earlier year the liability to pay interest was crystallized during the year as the assessee as well as IL&FS has decided not to proceed with the allotment of shares in pursuance of agreement dt. 01/12/2007. It was not a suo motto decision of the assessee. No prudent businessman will suo motto make payment of expense unless and until it is due and payable nor will leave what is due to him. We have carefully gone through the terms of agreement dt. 01/12/2007 between the assessee and IL&FS for payment of interest on share application money and found that it is not a suo motto decision of the Assessee as alleged by the Ld. AO. The decision of payment of interest is consideration for use of funds for the purpose of business of the company hence allowable. It is neither payment to related party which attracts section 40A(2)(b) nor personal expense or capital expense. It is expense for the business of the assessee hence fully allowable under the provisions of the Act. - Decided in favour of assessee

Summary

Issues:
1. Disallowance of interest expenses paid to IL & FS.
2. Treatment of operational income from mall as income from business.

Issue 1: Disallowance of Interest Expenses:
The Appellate Tribunal ITAT Mumbai dealt with cross-appeals filed by the assessee and the Revenue against the order of Ld. CIT(A) for the AY 2008-2009 regarding the disallowance of interest expenses of ?82,571,088 paid to IL & FS. The assessee contended that the interest expenses incurred for the business should be allowable under sections 36(1)(iii), 37, or 43B of the Income Tax Act. The Revenue challenged the CIT(A)'s treatment of operational income from malls as business income. The Tribunal referred to a previous case where it was held that income from the operation of malls in the form of rent and service charges should be treated as business income, not income from house property. The Tribunal upheld the CIT(A)'s decision, dismissing the Revenue's appeals. Regarding the interest expenses, the Tribunal found that the interest paid on share application money was for the purpose of the business and should be allowed as a business expenditure. The Tribunal concluded that the interest expenses were crystallized during the year and allowable under the relevant provisions of the Act, dismissing the Revenue's appeal and allowing the assessee's appeal.

Issue 2: Treatment of Operational Income:
The Tribunal analyzed the nature of income received by the assessee from operating malls in the form of rent and service charges. It referred to legal precedents and held that the income should be considered as business income rather than income from house property. The Tribunal emphasized that the intention of the assessee was to exploit the commercial property through complex commercial activities, making the income generated from the operation of malls as business income. It also considered the terms of agreements and services provided by the assessee in reaching this conclusion. The Tribunal dismissed the Revenue's appeals, stating that the income primarily arose from the exploitation of commercial assets and constituted business income. The decision was supported by the terms of agreements and previous judicial rulings. The Tribunal found no infirmity in the CIT(A)'s order accepting the assessee's claim of income from business.

In conclusion, the Appellate Tribunal ITAT Mumbai addressed the issues of disallowance of interest expenses and the treatment of operational income from malls. It upheld the assessee's claim that interest expenses were allowable as business expenditure and that income from operating malls should be treated as business income. The Tribunal referred to legal principles and precedents to support its decision, ultimately dismissing the Revenue's appeals and allowing the assessee's appeal.