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TMI Blog2008 (6) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned counsel pointed out that the learned CIT(A) erred in not considering the lease rentals of the assessee in view of the assessee being owner of the land during the year under consideration but had let out the property was a composite one with the host of services and amenities was to be charged as income from business. The learned counsel while reiterating the submissions as were also made learned CIT(A) put forth the brief facts as were considered by him. The assessee is a private limited company and assessed as such. It was incorporated under the Companies Act, 1956 on 31st Aug., 2001. The main object of the assessee as per its memorandum of association is to establish and maintain information technology park with factories, comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odar Cement (P) Ltd. (1997) 141 CTR (SC) 67 : (1997) 226 ITR 625 (SC). East India Housing & Land Development Trust Ltd. vs. CIT (1961) 42 ITR 49 (SC) and CIT vs. Bhoopalam Commercial Complex & Industries (P) Ltd. (2003) 183 CTR (Kar) 275 : (2003) 262 ITR 517 (Kar) to hold that the assessee is receiving rent from a tenant as per the lease deed drawn between the assessee and the absolute owner and therefore the nature of income derived by the assessee was undoubtedly rental income assessable under the head 'Income from house property'. He, further, considered the loans obtained from Union Bank of India and security deposit from tenants in holding it as other than business of the assessee to be considered income from house property. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed and the purchase deed from the Karnataka Industrial Area Development Board which clearly indicate that the said land was to be used only for the purpose of software development facility which is business as has also been held in the case of Tribunal, Bangalore Bench in ITA Nos. 244 to 247/Bang/2007, ITO vs. Mahaveer Shopping Complex when they let out shops in office complex of the assessee concern amounting to business activity. In another decision of the Tribunal, Calcutta Bench in the case of PFH Mall & Retail Management Ltd. vs. ITO (2007) 112 TTJ (Kol) 523 : (2007) 16 SOT 83 (Kol), it was held that the income derived from shopping mall/business center is assessable as business income which facts and circumstances are equally applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an investment which did not involve risk insofar as all the activity undertaken by the assessee had been established as business activity; no portion was self-refrained by the assessee. It was initially taken on lease and later acquired by the assessee. Various amenities and services were provided in the nature of maintenance of staff, monitoring of the generator room, water supply, etc. All these are indications of commercial exploitation of property. This was also considered by the apex Court in the case reported in 51 ITR 253 (sic). Primary job of the assessee, therefore, remained as was inscribed in its main objects as mentioned in memorandum and articles of association submitted in the paper book, he also pointed out that s. 80-IA ackn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... businessman is to earn profit at a maximum level and investment made in the business never lost its main intention for which it was incorporated. The entire cost of construction was by way of obtaining loan which was a risk as adventure in the nature of trade. Therefore, the conversion from leasehold to ownership led to a pure commercial proposition resulting in a business venture carried out by the assessee company. The assessee is providing ward and watch, maintenance of common area, maintenance of light in the common area, supply of water, providing lift, installation of electric transformer, power to the lessees, providing generator, overhead water tanks, maintenance of drainage, etc., clearly establish that the entire activity is in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o business and not mere a return on investment when it is exploited. The Tribunal decision was relied upon by the apex Court decision rendered by a Bench consisting of four Judges whereas the decision of the same Court in East India Housing & Land Development Trust Ltd. vs. CIT was rendered by a Bench of three Judges, will have a binding force who further held that the facts in the similar to that of decision in the case of Sri Balaji Enterprises in which decision the Karnataka High Court held it as business income. We are therefore inclined to consider the learned counsel contention that the facts of the assessee's case are similar to those of Sri Balaji Enterprises and also S.G. Mercantile Corporation (P) Ltd. In view thereof, we dire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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