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TMI Blog2011 (10) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... - 5-10-2011 - J.P. Devadhar, K.K. Tated, JJ. D.A. Athawale and Padma Divakar for the Appellant D. Tralshawala and V.S. Hadade for the Respondent JUDGEMENT Bench: 1. Since common question of law are involved in these appeals, all the appeals are heard together and disposed of by this common order. 2. The common question of law raised in all these appeals is, whether the ITAT was justified in holding that the Mall upkeep and promotional fees received by the assessee were liable to be assessed as 'business income' instead of 'income received from house property', as held by the assessing officer. 3. The assessment years involved herein are AY 2004-05, 2005-06 and 2006-07. 4. The assessee is in the busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upkeep is basically a contract to ensure a well maintained, modern secured and quality premises and to have a top class support system to maximize footfalls in the Mall. The CIT(A) held that the Mall upkeep charges are distinct and independent from the business conducting fees and business facility charges. The CIT(A) further held that the agreement on Mall upkeep is meant to promote the Mall, whereas the other two agreements are only for handing over the premises on lease. 7. Being aggrieved by the aforesaid order, the revenue filed appeals before the ITAT and the ITAT upheld the order passed by the CIT(A) and dismissed the appeal filed by the revenue. The ITAT followed the judgment of the Kolkata 'A' Bench in the case if PFH Mall and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'R Mall' is not in dispute. Admittedly, part of the premises constructed by the assessee have been sold to third parties on outright sale basis. It is also not in dispute that maintenance charges for promotion and upkeep of the Mall has been collected not only from the persons to whom the premises have been given on lease basis but also from persons to whom the premises have been sold on out right sale basis. Obviously, no rent could be recovered from the persons to whom the premises were given on outright sale basis. Therefore, the Tribunal was justified in holding that the maintenance charges received were towards the maintenance and promotion of the common area and the amounts received towards maintenance charges were business receipts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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