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TMI Blog2013 (9) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... tgoing is to be assessed under the head profits of the business instead of under the head Income from House Property. 2. That the Ld C.I.T. (Appeals)-VIII, Kolkata has erred on facts and in law in considering the receipts of the assessee in respect of 20 leasehold stalls to the tune of Rs.1,12,000/- under the head business and allowing in full the expenses of Rs.97,000/- instead of treating the receipts under the head Income from Other Sources and disallowing the expenses on account of depreciation of Rs.66,000/- and u/s 40a(ia) of Rs.3,600/-. 3. That the Ld C.l.T. (Appeals)-VIII, Kolkata has erred on facts and in law in deciding that the income of the assessee is to be assessed under the head profits from business and allowing depreciation of Rs.12,59,472/- (including Rs,.66,000/- towards leasehold property) whereas such depreciation is not allowable either under the head Income from House Property or under the head lncome from Other Sources considering the receipts of the assessee under such heads respectively. 4. That the Ld C.l.T. (Appeals)-VIII, Kolkata has erred on facts and in law in deciding that the income of the assessee on account of Licence fee outgoings is to be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iciently. The company had given tota1 of 1016 sta1ls under lease / sub-lease to different tailors and a1so received lease rent in the form of licence fee and outgoing and by way of adjustment of advances previously taken from the lessee sta1l holders. The tota1 amount of rent received from the sta1l holders are given as under: From 996 stall holder (owned by the company) Rs.43,92,500/- From 20 stall holders (taken on lease, i.e. leasehold property) Rs. 1,12,000/- Total: Rs.45,04,500/- 4. The AO assessed rent receipt on account of licence fee and outgoings at Rs.43,92,500/- as income from house property and also rent received in respect of leasehold stalls separately considered as income from other sources at Rs.1,12,000/-. Aggrieved, assessee preferred appeal before CIT(A), who after considering the decision of Hon'ble Supreme Court in the case of PFH Mall & Retail Management Ltd. Vs. ITO (2008) 110 ITD 337 allowed the claim of assessee by observing as under: "I have carefully considered the assessment order as well the submissions made by the appellant from time to time and find that the appellant company has its main objectives to construct and develop Haat as is also evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctivities of the appellant as already mentioned by the appellant written submission dated 29th January, 2010. I flnd that the assessee has to maintain staff and to provide fittings and fixtures, supply of electricity, stand- by generator, and regular maintenance and supply of water, fire fighting arrangement, security arrangement, space for eating and packing, community toilets and sanitary conveniences, cleaning, sweeping, scavenging, maintaining passageways, telephone facilities, managing the large congregation of customers and maintaining orderly parking of vehicles, loading and unloading of goods. No rational mind can conceive of or visualize a distinction in fundamentals between the facts in National Storage (Supra) and in the assessees case. Shambhu Investments Pvt. Ltd. (decided by the Supreme Court) originated from Calcutta High Court reported in 249 I.T.R. 97 (Cal) (DB). Although on its own pecu1iar facts the High Court arrived at a given finding but nonetheless, the Hon'ble High Court revisited the earlier settled principles and at page 52 of the judgment observed that : ".....What has to be seen is what was the primary object of the assessee while exploiting the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done as apart of business or it may be done as land owner. Whether it is the one or the other must necessarily depend upon the object with which the act is done. In the case of the appellant company with its professed objects as contained in its articles and memorandum as also reflected in its manner of activities and the nature of its dealings with the Haat properties, it is possible to say that the activities are part of its business activities. Thus going by the decision in S. G. Mercantile Corporation Pvt Ltd. a1so income from setting up and running Haat market as a systematic continuous organization is business income. The decision actually helps the contention of the assessee. I also find force in reliance of the assessee on the decisions in Radhasoami Satsang 193 ITR 321 (SC) wherein the Supreme has observed "Where a fundamental aspect permeating through the different years has been found as a fact one way of 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." There is a host of decisions of the High Courts to the same effect. The jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Vs. CIT (1992) 193 ITR 331 (SC) for the principle of consistency. CIT(A) also considered the decision of Hon'ble Supreme Court in the case of P F H Ma1l & Retail Management Limited, supra, wherein it has been held that "Their Lordships have, inter alia, referred to the Rule of Consistency and applied the same on the same on the very issue is whether the income in question is to be treated as income from business or as income from house property." As the issue is squarely covered in favour of the assessee by the decision of Hon'ble Supreme Court in the case of P F H Ma1l & Retail Management Limited, supra, we find no reason to interfere with the order of CIT(A). This issue of revenue's appeal is dismissed. 6. Coming to another issue i.e. receipts in respect of 20 leasehold stalls, disallowance of depreciation and receipt on account of licence fee outgoing separately considered need not be answered by us now because the main issue of the assessee is answered in its favour and against the revenue. Therefore, ground nos. 2, 3 and 4 being consequential in nature as it has already been answered in view of the above decision. 7. In the result, appeal of revenue is dismissed. 8. Order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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