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TMI Blog2015 (4) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... Act on 20.3.2008. On an appreciation of the records of assessment placed before us for our perusal, we are of the considered opinion that proper sanction has been obtained by the Assessing Officer from the Addl. CIT as per the requirements of section 151(2) of the Act and that the correct procedure has been followed by the Assessing Officer in initiating and invoking proceedings under Section 147 of the Act. Decided against assessee. Orders of assessment passed under Section 144 r.w.s. 147 are not tenable in law as the assessee has given all the details called for - Held that:- As in the interest of equity and justice, the matter / issues with respect to whether the lease rental receipts received by the assessee from its tenants is to be treated and assessed as ‘business income’ as claimed by the assessee or as ‘income from house property’ as held by revenue, requires fresh consideration in the light of the observations in para 6 of the decision of the coordinate bench of this Tribunal in the assessee's own case for Assessment Year 2002-03. We, therefore, remit this matter to the file of the Assessing Officer for fresh consideration of this issue after affording the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the assessee were considered and disposed off by the Assessing Officer in the body of the assessment order. The Assessing Officer completed the assessment, for both assessment years under Section 144 r.w.s. 147 of the Act vide order dt.29.12.2008 for Assessment Years 2001-02 and vide order dt.30.12.2008 for Assessment Year 2003-04; making certain additions / disallowances to the returned incomes and also in assessing the income from lease rental receipts as income from house property as against business income by relying on the decision of the Hon'ble Apex Court in the case of Shambu Investments Pvt. Ltd. V CIT reported in 263 ITR 143. In this manner, the income for Assessment Year 2001-02 was determined at ₹ 6,94,757 as against the loss of ₹ 15,51,760 declared in the return of income. For Assessment Year 2003-04, the Assessing Officer determined the assessee's income at ₹ 1,24,58,002 as against the income of ₹ 27,16,848 declared by the assessee in the return of income. 2.3 Subsequently, the Assessing Officer passed rectification order under Section 154 of the Act for Assessment Year 2001-02 dt.13.3.2009 wherein the assessee's loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for the Assessing Officer passing such an order is not forthcoming and thus the order requires to be cancelled. 5. The order passed by the learned CIT (Appeals) on a wrong appreciation of facts is against the principles of natural justice under the facts and circumstances of the case. 6. The appellant denies itself liable to be taxed on an originally assessed income of ₹ 6,94,757 and subsequently rectified under Section 154 of the Act determining the total loss at ₹ 18,914 as against the returned loss of ₹ 15,51,760 on the facts and circumstances of the case. 7. The learned authorities are not justified in law in treating the business income of the appellant received from the temporarily letting out commercial complex as income from house property without applying the party of the decision of the Apex Court in the case of Vikram Cotton Mills Ltd., reported in 169 ITR 597 on the facts and circumstances of the case. The assessment of a sum of ₹ 01,69,449 as income from house property in the order of rectification is not in accordance with law. 8. The Assessing Officer failed to appreciate that the status of the appellant is firm and any receipts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified in law in treating the business income of the appellant received from the temporarily letting out commercial complex as income from house property without applying the party of the decision of the Apex Court in the case of Vikram Cotton Mills Ltd., reported in 169 ITR 597 on the facts and circumstances of the case. The assessment of a sum of ₹ 44,26,674 as income from house property in the order of rectification is not in accordance with law. 8. The Assessing Officer failed to appreciate that the status of the appellant is firm and any receipts or income has to be treated as income from business as per the provisions of section 28 of the Act and not under the head income form house property under the facts and circumstances of the case. 9. The order passed by the learned authorities without considering the directions of the Hon'ble Tribunal in the appellant s own case for the A.Y. 2002-03 amounts to judicial indiscipline under the facts and circumstances of the case. 10. The learned Assessing Officer is not justified in levying interest under Section 234B and 234D of the Income Tax Act, 1961 under the facts and in circumstances of the appellant s case. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as received in that office on 14.3.2008 along with the proforma and Annexures for obtaining his approval for initiation of proceedings under Section 147 of the Act. It is only after this approval that notices under Section 148 were issued to the assessee. The learned Departmental Representative submitted that the correct procedure had been followed in obtaining approval of the Addl. CIT. It was submitted that the contention of the assessee that the approval was obtained from the CIT was a factually incorrect assertion by the learned Authorised Representative, as can be seen from the details in the records of assessment placed before the Bench for its perusal. The learned Departmental Representative prayed that in view of the above factual and legal matrix of the case, the assumption of jurisdiction by the Assessing Officer for initiation of proceedings under Section 147 of the Act is in accordance with law and therefore the objections and grounds raised by the assessee ought to be dismissed. 7.3 We have heard the rival contentions and perused and carefully considered the material on record, including the records of assessment which were called for by the Bench in connection with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -03. 8.1.2 The learned Authorised Representative reiterated the contentions of the assessee as raised in Grounds 4 5 (supra). The learned Authorised Representative further contended that the basis for the reopening the assessments for Assessment Years 2001-02 and 2003-04 is based upon the findings in the order of assessment passed for Assessment Year 2002-03. The learned Authorised Representative submits that the findings in the order of assessment for Assessment Year 2002-03 has been set aside to the file of the Assessing Officer by the coordinate bench of this Tribunal in its order in ITA No.1292/Bang/2007 dt.24.10.2008, with certain directions and observations at para 6 on pages 12 to 15 thereof. In this context, it is contended by the learned Authorised Representative, that the Assessing Officer even after being aware that the assessment for Assessment Year 2002-03 was set aside to his file for fresh consideration by the above referred order of the co-ordinate bench of the Tribunal, passed the orders of assessment for these two impugned assessment years 2001-02 and 2003- 04 without following the observations and directions of Tribunal in its order for Assessment Year 2002- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e coordinate bench of this Tribunal in the assessee's own case for Assessment Year 2002-03. We, therefore, remit this matter to the file of the Assessing Officer for fresh consideration of this issue after affording the assessee adequate opportunity of being heard and to file details / submissions required which will be considered, in the light of our observations above. It is ordered accordingly. In this view of the matter, the grounds raised at S.Nos.4 and 5 are rendered infructuous and are accordingly dismissed. 8.3.3 We wish to make it clear that we have only set aside only the issue of assessment of lease rental receipts received by the assessee from its tenants, whether as income from house property or business income , to the file of the Assessing Officer in accordance with our observations in para 8.3.2 of this order (supra) and para 6 of the order of the co-ordinate bench of the Tribunal in the assessee's own case for Assessment Year 2002-03 (supra). In this view of the matter, we also make it clear that we are not adjudicating on the merits of this issue as raised by the assessee at grounds Nos.6 to 9 of these appeals. 9. In the result, the assessee's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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