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TMI Blog2016 (9) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... r the sake of convenience and brevity. 2. Now first we shall take up the appeal bearing ITA No.5130/M/13. The issue raised in the grounds of appeal is against the confirmation and upholding the view of the AO that the assessee's loss was assessable under the head "profit and gains from business or profession" as against the assessee's contention that the said income (Loss) was to be computed and assessed under the head "income from house property". 3. Brief facts of the case are that the assessee filed its return of income on 23.10.2007 declaring total income at Rs. NIL, which was processed under section 143(1) of the Income Tax Act, 1961. The case of the assessee was selected for scrutiny and statutory notices u/s 143(2) and 142(1) wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property can reasonably be expected to let was Rs.NIL and after claiming the interest as deduction u/s 24 of the Act loss of Rs. 85,15,655/- was arrived at. Thereafter the AO rejected the submissions of the assessee and assessed the said income under the head "business and profession" at NIL under the normal provisions of Act as well as under the special provisions u/s 115JB of the Act. Aggrieved by the order of AO, the assessee preferred an appeal before the ld.CIT(A) who also dismissed the appeal of the assessee by observing and holding as under : "3.5 I have considered the A.O.'s order as well as appellant AR's submission. I do not agree with the submission made by the appellant. The fact of the matter is that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the property only in the month of January, 2007 wherein only the occupation certificate is received. The contention of the appellant that the property was lettable from the date of acquiring occupation certificate cannot be accepted as it is common knowledge that after occupation certificate a lot many work needs to be done. The first thing is to apply for an electricity connection and water connection, then the other minor things which are required to be done in a residential accommodation is a matter of common knowledge which cannot be done in two months. Therefore, the property was not lettable for the year under consideration and the entire expenses at best can be called as pre-operative expenses and cannot be allowed in the year unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the ld.AR vehemently submitted that the case of the assessee is fully covered in its favour by the decision of -co-ordinate bench of the Tribunal in the case of Vaidehi Estates Ltd V/s DCIT(OSD) (AY-2007-08) dated 31.7.2015 which was passed in the group cases of the assessee. On perusal of the order of the Tribunal, we find that the identical issue was decided by the co-ordinate Bench of the Tribunal in favour of the assessee. The relevant portion of the order, for the sake of clarity is reproduced below : "8. Apropos the issue as to whether the assessee's income is to be computed as 'income from house property' as claimed by the assessee, or under the head 'profits and gains of business or profession', as held by the ld. CIT(A), Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... let out the property as a bare-shell, without making any renovation or furnishing. This fact has been taken note of by the ld. CIT(A) at page 4, para (d) of the impugned order. 9. For the above discussion, the grievance of the assessee is found to be justified and is accepted as such. The order of the ld. CIT(A) in this regard is cancelled and it is held that the income of the assessee is to be computed as 'income from house property'. The assessee's claim in this regard is, thus, allowed." 7. In the case of M/s Shubham Properties Ltd (supra), the Tribunal has held as under : "6. Ld. Authorized Representative before us, pointed out that ITAT 'F' Bench in case of Vaidehi Estates Ltd. Vs. DCIT (OSD) in ITA Nos. 5134 & 5255/Mum/2013 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.5 of appellate order in favour of the assessee by holding as under : "3.5....... In case of preoperative expenses, if the income is held as income from business, the business of the appellant is not set off in the year under consideration; the same cannot be allowed u/s.37 of the Income-tax Act. Thus, appellant's these grounds of appeal are accordingly dismissed." 12. At the time of hearing, the ld.AR invited our attention to the decision of Co-ordinate Bench of the Tribunal in assessee's own case in ITA No.. 5256/Mum/2013 (Assessment Year: 2007-08) dated 24.6.2016 by which the Tribunal has dealt with similar issue and decided the same in favour of the assessee. The ld. AR prayed that similar view be taken in this year also, for w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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