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TMI Blog2017 (4) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... no defect in the same. - ITA No. 6321/Del./2016 - - - Dated:- 15-3-2017 - SHRI B.P. JAIN, ACCOUNTANT MEMBER For The Assessee : Sh. Satyen Sethi, Adv. Sh. Arta Trana Panda, Adv. For The Revenue : Ms. Bedobina Chaudhari, Sr. DR ORDER PER B.P. JAIN, ACCOUNTANT MEMBER: 1. This appeal of the assessee arises from the order of ld. CIT(A)-21, New Delhi vide order dated 16.9.2016 for the A.Y. 2012-13. The assessee has raised the following grounds of appeal:- 1. That on the facts and circumstances of the case and in law, the Commissioner of Income-tax (Appeals)-21, New Delhi [briefly the CIT(A) ] has erred in upholding the assessment of income at ₹ 14,03,626/- as against declared income of ₹ 3,28,260/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had leased his flat in Nehru Place to NTPC Ltd. 10.8.1995 Lease in favour of NTPC Ltd expired. However. NTPC Ltd. did not vacate the premises. 16.8.1995 I Suit for eviction was filed by the Appellant. NTPC Ltd vacated the property only on 6.4.1998. 30.4.1998 The suit for eviction was decreed. Mesne profits @Rs.40/- per sq. ft. with 24% interest for the period 10.8.1995 to 6.4.1998 was awarded by the Trial Court. 05.11.2005 On appeal by the NTPC Ltd, the Appellate Court reduced the mesne profits from j ₹ 40/'- per sq. ft. to ₹ 10/- per sq. ft. 23.3.2011 On appeal by the Appellant to the Delhi High Court, the Hon'ble Court upheld the order of the Trial Court granting mesne profits C/iRs.40/- per sq. ft. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mesne profits is covered by the aforesaid decision of the Hon the Supreme Court cannot be accepted dispute that there is a cleavage of opinion expressed by the High Courts on this issue . Discussing all the case laws, including that of P. Mariappa Gounder. the Special Bench held in paragraph 49 (page 45) that: A In the present case, after the termination of lease. NIHPL was occupying and using the ( property unauthorizedly and thus the assessee was deprived of the use and occupation of the ) property and therefore, the mesne profits received by the assessee under the consent decree awarded by the Apex Court at the rate of ₹ 10 lakhs p.m. was on account of damages for j deprivation of use and occupation of the profits and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddition to the rent and balance of ₹ 3,82.278/- w as taxed as income from other sources. Appellate proceedings The CIT(A) upheld the assessment order following the case of P. Mariappa Gounder (supra). Submissions I. The issue is squarely covered by Special Bench order in Narang Overseas P Ld. (supra), wherein, judgment of Supreme Court in P. Mariappa Gounder (supra) was duly considered. II. In C1T v. Goodwill Theatres Pvt. Ltd. (2016) 386 ITR 294 (Bom), where Narang Overseas (P) Ltd (supra) was followed Hon ble Bombay High Court has declined to admit the question of law holding that unless the Revenue challenges the order of the Special Bench, it would be unfair of the Revenue to pick and choose assessee where it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law in holding that the excess amount payable to the assessee towards mesne profits/compensation for unauthorized use and occupation of the premises accrued to the assessee only upon the passing of the decree by the Civil Court on 14.10.1998? Since there is no direct decision of Delhi High Court, therefore, decision of Special Bench in Narang Overseas (P) Ltd (supra) is required to be followed, as held in CUT v. Janapriya Engineers Syndicate (2015) 371 ITR 439 (T A.P.) 4. The ld. counsel for the assessee further submitted that note of Pal Properties is was relied upon the ld. DR how the same is not applicable in the present case which is reproduced herein below:- Questions considered in Pal Properties (I) (P) Ltd. v. CIT [2002] 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tenant no longer remains a tenant but becomes a trespasser. For the purpose of his eviction, the appellant herein filed a suit and also claimed a decree for mesne profits. Rent and mesne profit connote two different meanings. Taking into consideration the facts of the case, the High Court at page 693 and 694 observed that: In the instant case, the claim of the appellant against his erstwhile tenant is pending. The Us between the parties being pending adjudication, the fate thereof is unknown. In a given case, having regard to the delay in disposal of the matter, the parties may arrive at a settlement in terms whereof the landlord may give up his right of mesne profit or even pay some amount from his pocket. It, therefore, ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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