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TMI Blog2004 (7) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... h goes to the very root of the issue and there is a further failure on the part of the revenue authorities as to the finding whether the assessee had exploited the property as owner by leasing out the same and realising income by way of rent. - even though we are unable to allow the appeal, we are constrained to set aside the impugned order and remit the matter to the Assessing Officer - - - - - Dated:- 6-7-2004 - Judge(s) : P. D. DINAKARAN., N. KANNADASAN. JUDGMENT The judgment of the court was delivered by P.D. Dinakaran J. - The above appeal is directed against the order dated May 19, 2003, made in I.T.A. No. 1633/Mds of 1995 on the file of the Income-tax Appellate Tribunal, Madras "A" Bench. In brief, aggrieved by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a building has to be assessed under the head "Income from house property", and therefore, the income of the respondent/assessee is liable to be assessed as an income from house property. In support of the above contention, learned counsel for the appellant/Revenue places reliance on the decision in CIT v. Chennai Properties and Investments Ltd. [2004] 266 ITR 685 (Mad) and contends that the respondent/assessee, as owner of the building, is only exploiting the property by leasing out the same and realising income by way of rent and such rental income was liable to be assessed under the head "Income from house property". Per contra, learned counsel appearing for the respondent/assessee, strongly placing reliance on the decision of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty as he may occupy for the purposes of any business or profession carried on by him the profits of which are chargeable to income-tax, shall be chargeable to income-tax under the head 'Income from house property'." It is a settled position in law that whether a particular letting is business has to be decided in the circumstances of each case and each case has to be looked at from a businessman's point of view to find out whether the letting was the doing of a business or the exploitation of his property by an owner. A thing is not by its very nature a commercial asset. A commercial asset is only an asset used in a business and nothing else, and business may be carried on with practically all things. Therefore, it is not possible to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exploiting the property as owner by leasing out the same and realising income by way of rent. Unless these factual questions are answered in clear terms, in our considered opinion, it is difficult to accept the case of the appellant merely based on the ratio laid down in CIT v. Chennai Properties and Investments Ltd. [2004] 266 FIR 685 (Mad), which, in our considered opinion is not applicable to the facts of the present case and also is contrary to the ratio laid down by the Constitution Bench of the apex court in Sultan Brothers P. Ltd. v. CIT [1964] 51 ITR 353, which was also followed by the apex court in the subsequent decision in Universal Plast Ltd. v. CIT [1999] 237 ITR 454. For all these reasons, even though we are unable to allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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