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TMI Blog2018 (1) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd case [2014 (12) TMI 1321 - ITAT KOLKATA] - I.T.A No. 984/Kol/2016 - - - Dated:- 12-1-2018 - Hon ble Sri N.V.Vasudevan, JM And Shri M.Balaganesh, AM For the Appellant : Shri Arindam Bhattacharjee, Addl.CIT For the Respondent : Shri Soumitra Choudhury, Advocate ORDER Per N. V. Vasudevan, JM This is an appeal by the Revenue against the order dated 16.03.2016 of C.I.T.(A)-16, Kolkata relating to A.Y.2011-12. 2. Grounds of appeal raised by the revenue read as follows :- 1. Whether in . law and on the facts and circumstances of the case, the CIT(A) erred in deleting the addition of the A.O. relying on the judgment in the case of M/s. Chennai Properties and Investments Ltd. vide Civil Appeal No.4494 of 2004 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TD 523818200 RELIANCE WEBSTORE LTD 45494000 VODAFONE MOBILE SERVICES LTD 109899400 TOTAL - 88621 16.00 4. It is the plea of the assessee that the assessee collected licence fee from the aforesaid tenants not only for use of the premises but has also provided other services like installation of a transformer, providing lighting in common area, deployment of security personnel and other facilities. It is the plea of the assessee that it was carrying out regular activity and the letting out of the property has to be regarded as income under he head income from business. This w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. A copy of the order of assessment was filed before us. Copy of the decision of ITAT in the case of M/s. Konark Furniture Pvt. Ltd. (supra) is also placed before us. 8. We have carefully considered the rival submissions. Under section 22 of the Act the charge to tax of income from house property is based on the ownership of such property. The admitted position in the present case is that the assessee is only a tenant and not the owner of the property. It is also not the case of the revenue that the tenancy is for a period of more than 12 years which could be construed as ownership rights u/s 27(iiib) of the Act. Therefore the income in question cannot be assessed as income from house property. This Tribunal on an identical facts in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above facts of the case that the assessee is consistently declaring the receipt of income from sub tenants under the head, profits and gains of business or profession , we are of the view that principle of consistency will apply in this case as the issue stand covered by the decision of coordinate bench in the case of Mzs, Banwarilal Goel Sons Vs. ITO in ITA No. 374/K/2009 for AY 2005-06 dated 13.02,2014, wherein it is held as under:- 6. We have heard the rival contentions, perused the material on record and gone through facts and circumstances of the case, We find that the Hon'ble Calcutta High Court in the case of Shambhu Investment held that the mere fact of attachment of income to any immovable properly cannot be the sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... austed. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle namely, that of a setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaint iff and traversable by the defendant has not been traversed. In that case also a defen dant is bound by the judgment although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken , Hon'ble Supreme Court also referred to their own judgment in the case of Parash uram Pottery Works Co , Ltd. V ITO [1977] 106 ITR 1 (SC), wherein at page 10 it was stated that 01 the same time, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that it, was a case of rental or commercial utilization of properties, which has been accepted, we are of the considered view that there is no reason to uphold this deviation. In view of the above discussions, we uphold the grievance of the assessee and direct the Assessing Officer to treat the income in question as income from business as has been in preceding and subsequent assessment year. This issue of assessee's appeal is allowed. 6. In view of above facts and circumstances, we confirm the order of CIT(A) and this issue of revenue's appeal is dismissed . 9. In the above ruling namely applying to the facts of the present case of the assessee as in A.Y.2008-09 the revenue has accepted the head of income in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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