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TMI Blog2020 (1) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... material circumstance and the objects of Association, the kind of services rendered clearly point out that the Income is from Business. All the factors cumulatively taken demonstrate that the assessee had intended to enter into a Business of renting out commercial space to interested parties. The other income is only an income which is a dividend income from the deposits received from the Business income. Therefore, considering all these factors which have been enumerated above and referred to by the Tribunal, the findings rendered by the Tribunal on assessment of the factual position before it that the income in question has to be treated as Business Income cannot be called perverse assessment of facts, necessary test for such determination have been employed by the Tribunal. Therefore, the question of law as proposed has to be answered against the Appellant Revenue Unpaid service tax u/s 43B - HELD THAT:- It is an agreed position at the bar that the issue stands covered against the Appellant Revenue in view of the following decisions of Ovira Logistics P.Ltd [ 2015 (4) TMI 684 - BOMBAY HIGH COURT] , also it is informed that even SLP against the decision in the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. (A) and (B) are overlapping and relate to the nature of the income as to whether it is from the Business or from House Property. 4. The question No. (C) relates to unpaid service tax under Section 43B of the Income Tax Act. It is an agreed position at the bar that the issue stands covered against the Appellant Revenue in view of the following decisions of this Court : (i) Commissioner of Income-Tax v. Ovira Logistics P.Ltd. - [2015] 377 ITR 129 (Bom) It is informed that even SLP against the decision in the above case have also been dismissed by the Supreme Court. (ii) Principal Commissioner of Income-Tax v. Tops Security Ltd. [2019] 415 ITR 212 (Bom). (iii) Commissioner of Income-tax-2, Mumbai v. Knight Frank (India) (P.) Ltd. - [2016] 72 taxmann.com 300 (Bombay). The SLP filed by Revenue against decision in Tops Security Ltd. (supra) is dismissed by the Supreme Court on 19 March 2019. Hence this question is answered against Appellant Revenue. 5. For the questions No. (A) and (B), a brief narration of the facts would be necessary. The Respondent Assessee is a private limited company incorpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73 ITR 673 (SC) which is foundation relied upon, thereafter, cannot be applied. He submitted that in the case of Chennai Properties (supra) , the Court was considered the fact situation whether the entire income was from the commercial complex and it is in that context that the Supreme Court laid down the dicta. He also submitted that in case of Raj Dadarkar (supra), this fact has been categorically noted by the Supreme Court while commenting upon the law laid down in Chennai Properties. Mr. Malhotra, thirdly submitted that facts as present in the case clearly showed that the income was from House Property and the conclusion of the Tribunal is illegal and perverse. He submitted that the revenue sharing which is one of the ground put-forth by the Respondent Assessee cannot be stand alone for consideration. He submitted that in these circumstances, the impugned order passed by the Tribunal cannot be sustained and give rise to the above mentioned substantial questions of law. 9. The first contention raised by Mr. Malhotra is regarding question of reasoning in the decision of the Tribunal. It cannot be stated that the decision of the Tribunal is an elaborate one but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tening arrangement, installation of water cooled split Air conditioners, elevators, security system, fire prevention, garbage collection and disposal system, dining arrangement for occupants, installation of water purifier and rest room facilities. The Court noted that the assessee had taken loan facilities, license period was for short duration and also provided range of common facilities and amenities to the occupiers. The Court also referred to the decision in the case of Raj Dadarkar Associates v. Assistant Commissioner of Income-tax, CC-46 [2017] 81 taxmann.com 193 (SC). 12. In the matter at hand, the object of the Respondent Assess is clearly to acquire, develop, let out the commercial complex. It is clear from the objects with which the assessee was incorporated to derive income from running and maintaining the shopping mall. The relevant objects as per Memorandum of Association are as follows : (A) Main Object of the Company as per Memorandum of Association :- Object No.1 :- To acquire by purchase, exchange or otherwise deal in land, estates, building, halls, dwelling houses . and to do various types of construction of buildings, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. j) Providing assistance in market survey, customer complaints etc. to the occupants. k) Providing piped music in the mall. l) Fire detection protection system in the common areas. m) Providing facilities for loading unloading and easy access to service Lift. n) Providing canteen space for the employees of the occupants. o) Providing facilities for play area for Kids entertainment zone food court zone. The Respondent Assessee has provided even marketing and promotional activities and also organising various events and programs. This being done by the Respondent Assessee also in the context of the revenue sharing agreement copies of which have been placed on record. A perusal of one such agreement shows that the Appellant Revenue receives not only license fee of the amounts specified therein and percentage of net revenue. In some of the agreements the compensation is either license fee or percentage of net revenue, whichever is higher. Though Mr. Malhotra has sought to contend that the revenue sharing is not stand alone criteria, it can be taken into consideration with totality of the circu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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