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TMI Blog2021 (2) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... Family Entertainment Center cum Mall and Maintenance Chargesas Income from House Property against the assessee's claim of Profit and Gains from Business or Profession . - Decided in favour of assessee. - I.T.A. No. 4151/Mum/2019 - - - Dated:- 3-2-2021 - Shamim Yahya , Member ( A ) And Pavankumar Gadale , Member ( J ) For the Appellant : Sushil Kumar Mishra For the Respondents : Jay Bhansali ORDER Shamim Yahya, Member (A) This appeal by the Revenue is directed against order of learned Commissioner of Income Tax (Appeals) [in short learned CIT(A)] dated 29.3.2019 and pertains to assessment year 2015-16. 2. The grounds of appeal read as under:- i) Whether on the facts and in the circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case are the assessee company is engaged in the business of Acquisition of immovable properties and constructing, developing and building Family Entertainment Centre cum Malls across India and leasing (short term long term), licensing, renting and managing, operating and running the same for commercial use and setting up necessary infrastructure. 4. During the course of assessment assessing officer noted that The assessee has shown income under the head 'operating income' of ₹ 11,96,62,440/-, maintenance charges recovered of ₹ 4,32,51,472/-. The Assessing Officer was of the opinion that it is indirectly rent received by the lessor in respect of some facilities provided by it to the lessees as per the agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention to avoid, legitimate and due tax liability. This income of the assessee is taxed under the head income from house property and income from other sources. 5.9 Further in the assessment order passed u/s. 143(3) for A.Y. 2013-14, it was held that the loan availed from HDFC in respect to property located in Chandigarh is for the lease/rental receivable and it cannot be allowed u/s. 24(b) of the IT. Act. Accordingly the assessee was asked to explain as to why the same should not be disallowed as in earlier year. In response, the Ld. AR of the assessee has stated that the assessee company is treating the rental income as the business income and not as the income from house property, the adjustment u/s. 24(b) is not admitted. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em is plausible one. 17. In the light of above, no substantial question if Law arises. The appeal stand dismissed, however, with no order as to costs.' Assessing Officer has stated that since decision of Bombay High Court has not been accepted and department has filed SLP before the Hon'ble Supreme Court which is pending and to maintain consistent stand taken by Department on this issue the income is taxed as Income from house property. This stand of the assessing officer is not acceptable. When the case is covered by assessee's own case and the facts of the case being the same, the order of the jurisdictional High Court is to be followed. In this year, the facts are same as in earlier, years which has been decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Tribunal's Order dated 30.10.2017 in assessee's own case for AY 2012-13 [ITA No. 5097/M/2016] Hon'ble Mumbai Tribunal's Order dated 04.02.2019 in assessee's own case for AY 2013-14 and 2014-15 [ITA No. 4988 4989/M/2017] 11. Respectfully following the aforesaid precedence we hold order of learned CIT(A). 12. As regards the issue of interest the same is consequential. Moreover once it is decided that the assessee's income is from business its interest expenditure has to be allowed as business expenditure. The learned CIT(A)'s order is hence upheld. 13. In the result this appeal filed by the revenue stands dismissed. Order pronounced under Rule 34(4) of the ITAT Rules by placing the result on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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