M/S MAHESH INVESTMENTS vs. THE ASST. COMMISSIONER OF

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 19th DAY OF MARCH 2013

PRESENT

THE HON’BLE MR.JUSTICE N KUMAR

AND

THE HON’BLE MR.JUSTICE B. MANOHAR

ITA.NO.337 OF 2012

BETWEEN:

M/S MAHESH INVESTMENTS A-1, MUS3EUM TERRACE, NO 29, MUSEUM ROAD, BANGALORE-560 001 ...APPELLANT

(By Sri:GANESH R.GHALE, FOR ASHOK A. KULAKARNI, ADV.,)

AND

THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-1(1), BANGALORE. ... RESPONDENT -------

THIS ITA FILED UNDER SEC.260-A OF I.T. ACT, 1961, ARISING OUT OF ORDER DATED 31/05/2012 PASSED IN ITA NO.960/BANG/2010, FOR THE ASSESSMENT YEAR 2003-2004, PRAYS TO: I. FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED THEREIN, II. ALLOW THE APPEAL AND SET ASIDE THE ORDER OF THE ITAT IN ITA NO.960/BANG/2010 DATED 31/05/2012, ORDER OF THE COMMISSIONER OF INCOME

2 TAX (APPEALS) DATED 25/05/2010 AND ASSESSMENT ORDER DATED 30/07/2007 AND SUITABLY MODIFY IT AS SOUGHT IN THE APPEAL.

THIS ITA COMING ON FOR ADMISSION THIS DAY, N KUMAR J., MADE THE FOLLOWING:

JUDGMENT

This appeal is preferred by the assessee challenging the concurrent finding recorded by the three courts below holding that the rental income received by the partnership firm from the commercial complex is to be assessed under the heading “income from house property” and not from “business income”.

3 proceedings were dropped. Further, notice under Section 148 of the Act was issued to the assessee on 13.7.2006. In reply to the same, the assessee submitted that the return filed on 8.8.2003 may be treated as necessary compliance of the requirement of Section 148. Subsequently, notice was issued, firm was called upon and then the assessing authority held the income is to be treated as ‘income from house property’ and not ‘business income’. Therefore, assessment order was framed and the assessee was called upon to pay the difference in tax as well as interest. Aggrieved by the same, he preferred appeal. The Appellate Authority confirmed the said finding. Aggrieved by the same, an appeal is preferred to the Tribunal, which also came to be dismissed . Aggrieved by these orders, the assessee is in appeal before this Court.

4 the part of the Tribunal either to look into the records and reasons and to make available to the appellant to make submissions thereof before upholding jurisdiction under Section 147 and secondly the income belongs to partnership, which was formed to carry on the business and therefore the income of the partnership firm has to be assessed under the heading ‘business income’ and not ‘income from house property’. We do not see any merit in either of these contentions. Admittedly, the partnership firm filed its return declaring the rental income as the income of the partnership business which was assessed accordingly. On the ground of suppression of income, proceedings under Section 148 was issued. Notice was served on the assessee, who was heard. Keeping in mind the settled legal position that the income is received by the partnership firm and this is the only income of the partnership firm and the said income is coming from letting out of the commercial

5 complex, the assessing authority held the income is to be assessed under the heading ‘income from house property’ which was erroneously assessed as ‘income from business’. Therefore, impugned order came to be passed. The said order has been confirmed by both the Appellate Authorities after dwelling into the statutory provisions as well as law on the point. In that view of the matter, we do not see any substantial question of law which arise for consideration. In the light of the aforesaid admitted facts, there is no merit in this appeal.

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JUDGE

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JUDGE *mn/-