BALUWALA BUILDERS,MUMBAI vs. ACIT 19(2), MUMBAI

2 3. The assessee is a partnership firm carrying on business of builders and developers. The assessee filed return of income at Rs.27,03,565/- on 31.10.2007. The assessee after claiming deduction u/s 24 of the Act shown “income from house property” of Rs.30,86,161/-. Subsequently, the assessing officer selected the case for scrutiny and completed the assessment u/s 143(3) determining the total income at Rs.41,87,362/-. Aggrieved by the order of AO, the assessee preferred the appeal before the First Appellate Authority, who in turn upheld the action of the AO. Further aggrieved by the order of First Appellate Authority, the assessee filed an appeal before the Tribunal.

Before us, at the outset, the ld.AR submitted that an identical issue had come up before the same Bench of the Tribunal in assessee’s own case in (AY-2008-09) and the Tribunal vide its order dated 17.4.2013 decided the issue in favour of the assessee. Therefore, the ld.AR submitted that the issue raised in this appeal be decided in favour of the assessee.

The ld. DR reiterated the facts of the case and relied on the orders of authorities below. 6. We have heard both the parties and perused the relevant material placed before us. We find from the record that an identical issue has been decided by the Tribunal in assessee’s own case vide order dated 17.4.2013 passed in 3 assessee’s own case in ITA No.2023/Mum/2012 (AY-2008-09). The ld. DR could not bring any material contrary to the submissions of ld.AR and order of the Tribunal. For the sake of convenience, we reproduce the relevant portion of the aforementioned order : “8. In his anxiety to take it as a business income, the Assessing Officer brought the entire receipt under one head and CIT(A) also confirmed the same. Since we hold that income was assessable as income from 'House property' the AO has directed to exclude the income from fixtures and furniture etc. which are not exactly income from 'house property' to be considered as 'income from other sources' and in doing so he has to allow necessary claim for depreciation, if any. Further, the income received on banner advertisement also should be considered as 'income from other sources' or 'business' as facts may decide after due examination. To the extent of computation of income under various heads, we restore the issue to the file of AO to do accordingly, after examination of the facts and giving due opportunity to assessee.”