KALPAK BUILDERS,MUMBAI vs. ITO 19(3)(2), MUMBAI

Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा सद�य सद�य राजे�� राजे�� केकेकेके अनुसार अनुसार PER RAJENDRA, AM- लेखा लेखा लेखा सद�य सद�य राजे�� राजे�� अनुसार अनुसार Challenging the order of the CIT(A)-30,Mumbai, dated 6.6.2014,the assessee has filed the present appeal.Assessee-firm,engaged in the business of builders and financial services,filed its return of income on 23.09. 2010, declaring total income of Rs. 14,08, 886/-.The Assessing Officer (AO) finalised the assessment on 13.03.2013, under section 143 (3) of the Act, determin -ing the income of the assessee at Rs. 44, 66, 480/-.

2.First ground of appeal deals with disallowance of Rs. 30,75,593/-. During the course of hearing before us, representatives of both the sides agreed that similar issue had arisen in earlier years also and that the Tribunal had decided the said issue in favour of the assessee. We find that while deciding the appeal for the AY.2008

09. (ITA/2688/MUM/2012, dated 22/04/2015) the tribunal has held as under: “5.We have heard the rival submissions and perused the material before us.We find that the in the earlier years the assessee was offering the rental income under the head house property income,that the AO in those years held that the income from letting out had to be assessed as business income, that the assessee accepted the decisions of the AO and claimed depreciation,that the FAA allowed depreciation treating the flats as business assets for those years,that for the year under consideration the AO assessed the rental income as income from house property,that partly allowing the appeal filed by the assessee,the FAA held that the assessee was entitled to claim depreciation on the said business assets,that society charges amounting to Rs.6.25 lakhs were allowable, that other expenses claimed by it such as audit fees,bank charges,hire charges,Misc Expenses were not allowable,that same were not incurred wholly and exclusively for the purpose of business.We find that the AO had changed his stand about assessing the rental income as house property income because he found that the assessee shown the flats as fixed assets during the year under appeal,where as in earlier years same were shown as closing stock.In our opinion,that cannot be valid basis for changing heads of income.One of the accepted principles of tax jurisprudence lays down the principle that entries in the books of accounts do not change the character of a recipt.Therefore, just because the assessee had shown the assets in question as part of fixed assets,rental income would not be 5281/M/14-Kalpak assessed under the head income from house property-especially when the AO himself had in earlier AY.s.assessed the rental income as business income.There was no change in the facts.So the rule of consistency would come in picture.Hon’ble Bombay High Court in the case of Gopal Purohit(336ITR287)has held that that there should be uniformity in treatment and when facts and circumstances for different years were identical particularly in the case of the same assessee.Similarly,in the case of Aroni Commercials Ltd.(362ITR403)the Hon’ble jurisdictional High Court has held as under: Though the principle of res judicata is not applicable to tax matters as each year is separate and distinct,nevertheless where facts are identical from year to year,there has to be uniformity and in treatment. In the case of Galileo Nederland BV,(367ITR319),the Hon’ble Delhi High Court has held as under: Decision on an issue or question taken in earlier years though not binding should be followed and not ignored unless there are good and sufficient reasons to take a different view. Said principle is based upon rules of certainty and that a decision taken after due application of mind should be followed consistently as this lead to certainty, unless there are valid and good reasons for deviating and not accepting earlier decision. Here,we would like to discuss the matter of Dalmia Promoters Developers P.Ltd.(281 ITR346) of the Hon’ble Delhi High Court.In that case the assessee was incorporated with the object of carrying on business in the development of real estate. It entered into an agreement with EKP Ltd. and took over the responsibility of redevelopment of land owned by the said company. Further, it also entered into agreements with two other companies. Pursuant to those agreements, it received Rs. 7 crores.During the AY .1993-94, the assessee was called upon to explain why interest income of Rs. 38,62,419/-including interest amount of Rs.37,46,448/- earned on fixed deposits be not treated as income earned from other sources. The assessee explained that it followed the project completion method of accounting and the interest income shown by it was to be taken as its income from business. The AO held that the interest income could not be said to be incidental to the real estate business,since it arose out of investment of surplus funds and could be brought to tax as income from other sources. The AO added a sum of Rs. 37,46,448 earned on fixed deposits to the income of the assessee. The assessee contended before the FAA that although income for the earlier assessment years 1990-91 to 1992-93 had been treated as income from other sources by the AO,the FAA held that the interest income was directly linked with the assessee’s business and treated it as business income.Relying on the previous appellate orders, the FAA recorded a finding of fact that out of the total interest of Rs.37,46,448, a sum of Rs. 5,26,439 was received from one of its co-developers, in terms of the agreement entered into between the two and was thus directly linked with the assessee’s real estate business. He also recorded a finding that the interest amount of Rs. 15,18,199 had accrued on the fixed deposits, representing the margin money provided by the assessee for the issue of bank guarantee and the said amount was also directly linked with the real estate business of the assessee.Similarly, the interest amount of Rs. 16,39,818 had been earned by the assessee on fixed deposit receipts of less than a year as the amount so invested was needed for payment to the L&DO in connection with the change of land use.On the basis of these findings, the FAA observed that the facts relevant to the year were identical to those of the earlier years on the basis whereof interest income accruing during the said years was held to be business income of the assessee.The FAA held that since the source of all the funds on which interest had been earned, was attributable to the real estate business and the interest income earned was directly linked with the said business, the amount earned towards interest in the relevant year was, like the amount earned earlier, business income of the assessee.The Tribunal held,in the appeal filed by the Revenue,that in the absence of any material change in the facts, the view taken by the authorities for the earlier assessment years would continue to hold good on the principles of consistency. On further appeal by the Revenue to the High Court held: 2

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“…..it was not the case of the Revenue that the amount which the assessee had received from its co-developers was not related to the business activity of the assessee. It was not also the case of the Revenue that the investment of such amounts in fixed deposits was not linked to the business of the assessee whether in the form of providing a bank guarantee or keeping the amount readily available for payment to the L&DO upon change of land use. There was no dispute that for the earlier three assessment years, the interest income earned in similar circumstances was held to be business income by the Commissioner (Appeals) which orders had been accepted by the Revenue without demur.For rejecting the view taken for the earlier assessment years, there must be a material change in the fact situation. There was no gainsaying that the previous view would have no application even in cases where the law itself had undergone a change but before an earlier view could be upset or digressed from, one of two things must be demonstrated, namely, a change in the fact situation or a material change in law whether enacted or declared by the Supreme Court. In the absence of a change in the facts or any additional input there was no compelling reason for taking a different view.Therefore, the Commissioner (Appeals) and the Tribunal were justified in holding that the view taken for the earlier assessment years continued to be applicable even for the year under consideration.” In the case of Neo Poly Pack (P.)Ltd. (245 ITR 492 Delhi-HC)the rental income from the factory building owned by the company,which was assessed under the head ''Business" for all the earlier years starting from the assessment year 1984-85 onwards,was sought to be assessed as income from house property for the assessment year 1989-90.When the matter travelled to the Hon’ble High Court,it held as under: ……the doctrine of res judicata does not apply to income-tax proceedings since each assessment year is independent of the other but where an issue had been decided consistently in a particular manner for earlier assessment years, for the sake of the same view should continue to prevail for subsequent years unless there is material change in the facts. Since in the instant case there was no single distinguishing feature prompting a different view the income was liable to be assessed as business income. No question of law arose from the order of the Tribunal. 5.1.It is said that notwithstanding the complexity of adjudication,provided for under the Act, Parliament certainly intended,consistency to be the hallmark of taxation proceedings.The rule of consistency requires that the view taken by the Department in the preceding years should not be disturbed,unless there was a change in the factual and legal position.In other words,in view the rule of consistency, the Revenue could not be permitted to raise an issue in isolation only for one year in the case of one assessee, while accepting the findings on the same issue in the case of other assessees and for other years in the case of the assessee.If the facts of the case are considered,it becomes clear that the AO in the earlier years had assessed the rental income under the head business income.He had given any valid or logical reasons for changing the head of income for the year under consideration.The FAA has,in our opinion,has rightly held that the rental income has to be assessed as business income and depreciation has to be allowed on the assets in question.We are also of the opinion that society charges have been rightly allowed by him as deductible business expenditure.We do not find any legal or factual infirmity in his order. Therefore,confirming his order we decide ground no.1 and 2 against the AO.”

Respectfully following the above order,we decide first ground of appeal in favour of the assessee.

5281/M/14-Kalpak 3.The next effective ground of appeal is about confirming the income from finance activity as income from other sources instead of income from business and profession and disallowance of expenses of Rs.10.27 lakhs. During the course of hearing before us, Authorised Representative(AR)and the Departmental Representative(DR)agreed that identical issue had arisen for the AY. 2008-09, that the Tribunal had decided the issue in favour of the assessee.We find that,while deciding the appeal,the Tribunal had deliberated upon the issue and had adjudicated the appeal filed as under : “12.Next effective ground of appeal (GOA-2&3)deals with confirming the income from finance activity as income from other source instead of income from business or profession and disallowing the brokerage expenses of Rs.9,89,500/-.While deciding the ground no.2 raised by the AO,we have discussed the facts of the issue in detail(paragraph no.6-9).The FAA,as narrated earlier,partly allowed the appeal and a disallowance,amounting to Rs.9.89 lakhs,was made under the head brokerage expenses. 13.Before us,the AR stated that the assessee was showing the income from finance activities under the head business income from the AY 2004 onwards,that the claim made by the assessee was accepted by the department in earlier years,that there was no change in facts and circumstances as compared to the facts of the earlier years,that brokerage expenses were incurred for carrying out the business.The AR referred to pages no. 136-138 of the paper book.DR supported the order of the FAA. 14.We have heard the rival submissions and perused the material before us.Undisputed facts of the case are that the assessee was deriving income from financial activities since AY 2004-05, that it was showing income arising of such transactions under the head business income,that in earlier assessment years the AO had accepted the claim of the assessee while passing order u/s.143(3)of the Act,that during the year under appeal the AO held that income from financial activities should be assessed under the head income from other sources,that FAA upheld the order of the AO. Following the reasons given at paragraph no. 5 & 5.1 of our order,we hold that the AO and the FAA should have followed the rule of consistency. As the facts and circumstances for the year are same as that of earlier years with regard to the financial activities of the assessee,so,we are of the opinion that income arising out of such activities had to be assessed under the head income from business and profession. As far as brokerage expenditure is concerned we are of the opinion that the assessee is the right person to decide the necessity of the expenditure.AO or the FAA can disallow an expenditure if it violates the provisions of section 37(1)Expl.or it is not expended wholly or exclusively for the business purposes.Requirements of the business can be decided by a businessman and not by an AO/FAA.We find that the reasons given by the FAA for disallowing the brokerage expenditure are not at all convincing.He has not doubted incurring of expenditure.In pursuance of a business decision if the assessee had paid brokerage,the necessity of making the payment has to be seen from the angle of the assessee and not from the view point of the FAA.Therefore,reversing the order of the FAA,we decide the grounds no.2-3 in favour of the assessee. Respectfully following the above, second effective ground of appeal (GOA2&3) are decided in favour of the assessee.

As a result, appeal filed by the assessee stands allowed. फलतः िनधा�रती �ारा दािखल अपील मंजूर क� जाती है. Order pronounced in the open court on 16th March, 2016. आदेश क� घोषणा खुले �यायालय म� �दनांक 16 माच�, 2016 को क� गई । 4

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