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Income Tax Appellate Tribunal, “J” BENCH, CHENNAI
Before: SHRI C.N. PRASAD & SHRI ASHWANI TANEJA
आदेश / O R D E R PER BENCH: These appeals are by the Revenue and the assessee against the orders of the Ld. CIT(A)-XXVIII, pertaining to different assessment years. All these appeals were heard together and they are disposed of by this common order for the sake of convenience.
2. First we will take up Revenue’s appeals. At the time of hearing, it was submitted that the tax effect involved in these appeals on the disputed issues are less than Rs. 10,00,000/-
3. Before going into the merits of the case, we consider CBDT’s latest instructions vide Circular No.21/2015 dated 10/12/2015, the relevant portion of which read as under:-
“ Circular No. 21/2015 F No 279/Misc. 142/2007-ITJ (Pt) Government of India Ministry of Finance Department of Revenue Central Board Direct Taxes New Delhi the 10th December, 2015 Subject: Revision of monetary limits for filing of appeals by the Department before Income Tax Appellate Tribunal and High Courts and SLP before Supreme Court - measures for reducing litigation - Reg –
3 DBS Financial Services
Reference is invited to Board's instruction No 5/2014 dated 10.07.2014 wherein monetary limits and other conditions for filing departmental appeals (in Income-tax matters) before Appellate Tribunal and High Courts and SLP before the Supreme Court were specified.
In supersession of the above instruction, it has been decided by the Board that departmental appeals may be filed on merits before Appellate Tribunal and High Courts and SLP before the Supreme Court keeping in view the monetary limits and conditions specified below.
Henceforth, appeals/ SLPs shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder: -
S. Appeals in Income-tax Monetary Limit No matters (in Rs) 1. Before Appellate Tribunal 10,00,000/- 2. Before High Court 20,00,000/- 3. Before Supreme Court 25,00,000/-
It is clarified that an appeal should not be filed merely because the tax effect in a case exceeds the monetary limits prescribed above. Filing of appeal in such cases is to be decided on merits of the case.”
It is further clarified by the Board in its circular that these instructions will apply retrospectively to pending appeals and appeals to be filed henceforth in High Courts and Tribunals. It is also made clear that pending appeals below the monitory limits fixed in para-3 above may be withdrawn or not pressed.
In the case in hand, the total demand as per CIT(A)’s order in all these appeals are less than the amount of Rs. 10,00,000/-, which is below the monetary limits as mentioned in CBDT Circular dated 10.12.2015 (supra). Following the same, these appeals of the Revenue are dismissed.
4 DBS Financial Services – A.Y. 1993-94- Assessee’s appeal
The assessee has raised as many as 10 grounds in this appeal. At the very outset, the Ld. Counsel for the assessee submits that ground No. 5 is not pressed. Therefore the same is dismissed as not pressed.
The Ld. Counsel for the assessee submits that ground No. 2,3 & 4 relates to the issue as to whether the income from letting out of property by the assessee should be assessed under the head “Income from Business” or under the head “Income from House Property. The Ld. Counsel for the assessee submits that for the assessment year 1991-92 and 1996-97, the Co-ordinate Bench has held that the income from letting out of properties is assessable under the head “Income from House Property” as against the claim of the assessee under the head “Income from business”. The Ld. Counsel further submits that recently the Hon’ble Supreme Court in the case of Chennai Properties & Investments Ltd., Civil Appeal No. 4494 of 2004 dated 9.4.2015 held that income from letting out of properties is assessable under the head Income from business when the main objects and intention of the assessee is to acquire and let out of properties for earning income. The Ld. Counsel submits that in view of the latest decision of the Hon’ble Supreme Court in the case of Chennai Properties & Investments Ltd (supra), the income received from the assessee from letting out of properties has to be assessed under the head “Income from Business”.
The Ld. Departmental Representative places reliance on the decision of the Co-ordinate Bench in assessee’s own case for 5 DBS Financial Services assessment years 1991-92 and 1996-97 wherein the Co-ordinate Bench held that income from letting out of the properties from the assessee is assessable under the head “Income from House Property” and not under the head “Income from business”.
Heard both sides, perused the orders of the lower authorities and the decision relied on by the Ld. Counsel. The Co-ordinate Bench of this Tribunal in assessee’s own case relying on the decisions of the Hon’ble Supreme Court in the case of Sultan Brothers Pvt. Ltd. Vs CIT (51 ITR 353) and CIT Vs Shambu Investments Pvt. Ltd., (263 ITR 143) held that the income earned by the assessee from letting out of property should be treated under the head “Income from House property. However, in the recent decision of the Hon’ble Supreme Court in the case of Chennai Properties (supra), it was held that when the main object of the assessee is to let out the property and earning income from those property, the income should be assessed under the head “Income from Business”. While coming to such conclusion, the Hon’ble Supreme Court had considered the Constitutional Bench decision in the case of Sultan Brothers Pvt. Ltd. Vs CIT (supra) and the decision in the case of Karanpura Development Co. Ltd., Vs CIT (44 ITR 362).
The Co-ordinate Bench, in the case of the assessee for the assessment year 1996-97 in & 1814/M/2001 dated 10th August, 2012, in para-22, it was held that the receipts against letting out the space in the property demonstrate the primary object of the assessee was to let out the property to the occupants and therefore the same cannot be said that the assessee was exploiting the property for its commercial/business activities. Thus, in view of 6 DBS Financial Services the observation of the Co-ordinate Bench and in the light of the latest decision of the Hon’ble Supreme Court in the case of Chennai Properties (supra), the issue has to be re-examined once again by the Assessing Officer to find out whether the pre- dominant/main object of the assessee is to let out the property for earning income or not and to decide the issue in the light of the observations of the Hon’ble Supreme Court in the case of Chennai Properties (supra). Thus, we restore the whole issue to the file of the Assessing Officer who shall decide afresh in accordance with law keeping in view the decision of the Hon’ble Supreme Court in the case of Chennai Properties (supra).
The Ld. Counsel for the assessee submits that the rest of the grounds in the grounds of appeal are all consequential to the main ground i.e. whether income from property is assessable under “Income from Property” or “Business Income. Since we have restored the main issue to assessability of income from property to the file of the Assessing Officer, all the remaining grounds are restored to the file of the Assessing Officer for adjudication along with the main ground.
In the result, the appeal filed by the assessee is partly allowed for statistical purpose.
ITA No. 2145/M/04 – A.Y. 1994-95
The assessee has raised as many as 9 grounds in this appeal. At the very outset, the Ld. Counsel for the assessee submits that ground No. 5 is not pressed and therefore the same is dismissed as not pressed.
7 DBS Financial Services
The Ld. Counsel for the assessee submits that ground No. 2,3 & 4 relates to the issue as to whether the income from letting out of property by the assessee should be assessed under the head “Income from Business” or under the head “Income from House Property”. These grounds are identical to the grounds raised vide ground No. 2,3 & 4 in for the assessment year 1993-94. For the detailed reasons given therein vide para 6 to 10, we restore the whole issue to the file of the Assessing Officer who shall decide in accordance with law keeping in view the decision of the Hon’ble Supreme Court in the case of Chennai Properties (supra).
It is submitted by the Ld. Counsel that rest of the grounds are consequential to ground No. 2,3 & 4. Therefore we restore the issues to the file of the Assessing Officer who shall decide these issues also in accordance with law.
In the result, the appeal filed by the assessee is partly allowed for statistical purpose.
ITA No. 2146/M/04 – A.Y. 1995-96
The assessee has raised as many as 10 grounds in this appeal. At the very outset, the Ld. Counsel for the assessee submits that ground No. 5 is not pressed and therefore the same is dismissed as not pressed.
The Ld. Counsel for the assessee submits that ground No. 2,3 & 4 relates to the issue as to whether the income from letting out of property by the assessee should be assessed under the head “Income
8 DBS Financial Services from Business” or under the head “Income from House Property”. These grounds are identical to the grounds raised vide ground No. 2,3 & 4 in for the assessment year 1993-94. For the detailed reasons given therein para 6 to 10, we restore the whole issue to the file of the Assessing Officer who shall decide in accordance with law keeping in view the decision of the Hon’ble Supreme Court in the case of Chennai Properties (supra).
It is submitted by the Ld. Counsel that rest of the grounds are consequential to ground No. 2,3 & 4. Therefore, we restore the issues to the file of the Assessing Officer who shall decide these issues in accordance with law.
In the result, the appeal filed by the assessee is partly allowed for statistical purpose.
ITA No. 3541/M/2004 – A.Y. 1997-98
The assessee has raised as many as 10 grounds in this appeal. At the very outset, the Ld. Counsel for the assessee submits that ground No.4 is not pressed and therefore the same is dismissed as not pressed.
The Ld. Counsel for the assessee submits that ground No. 2 &3 relates to the issue as to whether the income from letting out of property by the assessee should be assessed under the head “Income from Business” or under the head “Income from House Property”. These grounds are identical to the grounds raised vide ground No. 2 &3 in for the assessment year 1993-94. . For the detailed reasons given therein para 6 to 10, we restore the whole
9 DBS Financial Services issue to the file of the Assessing Officer who shall decide in accordance with law keeping in view the decision of the Hon’ble Supreme Court in the case of Chennai Properties (supra).
It is submitted by the Ld. Counsel that except ground No. 8 all other grounds are consequential to the main ground 2 & 3 of grounds of appeal Therefore, we restore the issues to the file of the Assessing Officer who shall decide in accordance with law.
24. The only issue left for adjudication in assessee’s appeal is ground No. 8 challenging the order of the Ld. CIT(A) in upholding the action of the Assessing Officer in disallowing professional fees paid to M/s. Arthur Anderson & Associates .
25. The Assessing Officer while completing the assessment disallowed the professional fee paid to M/s. Arthur Anderson & Associates stating that as per the details furnished by the assessee the payment was made for making a presentation on DBS group by M/s. Roadamco, a Netherland based Real Estate Company for proposed joint venture. Therefore, the Assessing Officer was of the view that the presentation was not for the purpose of existing business of the assessee. Hence, the Assessing Officer held that expenditure was incurred for exploring possibilities for new business set up and even this was not initiated during the relevant financial year. Hence, the Assessing Officer disallowed the claim of the assessee which the Ld. CIT(A) confirmed the endorsing the view of the Assessing Officer.
The Ld. Counsel for the assessee placing reliance on the decision of the Bombay High Court in the case of CIT Vs Tata
10 DBS Financial Services Chemicals Ltd. (256 ITR 395) submits that this expenditure has to be allowed because it was incurred for the existing business and not for the new project.
The Ld. Departmental Representative strongly placed reliance on the orders of the lower authorities.
Heard both sides and perused the orders of the lower authorities and the decision relied on by the Ld. Counsel. On hearing both the parties, and also on going through the facts of the case, we are of the view that this issue has to be examined by the Assessing Officer with reference to the latest case laws on the subject. The case law relied on by the Ld. Counsel has no application to the facts of the present assesee’s case since the facts in the case of Tata Chemicals Ltd., was whether interest on borrowed capital is allowable deduction or not when subsidiary company was merged into parent company and when these both companies are doing same business. Thus, we restore this issue to the file of the Assessing Officer for fresh adjudication in accordance with law.
In the result, the appeals filed by the Revenue are dismissed and the appeals filed by the assessee are partly allowed for statistical purpose.