Income Tax Appellate Tribunal - Mumbai
Soham Data Processing And Finance P. ... vs Dcit 7(2), Mumbai on 12 June, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
"E" Bench, Mumbai
Before Shri P K Bansal, Vice President
and Shri Pawan Singh, Judicial Member
ITA Nos.2313 & 2314/Mum/2014
(Assessment Years: 2007-08 & 2009-10)
M/s. Soham Data Processing D C I T - 7(2)
and Finance Pvt. Ltd. Aayakar Bhavan
Lahalaxmi Indl. Estate Vs. M.K. Road
L.J. Cross Road, Mahim Mumbai 400020
Mumbai 400016
PAN - AAECS7700A
Appellant Respondent
Appellant by: Shri S.C. Tiwari &
Ms. Rutuja Pawar
Respondent by: Dr. A.K. Nayak
Date of Hearing: 12.06.2017
Date of Pronouncement: 12.06.2017
ORDER
Per P.K. Bansal, Vice President Since common issues are involved in both these appeals, they are disposed off by this common order.
2. In both the years the assessee had taken the following grounds of appeal: -
"1. Under the facts and circumstances of the case and in law, the learned Commissioner (Appeals) [Ld. CIT (A)] has erred in concluding that incase the premises have been taken on rent and have been licensed out, then the income has to be assessed as Income from other sources.
2. Under the facts and circumstances of the case and in law, the Ld. CIT (A) has erred in upholding the view of the Ld. Assessing Officer that the 'Leave & License" fees received has to be assessed as "Income from other Sources" and not as "Income from Business or Profession".
3. Under the facts and circumstances of the case and in law, the Ld. CIT (A) has erred in concluding that the order of the Honorable ITAT, E bench Mumbai in ITA number 774/ MU MS/ 2 ITA Nos. 2313&2314/Mum/2014 Soham Data Processing & Finance Pvt. Ltd.
2009 dated 26.02.2010 directs the allowance of 60% of expenses which the Ld. Assessing Officer has allowed in the Assessment order and hence not called for any interference, where, infact, the said ITAT order gives no such directions.
4. Under the facts and circumstances of the case and in law, the Ld. CIT (A) has erred in enhancing the assessed income u/s 250 of the Act, without appreciating the fact that the appellant was under contractual obligation to pay the maintenance charges and without appreciating the fact that the maintenance contract has been outsourced to M/s. Mahalaxmi Engineering Company Pvt. Ltd.
5. Under the facts and circumstances of the case and in law, the Ld. CIT (A) has erred in appreciating that for the purposes of providing amenities to the licensees there was no direct employment done by the appellant, being the contract outsourced to M/s. Mahalaxmi Engineering Company Pvt. Ltd."
3. The learned A.R., at the outset, vehemently contended that the only issue involved in both the appeals relates to upholding the decision of the AO by the CIT(A) with respect to Leave and License fees received and assessed under the head "Income from Business or Profession." The learned A.R. contended that the said income had to be assessed as "Income from other Sources" and the issue involved is squarely covered by the decision of this Tribunal in ITA No. 3393 to 3395/Mum/2015 in the case of the assessee vide order dated 07.09.2016. In this regard our attentions was drawn towards the order of this Tribunal in paras 2 and 2.1 and therefore it was requested that both the appeals of the assessee should be allowed for statistical purposes.
4. The learned D.R., on the other hand, relied on the orders of the tax authorities below.
5. We heard the rival submissions and gone through the orders of the tax authorities below. We have gone through the orders of the Tribunal in the case of the assessee for assessment years 2005-06, 2006-07 and 2008- 09 in which we noted that this Tribunal vide order dated 07.09.2016, after recording the submissions of the assessee under paras 2 and 2.1 allowed all the three appeals for statistical purposes by observing as under: -
3 ITA Nos. 2313&2314/Mum/2014Soham Data Processing & Finance Pvt. Ltd.
2. During hearing, Shri S.C. Tiwary along with Rutuja Pawar, Id. counsel for the assessee, contended that it has to be assessee as income from other sources. It was also pointed out that the decision of the Tribunal in ITA No.774/Mum/2009 dated 26/02/2010 has been wrongly quoted. It was also contended that the issue has been settled by Hon,ble Apex Court in Chennai Properties and investment Ltd. (Civil Appeal No.4494 of 2004), Shreenathji Balaji Computech Pvt. Ltd. (1TA Nos.6251 & 6253/Mum/2012), order dated 17/06/2015, Income Tax Officer vs Rasik Lal & Company (2009) 119 lTD 61 (Born.) and the decision from Hon'ble jurisdictional High Court in Soham Data Processing and Finance Pvt. Ltd. (JTA No.4643 of 2010)(Bom.). On the other hand, the id. DR, though defended the addition but had no objection if the matter may be sent to the file of the Assessing Officer to examine the claim of the assessee and the cases relied upon by the assessee.
2.1. I have considered the rival submissions and perused the material available on record. Without going into much deliberation and the facts available on record, I am of The view that facts has not been properly appreciated, therefore, these three appeals are remanded back to the file of the Id. Assessing Officer to examine the facts, cases relied upon by the assessee and then decide in accordance with law, as agreed/suggested from both sides, therefore, these appeals (all grounds) are allowed for statistical purposes only. Needless to mention here that due opportunity of being heard, with further liberty to furnish the factual matrix/case laws, be provided to the assessee."
Respectfully following the above decision of this Tribunal, both the appeals of the assessee are allowed for statistical purposes Order pronounced in the open court on 12th June, 2017.
Sd/- Sd/-
(Pawan Singh) (P.K. Bansal)
Judicial Member Vice President
Mumbai, Dated: 12th June, 2017
Copy to:
1. The Appellant
2. The Respondent
3. The CIT(A) -13, Mumbai
4. The CIT - 7, Mumbai
5. The DR, "E" Bench, ITAT, Mumbai
By Order
//True Copy//
Assistant Registrar
ITAT, Mumbai Benches, Mumbai
n.p.