New Delhi Hotels Ltd vs Acit
2013 Latest Caselaw 2304 Del

        THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 17.05.2013

+       ITA 238/2013
+       ITA 239/2013
+       ITA 240/2013


NEW DELHI HOTELS LTD                                     ...   Appellant

                                        versus

ACIT                                                     ...     Respondent
Advocates who appeared in this case:
For the Appellant               : Mr Anoop Sharma
For the Respondent              : Mr Abhishekh Maratha


CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE VIBHU BAKHRU

                                    JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. The present appeals have been filed on behalf of the assessee under

Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the

"said Act") challenging the order dated 07.12.2012 passed by the Income

Tax Appellate Tribunal. The Tribunal had, by the order dated

07.12.2012, disposed of three appeals being ITA Nos. 3742/DEL/2012,

3743/DEL/2012 and 1462/DEL/2012 which had been preferred by the

revenue relating to the assessment year 2004-05, 2009-10 and 2008-09,

respectively.

2. These appeals raise a common question and thus, have been taken

up together.

3. The issue sought to be raised in the present appeals is:-

"Whether the rental income derived from the unsold flats which are shown as stock-in-trade in the books of the appellant/assessee would fall within the head "Profits and gains from business and profession" or under the head, "income from house property".

4. The Tribunal held that it would fall under the head of "profits and gains from business and profession", whereas it is the appellant/assessee's contention that it would fall within the head "income from house property". It appears that this issue is no longer debatable in view of the decision in the case of CIT v Ansal Housing Finance & Leasing Co. Ltd. decided on 31.10.2012 in ITA No. 18/1999. That decision has, subsequently, been followed in CIT v. Discovery Estates Pvt. Ltd (in ITA Nos. 1089/11 and 1090/2011) and CIT v. Discovery Holding Pvt. Ltd. (in ITA No. 1097/2011) decided on 18.02.2013. One of the questions raised in Discovery Estates Pvt. Ltd and Discovery Holding Pvt. Ltd (supra) was "whether the Income-tax Appellate Tribunal was right in holding that the rental income should be assessed in the income from the business and not under the head "income from house property"?" This court answered that question in the negative by

following the decision in the case of Ansal Housing Finance & Leasing Co. Ltd (supra).

5. Mr Maratha appearing on behalf of the revenue contended that

Ansal Housing Finance & Leasing Co. Ltd (supra) was a decision

where the question was with regard to deemed rent on the basis of annual

letting value (ALV) whereas in the present appeals, the issue is with

regard to the actual rent received in respect of flats let out by the

appellant/assessee. However, we find that in Discovery Estates Pvt. Ltd

and Discovery Holding Pvt. Ltd (supra) the issue was in the backdrop

of actual rent receipts and not on the basis of deemed rent. Therefore, the

decision of this court in Discovery Estates Pvt. Ltd and Discovery

Holding Pvt. Ltd (supra) would govern the present case also.

6. Consequently, while framing the question as to whether the

Income-tax Appellate Tribunal was right in holding that rental income

should be assessed under the head of "profits and gains from business

and profession" and not under the head "income from house property",

we answer the same in the negative. We may add, however, that the

learned counsel for the appellant had also taken the plea of consistency

but, we have not examined the same as it was not necessary for us to do

so because of the position indicated above.

7. These appeals are allowed as above.

BADAR DURREZ AHMED, J

VIBHU BAKHRU, J MAY 17, 2013 kb