IN THE ITAT
MUMBAI BENCH ‘I’
Aipita
Marketing (P.) Ltd.
v.
Income-tax
Officer, Ward 3(1), Mumbai
DR. O. K.
NARAYANAN, ACCOUNTANT MEMBER
AND MS. SUSHMA
CHOWLA, JUDICIAL MEMBER
IT APPEAL NOS.
672 AND 673 (MUM.) OF 2004
[Assessment
years 2000-01 and 2001-02]
August 24,
2007
I Section 147, read with section 143, of the Income-tax Act, 1961 - Income escaping assessment - Non disclosure of primary facts - Assessment year 2000-01 - Whether in absence of any new material, Assessing Officer is not empowered to reopen an assessment whether original assessment was completed under section 143(1) or 143(3) - Held, yes - Whether in a case where assessment was made under section 143(1) and not under section 143(3) it is not possible to hold view that income escaping assessment is always justified - Held, yes - Whether section 147 does not postulate conferment of power upon Assessing Officer to initiate reassessment proceedings upon a mere change of opinion - Held, yes.
II Section 22, read with section 56, of the Income-tax Act, 1961 - Income from house property - Chargeable as - Assessment year 2001-02 - Assessee owned a residential house property - It let out said property and provided to tenant air - conditioning facilities and also furniture - Assessee claimed that rental income earned by it was assessable as income from other sources and not as income from house property - Whether since what was let out by assessee was a furnished apartment and further since assessee was not carrying on any business by way of letting out of residential house property and further since property did not cease to be house property only for reason that assessee had provided air - conditioners and furniture in residential apartment, rental income in question was assessable as income from house property - Held, yes - Whether provisions of section 56(2)(iii), relied on by assessee, were applicable to instant case - Held, no
The Assessing
Officer completed the original assessment of the assessee under section 143(1)
accepting the returned income and issued the intimation. Subsequently, the Assessing Officer reopened
the said assessment and passed the reassessment order under section 143(3) read
with section 147.
On appeal, the
Commissioner (Appeals) confirmed the action of the Assessing Officer.
On second appeal:
In the instant
case, the argument of the assessee was not with reference to the power of the
assessing authority to issue notice under section 148 in a case where there was
no assessment under section 143(3) but only intimation under section 143(1).
Therefore, the decision of the Supreme Court in the case of Asstt. CIT v.
Rajesh Jhavere Stock Brokers Pvt. Ltd. [2007] 291 ITR 500/161 Taxman
316, relied on by the revenue, was not applicable to the instant case. The issue raised by the assessee was
regarding the ingredients of section 147 themselves. The question itself was whether action under
section 147 was justified or not. The
question was not linked with a proceedings concluded under section 143(1) or
under section 143(3). The Madras High
Court in the case of Bapalal & Co.
Exports v. Jt. CIT (OSD) 289 ITR 37 has considered a case exactly similar
to the instant case and has held that in the absence of any new material, the
Assessing Officer is not empowered to reopen an assessment whether the original
assessment was completed under section 143(1) or 143(3). [
In the instant
case, the assessee had made full disclosure regarding its income. The particulars of the property had also been
furnished. The Assessing Officer had not
come across any new material. [
In a case
where the assessment was made under section 143(1) and not under section
143(3), it is not possible to hold the view that the income escaping assessment
is always justified. [
In the instant
case, as there was no fresh material with the assessing authority, it was to be
seen that the assessment was reopened on the basis of a change of opinion of
the Assessing Authority. [
It is well
settled that section 147 does not postulate conferment of power upon the
Assessing Officer to initiate reassessment proceedings upon a mere change of
opinion. [
Therefore, the
action of the Assessing Officer in reopening the assessment was not
correct. Therefore, the impugned
reassessment order was to be set aside.
The
assessee owned a residential house property. It had let out the said property
and provided to tenant air-conditioning facilities and also furniture. The
assessee claimed that the rental income earned by it was assessable as income
from other sources. The Assessing Officer rejected the assessee’s claim and
assessed the rental income as income from house property.
On
appeal, the Commissioner (Appeals) confirmed the impugned order.
On second appeal:
The property of
the assessee was a simple and pure residential apartment. The assessee had provided window air -
conditioner. Furnitures also had been
given. Thus, what was let out by the
assessee was a furnished apartment. The
furnishings provided by the assessee did not change the character of the asset
from that of house property to that of business asset. The assessee was not carrying on any business
by way of letting out the residential house property. Moreover, the property did not cease to be
house property only for the reason that the assessee had provided air -
conditioners and furniture in the residential apartment. [
Further, the
reliance placed by the assessee on clause (iii) of sub-section (2) of
section 56 was also not convincing. The
law provides therein that hire charges should be treated as income from other
sources in such circumstances where machinery, plant or furniture belonging to
an assessee with or without buildings have been let out. It is also there that the buildings are
inseparable from the machinery, plant or furniture hired by the assessee. The emphasis in the said sub-section is not
on the building as in the nature of a house property. The thrust of the statute is on hiring of
machinery, plant, etc. In the course of
letting out machinery, plant, etc., if building also has to be let out as they
are inseparable, such composite rental income would be considered as income
from other sources. The predominant
subject matter of the said sub-section is not buildings by nature of house
property but machinery, plant or furniture.
The sub-section is lead by hiring machinery, plant or furniture and not
by letting out of house property or building.
The term ‘buildings’ needs to be read in the overwhelming company of
hiring of machinery, plant or furniture.
Therefore, the Assessing Officer was right in assessing the income as
income from house property income. [