Commissioner Of Income Tax 5,Mumbai v. M/S. Essar Properties Ltd

srk IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONINCOME TAX APPEAL LODGING NO.1432 OF 2011 Commissioner of Income Tax 5,Mumbai ...Appellant Versus M/s. Essar Properties Ltd. ...Respondent Ms.S.V.Bharucha for appellant.Mr.Percy J. Pardiwala, Sr.Advocate with Mr.Atul Jasani for respondent. CORAM: DR.D.Y. CHANDRACHUD & M.S.SANKLECHA, JJ. February 28, 2012. P.C. The following question of law has been raised in this appeal by the Revenue under Section 260A of the Income Tax Act, 1961: Whether the Tribunal was justified in ignoring the decision of the apex Court in the case of Shambu 2 itxal-1432-11 Investments (P) LtdVs. CIT (2003) 263 ITR 143 wherein it was held that where the main intention is letting out property or any portion thereof the same may be considered as rental income or income from house property. 2. The appeal arises out of a decision of the ITAT for AY 2005-06. The Tribunal noted the statement of the counsel for the assessee and the Revenue that the issues in the appeal were covered by a decision of the Tribunal dated 29 February 2008 in the case of the assessee itself for AYs 1997-98 and 2001-02. In the memo of appeal it has been stated in Ground (e) that the Appeals that were filed before this Court (Income Tax Appeal Nos.2233 and 2235 of 2008) against the earlier order of the ITAT dated 29 February 2008 were dismissed for non removal of office objections in pursuance of an order dated 26 August 2009. The issue has, therefore, attained finality. Moreover, the order of the Tribunal dated 29 February 2008 took note of the fact that both in the case of earlier Assessment Years as well as in subsequent Assessment Years i.e. AY 1998-99 and 2000-01, such income had been assessed as business income. Counsel appearing on behalf of the assessee states that it is only itxal-1432-11 in the case of AYs 1997-98, 2001-02 and 2005-06 that the Revenue sought to take a different position. Of these three years, the appeals relating to the first two years AY 1997-98, 2001-02 have been dismissed and the matter has attained finality. In that view of the matter, the view which has been taken by the Tribunal cannot be faulted. The order of the Tribunal dated 29 August 2008 for AY 1997-98 and 2001-02 in fact did take note of the decision in the case of Shambhu Investments.[1] 3.No substantial question of law would arise. The appeal is accordingly dismissed. (DR.D.Y. CHANDRACHUD,J.) (M.S.SANKLECHA, J.)