The Commissioner Of Income Tax-Ii, Pune v. M/S.b.b.associates

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO. O. C. J. INCOME TAX APPEAL NO.2313 OF 2009 The Commissioner of Income Tax-II, Pune. Vs. ...Appellant. M/s.B.B.Associates. ...Respondent. .... WITH INCOME TAX APPEAL NOS.3160 & 3161 OF 2009 The Commissioner of Income Tax-20. ...Appellant. Vs.Pravin Kaur H.Mehta. ...Respondent. .... Ms.Suchitra Kamble for the Appellant.None for the Respondents. ..... CORAM : DR.D.Y.CHANDRACHUD AND J.P.DEVADHAR, JJ. January 6, 2010. P.C. : The dispute in the present case relates to the Assessment Years 2001-02, 2002-03 and 2003-04. The assessee, as noted by the Tribunal, owned certain premises wherein a business centre was being run by the assessee. The Assessing Officer treated the income in question, as falling under the head of ‘income from house property’. The order was affirmed in appeal by the CIT(A). The Tribunal has, in its judgment dated 28[th] November 2008, observed that its attention was drawn to the fact that in the case of the husband of the assessee, a similar issue was considered by the Tribunal in A.Y. 2002-03 and the Tribunal held that the income in question has to be assessed under the head “income from business”. The Tribunal observed that “it is not in dispute” that the facts and circumstances as they prevail in the case of the assessee and in the earlier case decided by the Tribunal “are identical and the reasoning of Learned CIT(A) and the Assessing Officer are also identical”. In view of the aforesaid observation, it would appear that it was common ground before the Tribunal that the case of the assessee was identical to the earlier case pertaining to the husband of the assessee. The earlier decision appears to have been accepted by the Revenue. However, during the course of the hearing, Counsel for the Revenue urged that the case pertaining to the assessee was distinguishable. It would not be open to the Revenue to urge such a contention before this Court for the first time, particularly having regard to what is recorded by the Tribunal in paragraph 5 of its judgment as noted earlier. In the circumstances, we are inclined to dispose of these appeals leaving it open to the Revenue to move a Miscellaneous Application if it is so advised for seeking appropriate relief before the Tribunal. The Appeals are accordingly disposed of. ( Dr.D.Y.Chandrachud, J.) ( J.P.Devadhar, J.)