Court No. - 3 Case :- INCOME TAX APPEAL No. - 71 of 2017 Appellant :- Pr. Commissioner Of Income Tax, Allahabad Respondent :- Atlantis Multiplex Pvt. Ltd., Allahabad Counsel for Appellant :- Manu Ghildiyal Counsel for Respondent :- Abhinav Mehrotra and Case :- INCOME TAX APPEAL No. - 61 of 2017 Appellant :- Pr. Commissioner Of Income Tax, Allahabad Respondent :- Atlantis Multiplex Pvt. Ltd., Allahabad Counsel for Appellant :- Manu Ghildiyal Counsel for Respondent :- Abhinav Mehrotra Hon'ble Pankaj Mithal,J. Hon'ble Umesh Chandra Tripathi,J. Principal Commissioner of Income Tax Allahabad has preferred these Income Tax Appeals under Section 260-A of Income Tax Act, 1961 against order of Income Tax Appellate Tribunal, Allahabad dated 30.9.2016 whereby tribunal has set aside order of Commissioner passed in exercise of powers under Section 263 of Act holding that Commissioner was not justified in exercising revisional jurisdiction in matter thus affirming order of Assessing Officer. We have heard Sri Manu Ghildiyal, learned counsel for Income Tax Department and Sri Abhinav Mehrotra, learned counsel appearing for respondent. Income Tax Department has raised several substantial questions of law but on consideration we find that only following two substantial questions of law arise for our consideration:- i) Whether ITAT was right in holding that rental income received from letting out shops in Mall ought to have been assessed as income from business and not under head income from house property; and ii) Whether ITAT was justified in setting aside order of commissioner passed under Section 263 of Act holding that Commissioner committed jurisdictional error in passing said order? In order to answer above two questions it would be necessary to set out in short some of relevant facts giving rise to present appeal. assessee is private company and as per Articles of Association and Memorandums of Association its main object is to undertake construction, running, leasing of Multiplexes with or without commercial complex and indulge in running, distribution, making and related business of motion pictures and providing platform for shopping of various commodities and brands under one roof and to carry on business of rent and sale. In furtherance of aforesaid business company constructed "Atlantis Mall" and let out various shops for shopping purposes. assessee in returns filed for relevant years classified income derived from various shops in Mall under head income from business. Assessing Officer vide order dated 21.12.2009 holding that the main business of assessee was to run and operate Mall and that its main source of income is that of rent received from various shops put up in Mall assessed its income under head income from business. Income Tax Department not being satisfied by said order preferred revision under Section 263 of Act before Commissioner. revision was allowed by order dated 16.1.2002 on ground that order passed by Assessing Officer was erroneous and is also prejudicial to interest of revenue, in as much as, Commissioner was of opinion that income derived by Assessee was apparently income from house property as contemplated under Section 22 of Act. Accordingly, assessment order was cancelled and Assessing Officer was directed to re-compute taxable income of assessee under head Income from house property. Aggrieved by aforesaid order assessee preferred appeals before tribunal which have been allowed by impugned order. We take up question no. 1 as above first for reconsideration:- question whether income of assessee would be business income or income from house property appears to be squarely covered by decision of Supreme Court in case of Chennai Properties and Investment Limited Vs. Commissioner of Income Tax (2015) 277 CTR (SC) 185. In aforesaid case it was held that where assessee derives all its income from letting out of properties and it is main source of business of assessee and income so derived would be business income of assessee. It could not be treated as income from house property. aforesaid decision of Apex Court is based upon its earlier decision in case of Karanpura Development Co. Limited Vs. Commissioner of Income Tax, West Bengal 44 ITR 362 (SC). In present case according to Memorandums of Association and Articles of Association Assessing Officer as well as tribunal have categorically found that main object of business of assessee is to construct Mall and to derive income from letting out shops therein. Therefore, income so derived by assessee may be income from house property but would ultimately be business income and as such Assessing Officer has not committed any error in determining taxable income of assessee under head income from business. In view of above question no. 1 is answered in favour of assessee and against Income Tax Department and it is held that income derived by assessee from letting out shops in "Atlantis Mall" is income from business for purposes of assessment of income tax. Now coming to second question of law as mentioned above we find that Commissioner of Income Tax ordered for setting aside assessment order primarily for reason that Assessing Officer had only made assessment of taxable income of assessee on basis of income as disclosed by it under head income from business without considering other aspects of matter whether it would fall under head Income from house property. perusal of assessment order reveals that though there may not be any consideration on above aspect of matter as to whether income of assessee would be covered under head Income from house property or income from business, nonetheless, Assessing Officer clearly on basis of material on record ie. Memorandum of Association and Articles of Association hold that main business of assessee was to run and operate Mall and main source of income is rent derived from shops of Mall. This clearly shows that Assessing Officer was conscious that income derived by assessee was income from business and has thus proceeded to make assessment. tribunal had also made note of various documents which were on record before Assessing Officer from which it could easily be established that income of assessee was business income and not income from house property. In case of Commissioner of Income Tax Vs. Kwality Steel Supplier Complex (2017) 395 ITR 1 (SC) Apex Court had occasion to consider revisional powers of Commissioner under Section 263 of Act. It clearly laid down that for proposes of revising order under Section 363 of Act two conditions need to be satisfied namely that order of Assessing Officer sought to be revised is erroneous and it is prejudicial to interest of revenue. Supreme Court went ahead in holding that it has no power to correct each and every mistake or error committed by Assessing Officer. Therefore, interpreting expression "prejudicial to interest of revenue" it held that order of Assessing Officer can not be termed as prejudicial simply because Assessing Officer adopted one of courses permissible in law resulting in loss of revenue or where two views were possible if Assessing Officer has taken one view, Commissioner has no power to interfere. It was accordingly held that in such circumstances, assessment order can not be treated as order erroneous and prejudicial to interest of revenue. In present case two views were possible before Assessing Officer and on basis of main objects and nature of income derived by Assessee, if he had taken one view of matter, it could not have been said that it was erroneous in law or was likely to cause prejudice to revenue so as to permit any interference in exercise of revisional jurisdiction by Commissioner. In view of above, we are of opinion that tribunal has not committed any error of law in setting aside order of Commissioner as without jurisdiction. Accordingly, question no. 2 is also answered against department. appeal as such has no merit and is dismissed. Order Date :- 13.7.2017 SKS Pr. Commissioner of Income-tax, Allahabad v. Atlantis Multiplex Pvt. Ltd