:1: bgp bgp bgp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION INCOME INCOME INCOME TAX APPEAL NO.983 OF 2007 TAX APPEAL NO.983 OF 2007 TAX APPEAL NO.983 OF 2007 The Commissioner of Income Tax, ..Appellant Vs. M/s.Shukra Diamond Exports Ltd. ..Respondent Mr.R.Asokan for the Appellant. Mr.Jitendra Jain a/w.A.K.Jasani and Mr.P.C.Tripathi for the Respondent. CORAM CORAM CORAM :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & S.J.KATHAWALLA, S.J.KATHAWALLA, S.J.KATHAWALLA, JJ. JJ. JJ. DATE DATE DATE : 15TH SEPTEMBER, 2008 : 15TH SEPTEMBER, 2008 : 15TH SEPTEMBER, 2008 P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. In the above, the Appellant is seeking to raise the following substantial questions of law: i. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in dismissing the Appeal and upholding the CIT(A)’s order that the Income from property is to be assessed as business income instead of income from house property under Section 22 of the Act? ii. Whether on the facts and in that circumstances of the case, the Hon’ble Tribunal was right in law approving the CIT(A)’s order wherein the depreciation and :2: maintenance charges have been allowed as deduction under Section 32 of the Act? iii. Whether the Tribunal erred in relying on the order of the CIT(A) who held that business activity was carried on in one portion of the premises although the assessee did not produce any evidence regarding the same? 2. We have perused the judgment dated 21st June,2004 passed by the Income Tax Appellate Tribunal. It appears that the Commissioner of Income Tax (A) has categorically given a finding that the residential premises which was in occupation of the Manager was being used for the business purpose and as such the Respondent was entitled to claim the same as a business income as well as depreciation thereon. The Commissioner of Income Tax (A) has also relied on a full bench judgment of Delhi High Court in the case of Commissioner Commissioner Commissioner of Income Tax Vs. Modi Industries Ltd. of Income Tax Vs. Modi Industries Ltd. of Income Tax Vs. Modi Industries Ltd. 210 210 210 ITR P.1 ITR P.1 ITR P.1. The Income Tax Appellate Tribunal has also followed the same decision of the Delhi High Court and has concurred with the findings of fact given by the Commissioner of Income Tax (A) categorically holding the same to be business income and as such the Assessee is entitled to the deduction and also depreciation thereon. :3: 3. Over and above, the learned Counsel for the Respondent Assessee also pointed out that the said arrangement has been duly approved by the Central Government under Section 269 AA of the Companies Act,1956. 4. Having regard to the facts and circumstances of the case, the above findings are clearly of findings of facts and there is no substantial question of law involved in the above. The Appeal is totally devoid of merits. Hence, the same stands dismissed. (S.J.KATHAWALLA,J.) (S.J.KATHAWALLA,J.) (S.J.KATHAWALLA,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.)