SHANAY JHAVERI ,MUMBAI vs. ITO-IT-3(1)(1), MUMBAI

The facts relating to the issue are stated in brief. The assessee herein filed a return of income on 29.7.2017 declaring a total income of Rs. 97,170/-. The assessee subsequently filed a revised return on 8.2.2019 for rectifying an error in TAN of TDS credit claimed by it. Thereafter, the assessee received a defect notice under section 139(9) of the Act from the CPC stating that there is mismatch in the income returned in the return of income and Form No. 26AS, since there was under reporting of rental income by the assessee. In response thereto, the assessee filed rectified return of income, wherein he disclosed rental income of Rs. 20,16,642/- received on 2 Shanay Jhaveri sub-letting of premises under the head Income from other sources and against which the assessee claimed equal amount as expenditure towards earning subletting income. Accordingly, the assessee declared NIL income against the sub-letting of premises. However, the CPC assessed the sub- letting income of Rs.20,16,642/- under the head “income from house property” and after allowing deduction towards repairs @ 30%, the CPC made addition of Rs.14,73,872/-.

Before the learned CIT(A), the assessee explained the facts relating to sub-letting income received by it. It was submitted that the assessee’s parents/grand parents had taken a warehouse on lease from Bombay Port Trust (BPT). The assessee had inherited it from them. The assessee sub-let that warehouse to M/s. Nanavati Specialty Chemicals Private Ltd. and Nanavati Sons Pvt. Limited. The assessee received lease rental income of Rs.17,28,172/- from Nanavati Specialty Chemicals Pvt. Ltd. and Rs.28,84,470/- from Nanavati Sons Pvt. Ltd., both aggregating to Rs. 20,16,642/-, against which TDS was deducted. The above said rental income was reflected in Form No. 26AS. The assessee, in turn, paid lease charges to BPT amounting to Rs. 20,50,292/-, which is an expenditure incurred in earning sub-letting rental income. However, the assessee claimed expenditure of Rs.20,16,642/- only and accordingly declared NIL income. Since sub-letting rental income cannot be assessed under the head Income from House Property, the assessee declared NIL income under the head Income from Other sources in the rectified return of income. Accordingly, it was submitted that the CPC was not justified in assessing sub-letting rental income under the head Income from House Property and also in ignoring the expenses incurred by the assessee in earning sub-letting rental income.

The learned CIT(A) accepted these factual aspects. He also held that the sub-letting rental income of Rs.20,16,952/- is required to be assessed under the head Income from Other sources. With regard to the claim for deduction

We heard the parties and perused the record. The dispute before us boils down on the issue – Whether the Ld CIT(A) was justified in rejecting the claim of expenditure towards lease charges paid to BPT. It is the submission of Learned AR that the assessee has inherited lease rights from Mr. Ratilal Manilal Nanavati and three others and Mrs. Sarla Ratilal Nanavati and two others and the same has not yet been transferred to his name. Hence the invoices were continued to be raised in the name of his parents/grandparents. He submitted that the assessee has received sub- letting rental income from the warehouse for which the above said lease charges were paid to BPT. Hence, the above said expenditure has been incurred for the purposes of earning sub-letting rental income. Accordingly, he submitted that the expenditure of BPT charges should be allowed against lease rental income.

In principle, we agree with the contentions of the assessee that the lease charges paid to BPT is allowable as deduction against the sub-letting rental income received on sub-letting of warehouse. However, we notice that evidences in support of two factual aspects were not brought on record by the assessee. First, the assessee has claimed that he has inherited lease rights from parents/grand parents. The details of how he inherited the same were not brought on record. In this regard, the agreements entered by the assessee with M/s. Nanavati Specialty Chemicals Private Ltd. and Nanavati Sons Pvt. Limited will through light on this aspect. But these agreements

In the result, the appeal filed by the assessee is treated as allowed for statistical purposes.