No AI summary yet for this case.
Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 242/JP/2018
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 242/JP/2018 fu/kZkj.k o"kZ@Assessment Year :2013-14 cuke M/s Raj Landmark Private Limited, Income Tax Officer, Vs. D-38A, Ahinsa Circle, Subhash Marg, C- Ward 3(2), Scheme, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AADCR 0840 F vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Vishal Gupta (CA) jktLo dh vksj ls@ Revenue by : Smt. Roshanta Meena (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 21/08/2018 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 24/08/2018 vkns'k@ ORDER
PER: VIJAY PAL RAO, J.M.
This appeal by the assessee is directed against the order dated
13/12/2017 of ld. CIT(A)-I, Jaipur for the A.Y. 2013-14. The assessee has
raised following grounds of appeal: “1. On the facts and circumstances of the case and in law, The Ld. Commissioner of Income Tax (Appeals) - 1 has erred in confirming addition of Rs 223621.00 without considering the submissions of the assessee and by passing a non speaking order. The same was most arbitrary, unjust, untenable and bad in fact and in law and in the alternative excessive due to following factors related to the assessment made: a. The findings of a non-comparable case were invoked
ITA 242/JP/2018_ 2 Raj Landmark P Ltd. Vs ITO
b. The additions was made without have any specific provisions in The Income Tax Act, 1961 for taxing unsold stock of commercial space lying with the builder. c. Arbitrary mode of calculation has been adopted by taking a non comparable lease agreement as base. d. The addition was purely unconstitutional since the power to levy income tax comes from Entry No. 82 of The Union List or List 1 which does not cover the relevant part of case of the assessee e. No consideration was given to the fact that the premise was being used by the assessee for the purpose of its own business and profession till it was finally sold. 2. The appellant crave leave to add, amend, alter, vary and / or withdraw any or all the above grounds of appeal.
The appellant prays that the addition of Rs 223621.00 made to the total income of the assessee act and confirmed by the Ld CIT (Appeals) be deleted.”
The assessee is a company and engaged in the business of real
estate development. During the course of assessment proceedings, the
Assessing Officer noted that the assessee company is having 29,299 sq.ft.
of furnished commercial space. The Assessing Officer accordingly,
proposed to assessee the income from house property as per the
provisions of Section 23(1)(a) of the Income Tax Act, 1961 (in short the
Act) keeping in view the decision of the Hon’ble Delhi High Court in the
case of Cit Vs. M/s Ansal Housing Finance & Leasing Company judgment
dated 31/10/2012. The Assessing Officer applied notional income for
unsolved stock @ Rs. 93 per Sq.ft for ground floor, for first floor Rs. 46.50
ITA 242/JP/2018_ 3 Raj Landmark P Ltd. Vs ITO per sq.ft and Rs. 31 per sq.ft for 2nd and upwards floors. Hence the
Assessing Officer has computed the notional rental income of Rs.
9,68,859/- for the month of March, 2013. The Assessing Officer has
determined the rental income only for one month due to the reason that
the project in question was completed only in the month of February,
2013.
The assessee challenged the action of the Assessing Officer before
the ld. CIT(A) but could not succeed.
Before us, the ld AR of the assessee has submitted that the
assessee engaged in the business of builders and developers which is the
main object of the company purchased and constructed the property as
stock in trade and income from such developed property is assessable as
business income. Therefore they cannot be brought to tax under the head
‘Income from House Property’ simply because the stock / offices remain
unsold at the end of the year. The unsold offices have been treated as
stock in trade in books of accounts which is well accepted during the
assessment proceedings and thus an undisputed fact. Income derived
from the property would always be termed as ‘income from the property’
but if the property is used as stock in trade, then the said property would
become or partake the character of the stock, and any income derived
ITA 242/JP/2018_ 4 Raj Landmark P Ltd. Vs ITO
from the stock would be income from the business and not income from
the property. If the business of the assessee is to construct the property
and sell it or to construct and let out the same, then that would be the
business and the business stocks, which may include movable and
immovable, would be taken to be ‘stock in trade’ and any income derived
from such stocks cannot be termed as ‘income from property’. In support
of his contention, he has relied on the following decisions:
(i) Chennai Properties & Investments Ltd. Vs CIT 373 ITR 673. (ii) Rayala Corporation Private Ltd. (2016) 386 ITR 500 (SC). (iii) M/s Chennai Properties & Investments Ltd. Vs. CIT (2015) 42 SCD 651, wherein it was held that where the assessee company engaged in the activity of letting out properties and the rental income received was shown as business income, the action of treating the rental income as income from house property in place of income from business as shown by the assessee was held not to be justified. The Apex Court held that since the assessee company’s main object is to acquire and held properties and to let out these properties, the income earned by letting out these properties is main objective of the company, therefore, rent received from letting out the properties is assessable as income from business.
(iv) CIT Vs. Neha Builders Pvt. Ltd. 296 ITR 661 (Guj).
On the other hand, the ld DR has relied upon the orders of the
authorities below and submitted that the Assessing Officer has followed
the decision of the Hon’ble Delhi High Court and therefore, when
ITA 242/JP/2018_ 5 Raj Landmark P Ltd. Vs ITO
commercial space was lying vacant, the provisions of Section 22 and 23 of
the Act are applicable.
We have considered the rival submissions as well as relevant
material on record. There is no dispute that the commercial space in the
project in question was held by the assessee as stock in trade. Further the
project was completed in the month of February itself, which is not in
dispute as the Assessing Officer has also accepted this fact and assessed
the income from house property only for the month of March, 2013. As far
as the issue of assessing the property held as stock in trade by applying
notional annual value as per the provisions of Section 23(1)(a) of the Act is
concerned, there are divergent views of different Hon'ble High Courts. The
Hon’ble Delhi High Court has taken a view that even if the property held as
stock in trade and the same is lying vacant from year after year, the
income from house property is assessable as per the provision of Sections
22 and 23 of the Act and therefore, the vacancy allowance as per
provisions of Section 23(1)(c) of the Act is not available to the assessee as
the property was never let out. Whereas the Hon’ble Gujarat High Court in
the case of CIT Vs. Neha Builders Pvt. Ltd. (supra) has taken a view that
the property held as stock in trade cannot be assessed to tax for notional
annual value computed U/s 23(1)(a) of the Act. Further in the case in
ITA 242/JP/2018_ 6 Raj Landmark P Ltd. Vs ITO
hand, it is not the allegation that the assessee has deliberately not let out
the property in question during the year under consideration. Without
going into the controversy of applicability of the provisions of Section 23 in
respect of the property held as stock in trade, we find that this is not a
case of keeping the property vacant from year after year but the project
itself was completed in the month of February, 2013 and therefore, as per
provisions of Section 23(1)(a) of the Act, the annual letting value (ALV) of
any property shall be deemed to be a sum for which the property might
reasonably be expected to let from year to year. Thus, the annual letting
value of the property is a sum for which the property might reasonably be
expected to let out from year to year. In other words, the fair market rent
of the property expected to be fetched if let out from year to year shall be
deemed to be an annual letting value for the purpose of determining
income from house property. This reasonably expected rent itself signifies
the possibility of letting out of the property. However, there is a time lag
between the acquisition of property or completion of construction of
property and letting out the property thereafter. It is not practically not
possible to let out the property on the next day of completion of
construction or acquisition of the property. Therefore, when there is no
possibility of any deliberate or unreasonable delay in letting out the
property then it is not expected to fetch a reasonable rent just after
ITA 242/JP/2018_ 7 Raj Landmark P Ltd. Vs ITO
completion of the project in question. Further it is not a case of letting out
a small space of house property but it is the entire project which was
completed by the assessee in the month of February itself, therefore,
provisions of Section 23(1)(a) of the Act itself would not be workable in
such a case for want of immediate letting out the property just after its
completion. The Legislature has also recognized this aspect while inserting
sub-section (5) to Section 23 by the Finance Act, 2017 w.e.f. 01/4/2018
allowing the vacancy allowance of one year from the end of the financial
year in which certificate of completion of construction of the property is
obtained from the competent authority. Therefore, even otherwise the
notional annual letting value can be determined only from the end of the
financial year in which the completion certificate of construction of the
property is obtained from the competent authority. Though, sub-section
(5) is not applicable for the assessment year under consideration,
however, it is not a case of allowing the vacancy allowance in respect of
the property held as stock in trade but it is the fundamental issue of
determination of notional annual letting value just after completion of the
construction of the property held as stock in trade. Therefore, we find that
without allowing a reasonable period or time gap from the completion of
construction of the property held as stock in trade to let out the same, the
property cannot reasonably expect to let from year to year and fetch fair
ITA 242/JP/2018_ 8 Raj Landmark P Ltd. Vs ITO market rent just after completion of construction. Hence, in the facts and
circumstances, we find that for the year under consideration, the
provisions of Section 23(1)(a) of the Act cannot be applied in the property
in question due to the peculiar reason that the completion certificate was
obtained only in the month of February, 2013 and it is not expected to let
out the property just after the completion of the project and therefore, the
reasonable expected rent to be fetched by the property in question is not
possible immediately after the completion without allowing a reasonable
period, which is also recognized by the Legislature. Accordingly, we delete
the addition made by the Assessing Officer on this account.
In the result, appeal of the assessee is allowed.
Order pronounced in the open court on 24/08/2018.
Sd/- Sd/- ¼foØe flag ;kno½ ¼fot; iky jko½ (VIKRAM SINGH YADAV) (VIJAY PAL RAO) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 24th August, 2018
*Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- M/s Raj Landmark Private Limited, Jaipur. 1. izR;FkhZ@ The Respondent- The ITO, Ward 3(2), Jaipur. 2. vk;dj vk;qDr@ CIT 3.
ITA 242/JP/2018_ 9 Raj Landmark P Ltd. Vs ITO vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 242/JP/2018) 6.
vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत