M/S GANGA DEVELOPERS,MUMBAI vs. DCIT CEN CIR -4(3), MUMBAI

The issue raised is that the learned CIT(A) erred in sustaining the addition of rupees 3,40,459/- as deemed notional rent on unsold stock of flats.

Brief facts of the case are that the assessee is engaged in the business of Real Estate Developers & Construction and fifed its original return of income on 17.10.2016 declaring total loss at (-) Rs. 11,14,930/-. Consequently, notices u/s. 143(2) and 142(1) were duly issued and served on the assessee. In due consideration to the facts of the case, the AO added a sum of Rs. 3,40,459/- under the head "Income from House Property" as per provision of section 22 of the Act by estimating deemed rent on unsold units, the deemed rental income was computed at Rs4,86,370/- and after allowing statutory deduction @ 30% which comes to Rs1,45,911/-, an amount of Rs. 3,40,459/- was worked out as Income from House Property'.

The AO observed from the books of the assessee, that the assessee has a closing stock of finished units lying unsold amounting to Rs. 60,79,630/-. In view of the provisions of Sec. 22 and 23 of the Act, the AO required the assessee to explain as to why annual letting value of the unsold units should not be assessed in its hands as income from house property. In response, the assessee submitted before the AO that it is in the business of real estate development activity and has never contemplated into leasing or renting the properties. Further assessee stated that he continues to hold the said flats for the purpose of business and thus are outside the preview of section 22 of the IT Act 1961. These flats are part of its inventory-of stock-in-trade and income derived from such stocks could not be assessed as Income from House Property. On the basis of the above submissions, the assessee argued before the AO that no deemed income on the basis of annual letting value in respect of the unsold properties should be assessed in its hands. However, the AO observed that Sec.22 of the Act lays down that annual value of a property has to be assessed in the hands of the owner of property and it does not matter as to how the property is held by the owner in his books of accounts; The AO farther observed that the provisions of Sec.22 do not make any distinction between the nature of business carried on by the assessee and as long as a person is owner of the property, the provisions of Sec.22 will apply. In this regard, The AO placed reliance on the decision of Hon'ble Delhi High Court in the case of Ansal Housing Finance & Leasing co. Ltd,(2013) 354 ITR 180(DeI), and held that annual letting value of the unsold units is assessable in the hands of the assessee. Since, no details regarding rent prevalent in the area were available for working out the annual value of the property, the AO adopted the ALV of Rs, 4,86,370/- in respect of unsold units and made appropriate addition to the total income of the assessee.

Upon assessee appeal learned CIT(appeals) confirmed the addition

Against the above order assessee is in appeal before the ITAT.

I have heard both the parties and perused the record. Learned counsel of the assessee Shri Ashishkumar Bairagra submitted that honourable Gujarat High Court in the case of Neha Builders Pvt. Ltd. (296 ITR 611) has held that notional rent cannot be added in case of unsold stock in case of the developer. He further submitted that there is no decision of honourable Bombay High Court on this subject. Hence he pleaded that in this view of the matter, in view of honourable Supreme Court decision in the case of Vegetables Product Ltd. (88 ITR 192), when two views are possible the issue should be decided in favour of the assessee.

Per contra learned departmental representative relied upon the orders of authorities below.

Upon careful consideration I note that the issue involved is the deemed notional rent upon unsold stock of flats of the builder and developer. There is a decision of honourable Delhi High Court in favour of the revenue and the decision of honourable Gujarat High Court is in favour of the assessee. There is no direct decision of honourable jurisdictional High Court on this subject. In this view of the matter in my considered opinion the ratio from honourable Supreme Court in the case of Vegetables Product Ltd. (supra) is applicable. Hence respectfully following the decision of honourable Gujarat High Court in the case of Neha Builders Pvt. Ltd. (supra) I direct that the addition on account of deemed notional rent in this case is liable to be deleted. I direct accordingly

In the result this appeal filed by the assessee stands allowed.