SMT. NIRMALA ZAVERCHAND SHAH,MUMBAI vs. DCIT-13(2), MUMBAI

This appeal of assessee is arising out of the order of the Commissioner of Income Tax (Appeals)]-58, Mumbai, [in short CIT(A)], in Mumbai/10340/2017-18 dated 03.12.2013. The assessment was framed by the Income Tax Officer, Ward 13(2), Mumbai (in short ACIT/ITO/ AO) for the A.Y. 2011-12 vide order dated 23.10.2013 under section 143(3) of the Income-tax Act, 1961 (hereinafter ‘the Act’).

Brief facts are that the assessee is an individual and her main source of income is from lease property plus amenities and interest from bank, PPF and other loan debtors. During the course of assessment proceedings, Assessing Officer noted that the gross rent (Annual Value) of the leased property is at `33,08,372 including the amenity charges received amounting to ` 13,35,534/-. The assessee has computed this gross rent including amenity charges under the head income from house property. The Assessing Officer required the assessee vide show cause notice as to why this amount of `13,35,534/- being amenity charges should not be taxed as income from other sources instead of assessee’s claim that it is income from house property. The Assessing Officer noted that the contention of the assessee is not true as regards to claim of two licenses because her intention then would have been only one license agreement. For this, Assessing Officer noted that the amenities are mostly common but not only the portion of the assessee’s property. He further noted that the assessee by not entering into agreement cannot claim the right of the licensor and further the law stipulates that all leave and licenses agreement should be duly stamped and registered. According to Assessing Officer, there is a loss of revenue on this score also. The Assessing Officer finally noted that to claim this standard deduction, the assessee is disclosing this income under the head income from house property instead of income from other sources. Accordingly, he

The CIT(A) also confirmed the action of the Assessing Officer and also noted that the facts from earlier years, as decided by Tribunal, are different and distinguishable. The CIT(A) particularly recorded this fact in Para 18 of his order which read as under: - “18. In view of foregoing discussion, I uphold the decision of Assessing Officer to treat the income arising from separate agreement for services as income from the other sources. Accordingly, issues raised directly in grounds of appeal stands dismissed. My decision has come after duly analyzing relevant clauses of the agreements concerned, after considering the fact that on rental value part covered by amenities agreement Municipal property tax is not paid which by itself takes it out of section 23, the arrangement and claims is artificial aimed at evading both Central and State Tax and after analysis of judicial decisions including 2 cited by appellant and one by Assessing Officer. These facts were not presented before Hon. ITAT while dealing with decision in dated 29.11.2016 and ITA No.6733, 6854/Mum/2011 and ITA No.3851,4760/Mum/2012

Now before us, the learned commissioner of the assessee Miss. Dinkle Hariya first of all argued that this issue is squarely covered by Tribunals decision in assessee’s own case and she filed copy of Tribunal order for Assessment Year 2002-03 in vide order dated 05.11.2015. She also argued that there is no distinguishing feature as the agreements are same as in earlier years and are continuing agreements and there is no distinction as such. She filed this copy of order in the official mail ID provided in ITAT’s Website Notice Board i.e. https://www.itat.gov.in/page/content/Notice- Board. On the other hand, the learned Departmental Representative Miss. Samanta Mullamudi, she pointed out from the assessment order that once the amenity charges were included in the consolidated rent agreement, the same would have increased this stamp duty payments which is not paid and moreover, it would be difficult to work out the proportion of common area, other common facilities and hence, entering into two separate agreements, the assessee has indulged in colorable device to avoid substantial tax liability by claiming deduction under section 54 of the Act. She stated that the CIT(A) has already noted the distinguishable fact of the present year and what was before ITAT in earlier as the case law referred by the assessee.

We noted that the Tribunal in assessee’s own case has considered this issue for Assessment Year 2002-03 in vide order dated 05.11.2015 considered this issue as amenity charges and held that the same falls under income from house property and not income from other sources. The Tribunal gave its finding at Para 2.3 as under: - “2.3. If the observation made in the assessment order, leading to addition made to the total income, conclusion drawn in the impugned order, material available on Smt. Narmala Zaverchand Shah.; AY 10-11 Page | 7 record, assertions made by the ld. respective counsel, if kept in juxtaposition and analyzed, we note that the amenities available in the building was RCC Frame Structure, Marvel/granite in the common areas, lobbies, etc, Kotah in staircases, two elevators, control room: CCTV in common areas, water supply, electricity, AHU Room and Fire Control System. If the nature of these amenities are analyzed, these are clearly part and partial of the building. Both the agreements of leave and licence and other for amenities are composite one and one cannot be enforced without the other. These are the basic agreement and are integral part to use of licence premises and their uses coextensive/coterminous, therefore, these cannot be segregated, thus, the charges for amenities were rightly held to be income from house property, thus, the claimed deduction is also allowable, therefore, we affirm the stand of the ld. Commissioner of Income Tax (Appeals).”

Even otherwise, then issue is absolutely covered by the decision of Hon’ble Supreme Court in the case of Shambhu investment Pvt. Ltd. Vs. CIT 263 ITR 143 (SC). Accordingly, we accept the income declared by assessee under the head income from other sources as against assessed by Assessing Officer