NIMESH DHIRAJ LAL VORA,MUMBAI vs. ACIT , WD- 17 (2), MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “SMC”, MUMBAI BEFORE SHRI SHAMIM YAHYA (A.M.) & SHRI PAWAN SINGH (JM) ITA No. 4989/Mum/2018(Assessment year: 2013-14)

Nimesh Dhirajlal Vora Vs ACIT, Wd.17(2), Flat No.26, 6th Floor, Room No. 123A, Neemchhaya Joshi Lane Aayakar Bhawan, Ghatkopar (East), Mumbai- Maharshi, Karve Road, 400 077 Mumbai-400020 PAN : AACPV5956C APPELLANT RESPONDEDNT

Appellant by Shri Bhadresh K Doshi -AR Respondent by Ms. Samatha Mullamudhi( Sr DR) Date of hearing 17-10-2019 Date of pronouncement 01-11-2019

O R D E R Per Pawan Singh, JM : 1. This appeal by assessee is directed against the order of CIT(A)-58,

Mumbai dated 12-06-2018 for assessment year 2013-14. The assessee

has raised the following ground of appeal:- “1. On the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming taxability of consideration received amounting to Rs. 14,04,000/- under services/amenities agreement as income from other sources instead of income from house property.” 2. The brief facts of the case are that the assessee is an individual having

source of income from business of yarn trading and commission agent

and income from house property, filed his return of income for

assessment year 2013-14 on 18-09-2013 declaring total income at

Rs.36,93,150. The return of income was processed u/s 143(1) of the

2 ITA 4989/Mum/2018 Nimesh Dhirajlal Vora Income-tax Act, 1961 at the returned income. The case was

subsequently selected for scrutiny under CASS and notice u/s 143(2)

was issued on 05-09-2014 and served upon the assessee.

Subsequently, notice u/s 142(1) dated 06-07-2015 along with a

questionnaire was also issued and served on the assessee. During the

course of assessment, the AO noticed that the assessee was enjoying

rental income from various properties and claiming 30% deduction on

rental income. Assessee was asked to furnish rent agreements for all

the properties rented out. On perusal it was noticed that the assessee has rent out office at 6504, 6th Floor, Town Centre II, Andheri Kurla

Road, Saki Naka, Andheri (E) to HTL Logistics India (P) Ltd for

Rs.1,20,000/- per month as per rent agreement dated 29-10-2010 and

Rs.1,08,000 per month for amenities as per agreement dated 01-10-

2010 and Rs.9,000/- for car parking space at basement. The AO

further noticed that the assessee, during the year, has shown gross

rental income of Rs.28,51,000/- from rent and fees for amenities and

car parking. The assessing officer observed that as per Income-tax

Act, fees for amenities have to be offered to tax under the head

‘Income from other sources’. As such, the standard deduction claimed

by the assessee of Rs.4,21,000/- on fees for amenities of Rs.14,04,00/-

was to be disallowed. The AO accordingly disallowed 30% of Rs.

3 ITA 4989/Mum/2018 Nimesh Dhirajlal Vora 14,04,000/- i.e Rs.4,21,000/- and added back to the total income. The

assessee carried the matter before the CIT(A). The Ld.CIT(A)

confirmed the action of the assessing officer. Further aggrieved, the

assessee is in appeal before this Tribunal. 3. We have heard the submissions of the learned authorised representative

(ld AR) for the assessee and the learned departmental representative (ld

DR) for the revenue. At the outset the ld AR for the assessee submits

that the grounds of appeal raised by assessee is covered in favour of

the assessee by the decisions of Tribunal in the case of Devbhumi

Estates Pvt Ltd Vs DCIT, Cir.2(1)(1), (ITA No.649/Mum/2017) dated

12-07-2019, DCIT Vs J.K. Investors (Bom)Ltd (ITA No.

2731/Mum/2010 and Bombay High Court in CIT Vs J.K. Investor

(Bom) Ltd (2102) 25 taxmann.com 12 (Bombay). The ld. AR for the

assessee submits that the Tribunal directed the AO to assess the

amenity charges received by the assessee in terms of amenities

agreement, under the head ‘house property’. The tribunal while

directing the AO followed the judgement of Hon’ble Calcutta High

Court in the case of CIT Vs Sambhu Investments Pvt Ltd (2001) 249

ITR 47 (Cal); and Hon’ble Supreme Court in Sambhu Investments Pvt

Ltd Vs CIT (2003) 263 ITR 143 (SC).

4 ITA 4989/Mum/2018 Nimesh Dhirajlal Vora 4. The Ld. DR, on the other hand, though agreed that the issue is covered

by the Tribunal order in favour of the assessee, still, relied upon the

orders of authorities below.

available on record. We find that on similar set of facts the coordinate

bench of Tribunal in Devbhumi Estates Pvt Ltd vs DCIT, (supra) while

deciding the issue in favour of the assessee, has observed as under:-

“7. We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as the judicial pronouncements relied upon by them. Admittedly, the assessee as per the “Leave & license agreement”, dated 07.08.2012 had let out its office premises on the ground floor of Office No. G-01, Office No.G-02, and the Office premises No. 102 on the 1st Floor along with the Mezzanine Floor in the “City Ice Building” at Bazar Gate Street, Mumbai, for a period of 60 months commencing from 22.01.2012 to M/s Batliwala and Karani Securities India Ltd. (hereinafter referred to as „Licensee‟), at a license fee of Rs.5,63,500/- p.m. Apart there from, the assessee as per a separate “Amenities agreement”, dated 07.08.2012, that was entered into with the aforesaid licensee, had agreed to provide certain amenities/facilities pertaining to the aforesaid premises for a compensation/amenity charges of Rs. 9,30,350/- per month. We find that the A.O being of the view that as the rental receipts only to the extent of Rs. 5,63,500/- per month were relatable to letting out of the property by the assessee to the aforesaid licensee, had thus observed that receipts only to the said extent were to be assessed as the income of the assessee under the head “house property”. Accordingly, the A.O had subjected the balance amount of receipts of Rs.1,49,59,200/- [Rs.21,17,21,200/-(-) Rs.67,62,000/- ] to tax as the income of the assessee from “Other sources”.

5 ITA 4989/Mum/2018 Nimesh Dhirajlal Vora 8. We have perused the orders of the lower authorities and have given a thoughtful consideration to the issue before us. As is discernible from the “Amenities Agreement”, dated 07.08.2012 (Page 134 to 148) of the Assesses “Paper Book” (for short „APB‟), the assessee had agreed to provide the aforesaid amenities/services in order to facilitate a better and more effective usage of the property by the licensee. A perusal of the nature of amenities which were to be provided by the assessee to the licensee reveals that the same comprised of viz. (i) exclusive usage of the toilets on the Ground floor and 1st Floor of the building for servants/driver/security staff; (ii) provision of a separate independent and exclusive telephone cable connection for the said premises; (iii) a separate, independent and exclusive electricity connection for the said premises and also electricity and water connection for the toilets mentioned hereinabove; (iv) electric and sanitary fittings in the toilets mentioned hereinabove; (v) outside area (north side of the building) for installation of air conditioning units/generators; (vi) usage and benefits of the lift; (vii) provision of the security guard/systems for common area; (viii) benefits of the repairs, cleaning and maintenance to the exterior and interior of the building ; (ix) usage of the water pumps/water tanks (common for building occupants) along with plumbing network; (x) usage and benefit of the common corridors/passages, lobby, staircases and other common areas of the said building; (xi) benefit of the management and maintenance of the lift in the building; and (xii) usage and benefit of the common lighting within the said building and outside in the compound thereof. We find that all of the aforesaid amenities/services referred in the “Amenities Agreement” entered into between the assessee and the licensee were inextricably interlinked and interwoven with the very usage of the offices in the said building which had been let out by the assessee to the aforesaid licensee. In fact, we find that the aforesaid services were being provided by the assessee for peaceful enjoyment of the property by the licensee. In our considered view the letting out of the property and the rendering of the aforesaid amenities are clearly inseparable and could not have been separately enjoyed by the licensee.

6 ITA 4989/Mum/2018 Nimesh Dhirajlal Vora 9. In order to resolve the issue that as whether the amount received as charges for providing amenities were rightly shown by the assessee as its income under the head “House Property”, or the same were liable to be assessed as its income under the head “Other sources”, as held by the A.O, we shall advert to the guidelines laid down by a 5 judge bench of the Hon’ble Supreme Court in the case of Sultan Brothers Pvt. ltd. Vs. CIT (1964) 51 ITR 353 (SC). In the aforesaid case, it was observed by the Hon‟ble Apex Court that for answering the issue as to whether the letting out of a property along with certain amenities was to be brought to tax under the head “House Property”, three issues were to be looked into viz. (a) was it the intention in making the lease - and it matters not whether there is one lease or two, that is, separate leases in respect of the furniture and the building - that the two should be enjoyed together ? ; (b) was it the intention to make the letting of the two practically one letting; and (c) would one have been let alone and a lease of it accepted without the other ? It was observed by the Hon‟ble Apex Court that if the answers to the first two questions were in the affirmative and the last in the negative, then it has to be held that the lettings would be inseparable. Now, in the case before us, the provision of amenities/services viz. usage of toilets in the building by the servants/drivers/securities staff, provision of electricity connection and water connections for the toilets, provision of exclusive telephone cable etc. and other such services to the licensee, were aimed at facilitating better and more effective usage of the aforesaid property. In our considered view there was a clear nexus on the part of the assessee in letting out of the property and provision of the aforesaid services to the licensee, which as observed by us hereinabove were inextricably interlinked and interwoven for effective usage of the said property as a part of one letting. As observed by the Hon‟ble Apex Court, we find that it is immaterial that the assessee had entered into two separate agreements viz. (i) Leave & license agreement, dated 07.08.2012; and (ii). Amenities agreement, dated 07.08.2012. Also, we find that in the absence of the leasing of the aforesaid property the rendering of the amenities/services by the assessee to the licensee would have been impractical or rather impossible. Accordingly, in our considered

7 ITA 4989/Mum/2018 Nimesh Dhirajlal Vora view the letting out of the property and provision of the aforesaid services being interdependent, intertwined and inseparable, form part of one letting by the assessee. We find that the Hon’ble High Court of Calcutta in the case of CIT Vs. Sambhu Investments Pvt. ltd. (2001) 249 ITR 47 (Cal), had observed that where the prime object of the assessee was to let out the portion of the property to various occupants by giving them additional right of using the furniture & fixtures and other common facilities for which rent was being paid, the income derived therefrom would be assessable under the head “house property”. The aforesaid judgment of the Hon’ble High Court was thereafter been approved by the Hon’ble Supreme Court in Sambhu Investments Pvt. ltd. Vs. CIT (2003) 263 ITR 143 (SC). Accordingly, on the basis of our aforesaid observations, we are of the considered view that the amount received by the assessee for providing the amenities/facilities to the licensee as per the “Amenities agreement”, dated 07.08.2012 was rightly shown by the assessee as its income under the head “house property”. At the same time, we may herein observe that the assessee had claimed to have received gross rent of Rs. 2,17,21,200/- on letting out of the aforesaid property. However, we find that the receipts from the letting out of the aforesaid property and provision of amenities as per the respective “Agreements” works out to an aggregate of Rs.1,79,26,200/- viz. (i) rental receipts: Rs.67,62,000/- (i.e @ Rs.5,63,500/- per month); and (ii) compensation/amenity charges: Rs.1,11,64,200/- (i.e @ Rs.9,30,350/- per month). We thus in terms of our aforesaid observations restore the matter to the file of the A.O, with a direction to assess the amenity charges received by the assessee in terms of the “Amenities agreement”, dated 07.08.2012 under the head “house property”. Also, the A.O in the course of the “set aside‟ proceedings shall verify the reason for the discrepancy in the amount of the gross rental shown by the assessee at Rs.2,17,21,200/- under the head “house Property”, as against the amount of Rs.1,79,26,200/- [Rs.67,62,500/- (+) Rs.1,11,64,200/-] as is discernible from the respective agreements viz. Leave & license agreement, dated 07.08.2012 and Amenities agreement, dated 07.08.2012. In case the assessee is unable to explain the aforesaid discrepancy, then the aforesaid

8 ITA 4989/Mum/2018 Nimesh Dhirajlal Vora amount of receipt of Rs. 37,95,000/- [Rs.2,17,21,200/- (-) Rs.1,79,26,200/-] shall be assessed by him under the head “Other sources”. Needless to say, the A.O shall in the course of the “set aside‟ proceedings afford a reasonable opportunity of being heard to the assessee. The Ground of Appeal No. 1 is allowed for statistical purposes in terms of our aforesaid observations.” 6. In view of the aforesaid discussions, we find that the fact of the present

case and the issue raised by the assessee is identical to the issue

decided by the Tribunal in the aforesaid case. Therefore, respectfully

following the order of the Tribunal in Devbhumi Estates Pvt Ltd Vs

DCIT, Cir.2(1)(1), Mumbai in ITA No.649/Mum/2017 order dated 12-

07-2019, we direct the assessing officer to assess the amenity charges

received by the assessee in terms of amenities agreement dated 01-10-

2010 under the head ‘house property’.

Order pronounced in the open court on 01-11-2019.

Sd/- Sd/- (Shamim Yahya) (Pawan Singh) ACCOUNTANT MEMBER JUDICIALMEMBER

Mumbai, Dt : 01 November, 2019 Pk/- Copy to : 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR By order Asstt. Registrar, ITAT, Mumbai