M/S SCRIPS N SCROLL (INDIA) PVT. LTD.,, BANGALORE vs. DCIT, BANGALORE

Per Shri Jason P Boaz, A.M. : This appeal by the assessee is directed against the order of the Commissioner of Income Tax (Appeals)-6, Bangalore dt.18.03.2016 for Assessment Year 2011-12.

2 ITA No.1262/Bang/2016 Order on Petition for Condonation of Delay in filing the appeal for A.Y. 2011-12.

2.1 The impugned order of the CIT (Appeals) dt.18.3.2016 was admittedly received by the assessee on 13.4.2016 and therefore, as per law; the present appeal ought to have been filed before the Tribunal within 60 days of receipt of the order i.e. on or before 12.6.2016. This appeal, however, was filed on 27.6.2016, thereby leading to a delay of 14 days. Along with the appeal, the assessee has filed a petition seeking condonation of the aforesaid delay of 15 days accompanied by an Affidavit dt.24.6.2017 sworn to by the Managing Director of the assessee company. The submissions in the assessee's petition are as under :

“ The appellant submits before Hon'ble Tribunal for condonation of delay in filing of appeal as above on the following grounds. The appellant company’s Managing Director was not available to sign the appeal papers as he was travelling for business work to meet clients for project work. The appellant is submitting an Affidavit in support of the same. Further, the appellant had moved a Rectification Application dt.29.04.2016 before the Hon'ble CIT (Appeals) – 6 for Rectification of the appellate order, as some of the grounds raised before her are not adjudicated. Further, the said Rectification Application is pending before the First Appellate Authority as on date also. Based on the above the appellant prays the Hon'ble Bench to condone the delay in filing the appeal and the appeal filed be allowed and pass appropriate order in this regard.”

3 ITA No.1262/Bang/2016 2.2 We have heard the rival contentions, perused and carefully considered the material on record in respect of the condonation of delay of 14 days in filing the appeal for Assessment Year 2011-12. Taking into account the submissions put forth by the assessee in the petition for condonation of delay and the accompanying Affidavit and respectfully following the principles laid down by the Hon'ble Apex Court in the case of MST Katiji & Others (1987) 167 ITR 471 (SC), for dealing with matters of condonation of delay, i.e. that substantial justice should prevail over technical considerations; we are of the view that the assessee's default in filing these appeals belatedly was neither deliberate nor intentional but was by sufficient and reasonable cause. In this view of the matter and in the interest of substantial justice, we are of the opinion that this is a fit case for condonation of delay and accordingly condone the delay of 14 days in filing the appeal for A.Y. 2011-12 before the Tribunal. Consequently, the appeal for Assessment Year 2011-12 is admitted for hearing and adjudication.

O R D E R

3.1 The assessee company filed its return of income for Assessment Year 2011-12 on 29.9.2011 declaring income of Rs.2,84,47,673. On 6.7.2012, the assessee filed a revised return of income declaring income of Rs.2,80,47,333. In the return of income, the assessee, who owns two commercial buildings in Bangalore, (1) Plot No.100, Anchorage,

4 ITA No.1262/Bang/2016 Richmond Road and (2) 94/1C, Veerasandra, Electronic City, Phase – 1 claimed two streams of revenue as under :-

a) Rental receipts of Rs.4,24,52,292 from letting of buildings to various occupants was disclosed under the head ‘Income from House Property’ at net figure of Rs.1,89,02,210 and

b) Maintenance Service revenues of Rs.1,12,16,913 for providing additional services, such as 24/7 security, uninterrupted power back up and other amenities, were declared under the head ‘Business Income.’

3.1.2 In the course of assessment proceedings, the Assessing Officer accepted the declaration of rental receipts disclosed by the assessee under the head ‘Income from House Property’. The Assessing Officer, however, did not accept the assessee's declaration of maintenance service charges as ‘Business Income’, as he was of the opinion that the amenities such as 24/7 security, water, power supply and electricity back up are not additional facilities but basic necessities which are inseparable from any let out property. In that view of the matter, the Assessing Officer held that the aforesaid maintenance charges received, being attached with such let out property, are to be assessed under the head ‘Income from House Property’ and was to be allowed only standard deduction of 30% and was not to be allowed the entire expenditure for provision of maintenance services claimed by the assessee. In coming to this finding the assessee placed reliance on the decision of the Hon'ble High Court of Calcutta in the case of Shambhu Investments P. Ltd. (2011) 116 Taxman 795 (Cal). The assessment was accordingly concluded under

5 ITA No.1262/Bang/2016 Section 143(3) of the Act vide order dt.28.2.2014; wherein the assessee's income was determined at Rs.4,27,65,183. 3.2 Aggrieved by the order of assessment dt.28.2.2014 for Assessment Year 2011-12, the assessee filed an appeal before the CIT (Appeals)-6, Bangalore. The learned CIT (Appeals) being of the view that the amenities and fixtures rendered by the assessee cannot be given on rent independently since it is a part and parcel of the building as a whole, upheld the Assessing Officer’s order and dismissed the assessee's appeal vide order dt.18.3.2016. 4. Aggrieved by the order of the CIT (Appeals) dt.18.3.2016 for Assessment Year 2011-12, the assessee has preferred this appeal before the Tribunal, raising the following grounds :-

6 ITA No.1262/Bang/2016

5.0 Ground No.1

At the outset, the learned Authorised Representative submitted that the assessee is not pressing and is withdrawing this ground. Consequently, we dismiss Ground No.1 of assessee's appeal as not pressed.

6.0 Ground Nos.2 & 3.

6.1 In these grounds, the assessee assails the orders of the authorities below in treating maintenance service charges of Rs.1,12,16,913 as

7 ITA No.1262/Bang/2016 ‘Income from House Property’ rather than ‘Business Income’ as declared by the assessee and in disallowing expenditure of Rs.8,58,88,321 incurred for provision and earning maintenance charges. It is submitted that the authorities below had failed to appreciate the fact that the assessee was not the owner of all the units in the building but had been conducting the maintenance work even of those units of which it was not the owner.

6.2.1 According to the learned Authorised Representative for the assessee, the maintenance charges received was for providing the occupants amenities and facilities such as power back up, security, etc. The revenue so collected from the occupants is towards a specific expenditure that the assessee incurs in order to manage its business. It is submitted that maintenance charges received have no relation to the rentals received by the assessee and further that there is no condition that stipulates that the tenant has to compulsorily use the additional amenities and facilities provided through maintenance and the same is provided only to those tenants and non-tenants who require them. In this regard the learned Authorised Representative submits that out of maintenance charges of Rs.1,12,16,913 collected, an amount of Rs.77,96,703 was collected from occupants who are not the assessee's tenants. In view of the above facts, it was prayed that the entire maintenance charges received of Rs.1,12,16,913 and expenditure incurred against this income for provision of amenities to the occupants

8 ITA No.1262/Bang/2016 of the building be treated as ‘Business Income’ as declared by the assessee.

6.2.2 Further, the learned Authorised Representative submitted that the decision of the Hon'ble Apex Court in the case of Shambhu Investments Pvt. Ltd. (2003) 263 ITR 143(SC) is not applicable to the case on hand as the facts in the cited case are different. In that case the assessee was earning rental income from letting out of building along with furniture, fixtures and machinery and contended the same to be assessable as ‘Business Income’. The Hon'ble Court laid down certain tests to decide the in-separable / separable portion of letting out of building and letting out of furniture, fixtures and machinery. According to the learned Authorised Representative, the cited case (supra) is factually different and therefore not applicable to the case on hand for the following reasons.

(i) the assessee is not letting out building along with furniture, fixture, etc.

(ii) the assessee has let out the portion of the building as a whole to tenants and the tenant has the option to avail or not to avail the amenities / facilities afforded.

(iii) the assessee is charging occupants separately for letting out of building and providing certain additional amenities / services separately at the option of the occupant,

9 ITA No.1262/Bang/2016 In support of its contentions, the assessee has placed reliance, inter alia, on the following judicial pronouncements :-

(a) CIT Vs. S Mohan Kumar HUF (ITA No.325/2009 dt.7.2.2011) (Kar)

(b) Sree Seshachala Builders Ltd. V. DCIT (ITA No.974 & 925/Bang/2016).

6.3 Per contra, the learned Departmental Representative for Revenue supported the orders of the authorities below.

6.4.1 We have heard the rival contentions, perused and carefully considered the material on record. The question for consideration before us is whether the maintenance service charges received by the assessee are to be treated as ‘Business Income’ as declared by the assessee or ‘Income from House Property’ as held by the Assessing Officer. The basic facts of the matter are laid out at paras 3.1.1 and 3.1.2 of this order (supra). From the details / facts on record as discussed above, it is clear and there is no dispute that the rental income received for letting out of properties to its tenants is to be assessed under the head ‘Income from House Property’ as declared by the assessee. As per the details on record, there is no dispute that the assessee has been separately providing both tenants and non-tenants, at their option, amenities and facilities like provision of uninterrupted power back up, DG services, security services, fixtures and fit-outs, water, etc. for which it receives maintenance charges and incurs expenditure for providing these amenities which is not disputed. In this factual matrix of the case,

10 ITA No.1262/Bang/2016 as discussed above, prima facie it appears to us that the consideration received by the assessee as maintenance charges would constitute ‘Business Income’ and not ‘Income from House Property’. This view is supported by the decision of the Hon'ble Karnataka High Court in the case of CIT Vs. S. Mohan Kumar (HUF) (supra) and of the co-ordinate bench of this Tribunal of Sree Seshachala Builders Ltd. Vs. DCIT (supra). In this view of the matter, we are of the considered opinion that it is appropriate to set aside the orders of the authorities below on this issue and restore the matter to the file of the Assessing Officer only for computing the income from maintenance charges under the head ‘Business Income’ after recomputing the allowable expenditure incurred against maintenance charges earned as per the financial statements / documents / details etc of the assessee. Needless to add, the assessee shall be afforded adequate opportunity of being heard and file details / submissions required to substantiate its claims, which shall be duly considered. Consequently, Ground No. 2 of the assessee's appeal is allowed for statistical purposes. 7. Ground No.3. 7.1 Since Ground No.2 of assessee's appeal has been allowed as indicated above, this ground No.3 is not required to be adjudicated. 8. Ground No.4 – Disallowance of Depreciation & Expenditure of Rs.8,58,88,321. 8.1 In this ground, the assessee contends that the Assessing Officer erred in not allowing the depreciation on assets owned by the assessee

11 ITA No.1262/Bang/2016 which are being utilized for the assessee's business of rendering of various maintenance services to occupants of the building like lift, generators, etc and other expenditure incurred like security, water, etc for earning maintenance charges service. In view of the fact that while adjudicating Ground No.2 (supra), we have set aside the orders of the authorities below; held that income from maintenance charges are to be assessed as ‘Business Income’ and restored the matter of computing the allowable expenditure incurred for earning the maintenance charges; this ground in respect of depreciation and expenditure claimed also stands restored to the file of the Assessing Officer for compliance with the directions rendered in para 6.4.2 of this order. 9. Ground No.5 - Tax Credit u/s. 115JB – Rs.88,866. In this ground, the assessee claims that the Assessing Officer has not allowed the assessee tax credit under Section 115JB of the Act to the extent of Rs.88,866 even though it was claimed in the return of income for Assessment Year 2011-12. In this regard, the Assessing Officer is directed to examine and verify the assessee's claim and dispose off the same in accordance with the law. 10. Ground No.6 - TDS Claim of Rs.3,39,000. In this ground, the assessee contends that the Assessing Officer has not allowed TDS credit of Rs.3,39,000 in respect of rental income received from tenants and offered for tax on accrual basis. In this regard, the Assessing Officer is directed to examine and verify the assessee's claim and dispose off the same in accordance with law.

12 ITA No.1262/Bang/2016 11. Ground No.7. This ground is general in nature and therefore no adjudication is called for thereon. 12. In the result, the assessee's appeal for Assessment Year 2011-12 is partly allowed for statistical purposes. Order pronounced in the open court on the 13th day of Dec.,2017.

Sd/- Sd/- (SUNIL KUMAR YADAV) (JASON P BOAZ) Judicial Member Accountant Member Bangalore, Dt.13.12.2017.

*Reddy gp

Copy to : 1 Appellant 4 CIT(A) 2 Respondent 5 DR. ITAT, Bangalore 3 CIT 6 Guard File

Senior Private Secretary Income Tax Appellate Tribunal Bangalore.