ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 6(1)(2), MUMBAI vs. M/S ISLAND STAR MALL DEVELOPERS PVT LTD, MUMBAI

At the time of hearing, the Ld. AR of the assessee, has not pressed the ground of appeal no.4 and accordingly the ground of appeal is treated as withdrawn and is dismissed

“The agreement executed is not only for use of Premises but also for use of amenities installed in the premises which is inseparable and which can be termed as Composite agreement to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 5 - because letting out of premises not possible until and unless licensee agrees to pay the compensation for use of amenities installed in the premises.

Also, there is no fixed license fee for the use of premises, there are other consideration also which the licensee required to pay for use of premises beyond the normal working hours which is clear by reading following cause: for such operation beyond Mall Timings, the LICENSEE will be required to pay additional charges towards "Extended Timing Charges" at the rate of Rs. 5/- (Rupees Five only) per sq. ft. on the chargeable area, per day in addition to electricity/air- conditioning charges.

It is also pertinent to note that the assessee has put a condition to provide regularly sales statements and other data to the LICENSOR for the purpose of determining the Variable License Fees and other associated purposes. By reading this clause, it shows assessee commercial intention to decide and increase rental income, which in normal circumstances are not permissible. It shows that the assessee has a close watch on violation of any terms mentioned in Leave & license agreement.

On detailed examination of Leave & License Agreement, it is found that letting out and other services offered cannot exist in isolation and hence the arrangement cannot be termed as Income from letting out of premises.

Hence, il is concluded that the intention of the assessee to execute Leave and License agreement was not only for letting out of building for rent, bu also carrying on a complex commercial activity of setting up a Mall in which various amenities and fil-outs have been provided. Since the entire activity carried out in an organized manner to earn profit out of to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 6 - the investment made by the taxpayer, it should be treated as a commercial venture. Accordingly, the rental income should be chargeable to tax as business income. Letting out of building along with amenities and fit-outs amounted to complex commercial venture of the taxpayer and had to be taxed under the head Profits or Gains of Business or Profession'. Since, the activities of the taxpayer constituted as business, interest, depreciation and other expenditure were incurred in the ordinary course of the business and were allowable as business expenditure”

5. Aggrieved by the order, the assessee has filed an appeal before the CIT(A), whereas the CIT(A) considered the grounds of appeal, statement of facts, submissions of the assessee, findings of the AO and has confirmed the action of the assessing officer in taxing the rental income under income from business and has sustained the disallowance of deduction u/sec24 of the Act claimed by the assesse under income from house property. Further the CIT(A) to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 8 - granted relief in other grounds of appeal

and partly allowed the asssessee appeal. Aggrieved by the CIT(A)order, the assessee and revenue has filed appeal before the Hon’ble Tribunal.

6. At the time of hearing the Ld.AR of the asssessee submitted that the CIT(A) has erred in sustaining the action of the AO in bringing to tax income from house property under the head income from business. The Ld.AR submitted that the assessee has constructed a mall and has let out the shops and spaces to various tenants and the assessee was receiving rental income and was offered to tax under income from house property. Whereas out of the composite rent which includes amenities, maintenance expenses and other charges as per leave and license agreement, the assessee has offered such receipts to tax and simultaneously claimed the actual expenditure as per the terms of agreement under income from business. The Ld.AR mentioned that alerternatively, if the claim of expenditure is not allowed under Income from house property, the same has to be allowed under income from business. The Ld. AR submitted that the Ground of appeal No.2 & 3 are only alternative grounds, if the rental income is treated as business income, than the expenditure incurred has to be to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 9 - allowed as deduction. The Ld.AR emphasized on the clauses and recitals of rental /leave and license agreement to substantiate that the asssessee has offered rental income from shops and spaces under income from house property and simultaneously the other charges towards amenities and other services is disclosed under Income from business and has claimed expenditure incurred wholly and exclusively for the purpose of maintenance. Further, the Ld.AR submitted that the revenue authorities have accepted the facts of offering the rental income under income from house property and allowed the statutory deductions u/sec24 of the Act and relied on the subsequent year assesseement orders. The Ld.AR substantiated the submissions with the synopsis, judicial decisions and factual paper book and prayed for allowing the appeal.

7. Per Contra, the Ld.DR submitted that the CIT(A) was correct in sustaining the income taxable under income from house property and sustaining the disallowance of expenditure. Whereas in respect of relief granted by the CIT(A), the revenue has filed a cross appeal.

8. We heard the rival submissions and perused the material on record. The Ld.AR submitted that the CIT(A) has erred in considering the rental income received from the tenants as to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 10 - income from business though the assessee has made composite rental agreement with these tenants, which consist of rent for the premises and the maintenance charges which has to be treated separately and the assessee is subject to TDS u/sec 194I of the Act in respect of the house property income i.e rental income and whereas in respect of the amenities or services provided, TDS was deducted u/sec 194C of the Act. The Ld. AR explained that this is the first year of receipt of the rental income by the assessee and also there is a capitalization of interest of the preconstruction period claimed in the computation of income as per the provisions of the Act. Whereas from A.Y 2016-17 onwards, the claim of offering of rental income under income from house property was accepted by the revenue and the maintenance amount received from tenants disclosed under income from business.

Long Title: What is the tax treatment of composite rent when the composite rent pertains to letting out of building along with charges for provision of services? Answer In such a case, composite rent includes rent of building and charges for different services (like lift, watchman, water supply, etc): In this situation, the composite rent is to be bifurcated and the sum attributable to the use of property will be charged to tax under the head "Income from house property" and charges for various services will be charged to tax under the head "Profits to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 12 - and gains of business and profession" or "Income from other sources" (as the case may be).”

Tax treatment of composite rent of building let out along with other assets

Composite rent includes rent of building and rent towards other assets or facilities. The tax treatment of composite rent is as follows:- to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 13 - a) In a case where letting out of building and letting out of other assets are inseparable (i.e., both the lettings are composite and not separable, e.g., letting of equipped theatre), entire rent (i.e. composite rent) will be charged to tax under the head "Profits and gains of business and profession" or "Income from other sources", as the case may be. Nothing is charged to tax under the head "Income from house property". b) In a case where, letting out of building and letting out of other assets are separable (i.e., b both the lettings are separable, e.g., letting out of refrigerator along with residential bungalow), rent of building will be charged to tax under the head "Income from house property" and rent of other assets will be charged to tax under the head "Profits and gains of business and profession" or "Income from other sources", as the case may be. This rule is applicable, even if the owner receives composite rent for both the lettings. In other words, in such a case, the composite rent is to be allocated for letting out of building and for letting of other assets.

Tax treatment of composite rent in a case of letting of building along with provision of services

In a case letting of building along with provision of services, composite rent includes rent of building and charges for different services (like lift, watchman, water supply, etc.): In this situation, the composite rent is to be bifurcated and the sum attributable to the use of property will be charged to tax under the head "Income from house property" and charges for various services will be charged to tax under the head "Profits and gains of business and profession" or"Income from other sources" (as the case may be). to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 14 -

Computation of income from a let out property

Income chargeable to tax under the head "Income from house property" in the case of a let-out property is computed in the following manner.”

Particulars Amount Gross Annual Value XXXX Less: Municipal Taxes Paid during the year XXXX Net Annual Value (NAV) XXXX Less Deduction under Section 24 Deduction u/s 24(a) @ 30% NVA (Standard deduction) XXXX Deduction u/s 24(b) on account of interest on XXXX borrowed Income from house property XXXX

no.1 in favour of the asssessee as discussed above on taxability of rental income under income from house property, therefore the alternative grounds of appeal no.2 & 3 becomes academic and are not adjudicated and the ground of appeal no 4 is not pressed by the asssessee. And the appeal filed by the assessee is partly allowed. A.Y. 2012-13(revenue appeal)

13. The revenue has raised following grounds of appeal as under:

1. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in directing the AO to call for necessary and factual details at the time of giving effect to the order passed by CIT(A) and then re-compute the income of the assessee on the lines stated in the order without giving any clear-cut findings with quantification of deletion or confirmation of additions made by the AO. As such order of CIT(A) qua verification by AO borders on the line of matter being set-aside to file of AO, a power not available with CIT(A).

2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in directing AO to allow depreciation on the building against the income from business which was not claimed by the appellant suo moto as it had considered the rent income as "Income from House Property"; with a direction to call for necessary and factual details at the time of giving effect to the CIT(A) order, as such order of CIT(A)

to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 20 - qua verification by AO borders on the line of matter being set- aside to file of AO, a power not available with CIT(Α).

3. Whether on the facts and in circumstance of the case and in law, the Ld. CIT(A) erred in directing AO to allow other expenses against business income which were suo moto disallowed by the appellant as it had considered the rent income as "Income from House Property"; with a direction to call for necessary and factual details at the time of giving effect to the CIT(A) order, as such order of CIT(A) qua verification by AO borders on the line of matter being set-aside to file of AO, a power not available with CIT(A).

4. Whether on the facts and in circumstance of the case and in law, the Ld. CIT(A) erred in directing AO to allow interest expenses against business income which were suo moto disallowed by the appellant as it had considered the rent income as "Income from House Property"; with a direction to call for necessary and factual details at the time of giving effect to the CIT(A) order, as such order of CIT(A) qua verification by AO borders on the line of matter being set-aside to file of AO, a power not available with CIT(A).

6. Whether on the facts and in circumstance of the case and in law, the Ld. CIT(A) erred in directing AO to delete the addition made by the AO on account of interest income earned by the to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 21 -

assessee from FDR treating the same as income from Other Sources with the direction that interest should be set-off against the project cost however, there is no clear-cut fact finding with quantification by the Ld. CIT(A) / NFAC as to how much interest need be capitalized in the instant case for the current year and how much is to be treated as revenue.

No.2,3,4&5 becomes in fructuous and academic. Whereas in the ground of appeal.no.6 in respect of set off of interest income on fixed deposits with the Work-in–Progress/project cost. We find the CIT(A) has relied on the Honble Tribunal decisions in the assessee’s own case for the A.Y 2010-11 & 2011-12, where the interest on fixed deposits set off against project cost was allowed. The CIT(A) dealt at Page

39. Para 9.9 to 10 of the order as under: “9.9 As regards the taxability of interest on fixed deposits for assessment year 12-13 contention of appellant is that this to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 24 - being interest earned on excess deposits in construction phase should be set off against the project cost and not be treated as income from other sources. Appellant has mentioned that honourable ITAT in appellant's on case for the years 2010-11 and 2011-12 has held that interest should be set off against project cost. Respectfully following the above, the same method should be adopted for the year under appeal. Appeal on this ground is hence allowed.

9.10 It may be noted that for additions made u/s 14A and allowance of revenue expense wrongly considered capital in nature and as regards the issue of TDS claim the relevant grounds have not been pressed by appellant and hence all not taken up. In all the years under appeal the income is to be computed as per method laid down by honourable Supreme Court in the case of Chennai properties as mentioned above.

10. As a result, the appeals are Partly Allowed”s

no 1,2,3,4&6 in this assesee appeal are identical to grounds of appeal in ITA No 2246/Mum/2023 for A.Y.2012- 13 (except the variance in figures). Therefore, the decision rendered in above paragraphs no.8,9,10,11&12 would apply mutatis mutandis for this appeal. The ground of appeal No. 5 raised by assessee as under: “5.The Ld. CIT(A) erred in confirming the action of the Ld. AO with regard to the issue of disallowing interest expenses of Rs. 22,41,312/- considering the same pertains to expenses not incurred wholly for the purpose of business.”

18. The Ld. AR of the assessee submitted that, the CIT(A) has erred in confirming the action of the AO in disallowance of interest expenditure as it was not incurred for the purpose of business. The contentions of the Ld. AR that the assessee has sufficient funds and the loans have been provided out of the surplus/ own funds and the assessee has substantiated all the facts in the assessment and appellate proceedings. to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 26 -

no 1, 2, 3, 4 & 5, in this revenue appeal are identical to grounds of appeals in for A.Y. 2012

13. (except the variance in figures). Therefore, the decision rendered in above paragraphs no. 15&16 would apply mutatis mutandis for this appeal. In the result, the appeal filed by the revenue is dismissed. to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 27 - , A.Y 2014-15(Assessee appeal)

no 1, 2, 3, 4 & 7, in this assessee appeal are identical to grounds of appeal in for A.Y. 2012

13. (except the variance in figures). Therefore, the decision rendered in above paragraphs no.8.9.10.11&12 would apply mutatis mutandis for this appeal. The ground of appeal No. 5 & 6 raised by assessee are as under:

“5. The Ld. CIT(A) erred in not holding that brought forward book losses of Rs. 2,46,41,066 is allowed to be set off against the book profits calculated as per the MAT provisions.

no 1, 2, 3, 4 & 5, in this revenue appeal are identical to grounds of appeals in for A.Y. 2012-13 (except the variance in figures). Therefore, the decision rendered in above paragraphs no. 15&16 would apply mutatis mutandis for this appeal. In the result, the appeal filed by the revenue is dismissed ITA No.2249/Mum/2023, A.Y 2015-16.(Assessee Appeal)

27. As the facts, circumstances and the grounds of appeal.no1,2&3 in the assessee appeal is identical to grounds of appeal in ITA No. 2246/Mum/2023 for A.Y. 2012-13 (except the variance in figures),the decision rendered in above paragraphs no.8.9.10.11&12 would apply mutatis mutandis for this appeal also. And the appeal filed by the assessee is partly allowed.

Appeal) 28. As the facts, circumstances and the grounds of appeal no 1,2,&3, in this revenue appeal are identical to grounds to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 30 - of appeals in for A.Y. 2012-13 (except the variance in figures). Therefore, the decision rendered in above paragraphs no.15&16 would apply mutatis mutandis for this appeal. In the result, the appeal filed by the revenue is dismissed. , A.Y 2016-17.(Assessee Appeal) 29. The asssessee has raised the fallowing grounds of appeal:

2. Without prejudice to ground No. 1, the Ld. CIT(A) erred in not holding that the sum of Rs.2,30,53,909/- [being 59% of 5,14,70,407-73,13,631] is required to be allowed under the head business income out of the total legal and professional charges. The applicant prays that the issue of disallowance of legal and professional charges of Rs. 2,30,53,909/- may kindly be adjudicated.

3. Without prejudice to ground No. 1, the Ld. CIT(A) erred in not holding that the sum of Rs. 6,10,60,957/- is required to be allowed under the head business income out of total staff cost and directors remuneration. The applicant prays that the issue of disallowance on account of allocation of staff cost and remuneration directors of Rs. 6,10,60,957/- may kindly be adjudicated.

4. Without prejudice to ground No. 1, the Ld. CIT(A) erred in not holding that the sum of Rs.1,13,09,367/- is required to be allowed under the head business income out of repairs and maintenance expenditure. The applicant prays that the issue of disallowance of repairs and maintenance expenditure of Rs. 1,13,09,367/- may kindly be adjudicated.

to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 31 -

5. Without prejudice to ground No. 1, the Ld. CIT(A) erred in not holding that the sum of Rs. 6,68,57,628/- is required to be allowed under the head business income out of the total advertisement and sales promotion expenses. The applicant prays that the issue of advertisement and sales promotion expenses of Rs. 6,68,57,628/- may kindly be adjudicated.

6. Without prejudice to ground No. 1, the Ld. CIT(A) erred in not holding that the sum of Rs. 58,97,170/- is required to be allowed under the head business income out of the total Miscellaneous expenditure. The applicant prays that the issue of disallowance of miscellaneous expenditure of Rs. 58,97,170/- may kindly be adjudicated.

7. Without prejudice to ground No. 1, the Ld. CIT(A) erred in not holding that the sum of Rs. 1,49,85,206/- is required to be allowed under the head business income out of total Security Charges. The applicant prays that the issue of disallowance of security charges of Rs. 1,49,85,206/- may kindly be adjudicated.

8. The Ld. CIT(A) erred in not holding that the claim of write off of Rs. 11,32,217/- is required to be allowed under the head “Income from House Property” as unrealized rent. The appellant prays that the disallowance of Rebate and Settlement expenses of Rs. 11,32,217/- under “income from house property” may kindly be adjudicated.

9. Without prejudice to ground No. 1, the Ld. CIT(A) erred in not holding that Bad Debt expenses of Rs. 4,42,48,993/- is required to be allowed under the head “Income from House Property” unrealized rent. The appellant prays that the disallowance of Bad Debt expenses of Rs. 4,42,48,993/- under “income from house property” may kindly be adjudicated.

10. Without prejudice to the above grounds, the Ld. CIT(A) erred in not following the procedure laid down by the Ministry of Finance vide Faceless Appeal Scheme, 2021 notification no. 139/2021 dated 28.12.2021 and accordingly not provided an appropriate opportunity to the appellant. Thus, the order passed by the ld. CIT(A) is bad in law and void ab initio.

no 1 in this appeal is identical to grounds of appeal in for A.Y.2012

13. (except the variance in to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 32 - figures). Therefore, the decision rendered in above paragraphs no.8,9,10,11&12 would apply mutatis mutandis for this appeal also. Accordingly, we set aside the order of the CIT(A) on ground of appeal no.1 and direct the Assessing officer to consider the rental income under the income from house property and the common area maintenance charges under income from business and allow the deductions incurred wholly and exclusively for earning the income. We have decided the ground of appeal no.1 in favour of the asssessee as discussed above on taxability of rental income under income from house property. Whereas grounds of appeal no.2,3,4,5,6,7,8&9 are in respect of allocating of expenses and we find the Ld.AR of the assessee could able to substantiate with the information and details on the basis of allocation between Income from House property and Income from business. We find there is no finding on these aspects on the submissions of the asssessee by the CIT(A). Therefore, we considering the principles of natural justice shall provide with one more opportunity of hearing to the assessee to substantiate the case with evidences and information. Accordingly, set aside the order of the CIT(A) on these disputed issues and restore the entire disputed issues to to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 33 - the file of the CIT(A) to adjudicate afresh and the assessee should be provided adequate opportunity of hearing and shall cooperate in submitting the information and whereas the ground of appeal no 10 is not pressed by the asssessee. Accordingly, the appeal filed by the assessee is partly allowed for statistical purpose. A.Y 2016-17(Revenue Appeal)

31. As the facts, circumstances and the grounds of appeal no 1, 2, 3 & 4, in this revenue appeal are identical to grounds of appeals in ITA No.2352/Mum/2023 for A.Y. 2012-13 (except the variance in figures). Therefore, the decision rendered in above paragraphs no. 15&16 would apply mutatis mutandis for this appeal. In the result, the appeal filed by the revenue is dismissed. , A.Y 2017-18.(Assessee Appeal)

no 1 in this assesee appeal is identical to grounds of appeal in for A.Y.2012

13. (except the variance in figures). Therefore, the decision rendered in above paragraphs no.8,9,10,11&12 would apply mutatis mutandis for this appeal also. Accordingly, we set aside the order of the CIT(A) on ground of appeal no.1 and direct the to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 34 - assessing officer to consider the rental income under the income from house property and the common area maintenance charges under income from business and allow the deductions incurred wholly and exclusively for earning the income. Since we have decided the ground of appeal no.1 in favour of the asssessee as discussed above on taxability of rental income under income from house property. Whereas grounds of appeal no.2,3,4,5,6,7 are in respect of allocating of expenses and we find the Ld.AR of the assessee could able to substantiate with the information and details on the basis of allocation between Income from House property and Income from Business. We find there is no finding on these aspects on the submissions of the asssessee by the CIT(A). Therefore, we considering the principles of natural justice shall provide with one more opportunity of hearing to the assessee to substantiate the case with evidences and information. Accordingly, set aside the order of the CIT(A) on these disputed issues and remit the entire disputed issues to the file of the CIT(A) to adjudicate afresh and the assessee should be provided adequate opportunity of hearing and shall cooperate in submitting the information and the ground of appeal no 10 to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 35 - is not pressed by the asssessee. The ground of appeal No.8&9 raised by the assessee are as under:

“8.The Ld. CIT(A) erred in not holding that the claim of write off of Rs. 65,60,08,078 is allowable as business loss. The Ld CIT(A) ought to have been held that loss of Rs 65,60,08,078 is allowable as business loss”

9.Without prejudice to ground No. 1, the Ld. CIT(A) erred in not holding that deduction from house property of Rs.1,55,70,984 claimed as unrealized rent is required to be allowed. The applicant prays that the claim of unrealized rent may kindly be adjudicated.” The Ld.AR made submissions on the ground of appeal.no8&9 that the CIT(A) has erred in not allowing the claim of write off / waiver of loans being business loss and also non allow ability of claim of unrealized rent and the Ld.AR highlighted on the facts and provisions of the Act. We find there is no finding on these aspects on the submissions of the asssessee by the CIT(A). Accordingly, set aside the order of the CIT(A) on these disputed issues and remit the entire disputed issues to the file of the Asssessing officer to examine and verify the facts and adjudicate afresh on merits and the assessee should be provided adequate opportunity of hearing and shall cooperate in submitting the information Accordingly, we allow this grounds of appeal of the assessee for statistical purposes. to2251 & 2352 to 2357 /Mum/2023 M/s Island Star Mall Developers Pvt Ltd, Mumbai. - 36 -

no 1, 2, 3, & 4, in this revenue appeal are identical to grounds of appeals in for A.Y. 2012

13. (except the variance in figures). Therefore, the decision rendered in above paragraphs no. 15&16 would apply mutatis mutandis for this appeal. In the result, the appeal filed by the revenue is dismissed

Order pronounced in the open court on 27.02.2024.