DHANO B VASWANI,MUMBAI vs. ACIT 12(3), MUMBAI

ORDER

PER N.K. PRADHAN, AM

1. The ld. CIT(A) has grossly erred in confirming the disallowance of brokerage of Rs. 5,00,565/- from the annual letting value of the let out property at Maker Chamber, VI, Nariman Point.

2. The ld. CIT(A) has grossly erred in confirming the disallowance of electricity expenses of Rs. 27,228/- from the annual letting value of the let out property of Dada Manzil.

4. The ld. CIT(A) has grossly erred in confirming the disallowance of bank charges of Rs. 100/- from the annual letting value of the let out property of Dada Manzil 3. Briefly stated, the facts are that the assessee filed his return of income for the AY 2009-10 on 19.08.2009 declaring total income of Rs. 2,43,39,895/- . The assessee has shown income from house property and other sources. The Assessing Officer (AO) on perusal of the computation of income found that the assessee has claimed the following expenditures as allowable deductions in respect of income from the respective house properties –

A. 35 Maker Chamber VI Brokerage paid Rs 5,00,565/- B Gitanjali Society outgoings Rs 1,25,070/- C 37Maker Chamber VI Society outgoings Rs. 44,086/- D Dada Manzil Electricity expense Rs 27,228/- Legal & Prof. Rs. 1,25,000/- Bank Charges Rs. 100/- The AO came to a finding that none of the above expenses appear as allowable as the Act has explicitly mentioned that while calculating the income from house property, only certain allowable deductions are to be allowed u/s 23 and 24. In view of the above, the AO disallowed the claim of the assessee of the above expenses and recomputed the income from house property.

6. The learned DR submits that the Act clearly mentions that while calculating the income from house property, only certain allowable deductions are to be allowed u/s 23 and 24 of the Act. What specific deductions are to be allowed in computing the income under the head income from house property have been categorically and unequivocally specified in the Act. Hence, no deduction of expenses other than what is specified in the Act can be allowed in computing the income from house property. She supports the order of the learned CIT(A).

7. We have heard the rival submissions and perused the relevant material on record. The income from a let out house property is determined as under:

Gross annual value Less : Municipal taxes Net annual value Less: Deduction u/s 24 - Standard deduction - Interest on borrowed capital Income from house property Gross annual value is determined as follows:

Step 1 Find out reasonable expected rent of the property Step 2 Find out rent actually received or receivable after excluding unrealised rent but before deducting loss due to vacancy Step 3 Find out which one is higher: amount computed in Step 1 or Step 2 Step 4 Find out loss because of vacancy Step 5 Step 3 minus Step 4 is gross annual value We find that from the gross annual value, municipal taxes (including service taxes) levied by any local authority in respect of the house property are deducted. Municipal taxes are deductible only if (a) these taxes are borne by the owner, and (b) are actually paid by him during the previous year. The remaining amount left after deduction of municipal taxes is net annual value. As per provisions of section 24, the following two deductions are available:- a) Standard deduction b) Interest on borrowed capital The list of allowance of section 24 is exhaustive. In other words, no deduction can be claimed in respect of expenses on insurance, ground rent, land revenue, repairs, collection charges, electricity, water supply, salary of liftman etc.

7.1 Now we turn to the decisions relied on by the learned counsel of the assessee.

In J.B. Patel & Co. (supra), the issue was deduction from income from house property u/s 24 r.w.s. 23 of the Act. The assessment year was 1993-

In Gopichand P. Godhwani (supra), the issue was determination of annual value of income from house property u/s 23 of the Act. The assessment years were 1997-98 to 1998-99. As per rent agreement, in respect of certain premises, the assessee was to receive rent excluding water charges and had to bear all taxes, cesses and outgoings and lessee had to bear any further increase thereon. Further the assessee had to provide reserve parking space against monthly wages. The AO, while computing income of assessee from house property, disallowed expenses on account of car parking, water charges and municipal and other charges paid by lessee and made addition. The Tribunal held that in view of section 23(1)(b), if outgoings were liabilities of assessee, same should be excluded from assessable income as net amount only could be considered which was received and was receivable by the assessee. The matter was remanded to the AO to determine whether outgoings claimed were assessee’s liability against rental income.

In Sharmila Tagore (supra), the Tribunal held that maintenance charges paid to housing society have to be deducted even while arriving at annual letting value of property u/s 23. Also it held that non-occupancy charges levied by housing society will have to be considered u/s 23 even while arriving at estimate of annual letting value of the property.

R.J. Wood (P) Ltd. (supra) is discussed at para 7.3 infra.

In Bombay Oil Industries Ltd. (supra), the issue before the Tribunal was capital gains and tax planning. This is not so in the instant case.

In Neelam Cable Mfg. Co.(supra), the Tribunal held that the amount of security service charges claimed by the assessee was deductable from gross rent received while computing annual value u/s 23. Also it held that in view of proviso to section 23, entire amount of house tax actually paid by the assessee in year under consideration should be allowed as deduction.

In Lekh Raj Channa (supra), the Tribunal has held in respect of collection charges that the assessee can claim only that part of the expenditure which is referable to collection; other expenses on security and services to tenants can be deducted from ALV.

The learned counsel of the assessee has not filed a copy of the unreported order in Saif Ali Khan (supra) and Blue Mellow Investment & Finance (P) Ltd. (supra). Therefore, we are not in a position to analyse the said decisions.

In Sir Sobha Singh & Sons (P) Ltd. (supra), for the assessment year 1985-86 the assessee claimed deduction of Rs. 74,372/- on account of salaries paid to watchman, sweepers, gardeners and pump operators and one-third of manager’s salary of Rs. 1,880/- while computing the income under the head ‘Income from house property’. The assessee submitted before the Commissioner (Appeals) that while computing the income for the assessment years 1983-84 and 1984-85 the said deductions had been allowed as was evident from the fact that the property income had been taken as declared by the assessee. The Commissioner (Appeals) accepted the assessee’s claim. On further appeal, the Tribunal held though under the existing provisions relating to computation of income from house property, the aforesaid deductions were not allowable, yet considering the past history of the assessee and the fact that the said deductions had been allowed to the assessee right upto the assessment year 1984-85 and with a view to maintain consistency in the case of the assessee, the deductions had to be allowed to the assessee for the aforesaid services and amenities which were purely ancillary to the letting out of the buildings.

In M/s. Suman Didwania (supra), for the A.Y. 2006-07 the assessee had declared income from house property and claimed deduction of the maintenance charges from the rent received of Rs. 19,25,000/- which was claimed to have been paid by the assessee to the said society. The assessee stated that society charges are for NOC charges and maintenance charges over and above ‘municipal taxes’ and hence same are deductable. The Tribunal followed the decision in the case of Sharmila Tagore vs. JCIT 93 TTJ 483 and allowed the appeal of the assessee.

In Mohanlal Rupesh Kumar (supra), the assessee’s claim for deduction of depreciation and electrical charges from income from house property for the A.Y. 1989-90 was disallowed by the AO on the ground that there was no provision for allowing the same. On appeal, the CIT (A) directed the AO to allow the claim as allowed in the past. On further appeal, the Tribunal held that in view of legal position and facts of instant case, gross rental income was required to be split into components of rent for building and rent for furniture, fixtures and additional facilities provided to tenant and while former would be assessable as income from house property from which no deduction on account of depreciation on building could be allowed, latter would be assessable as income from other sources and all outgoings such as electrical charges and depreciation of furniture and fixtures would be allowable therefrom.

In Sunil Kumar Agarwal (supra), the assessee had purchased commercial space in a society which had been let out to a company. The agreement with the tenant stipulated that the property tax and the maintenance charges payable to the society would be borne by the owner as the same was duly compensated in the gross rent. In his return of income, the assessee had shown gross rent and claimed deduction on account of charges paid to the society for maintenance. The Assessing Officer disallowed the claim holding that 30 per cent deduction allowed under section 24 takes care of such expenses. On appeal, the Commissioner (Appeals) deleted the addition. The Tribunal held that “the assessee was paying the charges to the society for the common area amenities which were deductible from the gross rent received by the assessee. The charges paid to the society by the assessee were not covered in the allowable deduction as enumerated under section 24 since the gross rent received by the assessee also included the society charges which were to be paid by the assessee. Therefore, the annual value of the actual rent received by the owner is to be determined as per the provisions of section 23. As such the deduction on account of charges paid to the society for availing of the facilities of generator, lift, lighting, common area sweeping etc., was allowable from the gross rent.”

In Varma Family Trust (supra), the assessee, a private discretionary trust, leased out its house property along with furniture for a period of 9 ½ years and paid Rs. 35,743/- as stamp charges and legal fees for drawing up the lease deed. While computing the annual value under section 23(1)(b) on the basis of actual rent as per lease deed, the ITO rejected the assessee’s claim to deduct this expenditure from the rent for purposes of determining annual letting value. The AAC also rejected the claim on the ground that the expenditure was of a capital nature. In second appeal, the assessee contended that what was taxable was ‘real’ income after deduction of expenses, whereas the revenue contended that ‘income from house property’ was a notional computation and did not permit of any deductions other than those listed in sections 23 and 24. The Tribunal held that ‘in computing annual value under rental method, outgoings like stamp charges and legal fees paid by owner for drawing up lease deed are deductible from actual rent fixed.’ In Realty Finance & Leasing (P) Ltd. (supra), for the assessment year 1999-2000, the AO disallowed the society charges on the ground that the said expenses were not allowable u/s 24 out of the rent received by the assessee. On appeal, Commissioner (Appeals) upheld the AO’s view. The Tribunal held that “it was an admitted fact that the gross rent receipt also included the society charges which were to be paid by the assessee. Therefore, while computing the annual value the amount of rent which actually went into the hands of the owner in respect of leased property should be taken into consideration. As per the provisions of section 23, the annual value of property is to be determined on the basis of actual rent received by the owner.”

7.2 It is a settled law that the doctrine of res judicata or estoppel by record does not apply to AO’s decisions. A finding or decision of the income tax authorities in one year may be departed from in a subsequent year. It has been held so in New Jehangir Vakil Mills vs CIT 49 ITR 137 (SC) and Sanakarlinga vs. CIT 4 ITC 226, 241 (FB). Therefore we are not addressing to the decisions relied on by the learned counsel of the assessee that consistency should be made.

7.3 The learned counsel of the assessee has relied on the orders of the Tribunal as discussed at para para 7.1 here-in-above. There is only one judgment of the High Court he has relied on i.e R.J. Wood (P) Ltd. (supra) . In that case, the assessee had leased out its premises to five tenants. Lease agreements were entered into in this behalf wherein rent to be received by the assessee from those tenants was specified. The tenancies became operative with effect from October, 1992. However, dispute arose about payment of the said rent. Said premises were in a multi-storey building and maintenance charges were payable by the occupier to the agency/builder maintaining the building. The tenants claimed that the rent payable by them to the assessee included maintenance charges and, therefore, it was the obligation of the assessee to pay the maintenance charges. The assessee, on the other hand, wanted these tenants to pay the maintenance charges exclusive of contractual rent. Because of this dispute, the tenants filed a suit in Small Causes Court for fixation of standard rent. In that case, the Small Causes Court passed an interim order in 1994 fixing the rent at Rs. 30,000 per month, which was less than the contractual rent agreed upon between the parties in the rent agreement. Since the rent was fixed on lump sum basis at Rs. 30,000 per month, the assessee had to pay the maintenance charges, which were claimed as deduction. The Assessing Officer disallowed the claim on the ground that as per the lease agreement these maintenance charges were to be borne by the tenants. The Commissioner (Appeals), however, allowed this claim which view of the Commissioner (Appeals) was affirmed by the Tribunal as well. The Hon’ble High Court held that that since the maintenance and other charges were paid by the assessee, it was rightly held to be deductible from the rent while computing the annual letting value.

In the instant appeal, no dispute arose about payment of rent nor the tenants have filed any suit in the Court for fixation of standard rent nor the Court has passed any order fixing the rent. Therefore, the case of the assessee is distinguishable from R.J. Wood (P) Ltd. (supra) relied on by the learned counsel of the assessee.

7.4 We have discussed at para 7.1 here-in-above, the orders of the Tribunal relied on by the learned counsel of the assessee. It would now be apposite to refer to the judgement of the Hon’ble Delhi High Court in CIT vs H.G. Gupta & Sons (1984) 17 taxmann 287 (Del). The assessee-firm owned some property which was given on lease to a company. The lease deed provided that the stamp duty and registration charges in respect of the lease were to be borne by the lessee and the assessee equally. The claim of the assessee for deduction of Rs. 5,977 i.e. its half share of stamp duty etc. was disallowed by the ITO. The AAC upheld the ITO’s order. On further appeal, the Tribunal, however, allowed the asssessee’s claim. On appeal by the revenue, the Hon'ble High Court held that the impugned expenditure was not allowable as a deduction in assessing annual value of the property. Their Lordships held as under: “5. The annual value of the property, which is the subject of charge, was originally defined in section 23(1) as 'the sum for which the property might reasonably be expected to let from year to year'. The annual value is thus the sum for which a landlord could let the premises having regard to the conditions of the property and of the prevailing circumstances, as the language suggests the taxes are charged on the artificial or notional income. It is based on the annual value of the property. The authorities under the Act, therefore, have to make the assessment on the basis of the notional annual value. Section 23 lays down how the annual value is to be determined. Section 24 provides that income chargeable under the head "Deductions from Income from house property" shall, subject to the provisions of sub-section (2), be computed after making the deductions specified therein. The Legislature has used the word 'namely' and this shows that the heads of expenditure where for deduction can be claimed are exhaustive. The expenses incurred in providing the proper stamp paper in case of a lease or agreement to lease is by virtue of the provisions contained in section 23 of the Indian Stamp Act, 1899, and is on the lessee or intended lessee, in the absence of an agreement to the contrary. It may be for this reason, that the Legislature did not include such expenses in the permissible deductions under section 23 or section 24. If a particular type of expenditure is not specifically provided to be deductible, deduction, therefore, cannot be claimed from out of the annual value. Neither section 23 nor section 24 provides for the deduction of the expenses incurred towards the stamp duty or registration charges in respect of the lease.