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Income Tax Appellate Tribunal, “H” Bench, Mumbai
Before: Shri B.R. Baskaran (AM) & Shri Amit Shukla (JM)
Per B.R. Baskaran (AM) :-
Both the appeals filed by the revenue are directed against the orders passed by Ld CIT(A)-21, Mumbai and they relate to the assessment years 2010-11 and 2011-12. Solitary issue urged in both the appeals is whether the Ld CIT(A) was justified in holding that the notional interest on lease advances cannot be added to the rental income declared by the assessee.
The assessee had let out certain properties and declared rental income received by it under the head Income from House property. The AO noticed that the assessee has received interest free rent deposits and hence took the view that the notional interest on rental deposits should be added to the rent
2 M/s. Milestone City Complex Pvt. Ltd. received by the assessee. Accordingly he computed notional interest on the deposits and added the same to the rent received by the assessee. The Ld CIT(A) deleted the same by following the decision rendered by Hon’ble Bombay High Court in the case of J.K. Investors (Bombay) Ltd (248 ITR 723). Aggrieved, the revenue has filed these appeals.
We heard the parties and perused the record. The Ld D.R supported the orders passed by the AO. On the other hand, the Ld A.R submitted that the question of adding notional interest on the rental deposits to ascertain fair market value of the property shall arise only if the Annual Letting Value is computed u/s 23(1)(a) of the Act. He submitted that the assessee has declared the Annual Letting value u/s 23(1)(b) of the Act and hence notional interest on rental deposits cannot be added as per the decision rendered by Hon’ble jurisdictional Bombay High Court in the case of J.K. Investors (Bombay) Ltd (supra).
4. Having heard rival submissions, we find merit in the contentions of the assessee. The Hon’ble Bombay High Court has considered an identical issue in the case of J.K. Investors (Bombay) Ltd (supra) and held that the notional interest cannot be added to the Annual Letting value when the same is computed u/s 23(1)(b) of the Act. For the sake of convenience, we extract below the relevant observations made by Hon’ble Bombay High Court in the above said case.
“3. At the outset it may be pointed out that this judgment is based only on the facts of the present case. At the outset it may be mentioned that the department has invoked section 23(1)(b) which is not in dispute. The department has not invoked section 23(1)(a). The property is covered by the provisions of the Bombay Rent Act. The Tribunal has given a finding of fact that the actual rent received by the assessee even without taking into account the notional interest was more than the annual letting value of the property determinable under section 23(1)(a). It is in this factual background that we are required to consider the scope of section 23(1)(b). In the case of CIT v. Satya Co. Ltd. (1994) 75 Taxman 193 (Cal), the Division Bench of the Calcutta High Court has held that when the annual value is decided under section 23(1)(a) with reference to the fair rent, then
3 M/s. Milestone City Complex Pvt. Ltd. the said fair rent takes into consideration everything. However, under section 23(1)(b), only the actual rent received or receivable can be taken into consideration and not any, notional advantage. Similarly, in the case of CIT v. M. Ratanchand Chordia (1997) 228 ITR 626 (Mad), it has been held by the Madras High Court that in cases of section 23(1)(b), the annual value shall be determined only on the basis of actual rent received.
In this matter, we are required to consider the scheme of taxation of income from house property. Section 22 says that the measure of income from house property is its annual value. The annual value is to be decided in accordance with section 23. Sub-section (1) of section 23, by virtue of the amendment with effect from the assessment year 1976-77, has two limbs, namely, clauses (a) and (b). Clause (a) states that the annual value is the sum for which the property might reasonably be expected to be let from year to year. Clause (b) covers a case where the property is let and the actual rent is in excess of the sum for which the property might reasonably be expected to be let from year to year. In other words, insertion of clause (b) by the Taxation Laws (Amendment) Act, 1975 covers a case where the rent for a year actually received by the owner is in excess of the lawful rent which is known as the fair rent or standard rent under the rent control legislation. The provision of section 23(1)(a) apply both to owner occupied property as also to property which is let out and the measure of valuation to decide the annual value is the standard rent or the fair rent. Section 23(1)(b) only applies to cases where the actual rent received is more than the reasonable rent under section 23(1)(a) and it is for this reason that section 23(1)(b) contemplates that in such cases the annual value should be decided on the basis of the actual rent received. As stated hereinabove, in this case, the department has invoked section 23(1)(b) which, as stated hereinabove, proceeds on the basis that the actual rent received by the assessee is more than the reasonable rent under section 23(1)(a). The Tribunal has also found that the actual rent received by the assessee, even without taking into account the notional interest was more than the annual value determinable under section 23(1)(a). This finding of fact has not been challenged by the department in this appeal. On the contrary, the department has contended that in this case section 23(1)(b) was applicable. They have not relied on the provisions of section 23(1)(a). The question as to whether notional interest could have been taken into account under section 23(1)(a) does not arise in this appeal and we do not wish to go into that question in this appeal.
However, the moot point which needs to be considered in this case is whether notional interest could form part of the actual rent received by the assessee under section 23(1)(b). It is important to note that the property is covered by the provisions of the Bombay Rent Act. The scheme of section 23(1)(b), in contradistinction to section 23(1)(a), shows that fair rent is the basis to determine the annual value of a property. This was the sole basis prior to the assessment year 1975-76. However, after the amendment
4 M/s. Milestone City Complex Pvt. Ltd. of section 23(1) by the Taxation Laves (Amendment) Act, 1975, the Legislature has clearly laid down under section 23(1)(b) that when the actual annual rent received or receivable is in excess of the fair rent determinable under section 23(1)(a), then such higher actual annual rent would constitute the annual value of the property. It is important to bear in mind that under section 22, the measure of income from house property is its annual value. The annual value is to be decided in accordance with section 23(1). By, virtue of the amendment, clause (a) states that annual value is the sum for which the property might reasonably be expected to be let from year to year whereas clause (b) covers a case where the property is let and the actual rent is in excess of the sum for which the property might reasonably be expected to be let from year to year. In our view, this later insertion of clause (b) by the Taxation Laws (Amendment) Act, 1975 is meant to cover a case where the rent per annum actually received by the owner is in excess of the fair rent or the standard rent under the rent control legislation. Now, in this case, the department has invoked section 23(1)(b). Now, in this case, it has been found that the actual rent received by the assessee is more than the fair rent even without taking into account notional interest. Generally, the fair rent is fixed even under the B.M.C. Act and the Rent Act by taking into account various principles of valuation, viz., contractor's method, the rent method etc. However, that exercise is undertaken to decide the fair rent of the property. In that connection, the actual rent received by the lessor also provides a piece of evidence to decide the fair rent of the property. However, under the Income Tax Act, the scheme is slightly different. Section 23(1)(b) provides that where the actual rent is more than the fair rent, the actual rent would be the annual value of the property. In the circumstances, the value of the notional advantage, like notional interest in this case, will not form part of actual rent received as contemplated by section 23(1)(b). At the cost of repetition it may be mentioned that under section 23(1)(a), the assessing officer has to decide the fair rent of the property. While deciding the fair rent, various factors could be taken into account. In such cases various methods like contractors method could be taken into account. If on comparison of the fair rent with the actual rent received, the assessing officer finds that the actual rent received is more than the fair rent determinable as above, then actual rent shall constitute the annual value under section 23(1)(b). Now, applying the above test to the facts of this case, we find a categorical finding of fact recorded by the Tribunal that the actual rent received by the assessee was more than the fair rent. Under the above circumstances, in view of the said finding of fact, we do not see any reason to interfere.
Before concluding we may point out that under section 23(1)(b), the word . receivable' denotes payment of actual annual rent to the assessee. However, if in a given year a portion of the actual annual rent is in arrears, it would still come within section 23(1)(b) and it is for this reason that the word 'receivable' must be read in the context of the word 'received'
5 M/s. Milestone City Complex Pvt. Ltd. in section 23(1)(b). In the light of the above interpretation, notional interest cannot form part of the actual rent as contemplated by section 23(1)(b). We once again repeat that whether such notional interest could form part of the fair rent under section 23(1)(a), is expressly left open.”
In the instant case, we notice that the AO has added the notional interest to the rental income declared by the assessee. There is no mention in the assessment order that the rent received/receivable by the assessee was less than the Fair rental value as prescribed u/s 23(1)(a) of the Act. Hence there is merit in the contentions of the assessee that the Annual letting value has been computed by the AO u/s 23(1)(b) of the Act. The Ld D.R also did not contradict the above said submission made by the assessee. In the case of J.K. Investors (Bombay) Ltd (supra), the jurisdictional High Court has stated that the notional interest cannot be added to the annual letting value computed u/s 23(1)(b) of the Act. Hence we do not find any infirmity in the order passed by Ld CIT(A) in both the years under consideration on this issue. Accordingly we affirm his order passed on this issue.
In the result, both the appeals of the revenue are dismissed.
Order has been pronounced in the Court on 15.12.2016