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Income Tax Appellate Tribunal, DELHI BENCH `D’ NEW DELHI
Before: SHRI N.K. SAINI & SHRI CHANDRA MOHAN GARG
This appeal by the revenue has been preferred against the order of CIT(A)-VIII, New Delhi dated 27.07.2012 passed in Appeal No. 402/2011-12 for AY 2009-10.
Ground No. 1 and 3 of the revenue are general in nature which need no adjudication. Remaining grounds of the Revenue containing sole issue/controversy read as under:-
“2. On the facts and circumstances of the case, the ld. CIT(A) has erred in deleting the addition of Rs.32,76,000/- u/s 24(a) of the Act.
Asstt.Year: 2009-10 2.1 The CIT(A) ignored the finding recorded by the AO and the fact that the deduction u/s 24(a) is allowable only on building rent and not on the services provided like air conditioning, furniture, power back-up.” 3. We have heard rival arguments of both the sides and carefully perused the relevant material placed on record before us, inter alia, assessment order appellate order and ratio of the judgements relied by the ld. Counsel of the assessee.
Ld. DR took us through the provisions of section 56(2)(iii) and section 24(a) of the Income Tax Act, 1961 (for short the Act). Ld. DR further submitted that the rented premises in question is furnished and centrally air- conditioned with power back up which is an integral and inseparable part of the rented building, therefore, the AO was correct and justified in treating the rental receipts of the assessee as composite rent as per provisions of section 56(2)(iii) of the Act. Ld. DR further submitted that the AO rightly followed the provisions of the Act in disallowing deduction of Rs.32,76,000 which was claimed by the assessee u/s 24(a) of the Act. Ld. DR further pointed out that the CIT(A) granted relief to the assessee by following order of his predecessor in assessee’s own case for AY 2008-09 dated 25.2.2011 in Appeal No. 121/2010- 11 which is perverse and incorrectly based upon misinterpretation of the provision of section 56(2)(iii) of the Act. Ld. DR vehemently contended that the CIT(A) has reproduced relevant part of the order of his predecessor for AY 2008-09 at page 3 wherein it has been held that the premises was leased out 2 Asstt.Year: 2009-10 with the amenities like wooden cabins, wooden empanelling, central air- conditioning plant, adequate power back up through 200 KVA diesel generator etc. and without these amenities, the bare building is of no use which is a common feature of any property. Ld. DR further contended that the CIT(A) was not logical in comparing the kitchen ventilaton and electric fittings with the amenities such as wooden cabins and empanelling, central air-conditioning plant and 200 KVA diesel generators supported power back up and the rental income has to be treated as composite rent as per letter and spirit of the section 56(2)(iii) read with section 24(a) of the Act. Ld. DR lastly submitted that the CIT(A) granted relief to the assessee without any justified reason and on the basis of illogical and unsustainable reasoning based on the misinterpretation of the provisions of the Act, therefore, the same may be set aside by restoring that of the AO.
Replying to the above, ld. Counsel of the assessee reiterating its submission before authorities below submitted that said premises is furnished and centrally air-conditioned with power back up and furnishing of building is just ordinary and comprises minor part of value of the whole property. He further contended that central air-conditioning and wooden cabins and wooden empanelment are an integral part of rented building and since the said property is owned by and belongs to the assessee, there is no question of treating the rental income as composite rental income. Ld counsel strongly supporting the Asstt.Year: 2009-10 order of the first appellate authority submitted that the AO misinterpreted the facts and circumstances of the case which were rightly considered by the CIT(A) while granting relief to the assessee. Ld. Counsel further pointed out that air-conditioning plant with power back up, wooden cabins and wooden empanelling are common in nature which are to be provided to the tenants/lessees to carry out their day to day work by the landlord and without those the tenant cannot function. Ld. Counsel supporting the conclusion of the CIT(A) further submitted that the amenities are provided by the assessee to exploit the property in most profitable manner. Therefore, the rental income of the assessee cannot be held as composite rent only because some necessary amenities have been provided by the assessee to the tenant. Ld. Counsel finally prayed that the order of the CIT(A) is correct and justified and appeal of the revenue being devoid of merits may be dismissed. Ld. Counsel of the assessee has placed reliance on the ratio of the judgment of Hon’ble Supreme Court in the case of Sultan Brothers (P) Ltd. vs CIT (1964) 51 ITR 353 (SC).
6. Ld. DR also placed a rejoinder to the above submissions of the assessee and submitted that where letting of building and fixtures, fittings, air- conditioning plant, furniture and generator set etc. were inseparable part of the rented premises, then the rental income is composite rent which should be assessed as income from other sources and CIT(A) was not correct in treating the same as income from house property.
Asstt.Year: 2009-10 7. On careful consideration of above submissions of both the sides, at the very outset, we find it appropriate to reproduce provisions of section 24(a) and section 56(2)(iii) of the Act which red as under:-
“24. Deduction from income from house property
Income chargeable under the head “Income from house property” shall be computed after making the following deductions, namely: (a) A sum equal to thirty per cent of the annual value;”
Income from other sources. (2) In particular, and without prejudice to the generality of the provisions of sub-section (1), the following incomes, shall be chargeable to income-tax under the head “Income from other sources”, namely :— (i) xxxxxxxx [(ia) xxxx b)xxxxxxx [(ic) xxxxxxxx [(id) xxxxxxxx (ii) xxxxxxxxxx (iii) where an assessee lets on hire machinery, plant or furniture belonging to him and also buildings, and the letting of the buildings is inseparable from the letting of the said machinery, plant or furniture, the income from such letting, if it is not chargeable to income-tax under the head “Profits and gains of business or profession” ; Asstt.Year: 2009-10 8. On careful consideration of above relevant provisions of the Act in the context of controversy of the present case, we observe that the crux of the issue is that the AO treated the rental income of the assessee as composite rental income and denied the claim of deduction u/s 24(a) of the Act submitted by the assessee. The AO followed the assessment order in assessee’s own case for AY 2008-09 while dismissing the claim of the assessee which reads as under:-
“'The AR of the assessee vide reply dated 24.11.2010 has submitted that the Basement, Ground Foor, 1st Floor & 2nd Floor of the building situated at 811, Udyog Vihar, Phase -V, Gurgaon, Haryana has been rented to M/s. Feed Back Venture (P) Ltd. in terms of Lease Deed dated 05.10.2007 on a monthly rent of Rs.9,10,000/-. The said premises are furnished and centrally air conditioned with power backup. The furnishing of building is just ordinary and comprises of minor part of the whole value of the property. Similarly, centrally air conditioning is also an integral part of building. Since, the said property is owned by and belongs to the assessee, there is no question of treating the rental income as composite rental income. The submissions made by the assessee are examined and considered. The contention of the assessee is rejected and the rental income declared by the assessee at Rs.82,45,000/- is held to be composite rent and assessed as per the provisions of section 56(2)(iii) of the Income Tax Act, 1961. In view of the above, an amount of Rs.24, 73,500/- deduction claimed under section 24(a) of the Income Tax Act is disallowed and added back to the net taxable income of the assessee. I am satisfied that the assessee filed inaccurate particulars of its income and thereby concealed its income to the tune of Rs.24,73,500/-. Penalty proceedin.9s under section 271 (1)(c) are initiated separately for furnishing inaccurate particulars of income. (Addition of Rs.24,73,500/-)"
From the vigilant reading of the impugned order, we note that the CIT(A) has granted relief to the assessee for the year under consideration i.e A. Y 2009- 10 while passing the impugned order by following order of his predecessor for AY 2008-09 (supra) wherein it was held as under:-
“I have considered the submission of the appellant findings of the AO and the facts on record. Perusal of the facts on record show that this issue on identical facts was decided by my predecessor in favour of the appellant in A.Y 2008-09 vide order dated 25/02/2011 in Appeal No. 121/2010-11. While deciding the issue in favour of the appellant the CIT(A)-VII, had held as under:- “3.1 I have considered the written submission on behalf of the appellant, the findings of the Assessing Officer and the facts on record. In the present case, the assessee made a lease agreement for letting out of the property and for providing amenities and there is a doubt in the mind of the Assessing Officer regarding the correctness of the income declared by the assessee as income from house property’. He has treated the entire income as Composite rent and assessed the same as per the provisions of Section 56(2) (iii) of the Act. After going through the facts of the case, I am of the opinion that the air conditioning plant, with power back up, wooden cabins and wooden empanelling are common in nature which are to be provided to the tenants/lessees to carry out their day-to day works by the landlord, without these they cannot function. Keeping in view the nature of activities of the tenants/lessees, the amenities are provided by the assessee to exploit the property in most profitable manner. In the present case, the assessee made a lease agreement on 5/10/2007 with M/s Feedback Ventures Private Limited in respect of the premises situated at building No. 811 comprising of basement, ground floor, first floor and second floor which was leased out during the year under consideration on monthly rent of Rs.9,10,000/- with the amenities like wooden cabins and wooden empanelling, central air conditioning , adequate power back up through a 200 KVA diesel generator. Without these amenities, the bare building is of no use, which is a common feature in any property. For a property to be used as residential certain kinds of amenities and fixtures would be required or else people cannot inhabit it-such as kitchen, ventilations, electrical fitting etc. and the same goes for a commercial property-without some amenities such as provision for air-conditioning and cabins, it cannot be useful for any purposes. Therefore, just because there is something beyond the bare structure that is being provided, it cannot be said that these amenities are not part of the property itself. However, since these amenities are not separate assets such as Plant and Machinery, the provisions of Section 56(2) do not apply here. Further, in the case of letting of the machinery, 7 Asstt.Year: 2009-10 plant or furniture, Section 56(2) (iii) of the Act is applicable, but only letting of building with certain amenities, this provision is not applicable and in that event, the income from letting out is chargeable under the head ‘Income from house property’ The rent for the building would not come under the purview of Section 56(2) (iii) of the Act.”
10. From the order of the AO as well as order of the appellate authority for AY 2008-09, it is amply clear that the AO treated the rental income of the assessee from the premises situated at 811, Udyog Vihar, Phase-V, Gurgaon, Haryana as composite rental income and denied the deduction u/s 24(a) of the Act as per provisions of section 56(2)(iii) of the Act. During first appellate proceedings, the CIT(A) allowed the claim of the assessee following the order of his predecessor for AY 2008-09 as per conclusion in para 3.1 as reproduced hereinabove. For AY 2009-10, the AO made similar disallowance and addition by following the assessment order of AY 2008-09 and in the similar fashion, the CIT(A) granted relief to the assessee following the order of his predecessor in favour of the assessee appellant for AY 2008-09 dated 25.2.11 (supra). The main controversy revolves around the question whether the rental income received by the assessee during relevant financial period in respect of the premises in question was composite rental income as the said premises/building was leased out during the year under consideration on the monthly rent of Rs.9,10,000 with amenities like wooden cabins and empanelling, central air- conditioning plant with power back up through 200KVA diesel generator. From para 3 of the assessment order for the year under consideration i.e. 2009-10, it is vivid that the assessee submitted rent agreement with M/s Feedback Ventures Asstt.Year: 2009-10 (P) Ltd. vide its letter dated 29.10.11 which was considered while disallowing the claim of the assessee u/s 24(a) of the Act.
At this juncture, we respectfully took cognizance of the decision of Hon’ble Jurisdictional High Court of Delhi in the case of Garg Dyeing & Processing Industries vs ACIT reported as (2013) 212 Taxman 160 (Delhi) wherein their lordships held that where letting of building and fixtures, air- conditioning plant, furniture etc. were inseparable, then rental income has to be assessed as income from other sources. The relevant operative part of this order in para 5 & 6 read as under:-
“5. The contention urged on behalf of the assessee in support of the appeal is that the fittings and fixtures and other installations in the let out premises were installed only at the desire of the lessee and in such circumstances, the income should properly be assessed under the head "income from house property" as mandated by Section 22 of the Act. The relevant portions of the lease documents were read out to us to drive home the point. We do not think that anything turns on the fact as to at whose instance the machinery, plant or furniture were installed in the leased premises. The real test which has been applied by the Tribunal, and rightly so is to see whether the letting is a composite or inseparable letting and if it is so, the rent falls for being assessed under the residual head of income and not under the head "property". The order of the Tribunal and the finding that the letting out of the plant, machinery or furniture and the premises constituted a single, composite and inseparable letting is based on the tests laid down by the constitution bench of the Supreme Court in the case of Sultan Bros. (P) Ltd. (supra). Sarkar, J, speaking for the Court set out the principles that are applicable for deciding whether the letting is an inseparable letting in the following words: "What, then, is inseparable letting? It was suggested on behalf of the respondent Commissioner that the sub-section contemplates 9 Asstt.Year: 2009-10 a case where the machinery, plant or furniture are by their nature inseparable from a building so that if the machinery, plant or furniture are let, the building has also necessarily to be let along with it. There are two objections to this argument, In the first place, if this was the intention, the section might well have provided that where machinery, plant or furniture are inseparable from a building and both are let, etc. The language however is not that the two must be inseparably connected when let but that the letting of one is to be inseparable from the letting of the other. The next objection is that there can be no case in which one cannot be separated from the other. In every case that we can conceive of, it may be possible to dismantle the machinery or plant or fixtures from where it was implanted or fixed and set it up in a new building. As regards furniture, of course, they simply rest on the floor of the building in which it lies and the two indeed are always separable. We are unable, therefore, to accept the contention that inseparable in the sub- section means that the plant, machinery or furniture are affixed to a building. It seems to us that the inseparability referred to in sub-section (4) is an inseparability arising from the intention of the parties. That intention may be ascertained by framing the following questions: 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? Was it the intention to make the letting of the two practically one letting? Would one have been let alone and a lease of it accepted without the other? If the answers to the first two questions are in the affirmative, and the last in the negative then, in our view, it has to be held that it was intended that the lettings would be inseparable. This view also provides a justification for taking the case of the income from the lease of a building out of section 9 and putting it under section 12 as a residuary head of income. It then becomes a new kind of income, not covered by section 9, that is, income not from the ownership of the building alone but an income which though arising from a building would not have arisen if the plant, machinery and furniture had not also been let along with it."
It is only by applying the aforesaid tests to the facts of the present case that the Tribunal held that the letting in the present case was a composite one. In so concluding the Tribunal contrasted the terms under which the ground and first floors of the building were leased to Haldirams. What was let out to Asstt.Year: 2009-10 Haldirams was the bare space with only a right given to the lessee to use the common facilities such as lift, lobby, staircases, corridors etc. in order that the property can be enjoyed effectively; there was no letting out of machinery; plant or furniture to Haldirams. However, in the disputed cases there was a letting of the fixtures, fittings, air-conditioning plant, furniture etc. together with the building and both were inseparable. This is what the Tribunal has found. It further found that the intention of the parties was that there was to be a single inseparable letting as evidenced by a composite lease deed for which a consolidated lease rent was fixed. In these circumstances, we are of the view that the substantial question of law has to be answered in the affirmative and against the assessee.” (Emphasis respectfully supplied by us by underlining) 11. At the very outset, it would be necessary and relevant to consider written submissions dated 16.10.2015, and proposition laid down by ITAT Mumbai ‘I’ Bench in the case of AIPITA Marketing Pvt. Ltd. vs ITO (2008) 21 SOT 0302 (Mumbai Trib), as relied by the learned counsel of the assessee. Learned counsel of the assessee reiterating assessee’s submissions before the CIT(A) dated 16.2.2010 and submissions before us (supra) pointed out that the earlier tenant M/s ISMART PANACHE (India) got the said premises centrally air- conditioned and created wooden cabins and installed other furniture and fixtures. The said tenant vacated the premises in June, 2007, leaving behind the centrally air conditioning plant and other furniture and plant intact and the assessee paid value of these assets to Rs.7,47,300 to the said tenant as there was no point in disrupting these items and it did not have such value. The ld. Counsel further explained that the assessee has further let out the said building in September 2007 to the present tenant M/s Feedback Ventures Pt. Ltd. which Asstt.Year: 2009-10 has four floors measuring covered area of 1000 sq. ft approx and the market value of said property was more, between 7-8 crores at that time and in comparison, the value of said facilities were to the tune of 7-8 lakh only which is insignificant in front of the market value of the property i.e. land and building which is given on rent.
Learned counsel of the assessee vehemently contended that the assessee has not claimed any depreciation which again shows that the assessee’s intention was to earn rental income from said building. Learned counsel of the assessee pointed out that section 56(2)(iii) of the Act is applicable where the assessee mainly lets out hire machinery, plant, fixtures and also building and letting of building is inseparable from said machinery, plant or furniture. Learned counsel of the assessee placed his reliance on the order of ITAT Mumbai ‘I’ Bench in AIPITA Marketing Pvt. Ltd. vs ITO (supra). Learned counsel of the assessee also contended that the order of Hon'ble High Court of Delhi in the case of Garg Dyeing & Processing Industries vs ACIT (supra) is entirely on different facts as in the said case, finding of fact had been arrived by the ITAT, that depreciation had been claimed by the assessee. The assessee wanted to use the assets as business assets. It was also contended by the learned counsel of the assessee that in the case of Garg Dyeing (supra), the issue of applicability of section 56(2)(iii) of the Act was not considered. Learned Departmental Representative also placed rejoinder to aforesaid contentions of the assessee and submitted that Asstt.Year: 2009-10 claiming depreciation is not a sole basis or test to determine nature and taxability of rental income which had accrued to the assessee on letting of a building along with furniture, fixtures, centrally air conditioning plant and 200KWA generator set power back up being inseparable, then the rental income should be taxed under the head ‘income from other sources’ which further resulted in disallowance u/s 24 of the Act. Learned Departmental Representative submitted that the dicta laid down by ITAT Mumbai order in AIPITA (supra) case is not applicable to the present case.
On careful consideration of above, at the very outset, we note that the Tribunal order in AIPITA (supra) was rendered on 24.8.2007 whereas the order of Jurisdictional High Court in the case of Garg Dyeing (supra) was rendered on 22.11.12. In this order, the Hon'ble High Court considered following question of law:-
“was the Tribunal correct in holding that the rent received by the appellant was assessable as income from other sources?” 14. Furthermore, in this order, their lordships, speaking for jurisdictional High Court, it was noticed that the Tribunal held that the letting of the plant, machinery or furniture and the premises constituted a single, composite and inseparable letting rental income be assessed as ‘ income from other sources’ which resulted in the disallowance u/s 24 of the Act. Their lordships in para 7 extensively and chronologically referred to dicta of Hon’ble Calcutta High Court in the case of Shambhu Investments (P) Ltd. and they also considered provision 13 Asstt.Year: 2009-10 of section 56(2)(iii) of the Act, thus, we have no hesitation to hold that the contentions of ld. Counsel are misplaced and the facts of the case of Garg Dyeing (supra) are similar to the extant case as in the present case, the assessee earned rental income from composite letting of building along with wooden cabins, central air-conditioning plant supported by 2000KVA diesel generator power back up under one composite rental agreement, then the income from such composite letting shall be chargeable to tax under residuary head i.e. income from other sources and the dicta laid down by Hon’ble Jurisdictional High Court, which is binding precedent on the Tribunal in Garg Dyeing (supra), is squarely applicable to the present case in the similar set of facts and circumstances.
In the light of ratio of the decision of Hon’ble High Court of Delhi in the case of Garg Dyeing & Processing Industries vs ACIT (supra), we observe that in the cases where there was a let out of furniture, fixtures etc. together with the building and both were inseparable, then the intention of the parties viz. landlord and tenant was that there was to be a single inseparable letting as evidenced by the composite lease deed for which a consolidated lease rent was fixed. Then in these circumstances, the rental income therefrom has to be treated as composite rental income in view of section 56(2)(iii) of the Act and thus claim of deduction u/s 24(a) of the Act of the assessee is not sustainable and acceptable which was rightly denied by the AO. We further hold that the logic and comparison given Asstt.Year: 2009-10 by the CIT(A) in the order for AY 2008-09 while granting relief to the assessee which was followed by the CIT(A) for AY 2009-10 while passing the impugned order is not acceptable even by a man of ordinary prudence because the essential ventilators and electric fitting in a kitchen cannot be compared with the amenities of wooden cabins and empanelment, central air-conditioning facility supported by power back up through 200 KVA generator set which is inseparable from the letting of the building and the income from such letting of building shall be chargeable to income tax under the head “income from other sources”. Thus, as per facts and circumstances of the present case, as noted above, the observations and conclusion of the CIT(A) cannot be held as sustainable and in accordance with the provisions of the Act.
When we analyse the facts of the present case, it is amply clear from the factum recorded by the AO and the CIT(A) during assessment and appellant proceedings for AY 2008-09 that the assessee made a lease agreement on 5.10.2007 with M/s Feedback Ventures Industries Pvt. Ltd. in respect of the premises situated at Building No. 811, comprising basement, ground floor, first floor and second floor which was leased out during AY 2008-09 on monthly amount of Rs.9,10,000 with the amenities like wooden cabins, central air- conditioning, power back up through 200KVA diesel generator set. These facts have not been disputed by either of the parties. As per letter and spirit of provision of section 56(2)(iii) of the Act where the letting of building is Asstt.Year: 2009-10 inseparable from the letting of the machinery, plant or furniture, the income of such letting, if not chargeable to tax under the head of “profits and gains of business or profession”, then the income therefrom shall be chargeable to tax under the “head income from other sources”.
In the above noted facts of the present case, when we analyse the conclusion of the AO in the light of section 56(2)(iii) of the Act along with the ratio of the judgment of Hon’ble Jurisdictional High Court in the case of Garg Dying and Processing Industries vs ACIT (supra), we are inclined to hold that the AO rightly held that the letting of building with the aforesaid amenities was a conscious act of the letting of the building which was inseparable from the letting of said amenities viz. wooden cabins, central air-conditioning plant supported by adequate power back up through 200 KVA diesel generator and thus the income from such letting, if it is not chargeable to income tax under the head of “profits and gains of business or profession”, then the same shall be chargeable to tax under the residuary head i.e. “income from other sources”.
We, thus, also hold that the conclusion of the first appellate authority viz.
CIT(A) for AY 2008-09, which was followed by the CIT(A) while passing the impugned order is not only illogical but also carries perversity based on misinterpretation of the section 56(2)(iii) of the Act and against the ratio of the judgement of Hon’ble High Court of Delhi in the case of Garg Dying and Processing Industries vs ACIT (supra). In this judgement, their lordships have Asstt.Year: 2009-10 also considered the ratio of the judgement of Hon’ble Apex Court in the case of Sultan Brothers Pvt. Ltd. vs CIT (supra) as relied by the ld. Counsel of the assessee and it was also held that in the disputed cases there was a letting of the fixtures, fittings, air-conditioning plant, furniture etc. together with building and both were inseparable and the intention of the parties was that there was to be a single inseparable letting as evidenced by a composite lease deed for which a consolidated rent was fixed, then the Tribunal has to hold that the same is “composite rent” chargeable to tax under the residuary head i.e. “income from other sources”.
The relevant operative part of para 6 of this judgement, as reproduced hereinabove in para 10 of this order, is very clear which supports the view taken by the AO and conclusion of the CIT(A) is not in accordance with and contrary to the provisions of section 56(2)(iii) of the Act and the same is not sustainable in the light of the ratio of the judgement of Hon’ble High Court of Delhi in the case of Garg Dying and Processing Industries vs ACIT (supra).
In view of our foregoing discussion, respectfully following the dicta laid down by Hon’ble High Court of Delhi in the case of Garg Dying and Processing Industries vs ACIT (supra), we decline to accept the view taken by the CIT(A) in the impugned order and we uphold the view taken by the AO that the rental income of the assessee from letting out building along with said amenities is a “composite rental income” assessable under the head “income from other Asstt.Year: 2009-10 sources” u/s 56(2)(iii) of the Act and thus, the assessee is not entitled for claim of deduction u/s 24(a) of the Act. Accordingly, ground no. 2 and 2.1 of the revenue are hereby allowed.
In the result, the appeal of the revenue is allowed.
Order pronounced in the open court on 18.12.2015.