2005 (8) TMI 97 - HC - Income Tax

Assessee leased out the house property - Whether Tribunal erred in law in directing the Assessing Officer to adopt the gross rent received by the assessee being lessor from the let-out property for the purpose of computing income from house property in place of much higher rent fetched by the lessee by sub-letting the same property? - The receipt of higher rent by the lessee would not be a factor for determining the annual value and thus the rent received by the lessee cannot be a factor for assessing the income from house property under section 23(1)(b) at the hands of the lessor-assessee. - The notional interest since waived on the interest-free loan not forming part or component of the rent and being irrecoverable from the lessee as rent in case of dispute the same can never be a factor to be taken into consideration for determining the actual rent received for the purpose of section 23(1)(b) Question is answered in negative

Issues Involved:
1. Determination of annual value for computing income from house property.
2. Relevance of rent received by the lessee in sub-letting the property.
3. Impact of interest-free loan on determination of income from house property.

Detailed Analysis:

1. Determination of Annual Value for Computing Income from House Property:
The central issue is whether the Income-tax Appellate Tribunal erred in directing the Assessing Officer to adopt the gross rent received by the assessee (lessor) rather than the higher rent fetched by the lessee (sub-lessor) for computing income from house property. The assessee leased out the property to HMPS for Rs. 21,000 per month, but HMPS sub-let it for an annual rent of Rs. 18,33,000. The Assessing Officer assessed the property at Rs. 18,33,000, but this was reversed by the Commissioner (Appeals) and affirmed by the Tribunal.

2. Relevance of Rent Received by the Lessee in Sub-letting the Property:
The court examined whether the higher rent received by the lessee (HMPS) should influence the annual value assessed for the lessor. It was held that the rent received by the lessee from sub-letting is immaterial for determining the income from house property for the lessor. The court emphasized that Section 23(1)(b) of the Income-tax Act, 1961, stipulates that the annual value of a let-out property should be based on the actual rent received by the owner, not the rent received by the lessee. This principle was supported by precedents such as Mrs. Sheila Kaushish v. CIT [1981] 131 ITR 435 (SC) and Dewan Daulat Rai Kapoor v. New Delhi Municipal Committee [1980] 122 ITR 700 (SC).

3. Impact of Interest-free Loan on Determination of Income from House Property:
The court also addressed whether an interest-free loan received by the assessee from the lessee should be factored into the annual value of the property. It was concluded that the interest-free loan does not constitute rent and thus cannot be included in the annual value under Section 23(1). This position was reinforced by the decision in CIT v. Satya Co. Ltd. [1994] 75 Taxman 193 (Cal), which held that notional interest on a deposit is not actual rent received or receivable and should not be included in the annual value.

Conclusion:
The court concluded that the annual value for computing income from house property should be based on the actual rent received by the lessor, not the higher rent fetched by the lessee through sub-letting. Additionally, interest-free loans should not be considered in determining the annual value. Consequently, the appeal was dismissed, and the Tribunal's order was affirmed. The question was answered in the negative, and there was no order as to costs.

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