2010 (6) TMI 485 - AT - Wealth-tax

Assets - Whether the immovable property owned by the Assessee can be included in the net wealth of the Assessee? - Held that - the Assessee had given the property on lease and therefore it cannot be said that he was in occupation of the property for the purpose of a business or profession carried on by him. The exclusion clause in the definition of assets u/s. 2(ea) of the Act contemplates physical possession by the Assessee as opposed to dejure possession. - the Value of the the immovable property owned by the Assessee has to be included in the net wealth of the Assessee. Regarding valuation - Computation of GMR - if the actual rent received is much higher than the annual value assessed by local authority then that has to be taken as laid down in Rule-5(i) of Schedule-III to the Act. - the registered valuer report was never filed before the WTO and therefore the same cannot be taken cognizance. - under Proviso (iii) to Expln., to Rule 5 Schedule-III to the Act, the addition of 15% interest on interest free security deposit to the annual rent received by the Assessee was proper and in accordance with law. -

Summary

Issues Involved:
1. Classification of income from service charges received from letting out a business center.
2. Inclusion of immovable property in the net wealth of the assessee.
3. Valuation of the immovable property for the purpose of determining net wealth.

Issue-Wise Detailed Analysis:

1. Classification of Income from Service Charges:
The primary issue was whether the service charges of Rs. 83,99,300/- received from letting out a business center should be classified as "Income from House Property" or "Income from Business." The Tribunal referred to its earlier decision for AY 97-98, where it was held that out of the total amount received, Rs. 5,00,000 should be attributed to service charges for providing various services and assessed under "Income from Other Sources." The remaining amount was to be assessed under "Income from House Property." The Assessing Officer (AO) was directed to follow this decision and allow deductions under section 24 of the Income Tax Act concerning income from house property. The appeal was thus partly allowed.

2. Inclusion of Immovable Property in Net Wealth:
The next issue was whether the immovable property at No. 6, 4th floor, 'Sahas,' Veer Savarkar Marg, Prabhadevi, Mumbai, could be included in the net wealth of the assessee. The property was let out to M/s. Hutchison Max Telecom Pvt. Ltd. under an agreement titled "Agreement for Security Deposit," with the assessee receiving an interest-free security deposit of Rs. 6,40,00,000/-. The assessee argued that the property was used as a business center and thus should be excluded from the definition of "assets" under section 2(ea) of the Wealth Tax Act, which excludes "any house which the assessee may occupy for the purposes of any business or profession carried on by him." However, the Tribunal noted that the property was not in the actual occupation of the assessee and was used by the lessee, thus falling within the definition of assets under section 2(ea). The Tribunal also rejected the argument that the property was given on a license basis, determining it was a lease due to the terms of the agreement, such as the long tenure and significant security deposit. Consequently, the value of the property was to be included in the net wealth of the assessee.

3. Valuation of the Immovable Property:
The final issue was the valuation of the property for determining net wealth. Under section 7 of the Wealth Tax Act, the value of any asset is to be determined per Schedule-III, which involves multiplying the Net Maintainable Rent (NMR) by 12.5. The AO computed the Gross Maintainable Rent (GMR) by adding 15% interest on the security deposit to the annual rent received. The CIT(A) upheld this method but allowed a deduction of Rs. 5 lacs from the GMR, consistent with the ITAT's earlier decision. The assessee's argument that the annual value assessed by the local authority should be used instead of the actual rent was rejected, as Rule 5(i) of Schedule-III specifies that the higher of the two should be taken. The Tribunal confirmed the CIT(A)'s decision, rejecting the assessee's arguments regarding the nature of the letting and the need for a reference to the Departmental Valuation Officer (DVO). The Tribunal found the registered valuer's report irrelevant as it pertained to fair rent estimation, not the actual rent received.

Conclusion:
In conclusion, the Tribunal dismissed all the appeals by the assessee, affirming that the service charges should be partly classified as "Income from House Property" and "Income from Other Sources," the immovable property should be included in the net wealth, and the valuation method used by the AO and upheld by the CIT(A) was correct.