2010 (6) TMI 512 - AT - Income Tax

Income from house property or other sources or business income - Unaccounted cash credit - Set off and carry forward of losses - Held that - The main intention of the assessee as is evident from the terms and conditions of the relevant agreements was to derive income by the exercise of property rights in the form of fixed monthly rent - The property thus was given by the assessee on leave or licence basically for earning income there from in the form of rent and the character of income so derived was income from house property falling u/s 22 as held by the authorities below - On this basis, the rental income, can reasonably be bifurcated as 80% for land and building and 20% for other assets and the same can be taxed under the head income from house property and income from other sources respectively Deduction of expenses - assessee is claimed to have incurred the major expenditure on account of interest in respect of funds borrowed for acquisition of assets - On verification, if it is found that the corresponding funds were borrowed for acquisition of land and building, the interest paid thereon has to be allowed as deduction while computing income from house property - matter remanded back for verification. Regarding unaccounted cash credit - no opportunity was specifically given to the assessee either by the A.O. or by the ld. CIT(A) to produce the cash book in order to establish the availability of cash on the relevant dates to make deposit in the bank account - Decided in the favour of the assessee by way of remand Regarding set off of brought forward business loss and unabsorbed depreciation is consequential to the main issue relating to the head of income under which rental income is chargeable to tax - the assessee will not be entitled to claim any set off of brought forward business loss and unabsorbed depreciation since there is no income chargeable to tax in its hands under the head profits and gains of business - Decided against the assessee

Summary

Issues Involved:
1. Treatment of lease rental receipts as "income from house property" versus "business income."
2. Disallowance of expenses claimed by the assessee.
3. Addition on account of unexplained cash deposits.
4. Non-allowance of set-off of brought forward business loss and unabsorbed depreciation.

Detailed Analysis:

1. Treatment of Lease Rental Receipts:
The primary issue was whether the lease rental receipts should be taxed under "income from house property" or "profits and gains of business." The assessee, a partnership firm, declared rental income from buildings leased for running a hotel business as business income. The Assessing Officer (A.O.) reclassified this income under "income from house property," disallowing various expenses claimed by the assessee.

The assessee argued that the buildings were commercial assets, and income from their exploitation should be considered business income, citing past operations and temporary leasing due to financial crises. However, the A.O. and CIT(A) found no evidence of ongoing business activities or plans to resume the hotel business. The lease agreements indicated long-term arrangements, contradicting the assessee's claim of temporary leasing.

The Tribunal upheld the authorities' decision, stating that the primary intention was to earn rental income, not to engage in business activities. The rental income was thus chargeable under "income from house property."

2. Disallowance of Expenses:
The assessee claimed deductions for various expenses, including significant interest payments and depreciation. The A.O. disallowed these expenses, arguing they were not related to any business activity. The CIT(A) concurred, noting the absence of business operations.

The Tribunal directed a fresh examination of the expenses. It acknowledged that interest on borrowed funds for acquiring assets should be allowed proportionately under "income from house property" and "income from other sources." Depreciation on assets used for generating income from other sources should also be considered.

3. Addition on Account of Unexplained Cash Deposits:
The A.O. added Rs. 1,82,000 to the assessee's income under Section 68, citing unexplained cash deposits. The assessee contended these deposits were from available cash, supported by cash book extracts. The CIT(A) upheld the addition due to the assessee's failure to produce the complete cash book.

The Tribunal restored this issue to the A.O., directing verification of the cash book to ascertain the source and genuineness of the deposits.

4. Non-Allowance of Set-Off of Brought Forward Business Loss and Unabsorbed Depreciation:
The assessee sought to set off brought forward business losses and unabsorbed depreciation against the rental income. The CIT(A) denied this, as the rental income was not classified under "profits and gains of business."

The Tribunal upheld this decision, confirming that the rental income was not eligible for set-off against business losses and unabsorbed depreciation since it was taxable under "income from house property" and "income from other sources."

Conclusion:
The Tribunal concluded that the rental income was rightly classified under "income from house property," disallowing the claimed expenses and set-offs. The issue of unexplained cash deposits was remanded for further verification. The appeal was partly allowed for statistical purposes.