2014 (12) TMI 1321 - AT - Income Tax

Income from subletting and other services - assessable as profit and gains from the business OR income from house property - Held that - The assessee was given right to assigned sub-let under-let or part with any possession of the room or any part of room or permit any person to occupy even in case of temporary absence of assessee . By virtue of this agreement assessee collected licence fees and other charges from sub-tenants and the Revenue all along has accepted the income declared by the assessee under the head profits and gains of business or profession . The terms of the lease of business assets the intention of the lessor is that the asset leased out must remain and be treated as commercial asset and there is an exploitation of the commercial asset during the lease period and lease received is assessable as business income. In view of the above facts of the case that the assessee is consistently declaring the receipt of income from sub tenants under the head profits and gains of business or profession we are of the view that principle of consistency will apply in this case as the issue stand covered by the decision of coordinate bench in the case of M/s. Banwarilal Goel & Sons Vs. ITO 2014 (2) TMI 1337 - ITAT KOLKATA In view of the above discussions we uphold the grievance of the assessee and direct the Assessing Officer to treat the income in question as income from business as has been in preceding and subsequent assessment year. - Decided in favour of assessee

Issues Involved:
1. Classification of income from subletting and other services as "profits and gains from business" versus "income from house property".
2. Determination of whether two companies with common directors constitute separate entities or a colorable device.
3. Interpretation of the relationship between the lessor and lessee companies and its impact on tax assessment.

Issue-wise Detailed Analysis:

1. Classification of Income from Subletting and Other Services:
The primary issue in this appeal is whether the income derived from subletting and other services should be classified as "profits and gains from business" or "income from house property." The assessee, a registered private limited company, derived income from subletting property and providing services such as maintenance, security, cleaning, and payment of utilities. The Assessing Officer classified this income as "income from house property," except for fees received from CRI Ltd. for space used for a transformer, which was classified as "income from other sources."

The CIT(A) overturned this classification, holding that the income should be assessed as "profits and gains from business." The CIT(A) reasoned that the assessee had a right to sublet the property and provided various services, indicating a business activity. The CIT(A) cited several legal precedents, including the Supreme Court's decision in R.B. Jodha Mal Kuthiala v. CIT, which emphasized that the owner must have the right to transfer the property, a right not vested in the lessee.

2. Determination of Separate Entities:
The Revenue argued that the lessor and lessee companies were essentially the same entity, managed by the same persons, and that this arrangement was a colorable device to mitigate tax liability. The CIT(A) rejected this argument, stating that both companies were separate legal entities with independent Memorandums of Incorporation and Articles of Association. The presence of common directors did not, by itself, prove a colorable device. The CIT(A) found no evidence to support the Revenue's claim that the arrangement was designed to evade taxes.

3. Interpretation of Lessor and Lessee Relationship:
The CIT(A) also addressed the issue of whether the lessee could exercise ownership rights. Citing the case of CIT v. Supreme Credit Corporation Ltd., the CIT(A) noted that for income to be classified as "income from house property," the owner must be able to exercise ownership rights in their own right. Since the lessee did not have the right to transfer the property, the income could not be classified as "income from house property."

The CIT(A) further emphasized that the nature of the arrangement and the intention behind it were crucial factors in determining the classification of income. The CIT(A) cited several cases, including CIT v. Super Fine Cables (P) Ltd., which held that if the intention was to exploit the property through commercial activities, the income should be classified as business income.

Conclusion:
The Tribunal upheld the CIT(A)'s decision, emphasizing the principle of consistency. The Tribunal noted that the assessee had consistently declared the income from subletting and services as "profits and gains from business" in previous years, and this classification had been accepted by the Revenue. The Tribunal cited the Supreme Court's decision in Radhasoamy Satsang, which emphasized that a fundamental aspect permeating through different assessment years should not be changed if it has been accepted in previous years.

In conclusion, the Tribunal dismissed the Revenue's appeal and confirmed the CIT(A)'s order, holding that the income from subletting and other services should be classified as "profits and gains from business." The Tribunal also upheld the CIT(A)'s finding that the lessor and lessee companies were separate entities and that the arrangement was not a colorable device to evade taxes.

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