2021 (10) TMI 1368 - AT - Income Tax

Income from house property - 90 shops which are allegedly lying vacant - assessee is claiming those shops as stock in trade - Lower Authorities brought those shops under taxation under the head income from house property and thereby calculated the ALV and after granting 30% standard deduction worked out the ALV of those shops - HELD THAT - As Assessee vehemently submitted that assessee is a builder and unsold shops/units are stock-in-trade and cannot be brought to tax under the head income from house property as held by Hon ble Jurisdictional High Court in Neha Builders (P.) Ltd. 2006 (8) TMI 105 - GUJARAT HIGH COURT and the income derived from stock would be income from business and profession and not from income from house property . We find that assessee has shown business income from rent received from letting out of 231 shops and rent received therefrom is accepted as income from business and profession by Revenue. Therefore respectfully following the decision of Hon ble Gujarat High Court in Neha Builders (P.) Ltd. the addition on account of income from property is with regard to 90 shops which are allowing vacant being stock-intrade cannot be brought to tax. Similar view was taken by Co-ordinate Bench in Jaiprakash Khanchand Aswani 2018 (12) TMI 1963 - ITAT SURAT Appeal of the assessee is allowed.

Summary

Issues involved:
1. Addition of income from house property
2. Miscellaneous issues including interest charge under section 234A

Issue 1: Addition of income from house property

The appeal was against the order of the Commissioner of Income Tax (Appeals) for the Assessment Year 2013-14, concerning the addition of income from house property. The Assessee had declared income of Rs. 10.47 crore, with the case selected for scrutiny. The Assessing Officer noted rental income of Rs. 2.13 crore and asked for details on unsold and rented shops. The AO calculated the notional rental value of 90 unsold shops based on a High Court decision, resulting in a Net Rental Income of Rs. 56,70,000. The CIT(A) later reduced this to Rs. 45,36,000, leading to the present appeal before the Tribunal. The Assessee argued that the unsold shops were part of stock-in-trade and should not be taxed as income from house property. The Tribunal, citing relevant case law, agreed with the Assessee's position, stating that income from stock-in-trade falls under business income, not house property income. Therefore, the addition of income from property for the unsold shops was not justified.

Issue 2: Miscellaneous issues

The Assessee raised miscellaneous issues, including the Assessing Officer's error in charging interest under section 234A despite timely filing of the income tax return. During the hearing, the Assessee did not press some of these grounds, leading to their dismissal. However, the sole remaining ground was focused on the addition of Rs. 45.36 lakhs as income from house property. The Assessee contended that as a builder, the unsold shops were part of stock-in-trade and should not be taxed as house property income. The Revenue, relying on the CIT(A)'s order, supported the taxation of the unsold shops as house property income. The Tribunal, after considering the arguments and relevant case law, sided with the Assessee, emphasizing that income from stock-in-trade should be classified as business income, not house property income. Consequently, the appeal of the Assessee was allowed.

This judgment by the Appellate Tribunal ITAT Surat clarified the treatment of income from unsold shops as stock-in-trade, affirming that such income should be categorized as business income rather than income from house property. The decision was based on the principle established in relevant case law and upheld the Assessee's position, resulting in the allowance of the appeal.