2018 (3) TMI 1159 - HC - Income Tax

Income from house property - actual rent determination - application of provision of Section 23(1)(c) - contention of the assessee before the assessing officer was that the building being under construction during the relevant previous year, the same could not be taxed applying the provision of Section 23(1)(c) - Held that - Any part of the property was vacant then only actual rent had to be taken and not any amount received or receivable on the basis of annual valuation. The decision in the case of RUSSEL PROPERTIES PVT. LTD.(1981 (11) TMI 43 - CALCUTTA High Court) as held Tribunal was correct in law in holding that the service and maintenance charges recovered from the lessees were not only towards the provision of lifts but also for other services rendered by the assessee, which squarely covers the points raised in this appeal and the ratio is in favour of the assessee. We, accordingly, dismiss this appeal.

Summary

Issues:
1. Computation of income from immovable property for the assessment year 2005-2006.
2. Tax treatment of rent receivable for a vacant portion of the property.
3. Tax treatment of service charges and depreciation as part of letting out a property.

Analysis:
The appeal before the High Court involved the computation of income from the assessee's immovable property for the assessment year 2005-2006, specifically focusing on two key issues. Firstly, whether the Income-tax Appellate Tribunal was correct in deleting the addition of rent receivable for a vacant portion of the property, based on the interpretation of Section 23(1)(c) of the Income Tax Act, 1961. The assessee argued that since a part of the building was under construction during the relevant previous year, it should not be taxed as per the provisions of the Act. The Commissioner of Appeals upheld the assessee's contention, emphasizing that only actual rent should be considered when any part of the property is vacant. Secondly, the issue was whether the service charges and depreciation of the property should be treated as business income rather than income from house property. The Commissioner allowed the expenses and depreciation, considering them integral to the services provided in connection with the property let out.

The High Court referred to a previous decision in the case of COMMISSIONER OF INCOME TAX, KOLKATA-II VS. NATIONAL ENGINEERING INDUSTRIES LTD., where a Coordinate Bench had dismissed a similar appeal concerning comparable facts and circumstances for an earlier assessment year. The Court relied on the decisions of CIT vs. MODEL MFG CO. and CIT vs. RUSSEL PROPERTIES PVT. LTD. to support the assessee's position. The Court found no distinguishing feature in the current appeal compared to the earlier decision, and based on the precedent set by RUSSEL PROPERTIES PVT. LTD., the Court dismissed the appeal in favor of the assessee. The judgment concluded with a dismissal of the appeal without any order as to costs.