2010 (5) TMI 238 - HC - Income Tax

Income from House Property- The assessee firm has filed its return of income. The firm was engaged in real estate business and during the period from 1979 to 1984. It has constructed a commercial complex known as Al Karim Trade Centre . In response to the notices of hearing issued under sections 143(2) and 142(1) of the Income-tax Act, the counsel appeared and filed details called for from time to time. Mr. Syed Ghousuddin, who is supposed to be assisting the assessee-firm, and its auditor in their accounts, was present during the course of hearings. The managing partner of the firm, Sri Ghiasuddin Babukhan on oath stated that Mr. Syed Ghousuddin has prepared the profit and loss account and balance-sheet of the relevant previous year, Mr. Ghousuddin also gave statement on oath. Copies of these statements were made available to the assessee-firm. There was a search and seizure operation under section 132 of the Income-tax Act (for short the Act ), in the case of the assessee-firm, and its partners. The seized books of account were examined and the assessee was allowed to take extracts of the seized papers, which would find mention later in this order. After examining the evidence and details furnished and evidence produced, and after giving due opportunity to the assessee-firm of being heard, the assessment was completed. Held that- the issue was to be decided favour of the assessee and against the revenue.

Summary

Issues Involved:
1. Whether the annual value of the property, of which the assessee was the legal owner, can be assessed in the hands of the assessee under section 22 of the Income-tax Act, 1961.

Issue-wise Detailed Analysis:

1. Background and Facts:
The assessee firm, engaged in real estate business, filed its return of income on September 28, 1988, declaring a loss of Rs. 1,272. The firm constructed a commercial complex "Al Karim Trade Centre" from 1979 to 1984, selling flats/shops/floor spaces. Notices under sections 143(2) and 142(1) of the Income-tax Act were issued, and the firm's managing partner and accountant provided statements on oath. A search and seizure operation under section 132 of the Act was conducted, and the seized books of account were examined. The firm followed an accounting method where anticipated profit at 20% of the construction cost was added to the cost of construction annually, and the total was carried to the balance-sheet as work-in-progress until the project's completion.

2. Completion of Project and Income Recognition:
The construction was completed before the end of 1984. As of December 31, 1986, all but two portions were sold and registered. The firm requested to change the accounting year from December 31, 1985, to March 31, 1986, which was not accepted by the Department. The firm claimed that the project was substantially completed by December 31, 1986, and the income should be recognized accordingly. The balance-sheet showed work-in-progress and advances for sale of flats, but the books of account were found to be incorrect and incomplete, leading to their rejection under section 145(2) of the Act.

3. Accounting Standards and Revenue Recognition:
The assessee-firm's construction and sale activities were compared to the Accounting Standard AS-7, which describes accounting for construction contracts. Revenue can be recognized using either the percentage of completion method or the completed contract method. The firm had completed 99.5% of its business activity by December 31, 1986, and the income from the sale of flats should be recognized in the accounting year ended on December 31, 1986.

4. Computation of Income:
The income from the sale of flats up to December 31, 1986, was computed by deducting the work-in-progress from the total sale consideration received. The difference was treated as the income of the assessee-firm for the accounting year ended December 31, 1986. The sale consideration for the remaining two flats was also included in the income for the same assessment year.

5. Objections and Rejections:
The assessee-firm objected to the method of computation and claimed that the true profits could be deduced from their method of accounting. However, the objections were rejected, and it was determined that the income should be computed by taking the total sale consideration received and deducting the total cost of construction plus anticipated profit shown as work-in-progress.

6. Legal Ownership and Section 22:
The crux of the issue revolved around the incidence of ownership and income arising from it under section 22 of the Income-tax Act. The Supreme Court's decision in CIT v. Podar Cement Pvt. Ltd. was cited, which held that the requirement of registration of the sale deed in the context of section 22 is not warranted. The owner, for the purpose of section 22, is a person entitled to receive income from the property in their own right, even if no registered document was executed.

7. Conclusion:
Based on the principles enunciated by the apex court, the question was answered in favor of the assessee and against the Revenue. The Income-tax Appellate Tribunal's decision that the annual value of the property cannot be assessed in the hands of the assessee under section 22 of the Income-tax Act was upheld.