2020 (8) TMI 404 - AT - Income Tax

Correct head of income - rental income including the amenity charges received - income from other sources instead of income from house property - HELD THAT - We noted that the Tribunal in assessee s own case has considered this issue for Assessment Year 2002-03 2015 (11) TMI 1817 - ITAT MUMBAI considered this issue as amenity charges and held that the same falls under income from house property and not income from other sources. Even otherwise, then issue is absolutely covered by the decision of Hon ble Supreme Court in the case of Shambhu investment Pvt. Ltd. 2003 (1) TMI 99 - SC ORDER . Accordingly, we accept the income declared by assessee under the head income from other sources as against assessed by Assessing Officer under the head income from house property. Hence, we direct the Assessing Officer to consider this income under the head income from house property and not income from other sources. - Decided in favour of assessee.

Summary

Issues:
Treatment of amenity charges as income from other sources instead of income from house property.

Detailed Analysis:

Issue: Treatment of Amenity Charges

The appeal arose from the Commissioner of Income Tax (Appeals) order, where the Assessing Officer treated amenity charges as income from other sources rather than income from house property. The Assessing Officer contended that the amenities were common and not solely related to the assessee's property, thus disallowing the deduction under the head income from house property. The CIT(A) upheld this decision, emphasizing the distinguishable facts from previous years and the artificial nature of the arrangement to evade taxes.

Assessee's Arguments:
The assessee argued that the issue was covered by a previous Tribunal decision for the Assessment Year 2002-03, where amenity charges were considered part of income from house property. The assessee highlighted the composite nature of the agreements for leave and license and amenities, stating they were interdependent and integral to each other.

Department's Arguments:
The Departmental Representative contended that entering into separate agreements for amenities was a colorable device to avoid tax liability. The failure to pay stamp duty on the consolidated rent agreement and the difficulty in determining the proportion of common areas were raised as concerns.

Tribunal's Decision:
The Tribunal reviewed the agreements detailing the amenities provided, such as RCC frame structure, elevators, CCTV, etc. It referred to the previous Tribunal decision, which held that such amenities were part and parcel of the building, falling under income from house property. Additionally, the Tribunal cited the Supreme Court case of Shambhu Investment Pvt. Ltd. Vs. CIT, supporting the inclusion of amenity charges under income from house property.

Conclusion:
The Tribunal ruled in favor of the assessee, directing the Assessing Officer to consider the amenity charges under the head income from house property instead of income from other sources. The lower authorities' orders were overturned, and the appeal of the assessee was allowed.

This detailed analysis outlines the arguments presented, the Tribunal's considerations, and the final decision regarding the treatment of amenity charges in this legal judgment.