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TMI Blog2014 (12) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... property without appreciating the fact that are brought on record in the case of Lulla Brothers Trust to compare with that of the assessee and that the ITAT decision for the AY 2005-06 is based on misconception of facts." 3. Briefly the facts are, assessee is an individual. For the assessment year under consideration assessee filed her return of income declaring total income of Rs. 5,31,057. 4. During the scrutiny assessment proceeding, AO noticed that assessee along with her son and daughter was the owner of a land situated at Survey No. 12, Kondapur Village, Hyderabad. The subject land was given for development to M/s SDE Engineers under a development agreement. As per the terms of development agreement, assessee along with her son and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nities should be treated as business income. However, ld. CIT(A) taking note of the fact that while considering identical nature of dispute in assessee's own case for AYs 2005-06 and 2006-07 in ITA Nos. 67 to 70/Hyd/2010 dated 30/04/2010, ITAT has held that assessee as the owner of the building was only exploiting the property by letting out the same and as various assets let out to the tenants were incidental to letting out the building, hence, such rental income received was liable to be assessed as income from 'house property', dismissed assessee's appeal. 6. We have heard the parties and perused the orders of revenue authorities as well as other materials on record. At the outset, both ld. counsel for assessee as well as ld. DR agreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 6 and at para 9 of the order, which are as follows: "The AR submitted that the rental income received from the letting of amenities is 'income from business' and this was covered in favour of the assessee by the order of this Tribunal dated 7.3.2008 in ITA No.528/Hyd/2005 in the case of Lallu Brothers Trust, Secunderabad Vs. ACIT for the assessment years 2000- 01. We have gone through this order. There is no ready made formula for deciding this issue. Each case has to be decided on its own facts and as such, we have to see the facts of the present case. As we have gone through the entire facts of the case and also agreement entered between the parties i.e. the Rent agreement and also we have gone through various items given on hire ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o expose the real intention of the parties cleverly cloaked and the actual agreement cannot be given effect. The only bona fide document to be acted upon not otherwise. There is a serious doubt and also it is shocking the conscious of the Bench, whether the assessee is getting hire charges equal to the rental amount for providing amenities. It cannot be real one and assessing officer required to see the actual rental value of the property in that place and bring that amount into tax under the head 'income from house property. As such, in the present case, the assessing officer came to the correct conclusion that real rental value was bifurcated into two separate income viz., one is rental income of house property and another is hire charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, in the light of the facts of the case, we hold that conclusion reached by the CIT(A) is not correct. Further, no precise test can be laid out to ascertain whether income referred to by whatever nomenclature, lease amount, rent or licence fee received by an assessee from leasing or letting out of assets would fall under the head 'profit and gains of business or profession and it has to be determined from the point of view of a businessman in that business depending upon the fact and circumstances of each case and there is no readymade jacket formula. The ratio laid down by one case cannot be applied or fit to the facts of the present case. We have to see the intention of the assessee whether the letting was the doing of a business or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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