9911796707
TMI Blog2015 (1) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... essee : Smt. Varsha Jalan, Advocate For The Respondent : Shri Ni loy Baran Som, JCIT, Sr. D.R., ORDER This appeal is preferred by the assessee against the order of ld. Commissioner of Income Tax (Appeals)-XI II, Kolkata dated 25.03.2014 for the assessment year 2008-09 and the grievance of the assessee is projected in the sol i tary ground raised therein as under:- That under the fact s and circumstances the ld. CIT(A)-13 erred in law as well as in fact s in confirming the order of the ld. ITO, Ward-42(1) in respect of rental income of ₹ 92,129/- treated as income from other sources instead of claim of the assessee as income from house property for letting out 350 sq. ft. of terrace space and disallowing deductions claimed u/s 24 of the I.T. Act on such rental income . 2. The assessee in the present case is an individual , who f i led her return of income for the year under consideration on 17.03.2009 declaring total income of ₹ 2,21,720/- . During the course of assessment proceedings, it was noticed by the Assessing Officer that the assessee has received a sum of ₹ 92,129/- from Dishnet Wireless Limited for allowing to use the roof of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation the decision of the Hon ble Calcutta High Court in the case of Mukherjee Estate Pvt. Limited (supra), which is rel ied upon by the Assessing Officer as well as the ld. CIT(Appeals) to decide the issue against the assessee in the present case. 5. The ld. D.R. , on the other hand, invited my attention to the provisions of section 22 of the Act to point out that the annual value of property consisting of any building or land appurtenant thereto of which the assessee is owner is chargeable to tax under the head income from house property . He contended that although the expression buildings used in section 22 is not specifically defined, it envisages a holistic structure and terrace, which is given by the assessee on rent in the present case, cannot be regarded as buildings, although the same may be a part of a building. He, therefore, strongly supported the impugned order of the ld. CIT(Appeals) upholding the action of the Assessing Officer in treating the rental income received by the assessee for terrace as income from other sources. 6. I have considered the rival submissions and also perused the relevant material available on record. It is observed that a similar iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reject the claim of deduction under section 24(a), is his understanding of the law laid down by Hon ble Calcutta High Court in the case of Mukerjee Estates Pvt Ltd Vs. CIT [244 ITR 1 (2000)]. 7. We find that so far as Hon ble Calcutta High Court s judgment in the case of Mukerjee Estates Pvt Ltd (supra) is concerned, it is wholly misplaced inasmuch as it was a case in which the Tribunal had given a categorical finding that the assessee had let out the hoardings and in which the assessee s claim that he had let out the roof for advertisement and hoarding remained to be unsubstantiated inasmuch as when a query was put to him (i.e. the assessee) whether there was an agreement to this effect to conclude whether the hoarding was let out or the roof is let out , the assessee failed to produce that agreement nor there is (was) any reference to such an agreement before the authorities below . It was in this backdrop that Hon ble Calcutta High Court concluded as follows: .Therefore, considering the finding of the Tribunal that the assessee has let out the hoarding, these are neither part of the building nor land appurtenant thereto. Therefore, permitting some companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agrees that rent was only for providing space for installation of the mobile antenna , there is no occasion to consider whether antenna will be a part of a building or land appurtenant thereto as the true test is whether such a space, as has been rented out, is part of the building or land appurtenant thereto. The rent is not for the antenna but for the space for installation of antenna. It is not the case of the Assessing Officer that the rent is for the antenna, and, therefore, it is wholly irrelevant whether antenna is part of the building or land appurtenant thereto. What is relevant is the space which has been rented out and, therefore, as long as the space, which has been rented out, is part of the building, the rent is required to be treated as income from house property . Learned counsel for the assessee has filed copies of leaves and licence agreements with the Bharti Airtel Limited and the Idea Cellular Limited. In both of these agreements, it is specifically mentioned that the rent is for use of roof and terrace area (not more than 900 sq ft in the case of Bharti Airtel Ltd and approx 800 sq ft in the case of Idea Cellular Limited). The agreement with Bharti Airtel ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
