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TMI Blog2021 (9) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... dependent income. We notice that the vacant land cannot reasonably expected let from year to year basis. Therefore, the annual value cannot be reasonably estimated or expected. The vacant land is continuing to be used or usable for film production. The same land when assessee in case, decided to continue with the film production, will be used for the assessee s business as business asset. Therefore, temporary let out of the vacant land and only be part of business income. Therefore, in the given case the land is separable from the bungalow to let out independently, thus the land can be treated as separate asset and this letting out of the land independently cannot be part of the income from these property. With the above observations, in our considered view, the letting out of the land independently which is part of the business asset of the assessee can be treated as income from business only. - Decided against assessee. - ITA No. 5811/MUM/2018 - - - Dated:- 13-8-2021 - Shri Saktijit Dey (Judicial Member) And Shri S. Rifaur Rahman (Accountant Member) For the Assessee : Mr. Mihir C. Naniwadekar, AR For the Revenue : Mr. Vijay Kumar Menon, DR ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er years) as has been reproduced hereinabove but finally has relied upon in its own case decided by Ld. CIT(A)-7, Mumbai for A.Y.₹ 2010-11 and 2012-13. In the said A.Y.rs, the Ld. CIT(A)- 7, Mumbai has decided the issue in favour of the appellant Copies of the appellate order were also enclosed with the submission. It is seen from the order of Ld. CIT(A)- 7, Mumbai for A.Y.rs 2010-11 as well as for A.Y. 2012-13, the finding has been given at Para 2.3 of the order which is reproduced as under: I have considered appellant's submission. This shows that appellants land at Dahisar was rented to tenants on monthly basis no other facility was provided, hence, AO is directed to treat income received from Dahisar land as house property income instead of Business Income as details filed show no facilities were provided. Hence, ground of appeal is allowed. [Bold for emphasis] It is seen from the above that a clear finding of fact has been given by Ld. CIT(A)-7 Mumbai that what is rented out by the assessee is land at Dahisar and no other facilities were provided by the assessee. In this regard, it is important to look into the provisions of Sec 22 of the Act which for rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fully allowed in Asstt. years 2010-11 and 2012-13 and thereby treating the income of rent for land and premises at ₹ 45,07,326/- from house property as income from business and denying deduction u/s 24(b) of ₹ 13,52,198/- to the appellant. The appellant prays that when there is no change in the facts and in the circumstances of the case, the principles of consistency please be followed and relief granted to the appellant. 2. On the facts and in the circumstances of the case, the Learned Commissioner of Income Tax (Appeals)-4 erred in concluding that what is rented out by the appellant is land at Dahisar and not buildings or lands appurtenant thereto and the Learned Commissioner of Income Tax (Appeals)-4 did not even seek any evidence from the appellant on the issue but concluded on his own that what is let out is the Dahisar land alone and hence the consequent income cannot be considered lo have been covered under the provisions of Section 22 of the Act when in fact, the appellant's property consists of premises /buildings along with lands appurtenant thereto. The appellant prays that since at the ground level the appellant's property does consist of premi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter for short durations as per the shootings schedule, in the instant case was for a period of four months and not for long-term. This necessarily relates to the business activities of the assessee. iv. It is seen that the regular business of the assessee is production related activity and that at times when the assets of business are not used by the assesses itself then the same are being used by other production houses like village boy telefilm in lieu of compensation. v. It is further seen that there is a contradiction in the MOU as filed by the assessee and the submission made by the assessee before the assessing officer vide letter dated 22nd of February 2016 (copy enclosed). While in the MOU it can be clearly seen that the word bungalow has been clearly used, it can be seen that before the assessing officer the assessee had claimed that the bungalow is not let out and only the open land is let out. Therefore, the assessee is presenting contradictory statement to favour its own case. Assessee s submission Income from Property : Rent Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andlord. It is to be noted that the TV. Serial producers bring in their own production equipments, vehicles, vanity vans, power generators, lighting equipments, cast and crew, personal effects, props, catering. refreshments, audio visual tools etc. and they take it out / remove the same from the premises on expiry of the tenure of their respective M.O.U./renting agreement. Temporary sets are erected and re-erected by the T.V, serial producers and dismantled by them at the end of their venture. The Company has nothing to do with the setting up of sets by the TV serial producers. No services, facilities or amenities are provided by the Company. The security charges incurred by the Company are for the purposes of protection of the property of the Company in its capacity as a landlord. Property tax / municipal tax is paid by the Company in its capacity as a landlord The accounts of the Company also clearly reflect that there is no volume, frequency, continuity or regularity of transactions in respect of the Dahisar land which could give the colour of business income to it. There is absolutely no intention of the Company to do any business in respect of the Dahisar land. The accounts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months. No other amenities or facilities are provided by the assessee. Further, it is submitted that the assessee is not permitted as per its MoU to let out any property, therefore, it cannot be considered as a business income since there is no volume, frequency, continuity ore regularities of transactions in respect of vacant land. The assessee maintains the details of rent, which contains the name of the lease, date of entry and rent amount collected. Considering the above factual background, it is clear that the assessee owns the bungalow and vacant land and in fact these were used as business assets, when it was producing films. Since, it stopped making films, the assessee separately deals with the bungalow and vacant land, the bungalow is continuing to be used for its own purpose as storage place and the vacant land is let out for the film/serial production. We notice that Ld. CIT(A) opined that the assessee has let out vacant land exclusively and it does not fall under the definition Land appurtenant thereto . Therefore, the income cannot be assessed under the head income from house property . Literally, the word appurtenant means belong to or pertains to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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