2025 (1) TMI 1408 - AT - Income Tax

AOP rental income surcharge under Section 167B remanded to verify individual co-owners' tax rates before applying maximum marginal rate

Nam Group Aslali Versus The AO, CPC Bangalore - Present ITO Ward-3 (1) (1) Ahmedabad

ITAT Ahmedabad set aside CIT(A)'s order upholding CPC's levy of surcharge at maximum marginal rate under Section 167B on rental income earned by an AOP. ... Levy of surcharge at the maximum marginal rate u/s 167B - rental income from house property earned by the assessee, an Association of Persons (AOP) - levy of surcharge was determined pursuant to intimations issued by the CPC, Bengaluru u/s 143(1) - CIT(A) upheld the CPC’s action concluding that Section 167B applies to the income of an AOP where the shares of members are indeterminate - whether the rental income from house property earned by the assessee is to be taxed under Section 26 in the hands of individual co-owners or at the Maximum Marginal Rate (MMR) u/s 167B? HELD THAT:- As per the provisions of Section 167B of the Act, if even one member of the AOP is taxable at a rate higher than MMR, the entire income of the AOP will be taxed at MMR. Although the co-ownership agreement specifies determinate shares, the record does not conclusively establish the tax rates applicable to each co-owner. It is therefore necessary to verify the taxability of each co-owner to ensure that the correct rate of taxation is applied. Co-ownership agreement, and judicial precedents, it is evident that Section 26 of the Act governs the taxation of the rental income from house property in this case. In light of the provisions of Section 167B of the Act, it is essential to ascertain whether any member of the AOP is taxable at a rate higher than MMR. In the interest of justice and to ensure compliance with the Act, the orders of the CIT(A) for both A.Y. 2022-23 and A.Y. 2023-24 are set aside, and the matter is restored to the file of the AO for proper verification. AO is directed to: a) Verify the tax rates applicable to each co-owner based on their individual tax returns. b) If none of the co-owners is taxable at a rate exceeding MMR, the income shall be taxed in the hands of the AOP at normal slab rates applicable to individuals under Section 167B(2) of the Act. c) If any co-owner is taxable at a rate higher than MMR, the income of the AOP shall be taxed at MMR as per the provisions of Section 167B of the Act. Appeals of the Assessee allowed for statistical purposes. ISSUES PRESENTED and CONSIDEREDThe core legal question considered in this judgment is whether the rental income from house property earned by the assessee, an Association of Persons (AOP), should be taxed under Section 26 of the Income Tax Act in the hands of individual co-owners or at the Maximum Marginal Rate (MMR) under Section 167B, as applied by the Centralized Processing Center (CPC) and upheld by the Commissioner of Income Tax (Appeals) [CIT(A)].ISSUE-WISE DETAILED ANALYSISRelevant Legal Framework and PrecedentsThe legal framework involves Section 26 of the Income Tax Act, which mandates that when property is owned jointly by co-owners, the income shall be taxed in the hands of the co-owners individually based on their respective shares. Section 167B applies when shares of members of an AOP are indeterminate or unknown, leading to taxation at the MMR. The ITAT Kolkata Bench decision in ACIT v. Executors of the Estate of Bhagwan Devi Sarogi [(2001) 79 ITD 539] held that Section 26, being a special provision, overrides the general provisions of Section 167B when the shares of co-owners are specific and ascertainable.Court's Interpretation and ReasoningThe Tribunal analyzed the co-ownership agreement dated 29.04.2006, which specifies that the rental income will be distributed among the co-owners in specific and pre-determined proportions. This establishes that the shares of the co-owners are specific and ascertainable, fulfilling the condition for the application of Section 26. Therefore, the provisions of Section 167B, which apply when shares are indeterminate or unknown, are deemed inapplicable in this case.Key Evidence and FindingsThe Tribunal considered the co-ownership agreement and past CIT(A) orders for A.Y. 2013-14 and A.Y. 2015-16, where rental income was taxed in the hands of individual co-owners under Section 26. The AR also presented the CIT(A) order in the case of Aslali Storage House for A.Y. 2022-2023, which supported the assessee's position.Application of Law to FactsThe Tribunal found that the specific and determinate shares of co-owners, as outlined in the co-ownership agreement, necessitate taxation under Section 26. The Tribunal emphasized that the rental income should be taxed in the hands of individual co-owners, not at the MMR applicable to an AOP under Section 167B.Treatment of Competing ArgumentsThe Departmental Representative (DR) argued that the CIT(A) distinguished the current assessment years from A.Y. 2015-16, where rental income was taxed in the hands of co-owners. However, the Tribunal noted that this distinction does not affect the applicability of Section 26, as the specific shares of co-owners remain unchanged.ConclusionsThe Tribunal concluded that Section 26 governs the taxation of rental income from house property in this case. However, the Tribunal recognized the need to verify whether any member of the AOP is taxable at a rate higher than MMR, as per Section 167B. The Tribunal set aside the orders of the CIT(A) for both assessment years and restored the matter to the file of the Assessing Officer (AO) for proper verification.SIGNIFICANT HOLDINGSThe Tribunal held that the co-ownership agreement clearly establishes specific and determinate shares of the co-owners, making Section 167B inapplicable. The Tribunal directed the AO to verify the tax rates applicable to each co-owner and apply the correct rate of taxation based on individual tax returns.Core Principles EstablishedThe Tribunal affirmed that Section 26, being a special provision, overrides Section 167B when co-owners have specific and ascertainable shares. The Tribunal also highlighted the importance of verifying the taxability of each co-owner to ensure compliance with the Act.Final Determinations on Each IssueThe Tribunal allowed the appeals of the assessee for statistical purposes, directing the AO to verify the tax rates applicable to each co-owner and apply the appropriate rate of taxation based on the findings. If none of the co-owners is taxable at a rate exceeding MMR, the income shall be taxed at normal slab rates applicable to individuals under Section 167B(2). If any co-owner is taxable at a rate higher than MMR, the income of the AOP shall be taxed at MMR as per Section 167B.