2017 (3) TMI 1320

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....d in appeal No. 974/Bang/2016 as under: "1. The orders of the authorities below in so far as they are against the appellant, are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case. 2. The learned CIT[A] is not justified in upholding the assessment of the business receipts of Rs. 46,20,413/- from allied services/ activities performed by the appellant as part of the income assessable under the head "Income from House Property" instead of assessing the said receipts under the head "Profits and Gains from Business" as returned by the appellant under the facts and in the circumstances of the appellant's case. 2.1 The learned CIT[A] failed to appreciate that the receipts collected from the t....

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....essing Officer has assessed it as an income from house property. The assessee preferred an appeal before the CIT(A) with the submissions that beside letting out the property, the assessee has also provided certain services to its tenants. Therefore, the consideration received on account of services rendered to its tenants should be treated as business income. Relying upon the judgment of the Apex Court in the case of Shambu Investment Private Limited (2003) 263 ITR 143 (SC), the CIT(A) has disallowed the claim of the assessee and confirmed the order of the AO. 5. Now the assessee is in appeal before the Tribunal and placed reliance upon the judgment of the jurisdictional High Court in the case of CIT Vs. S. Mohan Kumar (HUF) in Income Tax ....

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....os. 65 to 71 of the compilation. 8. From careful perusal of the Leave and License Agreement, we find that the property was let out to the lessee and certain amenities as mentioned in para 26 were also provided, but nothing has been stipulated in the agreement as to what amount to be paid for availing the amenities by the lessee to the lessor. From perusal of the Agreement for Hire of Amenities, we find this agreement was executed only to provide the electricity facilities through generator for which the lessee is required to pay certain amount to the lessor. Besides, no other stipulation has been made in the agreement. We have also carefully examined the judgment of jurisdictional High Court in the case of CIT vs. S. Mohan Kumar (HUF) (sup....

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....rty'. As both the leases are contained in very same document the said judgments are of very little assistance in deciding the case on hand. However, the Madras High Court in the case of TARAPORE AND COMPANY v . COMMISSIONER OF INCOME TAX reported in (2003) 259 I .T.R. 389 dealing with an identical issue held as under : - "That the actual rent received by the owner (assessee) would constitute the basis for determining the annual value and it was the value which would have to form the basis for determining the income from house property and for allowing the deduction from income from house property to the extent permitted under the other provisions of the Income- tax Act . In making such computation, there was no provision to add other....