TaxTMI 
TaxTMI 
2019 (4) TMI 346
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....e tribunal‖) read as under:- A) "Whether on facts and in circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition of Rs. 1,40,00,000/- as assessed under Income from Other Sources?" B) "The appellant prays that the order of CIT(A) on the above ground be set aside and that of the Assessing Officer be restored." C) "The appellant craves leave to amend or alter any ground or add a new ground which may necessary." 3. The brief facts of the case are that the assessee is a doctor by profession. During the course of assessment proceedings conducted by the AO u/s. 143(3) r.w.s. 143(2) of the 1961 Act, the AO observed that the assessee has shown taxable Long Term Capital Gain at ‗Nil' as detailed under:- " 1. Transfer of tenancy rights at zero. This was based on the basis of its working reported in schedule 4 thereof as under:- 1.1 Sale consideration 1,40,00,000 Less: Purchase of Res. Property u/s. 54F 1,42,05,000 Taxable LTCG 0" The above information was also captured in AIR information which was confronted by the AO to the assessee. The assessee in compliance thereof , inter-alia, submitt....
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....s well for the months of July and August 2005 are also placed in paper book filed by the assessee at page no. 9 and 10 . The assessee had claimed to be running his clinic for homeopathic medicine from the ground floor of the said premises since 1994, while his wife Dr. Rajul J. Shah, tenant of the said premises had claimed of running her clinic from the mezzanine floor of the said premises. The wife of the assessee Dr. Rajul J Shah was tenant of both ground floor and mezzanine floor of the said shop no. 1 , Krishna Bhavan. The assessee had claimed to be regularly paying rental to his wife Dr. Rajul J. Shah since 1994 for using ground floor of the said shop for running his clinic, details of which for last five years are as hereunder:- Financial Year Rent paid to Dr. Rajul Shah 2008-09 Rs.54,000 2009-10 Rs.54,000 2010-11 Rs.54,000 2011-12 Rs.54,000 2012-13 Rs.54,000 It is also claimed that said Dr Rajul J Shah was offering aforesaid rental income as income in the return of income filed with Revenue and paying taxes on the same. The said Dr Rajul J Shah had issued letter dated 14.11.2016 (pb/page 42-43)to the AO confirming that she was holding t....
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.... he was running his clinic in the said premises as sub-tenant of his wife Dr. Rajul J. Shah, under permission granted on 30.03.1994 by M/s. Nathuram Ramnarayan P. Ltd. . Since the assessee has claimed that it has interest in the said property when the tenancy/occupancy rights were transferred and assigned by his wife Dr. Rajul J. Shah, in favour of Dr. Maninder Chhabra , the assessee stood as confirming party to transfer and assign his interest in the said property as sub-tenant/occupant in favour of Dr. Maninder Chhabra and received Rs. 1,40,00,000/- from said Dr Maninder Chabra who was incoming tenant. The clause 8(b) of the said agreement dated 24.06.2013 (pb/page 28) has specified that the assessee along with his wife had been in continuous, exclusive and uninterrupted use, occupation and possession of the aforesaid tenanted premises. His wife also received Rs. 1,95,00,000/- from Dr. Maninder Chhabra to transfer and assign tenancy/occupancy rights in the said shop in favour of Dr. Maninder Chhabra . It also happened that said M/s. Nathuram Ramnarayan P. Ltd. vide conveyance deed dated 15.12.2006 registered under no. BBE-2/12405 of 2006 on 22.12.2006 with the Sub-Registrar of As....
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....y agreement on 17.3.1994. She is Homoeopathic Consultant. The appellant is also a Homeopathic Consultant. By a letter dated 30.3.1994 the land lord permitted Dr. Rajul Shah to permit the appellant to run his clinic in the said premises w.e.f 01.04.1994. The premises consisted of ground floor and a mezzanine floor. Dr. Rajul Shah had sublet the Ground Floor to the appellant for running as clinic in 1994. She was running her separate clinic at the mezzanine floor of the premises since 1994. 2.2 the appellant used to pay rent for the use of Ground Floor. The following are the details of the rent paid by the appellant during last 5 years. FY Rent paid to Dr. Rajul Shah 2008-09 54,000 2009-10 54,000 2010-11 54,000 2011-12 54,000 2012-13 54,000 Confirmation letter from Dr. Rajul Shah dated 14.11.2016 was filed with the said AO. 2.3 Dr. Rajul Shah transferred and Assigned the tenancy of the above premises to Lodha Properties Dev. Pvt. Ltd., by an agreement dated 24.06.2013. Copy of this agreement is filed during the course of assessment proceedings with the said Assessing Officer. The heading of this Agreement is "deed of Tran....
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....ident that the appellant was in occupation of the above premises and was carrying on his medical practice from the said premises. This fact is accepted by the AO in Para 3.3 and 3.4 at Page 8 of the assessment order as stated in Para 1.2 above. 2.7 The above facts, including the fact that the appellant was paying Rent for the above premises since 1994, established that he was a subtenant of the premises and that he had a legal right to occupy the premises. In the agreement dated 24.6.2013 the expression "Sub-tenant" is not used. Instead of this the expression "Occupier" or "Occupancy" is used. The appellant has been paid the consideration of Rs. 140 Lacs for giving up his subtenancy or right of occupancy and to hand over vacant possession of the premises. The following clauses of the agreement establish that what has been paid to him is to give up his sub-tenancy or occupancy right, which is a 'capital asset'. (I) The preamble of the agreement states that "This Deed of Transfer And Assignment of Tenancy / Occupancy made at Mumbai on this 24th day of June, 2013'. (ii) Preamble G(c) refers to letter dated 30.03.1994 written by Nathurarn Ramanara....
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....ts to the said Tenanted Premises in capacity as tenant / occupant thereof are clean, clear and marketable .............Party. The outgoing Tenant and the confirming party state that they are in no manner directly or indirectly prevented from entering into this agreement. (viii) Para 8 of the agreement states as under- "8. The Outgoing Tenant along with the Confirming party covenant with the Incoming Tenant that: (a) (b) The Outgoing Tenant along with Confirming Party has been in continuous exclusive and uninterrupted use, occupation and possession of the said Tenanted Premises: (C) (d) The Outgoing Tenant along with confirming party has not been prohibited from dealing with disposing off or transferring her / their tenancy / occupancy rights in respect of the said Tenanted Premises or any part thereof by any authorities. (e) ......................... (f) ......................... (g) ......................... (h) ......................... (i) ......................... (j) ......................... (k) ......................... (l) As and when required,....
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...., the appellant was paying Rent to Dr. Rajul Shah who was a tenant of the premises. She has paid tax on this rent income. The landlord of the premises had, by letter dated 30.03.1994, permitted Dr. Rajul Shah to allow the appellant to use the premises for his clinic. Thus the appellant was sub-tenant / occupier of the Ground Floor of the premises. Although the term "Subtenant" is not used in the above agreement, the appellant was made a confirming party as he was an occupier of part of the premises and the Developer wanted vacant possession of that portion of the premises occupied him. Therefore, the agreement uses the terms "Outgoing Tenant" and "Occupier", "Occupancy" etc. The term "Occupier", "Occupancy" etc. refers to the confirming party (Dr. Jayesh Shah).Para 3 of the agreement states that the confirming party shall hand over vacant, quiet and peaceful possession of the premises. Further, Para 4 states that in consideration of the above (i.e. handing over possession of the premises) the confirming party is paid Rs. 140 Lacs. It is well settled law that the right to occupy the premises i.e. possession of a property is a "capital asset". For this purpose it is immaterial whethe....
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....ated 24.06.2013 at page 7 it will be evident that for stamp duty purposes also this deed is considered as a transfer of Immovable Property. The Stamp Duty Valuation has been made at Rs. 3,34,58,000/- as against the total consideration of Rs. 3,35,00,000/- i.e. Rs. 1,95,00,000 to Dr. Rajul Shah, outgoing tenant and Rs. 1,40,00,000/- to Dr. Jayesh Shah (Appellant) Occupier). The Stamp duty of 5% i.e. Rs. 16,75,000/- payable for transfer of immovable property has been charged on this document. It is, therefore, submitted that the above payment of Rs. 140 Lakhs to the appellant was for transfer of right in the property. In other words, this amount was received by the appellant for transfer of a capitol Asset (i.e right in the property) and, therefore, was taxable as capital gain. 3.6 It is submitted that the said A.O. has relied on the wording of some of the clauses of the Deed of Transfer and Assignment of Tenancy / Occupancy in Para 3.1 and 3.6 on pages 7 and 9 of the assessment order. It is submitted that the A.O. was not justified in relying upon some portion of the Agreement and in not considering the whole of the Agreement. In the case of ITO V/s Ghanshyamdas R. Thakkar ....
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....as a matter of fact and without reference to law at all'. There is no guideline on the basis of which this right can be valued. Further, in the instant case it could not be said that any cost was incurred for acquiring possessory right. In view of the above, the Tribunal was right in upholding the assessee's claim that the consideration for transfer of possession of shop was exempt and, thus deleting the some from the computation of capital gains." (iii) ACIT Vs. Girish Chandra Sharma 5 SOT 372 (Delhi) In this case it is held as under: "In this case the assessee, a lawyer, was given ground floor of the premises taken by his client on rent. The assessee was not paying any rent but was rendering services as Retainer to his client. The assessee was in occupation of the said premises for over 20 years. The building was sold by the landlord and the client who was the tenant, had to give vacant possession. The assessee who was in occupation of the Ground Floor had to give possession of the premises to the new landlord. For giving up this possession the assessee was paid compensation of Rs. 30 lakhs by the new landlord. The assessee claimed this....
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....ssee is allowed." 3.3 I have considered the appellant's submissions. Here, appellant's wife Dr.Rajul Jayesh Shah had taken Shop No.1 „C‟, Wing, Krishna Bhavan, Ground Floor, 250 Walkeshwar Road, Mumbai on rent from M/s Nathuram Ramnarayan Pvt. Ltd., Landlord, from 1.4.1994. She had entered into a tenancy agreement on 17.3.1994. As appellant is a Homeopathic Consultant, the landlord by Letter dated 30.3.1994 permitted him to run his clinic in the said premises which was rented to his wife. The premises consists of ground floor and a mezzanine floor. Appellant‟s wife had sublet the ground floor to the appellant for running his clinic in 1994 and his wife was running a separate clinic at the mezzanine floor of the premises since 1994. 3.3.1 Here appellant along with his wife entered into an agreement named "Deed of Transfer and Assignment of Tenancy/ Occupancy" on 24.6.2013 with Lodha Properties Development. Pvt. Ltd. and Mr. Maninder Chhabra as incoming tenant. The above mentioned parties have paid a consideration of Rs. 3,35,00,000/- as per Clause 3 stating that appellant along with his wife shall handover vacant, quiet and peaceful posses....
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....firming party hereby declare, represent and warrant to the incoming tenant as follows: in para G, (e) is one of the sub-clause. Further immediately in H clause it was mentioned as under : H In the circumstances, the outgoing tenant with confirmation of confirming Party have now agreed to assign and transfer her tenancy rights in respect of the said tenanted premises together with all and every of her right, title, interest and claim which the outgoing tenant has in to or upon the said tenanted premises including rights of permanent Alternate Accommodation, in the event of redevelopment of the said property by the landlords or their nominees and assigns free from all encumbrances and claims, with the confirmation and concurrence of the landlords who has testified these presents by joining in and executing the same in favour of the incoming tenant, on terms and conditions and for consideration agreed between the parties hereto which are recorded hereinafter. Now if we read together Clause G & H, headlines of Clause G in the agreement it is clearly mentioned that outgoing tenant and the confirming party have now agreed to assign and transfer her tenancy rights in res....
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....s common that appellant's name is mentioned as confirming party, appellant's wife as outgoing tenant. In all the places it is alternatively mentioned as tenancy or occupancy rights. 3.3.3 Now with regard to the payment which is mentioned as in clause 3 and 4 of the agreement, it is clearly mentioned that in clause 3 a sum of Rs. 3,35,00,000/- will be paid to the outgoing tenant and confirming party shall hand over to the Incoming Tenant, the vacant, quiet and peaceful possession of the said Tenanted premises. Out of this amount appellant was paid Rs. 1,40,00,000/-. As per clause 5 it is clearly stated that the Outgoing Tenant along with confirming party, with the concurrence of the land lord, have upon execution hereof handed over to the Incoming Tenant, the vacant, quiet and peaceful possession of the said Tenanted premises. We the whole agreement is read together along with head notes, it is clear that though appellant is mentioned as confirming party, this amount of Rs. 1,40,00,000/- was paid for vacant, quiet and peaceful possession of the said Tenanted premises. AO by referring to part of the agreement without considering the head notes came into wrong conclus....
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....erson by whom or whose account rent is payable for any premises and include further clauses. Here it is not disputed that appellant was paying rent through his wife to the Landlord which Landlord himself has accepted by a letter, hence appellant cannot be stated that he is not having right of the tenancy in view of the above Act. 3.3.6 In the case of Narang Overseas Pvt. Ltd. vs. ACIT 111 ITD 1(MUM) where it is held - wherein mesne profits awarded under the decree of the court by way of compensation for wrongful possession of property after termination of leave and license agreement was held to be capital receipt. 3.3.7 Supreme Court in the case of Union of India vs Cadell Weaving Mills (P) Ltd.[2005] 273 ITR 1 where it is held that tenancy rights give rise to capital assets. In the High Court of Kerala CT vs M. Appukutty 119 Taxman 637 it is held that assessee's claim that consideration for transfer of possession of shop was exempt from capital gains. 3.3.8 In all the above cases, tenancy right or handing over the possession of the property was held as capital asset. Hence, in view of the above detailed discussion here appellant received an ....
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....where it is mentioned in the letter dated 30.03.1994 that the assessee is sub-tenant in the said premises . Thus it was submitted by learned DR that AO rightly brought to tax said income under the head ‗Income from other Sources' , while on the other hand Ld. Counsel for the assessee strongly contended that the assessee is sub-tenant/occupant and was running his clinic from the ground floor of the said tenanted premises being shop no. 1 at Krishna Bhavan since 1994 and he was occupying/possessing the said premises since 1994 uninterruptedly . It was submitted by learned counsel for the assessee that the assessee was paying rent to his wife for occupying/using the ground floor of said tenanted shop since 1994. It was submitted that the definition of the capital asset is very wide u/s. 2(14) and it is bundle of right. It was submitted that the assessee was enjoying the said rights as sub-tenant/occupier since 1994 for which rent was also paid to his wife who held tenancy rights in the said property and that is why the assessee has acted as a confirming party in the agreement for transfer and assignment of tenancy/occupancy rights by his wife in favour of incoming tenant for whi....
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....d the address shown in the said bills was of the ground floor of Krishna Bhawan. The said invoices are placed in paper book/page 44-48. Our attention was also drawn to License issued by Collector, Mumbai, dated 21.05.1998 for allowing assessee to possess rectified spirit including absolute alcohol for medicinal use by a RMP which also shows registered address of the assessee at the said premises at Krishna Bhavan. The said license is placed in paper book/page 49. Our attention was also drawn to Form No. ‗K' wherein Maharashtra Council of Homeopathy vide approval dated 31.01.2001 has allowed assessee to carry on profession of Homeopathy from the said premises at Krishnabhuvan in terms of Section 26(1)(a) of the Bombay Homeopathic and Biochemic Practitioners Act, 1959. The said license is placed in page 50/pb. Our attention was also drawn to similar certificate dated 22.02.2010 which is placed in paper book/page 51. Our attention was also drawn to NOC dated 24.10.2007 issued by Maharashtra Council of Homeopathy granting permission to assessee to further study in India/Abroad. The said NOC reflects the address of the aforesaid Krishna Bhuvan as address of the assessee. The said ....
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.... of section 13 of the Act. We may at this stage refer to the relevant provisions of law under the Act. Section 5(11) of the Act defines tenant which is as under - "5 (11) "Tenant" means any person by whom or on whose account rent is payable for any premises and includes :- (a) such sub-tenant and other persons as have derived title under a tenant before the 1st day of February 1973; (aa) any person to whom interest in premises has been assigned or transferred as permitted or deemed to be permitted, under section 15; (b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the 1st day of February 1973; (bb) such licensees as are deemed to be tenants for the purposes of this Act by section 15A, (bba) the State Government, or as the case may be, the Government allottee referred to in sub-clause (b) of clause (1A), deemed to be a tenant, for the purposes of this Act by section 15B;" In rejoinder the Ld. DR distinguished the judgments relied upon by the assessee and submit....
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....unning his homeopathy clinic from the ground floor of the said premises since 1994 and was having uninterrupted possession/occupancy of the ground floor of the said premises since 1994 . The assessee had also claimed to be paying rent to Dr. Rajul J. Shah since 1994 and claiming that the assessee was sub-tenant of Dr. Rajul J. Shah .The details of rent paid by the assessee for the last 5 years are as under:- Financial Year Rent Received from Dr. J.K Shah 2008-09 Rs.54,000 2009-10 Rs.54,000 2010-11 Rs.54,000 2011-12 Rs.54,000 2012-13 Rs.54,000 His wife, Dr Rajul J Shah has also confirmed vide letter dated. 14.11.2016 that she was receiving rent from her husband for running his clinic from ground floor of the said premises since 1994 and she was including the said rent income in her return of income filed with Revenue. She has also stated in the said letter that her husband Dr. Jayesh K Shah was sub-tenant in the said premises although no formal agreement was entered into by her with her husband. It is also claimed by her in this letter dated 14.11.2016 which was filed before the AO that she transferred and assigned the tenancy in the said premi....
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....Limited has issued letter dated 16.12.2016 wherein they have described themselves to be the owner of the said property wherein they have claimed that they acquired land bearing Cadastral Survey Nos. 92,122 and 123 of Malabar and Cumballa Hill Division lying, being situated at 246, 248, 250 and 252, Walkeshwar Road, 11, Banganga Cross Road , Mumbai-400006 alongwith buildings/structures standing thereon known as -Krishna Bhuvan‖ from M/s Nathuram Ramnarayan Private Limited vide registered conveyance deed executed in the month of December 2006 and registered with Sub-Registrar of Assurance at Mumbai. Thus, the said M/s. Nathuram Ramnarayan P. Ltd., had already transferred its ownership interest in the said property vide conveyance deed dated 15.12.2006 which was registered with Sub-Registrar of Assurance at Mumbai under no. BBE-2/12403-05 of 2006 in favour of M/s. Lodha Properties Development P Ltd. on 22.12.2006, by virtue of this conveyance deed M/s. Lodha Properties Development P Ltd., became the owner of the property and suit of eviction was persued by Lodha Properties Development Private Limited against the wife of the assessee. There was a deed of transfer and assignment o....
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.... the agreement dated 24.06.2013 entered with Dr. Maninder Chhabra clearly stipulates that the outgoing tenant along with confirming party has been in continuous , exclusive and uninterrupted use, occupation and possession of the said tenanted premises. The said clause 8(b) of agreement dated 24.06.2013 is reproduced hereunder: "8.The Outgoing Tenant alongwith the Confirming Party covenant with the Incoming Tenant that : a)..... b) The Outgoing Tenant alongwith Confirming Party has been in continuous exclusive and uninterrupted use, occupation and possession of the said Tenanted Premises;" Thus on the strength of these evidences and by virtue of holding uninterrupted and exclusive possession of ground floor of said shop from 01.04.1994 from where the assessee was running his clinic, the assessee is claiming that he has an interest in the said property by way of occupancy/sub-tenancy rights since 1994 for which rents were also paid since 1994 which amounted to capital asset as is covered by definition of capital asset u/s 2(14) of the 1961 Act and on transfer thereof , the income thereof received by the assessee to the tune of Rs. 1,40,00,000/- is charge....
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....committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand [according to the last preceding census of which the relevant figures have been published before the first day of the previous year] ; or (b) in any area within such distance, not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a), as the Central Government may, having regard to the extent of, and scope for, urbanisation of that area and other relevant considerations, specify in this behalf by notification in the Official Gazette;] The following item (b) shall be substituted for the existing item (b) of sub-clause (iii) of clause (14) of section 2 by the Finance Act, 2013, w.e.f. 1-4-2014 : (b) in any area within the distance, measured aerially,- (I) not being more than two kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten thousand but not exceeding one lakh; or (II) not being more than six kilometres, from the local limits of any municipality or cantonm....
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....from said premises by landlord/owner vide letter dated 30.03.1994 . Under these circumstances keeping in view conjoint reading of all the material on record and factual matrix of the case, we are of the considered view that the definition of capital asset u/s. 2(14) is very wide and shall include property of any kind barring exclusions as are mentioned in Section 2(14). The property include bundle of rights and transfer of such rights in relation to capital assets as defined u/s 2(47) , includes transfer vide various modes which could be the sale, exchange, relinquishment of the asset or the extinguishment of any rights therein and also other modes as specified in Section 2(47) . The wife of the assessee held monthly tenancy in the said premises consisting of ground floor and mezzanine floor which stood transferred vide agreement dated 24.06.2013 in favour of Dr. Maninder Chhabra while the assessee was holding usage/occupancy rights/sub-tenancy rights over ground floor of said premises and to get peaceful and vacant possession, it was important for the incoming tenant to pay consideration to the assessee to get his rights over occupancy/usages/sub-tenancy transferred in his favo....
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.... "16. There is no dispute that a tenancy right is a capital asset the surrender of which would attract section 45 so that the value received would be a capital receipt and assessable if at all only under Item E of section 14." Reference is also drawn to the decision of Hon'ble Gujarat High Court in the case of ACIT v. G.C.Shah & Co. (2014) 369 ITR 323(Guj.), wherein Hon'ble Gujarat High Court held as under: "4. Heard. At the very outset, learned Counsels for the parties invited the attention of this Court to a decision of the Hon'ble Apex Court in the case of "CIT v. D.P. Sandhu Bros. Chembur (P.) Ltd. [2005] 273 ITR 1/142 Taxman 713 (SC). In that case the assessee had entered into a lease agreement for fifty years in the year 1959, under which annual rent was paid by the lessee to the lessor. During the previous year relevant to the A.Y.- 1987-88, the assessee surrendered its tenancy rights to its lessor and in consideration of such premature termination of the agreement, the lessor paid the assessee, therein, a sum of Rs. 35,00,000/-. The AO sought to assesses the aforesaid sum as 'Income From Other Sources" under Section 10(3) read with Section 56 of the ....
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....described in schedule for a period of one year from the date of the agreement on a monthly compensation of Rs. 3250 per month. The licensor has been referred to be Modern Textile Rayon and Silk Mills P. Ltd. (Modern) and in clause 5, it has been mentioned that the licensees are entitled to use a portion of the said shed in which the said looms are situated by way of permissible use on licence basis only as incidental to using the said looms and machinery and shall never be construed as sub-lessee in any form of the said portion of the said shed. The assessee has also been provided with access to the said portion of the said shed through portion of the shed retained by the licensors or otherwise. In a nutshell the assessee has been referred to as licensor. From the agreement deed it is clear that the assessee had incidental right of the premises through which the looms were to be used. The said right of the assessee has been recognised from the date of agreement till surrender of the said right. Even the original tenant and the original owner did not dispute such right of the assessee over the property. Now, the case of the Revenue is that the agreement dated June 13, 1972 did not p....