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TaxTMI 
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TaxTMI 
2019 (4) TMI 346
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....ether 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, submitted copy of deed of transfer and assignment of tenancy/occupancy agreement dated 2....
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.... 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 tenancy in the said premises since 01.04.1994. The letter also stipulated that the assessee was running hi....
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....sion 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 Assurances at Mumbai had transferred their ownership interest in the aforesaid property in favour of M/s. L....
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....ted 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 Transfer and Assignment of Tenancy /Occupancy. This agreement is executed by Dr. Rajul Shah (Outgoing tenant), Dr. Jayesh Shah (Confirming Party).Lodha Properties De....
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....ated 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 Ramanarayan Pvt. Ltd., addressed to Dr. Rajul Shah permitting her to allow the appellant (Dr. Jayesh Shah) to run his clinic in the said premises. (iii) Para 2 of the agreement sates as under: - "2. The Outgoing Tenant with the confirmation ....
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....he 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, the Outgoing Tenant along with the Confirming Party as well as all persons claiming under or through it shall execute all necessary documents, writings, deeds, forms, affidavits and other assurances as may be required or as may be found to be executed at any time hereafter for properly and effectively carrying out this Deed and for having the Incoming Tenants recognized as ....
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.... 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 whether this is a right obtained by an agreement or the person is in possession of the property by oral consent of the landlord or the tenant. Moreover, the appellant was in possession of the Ground Floor since 1994 i.e. about 20 Years. In view of this legal position, it is submitted that Rs. 140/- Lacs received by the appellant under the above agreement was a long term capital gain as he was in occupation of the ground f....
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....rged 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 56 TTJ 460 (Ahmadabad) ITA Tribunal has held that "Counsel for the assessee is right that statement of the assessee should not be considered having chosen one part or other of it but that has to be considered in its entirely". It is submitted that if the entire Deed of Transfer of Tenancy / Occupancy is considered, with the other documents relied upon, it is evident that the compensation of Rs. 140 Lakhs was received by the appellant as a consideration for giving up his Sub-....
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.... 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 as Capital Receipt exempt from tax. The AO taxed this compensation of Rs. 30 lakhs as Long Term Capital Gain. The CIT (A) and the 1TA Tribunal has held this receipt as a Capital Receipt not liable to tax." (iv) ACIT Vs. G.C. Shah& Co. 369 ITR 323 (Gujarat) In this case it is held that Rs. 5 lakhs received by the assesse towards surrender of sub-tenancy right is a Capital Gain and it is riot assessable as a casual income u/s 10(3) read with Section 56(1) of the Income tax Act. (v) Kewal Silk Mills V/s ACIT21 ITR(T) 121 (Mumbai) In....
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....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 possession of the said tenanted premises to the incoming tenant along with the original title documents, if any, on completion of the transaction in the manner stated herein. AO after referring the various clauses of the agreement came to the conclusion that appellant did not have any tenancy right over the property. Almost appellant had possession which according to the AO is not a right which was recognized by I.T. Act. Hence, consideration received by appellant on this agreement for Rs. 140,00,000/- was assessed as income from other sources. In the return of income, appellant claimed this consideration received as capital gain and....
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....nd 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 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. This clause has to be read not in parts. It has to be read with the head note which mention that outgoing tenant and the confirming party hereby declare, represent and warrant to the incoming tenant where all the details are mentioned. AO reading the part of the clause without fully reading all the clauses gives distorted meaning. Further, AO mentioned that as per Clause 8(a) which is as under 8. The Outgoing Tenant alongwith the Confirming Party covenant with the Incoming Tenant....
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....rence 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 conclusion. Further, when we examine section 2(14) of the IT. Act which is as under : "Capital asset means - ; (a) Property of any kind held by an assessee, whether or not connected with his business or profession. (b) Any securities held by a Foreign Institutional Investor which has invested in such securities in accordance with the regulations made under the Securities and Exchange Board of India Act, 1992. (c) Any securities held by a Foreign Institutional investor which has invested in such securities in accordance with the regulations made under the Securities and Exchange Board of India Act, 1992. It is clearly mentioned in the above section that capital asset means pro....
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.... 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 amount of Rs. 1,40,00,000/- for vacating peacefully the occupied tenanted premises where he was running a clinic, is to be considered as capital receipt. Hence, it has to be assessed as capital gain only and not income from other sources. Here AO's addition of consideration received by appellant in income from other sources is not sustainable in law. Appellant had rightly offered the consideration received under capital gains and claimed a deduction u/s 54F which AO has not disputed. Hence, AO's addition of Rs. 1,40,00,000/- under income from other sources is deleted. This ground of appeal is allowed." 6. Now , the Revenue is aggrieved by the appellate order dated 13.09.2017 passed by learned CIT(A) and has filed an appeal before the tribunal. Arg....
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.... 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 which consideration of Rs. 1.4 crores was received by the assessee. It is claimed that the assessee is holding uninterrupted possession of the ground floor of the shop since 1994 for which the rent was also paid to his wife Dr Rajula J. Shah who held tenancy in said premises . Our attention was drawn by learned counsel for the assessee to paper book/ page no. 1 to 6 wherein tenancy agreement dated 17.03.1994 for taking on rent said premises by wife of the assessee is placed. Our attention was also drawn to letter dated 30.03.1994 issued by landlord permitting assessee and his wife to run a clinic or a polyclinic for medical profession from said premises. The said letter is placed in paper book/page 7-8. Our attention was also drawn to rent receipt issued by lan....
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....ners 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 NOC is placed in paper book/page 52. Our attention was also drawn to ID issued by Maharashtra Council of Homeopathy, dated 05.12.2015 which shows that the assessee is registered practitioner since 16.03.1981 and holds Regn. No. 7980 . The said ID also shows the address of the assessee to be at the same premises at Krishna Bhawan. The said ID is placed in paper book/page 53. Our attention was also drawn to page 54-55 /paper book wherein letter dated 16.12.2016 written by Lodha Properties Development Private Limited is placed wherein the assessee's wife had stated to have transferred and assigned the tenancy rights in said property with the confirmation of the assessee to Dr. Maninder Chhabra(incoming tenant) vide registered deed dated 24.06.2013 wherein Lodha....
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....b) 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 submitted that these cases are distinguishable and not applicable to factual matrix of the case as the assessee was not holing any tenancy rights or sub-tenancy rights in the said premises as no agreement is produced to evidence the same. It was submitted that the Landlords/Owners merely allowed the assessee to carry on medical profession from the said premises which does not mean that the assessee has acquired any interest/title in the said premises 7. We have considered rival contentions and perused the material on record including orders of authorities below and cited case laws. We have observed that the assessee is Homeopathic doctor by profession and was running his clinic from ground floor of Shop No.1, -C‖ Wing, situated at Krishna Bhavan at 246, 248, 250 & 252 Walkeshwar Road, 11, Banganga Cross Road, Mum....
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.... 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 premises to the Developers (Lodha Properties and Development Private Limited) by an agreement dated 24.06.2013 and since her husband occupied the said premises as her sub-tenant, he joined in the execution of the above agreement as confirming party. Since , her husband was occupier of the ground floor of the said premises, the developer had paid him Rs. 1,40,00,000/- on 21.06.2013 as consideration for transferring his occupation/sub-tenancy rights and for giving vacant and peaceful possession of the ground floor premises. She also claimed that she received Rs. 1,95,00,000/- from the said developers for transferring her tenancy rights and for giving peaceful and vacant possession of the premises occupied by her. The assessee has also brought on record several evidences to prove that he was running his clinic for pursuing his practice of medical pr....
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.... 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 of tenancy and occupancy executed by Dr. Rajul J. Shah in favour of Dr. Maninder Chhabra, on 24.06.2013 wherein assessee stood as confirming party and M/s. Lodha Properties Development P Ltd., were referred to as Landlords . The assessee got consideration of Rs. 1.4 crore by virtue of being confirming party while his wife Dr. Rajul J. Shah got Rs. 1.95 crores under agreement dated 24.06.2013 for transfer of her tenancy and occupancies in favour of Dr. Maninder Chhabra. In the aforesaid letter dated 16.12.2016, the wife of the assessee Dr. Rajul J. Shah was described as monthly tenant of the said M/s Nathuram Ramnarayan Private Limited in respect of shop no. 1 , -C‖ Wing, Ground Floor of in the said building -Krishna Bhuvan‖. The said letter dated 16.12.2016 also stipulates that the owners understand that M/s Nathuram Ramnarayan Pr....
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....n 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 chargeable to income-tax under the head ‗Income from Capital Gains'. The assessee has also claimed to have paid rent to his wife for usage of ground floor of the said premises since 1994 which she had confirmed to have accounted for in her return of income filed with revenue on which she claimed to have paid due income-tax to the Revenue. The profits and gains arising on transfer of capital assets are chargeable to income-tax under the head ‗Capital Gains' within charging Section 45 of the 1961 Act , and shall be deemed to be income of the previous year in which the transfer took place. .The definition of capital asset as is contained in Section 2(14) of the 1961 Act is very wide which include property of any kind barring exclusions as are mentioned in the said Section 2(14) of the 1961 Act. The provisions of Section 2(14) of the 1961 Act are reproduced h....
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....tem (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 cantonment board referred to in item (a) and which has a population of more than one lakh but not exceeding ten lakh; or (III) not being more than eight 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 lakh. Explanation.-For the purposes of this sub-clause, "population" means the population according to the last preceding census of which the relevant figures have been published before the first day of the previous year; [(iv) 6½ per cent Gold Bonds, 1977, [or 7 per cent Gold Bonds, 1980,] [or National Defence Gold Bonds, 1980,] issued by the Central Government ;] [(v) Special Bearer Bonds, 1991, issued by the Central Government ;] [(vi) Gold Deposit Bonds issued under the Gold Deposit Scheme, 1999 notified by the Central Government.] [Explanation.-For the removal of doubts, it is hereby clarified that "property" includes and shall be deemed to have always included any rights in or i....
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....as important for the incoming tenant to pay consideration to the assessee to get his rights over occupancy/usages/sub-tenancy transferred in his favour otherwise it would not have been possible for the incoming tenant to have enjoyed peaceful and vacant possession over the demised premises. Thus, in our considered view the assessee is clearly paid for transfer and assigning of his interest/title in the said property by way of uninterrupted occupancy and possessory rights over ground floor of shop no. 1 Krishna Bhuvan since 01.04.1994 to run his clinic which the assessee was infact running since 1994 from ground floor of shop no. 1 Krishna Bhuvan , under permission granted to the assessee by landlords M/s. Nathuram Ramnarayan P. Ltd , vide letter dated 30.03.1994 and also with the consent of his wife Dr Rajula J Shah who was tenant of the said shop no. 1, Krishna Bhuvan. The assessee was also undisputedly paying rent to his wife for usage of ground floor of said shop for running his homeopathic clinic since 1994 and the wife was including said rental income in her return of income filed with Revenue. The details of said rental income for last five years are reproduced in preceding p....
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....0/-. The AO sought to assesses the aforesaid sum as 'Income From Other Sources" under Section 10(3) read with Section 56 of the Act. When an appeal was preferred, the CIT(A) held that the assessee was liable to pay tax on capital gains on the amount of Rs. 35,00,000/-, after deducting Rs. 7,00,000/- lacs as cost of acquisition. On further appeal against the aforesaid order, the appellate Tribunal held that the assessee did not incur any costs to acquire lease-hold rights and that, if at all, any costs had been incurred, it was incapable of being ascertained, since, the capital gains could not be computed, as envisaged under Section 48 of the Act. On appeal, the High Court dismissed the same. Pursuant thereto, the matter was carried before the Hon'ble Apex Court, which disposed of the matter observing as under; "That it was not open for the department to impose tax on such capital receipts by the assessee under any other head for the A.Y. 1987-88, since, income derived from a source falling under a specific head is to be computed under the appropriate section and no other. A tenancy right is a capital asset and its surrender would attract Section 45 and the gains derived ....
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....the assessee over the property. Now, the case of the Revenue is that the agreement dated June 13, 1972 did not provide any right to the assessee of sub-tenancy of the premises but it was only with respect to looms and machinery and user of the premises was only incidental. But the fact remains that incidental right to use the premises was provided by the agreement itself. The fact also remains that assessee has been referred to as licensee in the said agreement. The provisions of section 5(11)(bb) and 15A of the Rent Control Act have already been reproduced above. By virtue of amendment in 1973, i.e., subsequent to the date of agreement of the assessee that the licensees who are deemed to be tenant under section 15A were to be considered as tenant. Therefore, in any case, the assessee had acquired the status of tenant of the landlord. As per the provisions of section 55(2) tenancy right has been considered to be capital asset. Moreover, the definition of capital asset as per section 2(14) of the Act is wide enough to cover "property of any kind" and the type of right acquired by the assessee in the property used by it cannot in any manner be said to be less than "any kind of proper....