TaxTMI 
TaxTMI 
2021 (1) TMI 201
X X X X Extracts X X X X
X X X X Extracts X X X X
....pellant under the head 'Income from House Property' resulting into addition for a sum of Rs. 4,86,000/-. 1.2 The learned Commissioner of Income Tax (Appeals) and the learned Assessing Officer failed to appreciate the legal position emerging from the related case laws on the issue. 1.3 The learned Commissioner of Income Tax (Appeals) and the learned Assessing Officer erred in disallowing claim for deduction under Section 24(a) of-the Act and bringing the same to tax under the head 'Income from Other Sources'. The appellant prays that the learned Assessing Officer be directed to compute the income from renting of terrace under the head 'Income from House Property' and grant deduction under Section 24(a), and revise the total income of the appellant accordingly. 3. To adjudicate of this appeal only a few material facts need to be taken note of. The assessee before us is Co-Operative Housing Society in the course of scrutiny assessment proceedings it was noticed by the assessing officer that " the assessee has Leave & License Agreement with M/s. Reliance Infratel Limited to use the terrace of the building - Maker Tower - F for erect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ance Infratel Ltd. is that services are being provided and taken. Further, it is to be noted, that all contracts are to be interpreted from yardstick of| ' CONSENSUS AD IDEM, which in other words means that only that can be construed in the contracts on which there is a meeting of the mind between the parties to the contract. In the instant case, the sense of the CONSENSUS AD IDEM' , is that the appellant and the telecom companies understand the real nature of the agreement which is clearly in the sense of services being given and taken rather than the same being in the nature of hiring of premises. This aspect is of utmost significance. 6.6. As regards, the various judicial pronouncements, quoted by the appellant it is clear that each judicial decision is rendered in the very peculiar and factual matrix of that case and therefore it is not either judicially expedient or prudent to superimpose the facts of the various case laws cited. In this sense, each case is undisputedly unique and stands on different pedestal. 6.7. Therefore, in view of the above discussion, the action of the AO in taxing the income from the antennas as income from other sources is ri....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... inter alia observed as follows: 6. We find that Section 22 of the Act provides that "annual value of property consisting of a building or land appurtenant thereto of which the assessee is owner" is taxable under the head "income from house property". There is no dispute on the facts of this case that the assessee is owner of the property but the authorities below have rejected the taxability under the head "income from house property" only on the ground that the rent in question is not in respect of any part of the building but for an unrelated attachment, i.e. mobile antenna, to the roof. It is thus contended that the rental income in question can only be taxed as "income from other sources", i.e. residuary head. In other words, according to the stand taken by the revenue, the rent in question cannot form part of the annual value as it is sine qua non for its such inclusion that the rent must be for "the property or any part of the property", whereas the rent in question is not for any part of the property but an unrelated attachment to the roof or terrace. The revenue implications of this change of head lie in the fact that whereas an income from house property is eligi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ere was a categorical finding to that effect in the order of the Tribunal as well and this finding remained uncontroverted before Hon'ble Calcutta High Court as well. It was based on this uncontroverted finding that Hon'ble Calcutta High Court reached the conclusion that the income in question is taxable as income from other sources. This decision, therefore, cannot even be an authority for the proposition that the income from renting out the roof for placing the hoardings can be treated as income from other sources. Quite to the contrary to this interpretation, the observations made in this decision unambiguously show that when it can be demonstrated, as Their Lordships wanted the assessee to demonstrate in that case, that the consideration received is rent for letting out the roof rather than the hoardings, the legal position will be materially different. Such being the correct position, it is certainly stretching the things a bit too far to suggest that rent for roof, for installation of mobile antennas, cannot be taxed under the head 'income from house property'. Learned CIT(A)'s observations to the effect that "On the same analogy, rent from the installatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d such other equipment as may be necessary". All these installations are to be done by the related companies and the obligation of the assessee does not extend beyond permitting use of space for such installations. It is thus clear that the rent is for space to host the antennas and not for the antennas. As long as the rent is for the space, terrace and roof space in this case and which space is certainly a part of the building, the rent can only be taxed as 'income from house property'. 9. In view of the above discussions, and as the rent received by the assessee for use of space, by Bharti Airtel Limited and Idea Cellular Limited, in a building, or part thereof, owned by the assessee, in our considered view, the rent so received must be taken into account in computation of annual value to be taxed under the head "income from house property". Accordingly, as learned counsel for the assessee rightly contends, the deduction under section 24(a) is admissible on the facts of the present case. We, therefore, reverse the stand of the authorities below and uphold the stand of the assessee. The Assessing Officer is, accordingly, directed to delete the impugned disallowanc....