Full Judgment Text
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sbw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL NO.1213 OF 2011
Commissioner of Income Tax12 ]
nd
R. No.265, 2 Floor ]
Ayakar Bhavan, Mumbai400 020. ] ..Appellant
Versus
Tip Top Typography ]
58, Sheth Chambers ]
Dr. V. B. Gandhi Marg, Fort ]
Mumbai400 023. ] ..Respondent
ALONG WITH
INCOME TAX APPEAL NOS.2447/2011, 5363/2010, 5489/2010,
673/2011, 732/2011, 1316/2011, 1468/2011, 2108/011, 2115/2011,
2116/2011, 2161/2011, 411/2012, 753/2012, 754/2012, 974/2012,
819/2012, 820/2012, 821/2012, 827/2012, 1182/2012, 1472/2012,
106/2014, 195/2014, 342/2014, 343/2014, 657/2014, 676/2014 and
944/2014.
...........
Mr. P. C. Chhotaray for the Revenue in ITXA Nos.1213/2011, 1316/2011,
106/2014, 195/2014, 342/2014, 343/2014, 657/2014, 676/2014 and
944/2014.
Mr. Tejveer Singh for the Revenue in ITXA Nos. 2447/2011, 753/2012,
754/2012, 974/2012, 819/2012, 820/2012, 821/2012, 827/2012 and
1182/2012.
Mr. Vimal Gupta, Senior Advocate, with Ms. Padma Divakar for the
Revenue in ITXA Nos.2108/2011 and 1472/2012.
Mr. Abhay Ahuja for Revenue in ITXA Nos.5363/2010, 5489/2010,
673/2011, 732/2011 and 411/2012.
Mr. Suresh Kumar for the Revenue in ITXA Nos.1468 of 2011 and
2161/2011.
Ms. A. Vissanjee with Mr. S. J. Mehta for the Assesssee in ITXA
Nos.2447/2011, 2116/2011, 2115/2011, 2161/2011, 753/2012,
754/2012, 794/2012, 819/2012, 820/2012, 821/2012, 827/2012 and
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1182/2012.
Mr. R. Murlidharan i/b. M/s. Rajesh Shah & Co. for the Assessee in ITXA
Nos.1213/2011.
Mr. Subhash Shetty for Assessee in ITXA Nos.5363/2010, 5489/2010,
673/2011, 737/2011 and 411/2012.
Ms. Vasanti B. Patel for the Assessee in ITXA Nos.106/2014, 195/2014,
342/2014, 343/2014, 657/2014, 676/2014 and 944/2014.
Mr. Prakash Shah with Mr. Jas Sanghavi i/b. PDS Legal for the Respondent
in ITXA No.1468/2011.
...........
CORAM: S.C. DHARMADHIKARI
AND
B.P. COLABAWALLA, JJ.
nd
RESERVED ON : 2 JULY, 2014
th
PRONOUNCED ON: 8 AUGUST, 2014.
J U D G M E N T (PER S. C. DHARMADHIKARI, J.)
1] In all these appeals, we are concerned with the following
substantial question of law:
“(i) Whether on the facts and circumstances of the case and
in law, Tribunal was right in holding that the fair rental
value specified in section 23(1)(a) is the municipal value or
actual rent received whichever is higher and not the annual
letting value on the basis of comparable instances as
adopted by the Assessing Officer, though the property under
consideration was not covered by the Rent Control Act?
(ii) Whether on the facts and circumstances of the case and
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in law, Tribunal was right in remitting the matter back to
the file of the Assessing Officer with direction to verify the
rateable value fixed by the Municipal Authorities and if the
same is less than the actual rent received, then the actual
rent received should be taxed?”
Some of the appeals have been admitted but we shall proceed to Admit
the rest of them on the above mentioned substantial questions of law. The
Respondents therein waive service. By consent heard forthwith.
2] Similarly, there are appeals in which arguments were canvassed on
the basis that the rent control legislation operating in the State is
applicable but the parties are not at idem on the quantum of rent.
Therefore, the proceedings in that behalf and particularly for fixation of
standard rent were not initiated under the rent control legislation.
Therefore, the Assessing Officer took upon himself the responsibility of
fixing the fair/standard rent. Whether this step taken by the Assessing
Officer is permissible in law or otherwise is the further question.
Similarly, in some of the appeals, there is not an agreement of tenancy but
of leave and license. Thereunder, license fee has been agreed between
the parties. Further, the quantum of security deposit has also been
stipulated in the agreement. Therefore, the question arises as to whether
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the security deposit which though refundable but without interest can be
taken into consideration for holding that the agreed license fees does not
reflect the market trend or market rate prevailing in the area.
3] For the purposes of answering these questions we would refer to the
facts in Income Tax Appeal No.1213 of 2011. The assessment year in
question therein is 200506. The brief facts are that the return of income
st
for assessment year in question was filed on 31 August, 2005 declaring
total income at Rs.3,12,520/. The same was processed under section
143(1) of the Income Tax Act, 1961 (for short the 'I.T. Act'). The case was
selected for scrutiny. The Assessing Officer noticed that the respondent
assessee had let out commercial premises admeasuring about 8118 sq.ft.
built up area consisting of office premises along with Car parking open
space in the building “Seth House” in a prime locality at Dr. V. B. Gandhi
Road, Mumbai23. The premises were given to a related concern namely
M/s. Reliance Industries Ltd. for Rs.3,60,000/ and a sum of
Rs.5,25,00,000/ was received as interest free security deposit. The
Assessing Officer noticed that the rent received by the assessee was
nominal and the circumstantial evidence indicated that the fair market
value was higher. Therefore, he obtained instances of the rental amount
prevailing in the market and particularly in the area and confirmed that
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the property was not covered by the Rent Control Act. On the basis of
such comparable instance, the annual letting value as provided under
section 23(1)(a) was determined at Rs.85,72,608/ as against
th
Rs.3,60,000/ shown by the assessee. The assessment order dated 24
December, 2007 copy of which is at AnnexureA was passed and being
aggrieved thereby the assessee preferred an appeal before the
Commissioner of Income Tax (Appeals). The Commissioner of Income Tax
th
(Appeals) by his order dated 11 December, 2008 confirmed the action of
the Assessing Officer. A copy of the Commissioner's order is at
AnnexureC.
4] The assessee, thereafter, carried the matter in appeal to the Income
st
Tax Appellate Tribunal and by an order dated 31 March, 2010 the matter
was remitted back to the Assessing Officer. The Tribunal directed him to
verify the rateable value fixed by the Municipal authorities and if the
same is less than Rs.3,60,000/, then, the actual rent received should be
taxed. Copy of this order of the Tribunal is annexed as AnnexureE to this
memo of appeal.
5] It is aggrieved by this order of the Tribunal that the revenue has
approached this Court in appeal under section 260A of the Income Tax Act
raising the above substantial questions of law.
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6] Mr. Chhotaray, learned counsel, appearing for the revenue in these
appeals submitted that the language of section 23(1)(a) of the Income
Tax Act, 1961, for short the I.T. Act is clear. That has no relation to the
rateable value determined by the municipal corporation. It has also no
relation to any deposits or security amount obtained by the assessee like
the respondents. Therefore, the attempt is to depress the rent. When such
attempts are noticed, then, it can never be intended by the law that the
Assessing Officer is obliged to adopt the municipal value. In the present
case the matter has been completely distorted by the assessee. The
reference to section 23(1)(b) is misplaced. The element of municipal
property tax rate has, therefore, no relevance. On facts also, the
relationship is admitted. The Assessing Officer has made a comparative
study and analysed the prevailing rate. Mr. Chhotaray, therefore, submits
that the findings at page 16 and 18 of the paper book would reflect that
there was nothing erroneous or illegal in the manner in which the
Assessing Officer proceeded to determine the rent. Mr. Chhotaray submits
that section 23(1)(a) refers to a reasonable expectation with regard to the
rent that can be obtained if the premises are let. The Assessing Officer has
clearly gone by this requirement of the section. Mr. Chhotaray submits
that the Assessing Officer had correctly determined the rent and his
finding has been upheld by the Commissioner. The Assessee did not
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appear before the Commissioner but his absence cannot be said to be fatal
more so, when the assessee had complete opportunity to argue its case
before the Tribunal.
7] Criticizing the Tribunal's order, Mr. Chhotaray submits that the
Tribunal has observed nothing with regard to the approach of the
Assessing Officer. The Tribunal does not hold that the course adopted by
the Assessing Officer is imperssible in law. In para14 of the order,
Tribunal has agreed with the Assessing Officer that there is a possibility of
the rent or compensation being shown at lower rate and it can be
determined by taking recourse to section 23(1)(a), then, there was no
need to freeze the rent or the quantum thereof with the figure of the
annual letting value as determined by the Mumbai Municipal Corporation.
Thus, there is a patent error of law committed by the Tribunal. Merely,
because the words “might be reasonably expected to be let” are inserted
by the legislature in section 23(1)(a) that does not mean that the
Assessing Officer is bound by the valuation made by the Municipal
Corporation. That is a complete misreading of the section. Mr. Chhotaray
submits that the municipal valuation cannot be the sole and only criterion.
The municipal valuation is not binding on the Assessing Officer. He can
independently determine the rent which can be fetched by the assessees.
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In doing so he can make local enquiry including from brokers and refer to
the agreements between parties. He can also refer to the valuation by the
State Government and for the purposes of recovery of State taxes. Mr.
Chhotaray submits that there is a tendency to accept deposit of a hefty
sum. Even a nominal rent which is higher than the municipal
determination is taken as the basis for such security deposit. Mr.
Chhotaray submits that if the intent of the legislature was to make an
assessment by municipal valuation alone, then, that would have been
clearly spelled out in law. Mr. Chhotaray, therefore, referred to Rule 4, 5,
6 and 7 of the Wealth Tax Rules in this behalf.
8] Mr. Chhotaray also submitted that the Tribunal has solely relied
upon its own order in the case of Park Paper Industries Ltd. which is
delivered in the case of a selfoccupied property. At the same time, the
Tribunal failed to note that there is a contrary view taken in the case of
the Income Tax Officer V/s. M/s. Baker Technical Services Private Ltd.
Income Tax Appeal No.5262, 5264/Mum/2006. In such circumstances, Mr.
Chhotaray submits that the impugned order be set aside and the appeal be
allowed.
9] Mr. Chhotaray also submits that the Assessing Officer was of the
view that the monthly rent shown was very low and did not represent the
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correct fair rental value of the property under section 23(1)(a) of the Act.
Under section 23(1)(a), the annual value of the property shall be deemed
to be the sum for which the property might reasonably be expected to let
from year to year (henceforth referred to as fair rental value of the
property). The section mandates the Assessing Officer to determine the
fair rental value of the property under section 23(1)(a). The Assessing
Officer made enquiries to find out the comparable rent prevailing in the
vicinity. He has prepared a chart of the comparable cases showing that the
monthly rent per sq. ft. in the vicinity ranged between Rs.79 to Rs.110 per
sq. ft. instead of Rs.3.70 per sq. ft. shown by the assessee. The
information collected by the Assessing Officer was confronted to the
assessee.
10] The assessee contended that the gross municipal rateable value of
the property was Rs.39,572/ per annum which came to Rs.3298/ per
month. As per the assessee the municipal rateable value represented the
fair rental value of the property in the market under section 23(1)(a) and
since the rent received was much more than the municipal rateable value,
the annual value shown by the assessee should be accepted in view of
section 23(1)(b) of the Act. Section 23(1)(b) provides that if the actual
rent received is more than the fair rental value under section 23(1)(a),
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then the actual rent received should be adopted as the annual value.
11] At the time of the hearing it was pointed out by the revenue that ,
according to the theory behind the provision relating to the income from
house property, annual value of the property is a hypothetical income from
the property representing the sum for which the property might
reasonably be expected to let from year to year. It is an artificial or
assumed income. The actual rent received is not material in
determination of the annual value. Annual value is the inherent attribute
of the property to be determined by adopting various methods.
12] It was pointed out that reading both the provisions 23(1)(a) and
23(1)(b) together would show that determination of annual value is a
twostep process. The first step is to determine the fair rental value in the
market under section 23(1)(a). This is the most important part.
Thereafter, the second step is to refer to section 23(1)(b) which provides
that if the actual rent received is more than the fair rental value
determined under section 23(1)(a), then the actual rent received would
be deemed to be the annual value. It was pointed out that in the
captioned case, there is no applicability of section 23(1)(b) since the
annual value, as determined by the Assessing Officer, is much more than
the actual rent received.
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13] Mr. Chhotaray further submits that annual value is a statutory
hypothetical figure. The provisions of section 23(1)(a) mandates the
Assessing Officer to determine this value. It simply states that the annual
value is the sum for which the property might reasonably be expected to
let from year to year. It does not speak anything else. The Assessing
Officer determines the annual value by taking various factors into account.
He may take recourse to different recognized methods. One important
method is to find the prevailing market rate of rent in the area. In order
to find it out, he may make inquiry with let out properties in the locality,
make enquiry with the brokers, use internet for knowing the prevailing
rate in the area, take the help of a valuer, adopt any other method. After
collecting the information, the assessee is confronted with the data
gathered and after considering his objections suitable adjustments are
made to determine the correct annual value. It is submitted that valuation
is an art and there are recognized methods. The Assessing Officer is
capable of making the valuation on his own by adopting the appropriate
method. Each property is unique so far its annual value is concerned. It is
not correct to impose a standard annual value for all properties in a
locality. Valuation of a property is distorted because of relation between
parties, collusion, heavy security deposit. Therefore, each case needs to
be addressed on its own facts and Assessing Officer is competent to handle
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this issue. It is respectfully submitted that this is the correct approach to
determine the annual value. It is important to note that the order of the
Assessing Officer is subject to judicial scrutiny. The Assessing Officer
should be left alone to perform this function as required by law.
14] Mr. Chhotaray submits that municipal rateable value is not a reliable
data for determining the annual value under the Income Tax Act. It is
invariably seen that the municipal value is much below the fair rental
value of the property. The valuation is outdated. In such a situation, the
municipal value is not a reliable data for determining the annual value for
section 23(1)(a) of the Income Tax Act. Hence, adopting the municipal
value for determining the annual value under the Income Tax Act would
lead to substantial loss of revenue. The objectives of the local authorities
and the Income Tax Departments are entirely different. Municipal
Authorities are concerned with the collection of property tax in order to
provide the civic amenities. They would rest content in prescribing the
rate for a particular area and would not be bothered about accurately
determining the income from a particular property which is the objective
of the Income Tax Department. The municipal rateable value is also
subject to litigation. It is impossible to develop any mechanism by which
the Income Tax Department would keep track of the appeal proceedings in
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municipal cases and adopt the modifications. The Income Tax Department
is not equipped to liaise regularly with municipal authorities in order to
perform its own function of making an assessment. Also most of the
returns are accepted without scrutiny and unless there is clear exposition
of law, the assessee would show low income from house property which
will lead to loss of revenue. It would be unfair to require the Income Tax
Department to adopt the municipal valuation even if it notices gross and
glaring undervaluation in municipal valuation. The Income Tax
Department has no control over the municipal valuation. Under the law,
there is no reference to the municipal valuation. There is no case for
introducing the element of municipal valuation in the income tax law.
The process of municipal valuation of different states is different. The
local authorities have their own priorities. For example, Mumbai has now
switched over to the capital value system where the municipal value is at a
certain percentage of the capital value of the property. Properties with
area up to 500 sq. ft. would not pay the higher rate. The concept of
determining the fair rent of the property is no longer there. Therefore,
there would no longer be any commonality in the wordings of the
provisions of the section 23(1)(a) of the Income Tax Act and the
provisions of the Municipal Act which is the main plank of the argument
for adopting the municipal value for income tax. Income Tax Department
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is accountable for collection under the Income Tax law and should not be
dependent on municipal system which is not accountable to it. Therefore,
the annual value of the property under the income tax law should be
delinked from the municipal valuation. Municipal valuation can at best be
a factor to be considered by the Assessing Officer and nothing more than
that. The Assessing Officer can reject the municipal valuation for valid
reasons.
15] Mr. Chhotaray then submits that heavy security deposit is a factor to
be taken judicial notice of. In many cases heavy security deposits running
into crores of rupees are taken by the landlord as a consequence of which
the amount of rent is reduced. It is accepted by the assessees that there is
an inverse correlation between the amount of security deposit and the
amount of rent. If the security deposit is more, the amount of rent is less
and vice versa. Thus the rent fluctuates according to the amount of
security deposit. Annual value is an artificial statutory figure which is
germane to the property. It should be, by and large, same for a particular
property and should not vary according to the quantum of security
deposit. This goes against the very theory of annual value unanimously
propounded by all the judgments. It needs to be judicially recognized that
security deposit is a factor to be taken into account in determining the
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annual value. The Courts have not found favour with the idea of
calculating the notional value of interest on the security deposit and
increase the rent to that extent. But to completely ignore the effect of
security deposit on the amount of rent fixed between the parties would
lead to ignoring the ground reality of the transactions when it is openly
admitted that one of the main objectives behind heavy security deposit is
to reduce rent and this would result in eventually determining a wrong
annual value. It is submitted that a rebuttable presumption may be raised
against assessees accepting security deposit beyond a certain normal
amount that, they have benefited to the extent of the notional interest on
the security deposit and the annual value should be increased by this
notional interest. The assessee would be free to rebut this presumption
with valid reasons.
16] Mr. Chhotaray has relied upon the following decisions in support of
his above contentions.
1) (1981) 128 ITR 315 Bhagawan Dass Jain V/s. Union of India and
Others;
2) (1975) 100 ITR 97 – Sakarlal Balabhai V/s. Income Tax Officer,
Special Investigation Circle IV, Ahmedabad and Another;
3) AIR 1968 Supreme Court 441 (V 55 C 97) – Motichand Hirachand
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and others V/s. Bombay Municipal Corporation;
4) AIR 1962 Supreme Court 151 (V 49 C 28) – The Corporation of
Calcutta V/s. Sm. Padma Debi and others;
5) AIR 2011 Supreme Court 1940 – Mohammad Ahmad & Anr. V/s.
Atma Ram Chauhan & Ors.;
6) (1975) 101 ITR 810 – Kashi Prasad Kataruka V/s. Commissioner of
Income Tax, Bihar;
7) (2001) 248 ITR 723 – Commissioner of Income Tax V/s. J. K.
Investors (Bombay)Ltd.;
8) Order of Allahabad High Court in case of Sewa Ram Oil Mills V/s.
Commissioner of Income Tax;
th
9) Order of Madras High Court dated 4 April, 2003 in case of N.
Nataraj V/s. Deputy Commissioner of Income Tax and
10) (2011) 333 ITR 38 – Commissioner of Income Tax V/s. Moni Kumar
Subba.
17] Mr. Chhotaray's submissions were adopted by Mr. Tejveer Singh
appearing for the revenue in Income Tax Appeal Nos. 2447/2011,
819/2012, 820/2012, 821/2012, 827/2012, 1182/2012, 753/2012,
754/2012 and 794/2012 and Mr. Suresh Kumar.
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18] Mr. Abhay Ahuja appearing for the revenue in some of the appeals
submitted that in Income Tax Appeal No.5489 of 2010, the questions of
law arise out of the letting of two flats by the private limited companies to
its Directors. The flats are in a building known as Samudra Gaurav
Apartments, Worli, Mumbai. The facts of the case in the first matter viz.
Income Tax Appeal No. 5489 of 2010 for assessment year 200506 are that
the assessee by reason of its holding two class 'A' shares of M/s. Samudra
Gaurav Apartment Pvt. Ltd. from the year 1980 was entitled to use and
occupy two flats admeasuring 5142 sq. ft. each with four covered garages
bearing No.E1, E2, E6 and E13 of which the assessee has been given
possession. The assessee derives income from house property. The
aforesaid property has not been included in the block of assets against
which the aggregate rental income for each of the years is shown as
Rs.60,000/ consisting of Rs.30,000/ from each of the directors. The
Assessing Officer found that the property in question is Worli sea facing,
and looking to the size of the flats, location of the property, car parking
facility and use of the garden, the rent of Rs.2500/ per month for each
flat to each of the directors is very low and he therefore called upon the
assessee to explain why the ALV of the above flats should not be
determined within the meaning of section 23(1) of the Income Tax Act,
1961. The Assessing Officer relying upon the records of the SubRegistrar
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of Properties, circle Worli during the previous year under consideration
showed the prevailing rate of Rs.8919/ per sq. ft. whereas the assessee
recorded return from the property at the rate of 12% p.a. That would be
about Rs.90/ per sq. ft. per month and upon further confirmation of the
same on the basis of spot enquiry made by the inspector of the fair rental
value of the area during the subject period which was ranging between
Rs.80/ to Rs.100/ per sq. ft. per month, the Assessing Officer held that
the assessee company has been charging only Re.1/ per sq. ft. per month
from its Directors. He, therefore, adopted the lowest rent of Rs.80/ per
sq. ft. for the relevant assessment year and calculated the rental value of
two flats (5142 sq.ft.) at Rs.4,11,360/ p.m. and the annual rental at
Rs.49,36,320/.
19] Mr. Ahuja further submits that with respect to the assessee's claim
that it could not charge rent higher than the deemed standard rent i.e.
rent on 01.10.1987, the Assessing Officer held that the claim was not
tenable as the standard rent had not been fixed by a Court under section
8(1)(c) of the Maharashtra Rent Control Act, 1999 upon an application for
the same as could have been done by the assessee. Thus the assessee had
deliberately foregone its right to fix standard rent higher than the
artificially low rent being charged on 01.10.1987 and had not even
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availed off the benefit of annual 5% permissible increase under the
Maharashtra Rent Control act, 1999 obviously because the Director being
the tenant of the assessee company. The Assessing Officer held that the
rent at which the property can be reasonably let out is definitely much
more than the rent being charged from the director tenants. The
Assessing Officer relied on the two judgments of Dewan Daulat Rai
Kapoor V/s. New Delhi Municipal Committee and Anr. ]122 ITR 700 (SC)]
and T. V. Sundaram Iyengar and Sons Ltd. V/s. CIT [241 ITR 420 (Mad)].
The assessee filed appeal against the order of the Assessing Officer mainly
on the ground that the Assessing Officer erred in not considering the
provisions that the Annual Value of the property situated in a area where
Rent Control Law applies cannot exceed the standard rent as per
Maharashtra Rent Control Act, 1999. The assessee submitted that as per
Municipal Records the fair market value of the said property was
Rs.24,288/ per year and the rent of Rs.30,000/ for each of the properties
being higher should be taxed as rental income. The Commissioner of
Income Tax (Appeals) upheld the Assessing Officer's order including the
finding that the assessee had not taken any recourse to section 8(1) of the
Maharashtra Rent Control Act, 1999 for fixation of standard rent. The
Commissioner of Income Tax (Appeals) also gave a finding that the
assessee's attempt to take protection of the Maharashtra Rent Control act,
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1999 was inconsistent and highly contradictory. He found that on the
assessee's own showing the rate by the Municipal Corporation of Greater
Bombay was Rs.24,288/ and the rent received by the assessee was
Rs.60,000/. Accordingly he gave a finding that the assessee itself had
given a goby to the provisions of section 10 of the Maharashtra Rent
Control Act, 1999 and concluded that the assessee had taken the property
outside the purview of the Maharashtra Rent Control Act, 1999 and the
assessee could not take cover under it for income tax purposes. The
Commissioner of Income Tax (Appeals) also relied upon the cases of
Dewan Daulat Rai Kapoor V/s. New Delhi Municipal Committee and Anr.
(supra) and T. V. Sundaram Iyengar & Sons (supra), and held that the
Assessing Officer was right in fixing the rent of property at Rs.4,11,360/
per month. In appeal before the Tribunal, on the finding of the lower
authority that the Maharashtra Rent Control Act, 1999 was violated on the
basis that the assessee received rent over and above the standard rent, the
assessee submitted that the property was tenanted for a long time and the
provisions of the Maharashtra Rent Control Act, 1999 protect the tenant
and also postulates that if rent was fixed prior to the implementation of
the Maharashtra Rent Control Act, 1999, the rent fixed will become
standard rent under the Act and accordingly the assessee is covered under
the provisions of the Maharashtra Rent Control Act, 1999. The Income
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Tax Appellate Tribunal held that (i) the assessee has given property on
rent to Mr. T. B. Ruia long back and on his death Mrs. Asha Ruia became
the tenant and there was a revised agreement dated 14.08.2008. In all
the years the Assessing Officer has been accepting rent received by the
assessee company and the assessment order for one of the years viz.
Assessment year 200405 is under section 143(3) of the Income Tax Act,
1961 (ii) it was already established that while invoking provisions of
section 23 of the Income Tax Act, 1961, the Assessing Officer has to
consider municipal rateable value, or standard rent or actual rent
received, whichever is higher and set out the various paragraphs of the
decision of the Tribunal in the case of ITO v/s. Makrupa Chemicals (P)Ltd.
[108 ITD 95 (Bom)] stating that the methodology for arriving at the
annual value of property under the provisions of section 23(1) of the
Income Tax Act, 1961 was given therein; (iii) that the property is a
tenanted property and the tenant is a protected tenant as per the orders of
the Court and since the rent received by the assessee is more than the
standard rent/municipal rateable value, the Assessing Officer has no
option than to accept the rent received by the assessee. He accordingly
directed the Assessing Officer to accept the rent offered by the assessee
and determine the income from the house property accordingly. Similar
facts exist for assessment year 200506 in the case of Commissioner of
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Income TaxCentral III V/s. Ramrikhdas Balkison & Sons Pvt. Ltd. (ITXA
5356 of 2010) as well as for assessment year 200607 in the case of
Commissioner of Income TaxCentralIII V/s. Ramgopal Ganpatrai & Sons
Pvt. Ltd. (ITXA 732ofo 2011) and Commissioner of Income TaxCentralIII
V/s. Ramrikhdas Balkison & Sons Pvt. Ltd. (ITXA 673 of 2011).
20] Mr. Ahuja, therefore, submits that findings by the Tribunal that the
revised agreement is dated 14.08.2000 and after the enactment of the
Maharashtra Rent Control Act, 1999 are vitiated in law. No finding was
rendered by the Tribunal on the submission of the assessee that if rent was
fixed prior to the implementation of the Maharashtra Rent Control act,
1999, the rent fixed will become standard rent under the Act. Even
otherwise there is neither any evidence nor finding that the standard rent
was fixed under section 7(14)(a) or section 8(1) nor the case falls under
section 6 of the Maharashtra Rent Control Act, 1999. There is no finding
by the Tribunal that standard rent was fixed in accordance with section
8(1) of the Maharashtra Rent Control Act, 1999. In fact, there is a clear
statement by the assessee in the statement of facts in the appeal before
Commissioner of Income Tax (Appeals) that as per Municipal Records the
fair market value (and not standard rent) of the said property was
Rs.24,288/ per year. The Tribunal appears to have erroneously
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considered this figure as the standard rent. Therefore, finding by the
Tribunal that rent received is more than the standard rent and the
Assessing Officer has no option but to accept the rent received as the
basis, is also erroneous. Even assuming without admitting that the said
rent received from each director per year is Rs.30,000/ that would be in
violation of section 10 of the Maharashtra Rent Control Act, 1999 and
take the assessee's case outside the ambit of the Rent Control legislation,
which has been the case of the revenue. Also finding by the Tribunal that
since rent received by the assessee is more than the municipal rateable
value, the Assessing Officer has no option than to accept the rent received
as per the decision in ITO V/s. Makrupa Chemicals (P)Ltd. (supra) is
erroneous as it presupposes that the assessee is outside the purview of the
Rent Control Act whereas the Tribunal itself has given a finding that the
property is a tenanted property and the tenant is a protected tenant as per
the orders of the Court. On the issue of earlier years, it is submitted that
only for assessment year 200405 the assessee's stand appears to have
been accepted under section 143(3) but for no other year. Every year is a
separate unit of assessment. In any event the Tribunal has decided the
matter on merits and not on the basis of earlier years. It is submitted that
if this Court holds that the property is outside the purview/ambit of the
Maharashtra Rent Control Act, 1999, the appellant revenue craves leave of
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this Court to adopt the arguments and submissions made by Shri P.C.
Chhotaray in the case of Commissioner of Income Tax12 V/s. Tip Top
Typography (ITXA 1213 of 2011), and submit that Court be pleased to
allow the appeals upholding the orders passed by the Assessing Officer
and Commissioner of Income Tax (Appeals) determining ALV of the
property. Alternatively, if this Court holds that the case of the assessees
herein falls within the purview of the Maharashtra Rent Control Act, 1999,
then, it is submitted on behalf of the appellant revenue that as no
standard rent has been fixed by a Rent Controller or a Court either as per
section 7(14)(a) or in accordance with section 8(1) of the Maharashtra
Rent Control Act, 1999, nor is there any finding by the Tribunal that any
standard rent was fixed prior to the Maharashtra Rent Control Act, 1999,
this Court be pleased to apply the principles laid down by the Hon'ble
Supreme Court in the case of Dewan Daulat Rai Kapoor v/s. New Delhi
Municipal Committee and Anr. (supra). In the event, this Court finds that
the assessee's case/property falls within the ambit of the Maharashtra Rent
Control Act, 1999 it is submitted that this Court be pleased to consider
remanding the matters back to the Assessing Officer to arrive at the figure
of standard rent by applying the principles laid down in Maharashtra Rent
Control Act, 1999 for determination of standard rent and determine the
annual value of the property on the basis of such figure of standard rent.
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21] Mr. Ahuja has relied upon the following judgments in support of the
above contentions:
1) (1980) 122 ITR 700 – Dewan Daulat Rai Kapoor V/s. New Delhi
Municipal Committee and Another;
2) (2000) 241 ITR 420 – T. V. Sundaram Iyengar and Sons Ltd. V/s.
Commissioner of Income Tax;
3) (2008) 298 ITR 413 (Jharkhand) – Commissioner of Income Tax
V/s. Shrimati Bhagwani Devi.
22] On the other hand, Mr. Murlidhar and Mr. Jasani appearing for the
assessee in some of the appeals so also Mr. Prakash Shah would submit
that the expression “sum for which the property might reasonably be
expected to let from year to year” is considered and explained in Circular
th
No.204 dated 24 July, 1976. That Circular explains the provisions of the
Taxation Laws (Amendment) Act, 1975. Prior to the insertion of section
23(1)(b) by this Amendment Act, 1975 the annual value of house
property could only be determined on the basis of section 23(1)(a) and
not on the basis of actual rent received for the property. The Central
Board of Direct Taxes has explained the rationale for the amendment and
hence reliance is placed by Shri Murlidhar on the wording of the Circular
th
204 dated 24 July, 1976. Mr. Murlidhar submits that the Central Board
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of Direct Taxes recorded the annual value under section 23(1)(a) as being
equal to the municipal valuation of the property. He submits that this
Circular holds the field and has not been withdrawn. It will bind the
revenue under section 119 of Income Tax Act. Then, Mr. Murlidhar has
placed reliance upon a judgment of the Calcutta High Court in the case of
Commissioner of Income Tax V/s. Smt. Prabhavati reported in (1983) 141
ITR 149. Mr. Murlidhar relied upon the observations at page 424 of the
report and urged that the wording of section 143 of the Bombay
Municipal Corporation Act, 1888 contains identical expression/words
namely that the rateable value has to be determined on the basis of the
rent which such rent or building might reasonably be expected to be let
from year to year. Similar principle is laid down in the case of Motichand
Hirachand reported in AIR 1968 Supreme Court 441.
23] Mr. Murlidhar, then, relied upon the decision of this Court in the
case of M.V. Sonavala V/s. Commissioner of Income Tax reported in
(1989) 177 ITR 246. Mr. Murlidhar also relied upon the decision of this
Court in the case of Smt. Smitaben N. Ambani V/s. Commissioner of
Wealth Tax reported in (2010) 323 ITR 104. He has also relied upon the
decision of the Calcutta High Court in the case of Commissioner of Income
Tax V/s. Satya Co. Ltd. and the decision of the Full Bench of Delhi High
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Court in the case of Commissioner of Income Tax V/s. Mani Kumar Subba
(2011) Vol.333 ITR 838. Mr. Murlidhar, therefore, submits that in all
these decisions it has held that the rateable value fixed by the Municipal
Corporation cannot be ignored or brushed aside. If the correctness of the
municipal valuation was never disputed by the department, then, the
same should be adopted as the annual value of the premises. In all these
decisions, therefore, the principle laid down is that the department will
have to bring in material to show as to how the municipal rateable value
does not represent the correct rent.
24] In the facts of the case namely Tip Top Typography, Mr. Murlidhar
submits that the respondentassessee had received a refundable security
deposit of Rs.5.25 crores and had spent a sum of Rs.65 lakhs on
renovation of the premises. If the municipal rateable value of the
premises is to be taken into consideration, then, the Tribunal's order
cannot be said to be perverse or vitiated by an error of law apparent on
the face of the record. Mr. Murlidhar submits that Municipal Corporation
is a responsible body entrusted in imposing as much legitimate tax as
possible, and therefore, its valuation constitutes a safe guide for
determining the annual value of the property. He, therefore, submits that
the appeal of the revenue be dismissed.
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25] Ms.Vissanjee, learned counsel, appearing in the other appeals
submits that the language of section 154 of the Mumbai Municipal
Corporation Act, 1888 is in pari materia with section 23(1)(a). The test
for determining the rateable value under the Mumbai Municipal
Corporation Act and the annual letting value under section 23(1)(a) of the
Income Tax Act is identical. Both statutes contemplate fixation of
rateable/annual value at the reasonable amount of rent which can be
expected by the owner from a hypothetical tenant. The basis of charge of
income from house property is its 'annual value'. The annual value is a
deemed or notional figure based on which the owner is subjected to tax
irrespective of whether or not the property has been let. The only
exceptions are (i) a property which is occupied by the owner for the
purpose of his business (ii) a property occupied by the owner for the
purpose of his own residence or cannot actually be occupied by the owner
by reason of the fact that owing to his employment, business or
profession carried on at any other place, he has to reside at that place in a
building not belonging to him [section 23(2)(a) and (b)]. The exception
in (ii) above is not available if the house or any part is actually let during
the whole or part of the previous year or any other benefit is derived by
the owner. [section 23(3)]. And further exception in (ii) above is limited
to one house which the assessee at his option may specify [section 23(4)].
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It is because an assessee is assessable to income from house property on a
notional figure even if the property is not let out that section 23(1)(a)
uses the expression 'reasonably be expected to let'. It is for this reason
that the municipal rateable value has been correctly adopted for the
purpose of determining the annual value under section 23(1)(a). The
proposition by the Revenue that the Assessing Officer can adopt the 'fair
rent' based on information obtained from local enquiries, brokers and the
internet is totally unwarranted. In cases where the property is let out,
ordinarily the license fee agreed between a willing licensor and a willing
licensee uninfluenced by any extraneous circumstances would afford
reliable evidence of what the landlord might reasonably expect to get from
a hypothetical tenant. If such rent is higher than the municipal rateable
value, the provisions of subclause (b) of section 23(1) would apply. The
action of the Assessing Officer in determining the annual value by (i)
imputing notional interest on the security deposit to the actual rent
received while separately assessing the income earned on the security
deposit (equivalent to 12 months advance license fee) offered to tax under
the head 'other sources' [Reclamation Real Estate Co. India Pvt. Ltd.] (ii)
adopting the rent fetched by another premises in the same building as the
annual letting value in the case of the assessee [Reclamation Properties
India Pvt. Ltd. & Reclamation Realty India Pvt. Ltd.] in place of the rent
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receivable has been rightly reversed by the Tribunal. So also the action of
the Assessing Officer in reopening past assessments to reassess the annual
letting value based on the rent fetched by some other premises has been
rightly rejected by the Tribunal. Ms. Vissanjee, therefore, submits that the
appeal be dismissed.
26] Mr. Prakash Shah appearing in Income Tax Appeal No.1468 of 2011
submits that this appeal challenges the order passed by the Income Tax
th
Appellate Tribunal in Income Tax Appeal No.2587/MUM/2009 dated 16
July, 2010 in respect of the assessment year 200506. The respondent is
the owner of a commercial property at Kandivali(W), Mumbai. The
respondent has let out the first floor admeasuring 4625 sq.ft to 9 entities,
which are group entities in 1992. These entities have in turn sublet the
premises to Saraswat Cooperative Bank Ltd. The Assessing Officer
accepted the transaction between the tenants and Saraswat Cooperative
Bank Ltd. as genuine and the rent payable by the tenants to the
respondents as Annual Letting Value within the meaning of section 23 of
the Income Tax Act, 1961. It is urged by Shri Shah that though the
tenants filed their respective returns of income and offered the rent
received by them from Saraswat Bank for taxation what transpired
thereafter is that the annual rateable value determined by the
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Brihanmumbai Mahanagarpalika was set aside by the Small Causes Court
at Mumbai. The Small Causes Court, Mumbai had held that the municipal
valuation cannot be based on the amount received by the tenants (group
entities) from subtenant (M/s. Saraswat Bank). The rateable value has to
be determined on the rent paid by the group entities (tenants) to the
owner namely the respondentassessee. It is in these circumstances that in
the return of income, the respondentassessee stated accordingly.
However, the Assessing Officer determined the Annual Letting Value on
the amount or quantum which was received by the tenant from the sub
tenant. The Assessing Officer added the difference between the rent
received by the respondentassessee from the tenants and the amount
received by the tenants from the subtenant. For the first time in the
assessment year 200506, the Assessing Officer held that the transaction
between the respondents and the tenants is camouflage and colourable
device to evade the tax.
27] An appeal was preferred before the Commissioner of Income Tax
(Appeals) against the addition made by the Assessing Officer and the said
th
appeal was partly allowed on 4 February, 2009. By the impugned order,
the Tribunal set aside the Annual Letting Value determined by the
Assessing Officer and sustained by the Commissioner of Income Tax
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(Appeals). The Tribunal held that the transaction between the
respondents and the tenants is not a colourable device. It is submitted,
therefore, the tax effect, as stated by the revenue in the memo of appeal is
Rs.6.84 lakhs which is much below Rs.10 lakhs. Therefore, no appeal can
be filed to the Tribunal. Further and without prejudice, there is a pure
finding of fact and which cannot be said to be perverse. All the tenants
except one have offered the amount received from the subtenant to tax.
The transaction between the respondentassessee and the group entities is
held to be genuine. It is purely a commercial transaction and cannot be
said to be entered into for avoiding taxes. It may be that, there is an
interest free deposit which has been made by the tenants with the
respondents. However, no interest free security deposit was received by
the Saraswat Bank from the respondentassessee. Hence the transactions
entered between the respondent and the tenants were at arm's length and
the Annual Letting Value cannot be the rent received by the tenants from
the subtenant. Further, it is submitted that where a property is let out
and subsequently tenant's sublet the same property for higher rental
income, the higher rental income earned by the tenant from the same
property cannot be taken as Annual Letting Value in the hands of owner
for computing the income from house property. It is submitted that the
Annual Letting Value in the present case is the actual rent received from
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the tenants. It is submitted that this Court in case of Akshay Textiles
Trading and Agencies Pvt. Ltd. (supra) has held that Annual Letting Value
is the rent received or receivable by the assesseeowner from the tenants
irrespective whether the tenants have received higher rent by subletting.
The premises are within Greater Mumbai and are covered by the rent
control legislation. The Annual Letting Value for the purpose of municipal
tax is held to be the rent paid by the tenants to the respondent determined
by the competent court. The Assessing Officer was bound to take the
rateable value fixed by the competent Court for the purpose of municipal
tax as the Annual Letting Value. It is submitted that it is a well settled
position that the rent received by the respondent or standard rent of
property whichever is higher is the Annual Letting Value for the purpose of
section 23(1) of the Act. It is also submitted that this issue had come up
in earlier assessments of the respondent and the rent received by the
respondent was accepted as Annual Letting Value by the department since
assessment years 199394 (first year), 199495 and 199697. All these
assessments were completed under section 143(3) and after elaborate
discussion the rent received by the respondent was accepted as Annual
Letting Value. There are no changes in the facts and circumstance of the
case to deviate from the Annual Letting Value determined by the Assessing
Officer in the previous assessment years. In general, doctrine of 'Res
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Judicata' does not apply to Income Tax Proceedings. However, it appears
that conclusion reached based on identical facts in the previous years need
not be given a go by in the absence of any compelling circumstance. In
this respect, reliance is placed on following decisions:
1) Radhasoami Satsang 193 ITR 321 (SC);
2) Berger Paints India Ltd. V/s. CIT 266 ITR 99 (SC);
3) Baijnath Brijmohan & Sons Ltd. 161 ITR 234 (Bom);
4) H A Shah 30 ITR 618 (Bom); and
5) CIT V/s. Paul Brothers 216 ITR 548 (Bom).
28] Mr. Shah submits that in view of the above submissions, the
impugned order passed by the Tribunal needs to be upheld and appeal
filed by the revenue is liable to be dismissed.
29] For properly appreciating the rival contentions it would be
necessary to make a reference to section 22 and 23 of the Income Tax Act,
1961. Section 22 falls in Chapter IV of the Income Tax Act which is
entitled as computation of total income. Section 14 is the first section
appearing in this Chapter and it sets out the heads of income. By section
14(A) the expenditure incurred in relation to the income which has to be
excluded from the total income is set out. Then, there is a sub
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title/heading “A. Salaries”. Section 15 to 17 deal with salaries, deductions
from salaries and salary, perquisites in lieu of salary.
30] Then, comes the heading “C. Income from house property”. Section
22 falling thereunder states that the annual value of property consisting
of any building or lands appurtenant thereto, of which the assessee is the
owner, excluding such portions of such property as he may occupy for the
purpose of any business or profession carried on by him and profits shall
be chargeable to income tax under the head income from house property.
31] Section 23 states that for the purpose of section 22, the annual
value of property shall be deemed to be under clause (a), the sum for
which the property might reasonably be expected to be let from year to
year or under clause (b) when the property or any part of the properties
are let and the actual rent received or receivable by the owner in respect
thereof, is in excess of the sum which is referred to in clause (a). Then,
the amount so received or receivable would be deemed to be the annual
value for the purposes of section 22. There is a third category where the
property or any part of it has been let but was vacant during the whole or
any part of the previous year and because of such vacancy the actual rent
received or receivable by the owner in respect thereof, is less than the sum
referred to in clause (a) the amount so received or receivable will be the
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annual value. Thereafter there is a proviso and which refers to the
deduction towards tax levied by any local authority in respect of the
property and these have to be deducted in determining the annual value
of the property of that previous year in which such taxes are actually paid
by the assessees. Then, there is an explanation and which states that for
the purpose of clause (b) or (c) of subsection (1) the amount of actual
rent received or receivable by the owner shall not include, subject to the
rules, the amount of rent which the owner cannot realize. By subsections
(2) and (3) it has been clarified that the annual value in view of the
circumstances set out in this subsection will be taken to be nil but sub
section (2) of section 23 if will not apply in the circumstances set out by
subsection(3). If the owner has more than one house then, how the
annual value has to be determined, is set out in subsection (4) of section
23.
32] Thus, the scheme is that income from house property shall be taken
as a component of the income chargeable to tax. How that income from
house property has to be 'computed' is then provided by the legislature.
That is the annual value of the property. Thus, the legislature deems the
annual value firstly to be the sum for which the property might reasonably
be expected to be let from year to year. In the event, the property which
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consists of any buildings or lands appurtenant thereto, the actual rent
received or receivable by the owner in respect thereof if in excess of the
sum referred to in clause (a), it is that amount so received or receivable
which shall be deemed to be the annual value for the purposes of
computing the tax under the head income from house property.
33] In the present appeals, the arguments proceed on the footing that in
computing the annual value of house property under section 23 (1)(a) is
the Assessing Officer required to adopt the municipal rateable value of the
property. However, in all the appeals before us, the factual position is that
the property or part thereof is let or given on leave and license basis. The
Assessing Officer has disbelieved the assessees in computation or
calculation of income from house property. In the opinion of the Assessing
Officer and the revenue, the amount received towards rent or
compensation either coupled with an interest free security deposit or
otherwise as reflected and shown in the accounts of the assessees is not
the market rent or market value. Therefore, it would be open for the
Assessing Officer to doubt or question the same. Thereafter, the Assessing
Officer is free to determine the amount which the property may fetch. In
other words, the sum for which the property might reasonably be expected
to be let from year to year can be determined by him.
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34] The Assessing Officer, therefore, in the Appeal No.1213 of 2011
referred to the rental income shown under the head “income from house
property”. The assessee disclosed that after claiming deduction from
municipal taxes, repairs, the net income from house property is
Rs.2,49,882/ in the Profit and Loss Account for the year consideration
though the assessee credited rental income of Rs.3,60,000/.
35] The Assessing Officer called upon the assessee to furnish the details
of the property let out. Although the Assessing Officer refers to the
transaction as letting what the assessee produced was a copy of the leave
st
and license agreement. The leave and license agreement is dated 1 April,
2004. On perusal of the above, Assessing Officer noted the facts which we
have referred in some details in the opening paragraphs of this judgment.
We may proceed on the premise that the Assessing Officer was empowered
and equally justified in calling upon the assessee to substantiate the
quantum received but what we find is that the assessee furnished certain
details. Those details are referred to in para3 of the assessment order.
Thereafter, the Assessing Officer issued a notice under section 142(1) of
the Income Tax Act and the assessee was called upon to furnish an
explanation as to why the income from house property should not be
computed by estimating the annual value as per provisions of section
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23(1)(a) of the Income Tax Act. The assessees representative addressed
letters and urged that no estimation is required to be made as the
quantum reflects the prevailing rate or value in the market. From the
th
record it appears that the Assessing Officer in the letter dated 12
December, 2007 set out certain instances and which he termed as
comparable. He submits that these instances are of leave and license
agreement. Therefore, the rate per sq.ft. and based on which the license
fees are determined would demonstrate as to how the amount decided or
determined as license fees by the assessee with the related party M/s.
Reliance is lesser than the prevailing rate.
36] Thereafter, the Assessing Officer dealt with the stand of the assessee
and which was supported by the assessee by some decisions of Courts of
law. This is evident from paras3.8 onwards. The Assessing Officer held
that the assessee has let out the premises to M/s. Reliance Industries Ltd.
for a period of 33 months as per the leave and license agreement entered
st
into between the assessee and M/s. Reliance Industries Ltd. dated 1 April,
2004. The Assessing Officer held that the relationship between the
assessee firm and the tenants is established as both belong to the Reliance
Group. Then, he held that the annual value of the premises let out by the
assessee can be estimated as per the provisions of section 23(1)(a) and
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the estimate can be of an amount higher than the standard or 'fair rent'
determined as per the Rent Control Act/municipal rateable value.
37] At the same time, the Assessing Officer refers to certain instances, in
para 3.11.1 of his order, of properties in respect of which annual value had
been estimated by the Assessing Officer under section 23(1)(a) of the
Income Tax Act, 1961 on these properties which had not been let out.
Therefore, only notional rent was estimated.
38] In the case before us what the Assessing Officer and the other
authorities so also the revenue feels that despite the assessees producing
before them the relevant documents evidencing the letting out of
properties, the income derived therefrom is not in tune or par with the
prevailing market rate. Therefore, an estimation can be done in terms of
section 23(1)(a) of the Income Tax Act. During such estimation the
Assessing Officer is not bound by either standard rent or the ratable value
for the purposes of municipal taxation determined by the municipal
authorities.
39] It is this controversy which is being dealt with by us. In the case of
Commissioner of Income Tax V/s. J. K. Investors (Bombay) Ltd. (2001)
248 ITR 723 a Division Bench of this Court was considering a question of
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law, whether notional interest on interest free deposit received by the
assessee against letting of property could be taken into account in the
cases falling under section 23(1)(b) of Income Tax Act, 1961. In other
words, whether such interest would form part of annual rent received or
receivable under this provision.
40] The facts that are noted by the Division Bench are that the assessee
purchased premises in a building and which premises were let out to M/s.
st
Raymond Woollen Mills Ltd. from 1 October, 1991. The assessee
purchased the premises in the previous year relevant to the assessment
year 199293. The Lessee agreed to deposit the amount as a security
deposit for the due performance of the lease. The assessee was not to pay
any interest on the security deposit to the lessee. The premises were
covered by the provisions of the Bombay Rent Act, 1947. The Assessing
Officer held that for the purposes of section 23(1)(b) and though the
annual rent received or receivable was higher than the expected rent, still
the notional interest for the interest free deposit would be the sum total of
the rent actually received plus this notional interest. That notional
interest was calculated by the Assessing Officer at a rate at which the
assessee borrowed funds. This order of the Assessing Officer was
confirmed in appeal by the Commissioner of Income Tax (Appeals). Being
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aggrieved by this order, the assessee carried the matter in the Tribunal.
The Tribunal on facts found that the actual rent received by the assessee,
even without taking into account the notional interest, was more than the
annual value determinable under section 23(1)(a) of the Act and it is for
this reason that the Department invoked only section 23(1)(b) of the Act.
The Tribunal concluded that section 23(1)(b) only applied to cases of
actual rent being received by the assessee and that the said section does
not apply to cases falling under section 23(1)(a) which permits adoption
of notional value as annual letting value of the property. Hence, the
Tribunal allowed the appeal.
41] This Court, on facts further noted that the department has invoked
section 23(1)(b) of the Act and not section 23(1)(a). Further the Tribunal
held that an annual rent received by the assessee even without taking
account the notional interest was more than Annual Letting Value of the
property determinable under section 23(1)(a) of the Income Tax Act. The
Division Bench of this Court referred to the judgment of the Calcutta High
Court in the case of Commissioner of Income Tax V/s. Satya Co.Ltd.
(1994) 75 Taxman 193 and a judgment of the Madras High Court in
the case of Commissioner of Income Tax V/s. Ratanchand Chordia
(1997) 228 ITR 626 . The Division Bench further held as under:
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“In this matter, we are required to consider the scheme of taxation
of income from house property. Section 22 says that the measure
of income from house property is its annual value. The annual
value is to be decided in accordance with section 23. In this
matter, we are required to consider the scheme of taxation of
income from house property. Section 22 says that the measure of
income from house property is its annual value. The annual value
is to be decided in accordance with section 23. Subsection (1) of
section 23, by virtue of the amendment with effect from the
assessment year 197677, has two limbs, namely, clauses (a) and
(b). Clause (a) states that the annual value is the sum for which
the property might reasonably be expected to be let from year to
year. Clause (b) covers a case where the property is let and the
actual rent is in excess of the sum for which the property might
reasonably be expected to be let from year to year. In other words,
insertion of clause (b) by the Taxation Laws (Amendment) Act,
1975 covers a case where the rent for a year actually received by
the owner is in excess of the lawful rent which is known as the fair
rent or standard rent under the rent control legislation. The
provision of section 23(1)(a) apply both to owner occupied
property as also to property which is let out and the measure of
valuation to decide the annual value is the standard rent or the
fair rent. Section 23(1 )(b) only applies to cases where the actual
rent received is more than the reasonable rent under section 23(1)
(a) and it is for this reason that section 23(1)(b) contemplates
that in such cases the annual value should be decided on the basis
of the actual rent received. As stated hereinabove, in this case, the
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department has invoked section 23(1)(b) which, as stated
hereinabove, proceeds on the basis that the actual rent received by
the assessee is more than the reasonable rent under section 23(1)
(a). The Tribunal has also found that the actual rent received by
the assessee, even without taking into account the notional
interest,was more than the annual value determinable under
section 23(1)(a). This finding of fact has not been challenged by
the department in this appeal. On the contrary, the department
has contended that in this case section 23(1)(b) was applicable.
They have not relied on the provisions of section 23(1)(a). The
question as to whether notional interest could have been taken
into account under section 23(1)(a) does not arise in this appeal
and we do not wish to go into that question in this appeal.
However, the moot point which needs to be considered in this case
is whether notional interest could form part of the actual rent
received by the assessee under section 23(1)(b). It is important to
note that the property is covered by the provisions of the Bombay
Rent Act. The scheme of section 23(1)(b), in contradistinction to
section 23(1)(a), shows that fair rent is the basis to determine the
annual value of a property. This was the sole basis prior to the
assessment year 197576. However, after the amendment of
section 23(1) by the Taxation Laves (Amendment) Act, 1975, the
legislature has clearly laid down under section 23(1)(b) that when
the actual annual rent received or receivable is in excess of the fair
rent determinable under section 23(1)(a), then such higher actual
annual rent would constitute the annual value of the property. It is
important to bear in mind that under section 22, the measure of
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income from house property is its annual value. The annual value
is to be decided in accordance with section 23(1). By, virtue of the
amendment, clause (a) states that annual value is the sum for
which the property might reasonably be expected to be let from
year to year whereas clause (b) covers a case where the property is
let and the actual rent is in excess of the sum for which the
property might reasonable be expected to be let from year to year.
In our view, this later insertion of clause (b) by the Taxation Laws
(Amendment) Act. 1975 is meant to cover a case where the rent
per annum actually received by the owner is in excess of the fair
rent or the standard rent under the rent control legislation. Now,
in this case, the department has invoked section 23(1)(b). Now, in
this case, it has been found that the actual rent received by the
assessee is more than the fair rent even without taking into
account notional interest. Generally, the fair rent is fixed even
under the B.M.C. Act and the Rent Act by taking into account
various principles of valuation, viz., contractor's method, the rent
method etc. However, that exercise is undertaken to decide the fair
rent of the property. In that connection, the actual rent received by
the lessor also provides a piece of evidence to decide the fair rent of
the property. However, under the Income Tax Act, the scheme is
slightly different. Section 23(1)(b) provides that where the actual
rent is more than the fair rent, the actual rent would be the
annual value of the property. In the circumstances, the value of the
notional advantage, like notional interest in this case, will not
form part of actual rent received as contemplated by section 23(1)
(b). At the cost of repetition it may be mentioned that under
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section 23(1)(a), the assessing officer has to decide the fair rent of
the property. While deciding the fair rent, various factors could be
taken into account. In such cases various methods like contractors
method could be taken into account. If on comparison of the fair
rent with the actual rent received, the assessing officer finds that
the actual rent received is more than the fair rent determinable as
above, then actual rent shall constitute the annual value under
section 23(1)(b). Now, applying the above test to the facts of this
case, we find a categorical finding of fact recorded by the Tribunal
that the actual rent received by the assessee was more than the fair
rent. Under the above circumstances, in view of the said finding of
fact, we do not see any reason to interfere.”
42] The Division Bench expressly kept open the question as to whether
notional interest can form part of the “fair rent” under section 23(1)(a) of
the Income Tax Act, 1961.
43] It also appears that both, the judgment in the case of Satya & Co.
(supra) rendered by a Division Bench of the Calcutta High Court and the
judgment of this Court in the case of J.K. Investors (Bombay) (supra) were
considered by the Full Bench of the Delhi High Court on which decision
heavy reliance is placed by the counsel for the assessee. The Full Bench
was called upon to decide as to how to determine “fair rent” of the
property and, then, to find out as to whether the actual rent received is
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less or more than the “fair rent” so that higher of the two is taken as
Annual Letting Value under section 23(1)(b) of the Income Tax Act.
44] The factual and admitted position before the Delhi Full Bench was
in addition to the contractual rent, substantial amount by way of interest
free deposit is given, the security deposit is many time more than the
annual rent received by the assessee. Nonetheless, the Annual Letting
Value arrived at by the Municipal Corporation was less than the
contractual rent received by the assessees. The Assessing Officer while
arriving at the “fair rent” had added notional interest on the security
deposit to the actual rent received to arrive at the Annual Letting Value.
None of the cases before the Full Bench involved applicability of the Delhi
Rent Control Act. Therefore, question of fixing standard rent in terms of
this Act did not arise. However, it was admitted that if the property is
covered by Delhi Rent Control Act then the standard rent under the said
Act can be treated as “fair rent” in view of various judgments.
45] In the above backdrop, the Full Bench held as under:
With this, we revert back to the moot question, viz., how to
determine the “fair rent” of the property and then to find out as
to whether actual rent received is less or more than the “fair rent”
so that higher of two is taken as annual letting value under
Section 23 (1) (b) of the Act. For this purpose, we first discuss the
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validity of approach taken by the AO, viz., whether it is
permissible to add notional interest of interest free security
deposit and add the same to the actual rent received for arriving
at annual letting value. Even the Division Bench while making
reference did not countenance the aforesaid formula adopted by
the AO as is clear from Para 12 of the reference order wherein it
is observed as under:
“12. In this backdrop, the important question which arises for
determination is: what is the fair rent of the properties, which
were let out in the instant case? The mistake committed by the
AO was that he did not address this issue and straightway
proceeded to add notional interest on the interest free security
deposit.
The aforesaid conclusion is correct. We may record that
permissibility of adding notional interest into actual market rent
received was not approved by the Calcutta High Court in the case
of Commissioner of Income Tax Vs. Satya Co. Ltd.[(1997) 140
CTR (Cal) 569] and categorically rejected in the following words:
“There is no mandate of law whereby the AO could convert
the depression in the rate of rent into money value by assuming
the market rate of interest on the deposit as the further rent
received by way of benefit of interestfree deposit. But s. 23, as
already noted, does not permit such calculation of the value of the
benefit of interestfree deposit as part of the rent. This situation is,
however, foreseen by Schedule III to the WT Act and it authorises
computation of presumptive interest at the rate of 15 per cent. as
an integral part of rent to be added to the ostensible rent. No such
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provision, however, exists in the Act. That being so, the act of the
AO in presuming such notional interest as integral part of the
rent is ultra vires the provision of s. 23(1) and is, therefore,
unauthorised. Though what has been urged on behalf of the
Revenue is not to be brushed aside as irrational, yet the
contention is not acceptable as the law itself comes short of
tackling such factsituation."
This view of the Calcutta High Court has been accepted by
a Division Bench of this Court as well in the case of Commissioner
of Income Tax Vs. Asian Hotels Limited [(2008) 215 CTR (Del.)
84] holding that the notional interest on refundable security, if
deposited, was neither taxable as profit or gain from business or
profession under Section 28(iv) of the Act or income from house
property under Section 23(1)(a) of the Act. Rationale given in
this behalf was as under (page 493):
"A plain reading of the provisions indicates that the
question of any notional interest on an interest free deposit
being added to the income of an assessed on the basis that it
may have been earned by the Assessee if placed as a fixed deposit,
does not arise. Section 28 (iv) is concerned with business income
and is distinct and different from income from house property. It
talks of the value of any benefit on perquisite, "whether
convertible into money or not" arising from "the business or the
exercise of a profession." It has been explained by this Court in
Ravinder Singh that Section 28 (iv) can be invoked only where
the benefit or perquisite is other than cash and that the term
"benefit or amenity or perquisite" cannot relate to cash payments.
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In the instant case, the AO has determined the monetary value of
the benefit stated to have accrued to the assessed by adding a sum
that constituted 18% simple interest on the deposit. On the
strength of Ravinder Singh, it must be held that this rules out the
application of Section 28 (iv) of the Act.
Section 23(1)(a) is relevant for determining the income
from house property and concerns determination of the annual
letting value of such property. That provision talks of "the sum for
which the property might reasonably be expected to let from year
to year." This contemplates the possible rent that the property
might fetch and not certainly the interest in fixed deposit that
may be placed by the tenant with the landlord in connection with
the letting out of such property. It must be remembered that in a
taxing statute it would be unsafe for the Court to go beyond the
letter of the law and try to read into the provision more than
what is already provided for. The attempt by learned counsel for
the Revenue to draw an analogy from the Wealth Tax Act, 1957 is
also to no avail. It is an admitted position that there is a specific
provision in the Wealth Tax Act which provides for considering of
a notional interest whereas Section 23(1)(a) contains no such
specific provision."
We approve the aforesaid view of the Division Bench of this
Court and Operative words in Section 23 (1)(a) of the Act are
"the sum for which the property might reasonably be expected to
let from year to year". These words provide a specific direction to
the Revenue for determining the “fair rent”. The Assessing Officer,
having regard to the aforesaid provision is expected to make an
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inquiry as to what would be the possible rent that the property
might fetch. Thus, if he finds that the actual rent received is less
than the “fair/market rent” because of the reason that the assessee
has received abnormally high interest free security deposit and
because of that reason, the actual rent received is less than the
rent which the property might fetch, he can undertake necessary
exercise in that behalf. However, by no stretch of imagination, the
notional interest on the interest free security can be taken as
determinative factor to arrive at a “fair rent”. The Provisions of
Section 23(1)(a) do not mandate this. The Division Bench in
Asian Hotels Limited [2010] 323 ITR 490 (Delhi), thus, rightly
observed that in a taxing statute it would be unsafe for the Court
to go beyond the letter of the law and try to read into the
provision more than what is already provided for. We may also
record that even the Bombay High Court in the case of
Commissioner of Income Tax Vs. J. K. Investors (Bombay) Ltd.,
[(2001) 248 ITR 723 (Bom.)] categorically rejected the formula
of addition of notional interest while determining the “fair rent”.
It is, thus, manifest that various Courts have held a
consistent view that notional interest cannot form part of actual
rent. Hence, there is no justification to take a different view that
what has been stated in Asian Hotels Limited [2010] 323 ITR 490
(Delhi).
The next question would be as to whether the annual letting
value fixed by the Municipal Authorities under the Delhi Municipal
Corporation Act can be the basis of adopting annual letting value
for the purposes of Section 23 of the Act. This question was
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answered in affirmative by the Calcutta High Court in Satya Co.
Ltd. [1997] 140 CTR (Cal) 569 on the ground that the provisions
contained in the Delhi Municipal Corporation Act for fixing
annual letting value is in pari materia with Section 23 of the Act.
The Court opined that the fair rent fixed under the Municipal
laws, which takes into consideration everything, would form the
basis of arriving at annual value to be determined under Section
23(1)(a) and to be compared with actual rent and notional
advantage in the form of notional interest on interest free security
deposit could not be taken into consideration. It is clear from the
following discussion therein:
"6. With regard to question Nos. (5) and (6) which are only
for the assessment years 198485 and 198586 the further issue
involved is whether any addition to the annual rental value can be
made with reference to any notional interest on the deposit made
by the tenant. When the annual value is determined under sub
clause (a) of subsection (1) of section 23 with reference to the
fair rent then to such value no further addition can be made. The
fair rent, takes into consideration everything. The notional interest
on the deposit is not any actual rent received or receivable. Under
subclause (b) of section 23(1) only the actual rent received or
receivable can be taken into consideration and not any notional
advantage. The rent is an actual sum of money which is payable
by the tenant for use of the premises to the landlord. Any
advantage and/or perquisite cannot be treated as rent. Wherever
any such perquisite or benefit is sought to be treated as income,
specific provisions in that behalf have been made in the Act by
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including such benefit, etc., in the definition of the income under
section 2(24) of the Act. Specific provisions have also been made
under different heads for adding such benefits or perquisites as
income while computing income under those heads, e.g., salary,
business. The computation of the income under the head 'House
property' is on a deemed basis. The tax has to be paid by reason of
the ownership of the property. Even if one does not incur any sum
on account of repairs, a statutory deduction therefore is allowed
and where on repairs expenses are incurred in excess of such
statutory limit, no deduction for such excess is allowed. The
deductions for municipal taxes and repairs are not allowed to the
extent they are borne by the tenant. However, even such actual
reimbursements for municipal taxes, insurance, repairs or
maintenance of common facilities are not considered as part of the
rent and added to the annual value. Accordingly, there can be no
scope or justification whatsoever for making any addition for any
notional interest for determining the annual value.
Whatever benefit or advantage which is derived from the
deposits whether by way of saving of interest or of earning
interest or making profits by investing such deposit the same
would be reflected in computing the income of the assessee under
other heads.
In our view there is no scope for making any addition on
account of socalled notional interest on the deposit made by the
tenant, since there is no provision to this effect in s. 22 or 23 of
the IT Act, 1961."
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In fact, this is the view taken even by the Supreme Court in
the case of Mrs. Shiela Kaushish Vs. CIT [1981] 131 ITR 435 on
account of similarity of the provisions under the municipal
enactments and Section 23 of the Act.
It is on this basis that in the present case, the Commissioner
of Income Tax (Appeals) gave primacy to the rateable value of the
property fixed by the Municipal Corporation of Delhi vide its
assessment order dated December 31, 1996 and on this basis,
opined that the actual rent was more than the said rateable value
and therefore, as per Section 23 (1)(b), the actual rent would be
the income from house property and there could not have been
any further additions.
Since the provisions of fixation of annual rent under the
Delhi Municipal Corporation Act are in pari materia of Section 23
of the Act, we are inclined to accept the aforesaid view of the
Calcutta High Court in Satya Co. Ltd. [1997] 140 CTR (Cal) 569
that in such circumstances, the annual value fixed by the
Municipal Authorities can be a rational yardstick. However, it
would be subject to the condition that the annual value fixed bears
a close proximity with the assessment year in question in respect
of which the assessment is to be made under the Income Tax laws.
If there is a change in circumstances because of passage of time,
viz., the annual value was fixed by the Municipal Authorities
much earlier in point of time on the basis of rent than received,
this may not provide a safe yardstick if in the Assessment Year in
question when assessment is to be made under Income Tax Act.
The property is letout at a much higher rent. Thus, the Assessing
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Officer in a given case can ignore the municipal valuation for
determining annual letting value if he finds that the same is not
based on relevant material for determining the “fair rent” in the
market and there is sufficient material on record for taking a
different valuation. We may profitably reproduce the following
observations of the Supreme Court in the case of Corporation of
Calcutta Vs. Smt. Padma Debi, AIR 1962 SC 151, 153.
"A bargain between a willing lessor and a willing lessee
uninfluenced by any extraneous circumstances may afford a
guiding test of reasonableness. An inflated or deflated rate
of rent based upon fraud, emergency, relationship and such
other considerations may take it out of the bounds of
reasonableness."
Thus the rateable value, if correctly determined, under the
municipal laws can be taken as ALV under Section 23(1)(a) of the
Act. To that extent we agree with the contention of the learned
Counsel of the assessee. However, we make it clear that rateable
value is not binding on the assessing officer. If the assessing officer
can show that rateable value under municipal laws does not
represent the correct fair rent, then he may determine the same on
the basis of material/ evidence placed on record. This view is
fortified by the decision of Patna High Court in the case of Kashi
Prasad Kataruka v. CIT [1975] 101 ITR 810.
The above discussion leads to the following conclusions:
(i) ALV would be the sum at which the property may be
reasonably let out by a willing lessor to a willing lessee
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uninfluenced by any extraneous circumstances.
(ii) An inflated or deflated rent based on extraneous
consideration may take it out of the bounds of reasonableness.
(iii) Actual rent received, in normal circumstances, would
be a reliable evidence unless the rent is inflated/deflated by
reason of extraneous consideration.
(iv) Such ALV, however, cannot exceed the standard rent as
per the Rent Control Legislation applicable to the property.
(v) if standard rent has not been fixed by the Rent
Controller, then it is the duty of the assessing officer to determine
the standard rent as per the provisions of rent control enactment.
(vi) The standard rent is the upper limit, if the fair rent is
less than the standard rent, then it is the fair rent which shall be
taken as ALV and not the standard rent.
We would like to remark that still the question remains as
to how to determine the reasonable/fair rent. It has been
indicated by the Supreme Court that extraneous circumstances
may inflate/deflate the “fair rent”. The question would, therefore,
be as to what would be circumstances which can be taken into
consideration by the Assessing Officer while determining the fair
rent. It is not necessary for us to give any opinion in this behalf, as
we are not called upon to do so in these appeals. However, we may
observe that no particular test can be laid down and it would
depend on facts of each case. We would do nothing more than to
extract the following passage from the Supreme Court judgment in
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the case of Motichand Hirachand Vs. Bombay Municipal
Corporation, AIR 1968 SC 441, 442 :
"It is wellrecognized principle in rating that both gross
value and net annual value are estimated by reference to the rent
at which the property might reasonably be expected to let from
year to year. Various methods of valuation are applied in order to
arrive at such hypothetical rent, for instance, by reference to the
actual rent paid for the property or for others comparable to it or
where there are no rents by reference to the assessments of
comparable properties or to the profits carried from the property
or to the cost of construction."
46] We have and after careful reading of the provision in question and
the conclusion of the Full Bench of the Delhi High Court councluded that a
different view cannot be taken. We respectfully concur with the view
taken in this Full Bench decision of the Delhi High Court.
47] We are of the view that where Rent Control Legislation is applicable
and as is now urged the trend in the real estate market so also in the
commercial field is that considering the difficulties faced in either
retrieving back immovable properties in metro cities and towns, so also
the time spent in litigation, it is expedient to execute a leave and license
agreements. These are usually for fixed periods and renewable. In such
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cases as well, the conceded position is that the Annual Letting Value will
have to be determined on the same basis as noted above. In the event and
as urged before us, the security deposit collected and refundable interest
free and the monthly compensation shows a total mismatch or does not
reflect the prevailing rate or the attempt is to deflate or inflate the rent by
such methods, then, as held by the Delhi High Court, the Assessing Officer
is not prevented from carrying out the necessary investigation and
enquiry. He must have cogent and satisfactory material in his possession
and which will indicate that the parties have concealed the real position.
He must not make a guess work or act on conjectures and surmises. There
must be definite and positive material to indicate that the parties have
suppressed the prevailing rate. Then, the enquiries that the Assessing
Officer can make, would be for ascertaining the going rate. He can make
a comparative study and make a analysis. In that regard, transactions of
identical or similar nature can be ascertained by obtaining the requisite
details. However, there also the Assessing Officer must safeguard against
adopting the rate stated therein straightway. He must find out as to
whether the property which has been let out or given on leave and license
basis is of a similar nature, namely, commercial or residential. He should
also satisfy himself as to whether the rate obtained by him from the deals
and transactions and documents in relation thereto can be applied or
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whether a departure therefrom can be made, for example, because of the
area, the measurement, the location, the use to which the property has
been put, the access thereto and the special advantages or benefits. It is
possible that in a high rise building because of special advantages and
benefits an office or a block on the upper floor may fetch higher returns or
vice versa. Therefore, there is no magic formula and everything depends
upon the facts and circumstances in each case. However, we emphasize
that before the Assessing Officer determines the rate by the above exercise
or similar permissible process he is bound to disclose the material in his
possession to the parties. He must not proceed to rely upon the material
in his possession and disbelieve the parties. The satisfaction of the
Assessing Officer that the bargain reveals an inflated or deflated rate
based on fraud, emergency, relationship and other considerations makes it
unreasonable must precede the undertaking of the above exercise. After
the above ascertainment is done by the Officer he must, then, comply with
the principles of fairness and justice and make the disclosure to the
Assessee so as to obtain his view.
48] We are not in agreement with Shri Chhotaray that the municipal
rateable value cannot be accepted as a bonafide rental value of the
property and it must be discarded straightway in all cases. There cannot
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be a blanket rejection of the same. If that is taken to be a safe guide, then,
to discard it there must be cogent and reliable material.
49] We are of the opinion that market rate in the locality is an approved
method for determining the fair rental value but it is only when the
Assessing Officer is convinced that the case before him is suspicious,
determination by the parties is doubtful that he can resort to enquire
about the prevailing rate in the locality. We are of the view that
municipal rateable value may not be binding on the Assessing Officer but
that is only in cases of aforereferred nature. It is definitely a safe guide.
50] We have broadly agreed with the view taken by the Full Bench of
the Delhi High Court. Hence, the issue of determination of the “fair rental
value” in respect of properties not covered by or covered by the Rent
Control Act is to be undertaken in terms of the law laid down in the Full
Bench decision of the Delhi High Court.
51] We quite see the force in the arguments of Ms. Vissanjee that
ordinarily the license fee agreed between the willing licensor or a willing
licensee uninfluenced by any extraneous circumstances would afford
reliable evidence of what the landlord might reasonably be expect to get
from a hypothetical tenant. She has in making this submission, answered
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the issue and summed up the conclusion as well. Then, it is but natural
and logical that in the event, the transaction is influenced by any
extraneous circumstances or vitiated by fraud, or the like that the
Assessing Officer can adopt a “fair rent” based on the opinion obtained
from reliable sources. There as well, we do not see as to how we can
uphold the submissions of Mr. Chhotaray that the notional rent on the
security deposit can be taken into account and consideration for the
determination. If the transaction itself does not reflect any of the afore
stated aspects, then, merely because a security deposit which is
refundable and interest free has been obtained, the Assessing Officer
should not presume that this sum or the interest derived therefrom at
Bank rate is the income of the assessee till the determination or conclusion
of the transaction. The Assessing Officer ought to be aware of several
aspects and matters involved in such transactions. It is not necessary that
if the license is for three years that it will operative and continuing till the
end. There are terms and conditions on which the leave and license
agreement is executed by parties. These terms and conditions are
willingly accepted. They enable the license to be determined even before
the stated period expires. Equally, the licensee can opt out of the deal. A
leave and license does not create any interest in the property. Therefore,
it is not as if the security deposit being made, it will be necessarily
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refundable after the third year and not otherwise. Everything depends
upon the facts and circumstances in each case and the nature of the deal
or transaction. These are not matters which abide by any fixed formula
and which can be universally applied. Today, it may be commercially
unviable to enter into a lease and, therefore, this mode of inducting a
'third party' in the premises is adopted. This may not be the trend
tomorrow, therefore, we do not wish to conclude the matter by evolving
any rigid test.
52] We have also noted the submissions of Shri Ahuja. We are of the
opinion that even in the cases and matters brought by him to our notice, it
is evident that the Assessing Officer cannot brush aside the rent control
legislation, in the event, it is applicable to the premises in question. Then,
the Assessing Officer has to undertake the exercise contemplated by the
rent control legislation for fixation of standard rent. The attempt by the
Assessing Officer to override the rent control legislation and when it
balances the rights between the parties has rightly been interfered with in
the given case by the Appellate authority. The Assessing Officer either
must undertake the exercise to fix the standard rent himself and in terms
of the Maharashtra Rent Control Act, 1999 if the same is applicable or
leave the parties to have it determined by the Court or Tribunal under that
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Act. Until, then, he may not be justified in applying any other formula or
method and determine the “fair rent” by abiding with the same. If he
desires to undertake the determination himself, he will have to go by the
Maharashtra Rent Control Act, 1999. Merely because the rent has not
been fixed under that Act does not mean that any other determination and
contrary thereto can be made by the Assessing Officer. Once again having
respectfully concurred with the judgment of the Full Bench of the Delhi
High Court, we need not say anything more on this issue.
53] Thus, apart from the three aspects namely of a municipal valuation,
of obtaining interest free security deposit and the properties being covered
by the Maharashtra Rent Control Act but no standard rent thereunder is
fixed, our attention has not been invited to any other case. Suffice it to
hold that in those cases and to which our attention is not invited the
principles laid down in the decisions of the Hon'ble Supreme Court and
referred to by the Full Bench of the Delhi High Court would govern the
enquiry.
54] As a result of the above discussion, we are of the opinion that
wherever the Assessing Officer has not adhered to the above principles,
and his finding and conclusion has been interfered with, by the higher
Appellate Authorities, the revenue cannot bring the matter to this Court as
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no substantial question of law can be arising for determination and
consideration of this Court. Then, the findings by the last fact finding
Authority, namely the Tribunal and against the revenue shall have to be
upheld as they are consistent with the facts and circumstances brought
before it. If they are not vitiated by any perversity or error of law
apparent on the face of the record, the appeals of the revenue cannot be
entertained. They would have to be accordingly dismissed.
(B.P.COLABAWALLA, J.) ( S.C. DHARMADHIKARI, J. )
wadhwa
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sbw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL NO.1213 OF 2011
Commissioner of Income Tax12 ]
nd
R. No.265, 2 Floor ]
Ayakar Bhavan, Mumbai400 020. ] ..Appellant
Versus
Tip Top Typography ]
58, Sheth Chambers ]
Dr. V. B. Gandhi Marg, Fort ]
Mumbai400 023. ] ..Respondent
ALONG WITH
INCOME TAX APPEAL NOS.2447/2011, 5363/2010, 5489/2010,
673/2011, 732/2011, 1316/2011, 1468/2011, 2108/011, 2115/2011,
2116/2011, 2161/2011, 411/2012, 753/2012, 754/2012, 974/2012,
819/2012, 820/2012, 821/2012, 827/2012, 1182/2012, 1472/2012,
106/2014, 195/2014, 342/2014, 343/2014, 657/2014, 676/2014 and
944/2014.
...........
Mr. P. C. Chhotaray for the Revenue in ITXA Nos.1213/2011, 1316/2011,
106/2014, 195/2014, 342/2014, 343/2014, 657/2014, 676/2014 and
944/2014.
Mr. Tejveer Singh for the Revenue in ITXA Nos. 2447/2011, 753/2012,
754/2012, 974/2012, 819/2012, 820/2012, 821/2012, 827/2012 and
1182/2012.
Mr. Vimal Gupta, Senior Advocate, with Ms. Padma Divakar for the
Revenue in ITXA Nos.2108/2011 and 1472/2012.
Mr. Abhay Ahuja for Revenue in ITXA Nos.5363/2010, 5489/2010,
673/2011, 732/2011 and 411/2012.
Mr. Suresh Kumar for the Revenue in ITXA Nos.1468 of 2011 and
2161/2011.
Ms. A. Vissanjee with Mr. S. J. Mehta for the Assesssee in ITXA
Nos.2447/2011, 2116/2011, 2115/2011, 2161/2011, 753/2012,
754/2012, 794/2012, 819/2012, 820/2012, 821/2012, 827/2012 and
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1182/2012.
Mr. R. Murlidharan i/b. M/s. Rajesh Shah & Co. for the Assessee in ITXA
Nos.1213/2011.
Mr. Subhash Shetty for Assessee in ITXA Nos.5363/2010, 5489/2010,
673/2011, 737/2011 and 411/2012.
Ms. Vasanti B. Patel for the Assessee in ITXA Nos.106/2014, 195/2014,
342/2014, 343/2014, 657/2014, 676/2014 and 944/2014.
Mr. Prakash Shah with Mr. Jas Sanghavi i/b. PDS Legal for the Respondent
in ITXA No.1468/2011.
...........
CORAM: S.C. DHARMADHIKARI
AND
B.P. COLABAWALLA, JJ.
nd
RESERVED ON : 2 JULY, 2014
th
PRONOUNCED ON: 8 AUGUST, 2014.
J U D G M E N T (PER S. C. DHARMADHIKARI, J.)
1] In all these appeals, we are concerned with the following
substantial question of law:
“(i) Whether on the facts and circumstances of the case and
in law, Tribunal was right in holding that the fair rental
value specified in section 23(1)(a) is the municipal value or
actual rent received whichever is higher and not the annual
letting value on the basis of comparable instances as
adopted by the Assessing Officer, though the property under
consideration was not covered by the Rent Control Act?
(ii) Whether on the facts and circumstances of the case and
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in law, Tribunal was right in remitting the matter back to
the file of the Assessing Officer with direction to verify the
rateable value fixed by the Municipal Authorities and if the
same is less than the actual rent received, then the actual
rent received should be taxed?”
Some of the appeals have been admitted but we shall proceed to Admit
the rest of them on the above mentioned substantial questions of law. The
Respondents therein waive service. By consent heard forthwith.
2] Similarly, there are appeals in which arguments were canvassed on
the basis that the rent control legislation operating in the State is
applicable but the parties are not at idem on the quantum of rent.
Therefore, the proceedings in that behalf and particularly for fixation of
standard rent were not initiated under the rent control legislation.
Therefore, the Assessing Officer took upon himself the responsibility of
fixing the fair/standard rent. Whether this step taken by the Assessing
Officer is permissible in law or otherwise is the further question.
Similarly, in some of the appeals, there is not an agreement of tenancy but
of leave and license. Thereunder, license fee has been agreed between
the parties. Further, the quantum of security deposit has also been
stipulated in the agreement. Therefore, the question arises as to whether
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the security deposit which though refundable but without interest can be
taken into consideration for holding that the agreed license fees does not
reflect the market trend or market rate prevailing in the area.
3] For the purposes of answering these questions we would refer to the
facts in Income Tax Appeal No.1213 of 2011. The assessment year in
question therein is 200506. The brief facts are that the return of income
st
for assessment year in question was filed on 31 August, 2005 declaring
total income at Rs.3,12,520/. The same was processed under section
143(1) of the Income Tax Act, 1961 (for short the 'I.T. Act'). The case was
selected for scrutiny. The Assessing Officer noticed that the respondent
assessee had let out commercial premises admeasuring about 8118 sq.ft.
built up area consisting of office premises along with Car parking open
space in the building “Seth House” in a prime locality at Dr. V. B. Gandhi
Road, Mumbai23. The premises were given to a related concern namely
M/s. Reliance Industries Ltd. for Rs.3,60,000/ and a sum of
Rs.5,25,00,000/ was received as interest free security deposit. The
Assessing Officer noticed that the rent received by the assessee was
nominal and the circumstantial evidence indicated that the fair market
value was higher. Therefore, he obtained instances of the rental amount
prevailing in the market and particularly in the area and confirmed that
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the property was not covered by the Rent Control Act. On the basis of
such comparable instance, the annual letting value as provided under
section 23(1)(a) was determined at Rs.85,72,608/ as against
th
Rs.3,60,000/ shown by the assessee. The assessment order dated 24
December, 2007 copy of which is at AnnexureA was passed and being
aggrieved thereby the assessee preferred an appeal before the
Commissioner of Income Tax (Appeals). The Commissioner of Income Tax
th
(Appeals) by his order dated 11 December, 2008 confirmed the action of
the Assessing Officer. A copy of the Commissioner's order is at
AnnexureC.
4] The assessee, thereafter, carried the matter in appeal to the Income
st
Tax Appellate Tribunal and by an order dated 31 March, 2010 the matter
was remitted back to the Assessing Officer. The Tribunal directed him to
verify the rateable value fixed by the Municipal authorities and if the
same is less than Rs.3,60,000/, then, the actual rent received should be
taxed. Copy of this order of the Tribunal is annexed as AnnexureE to this
memo of appeal.
5] It is aggrieved by this order of the Tribunal that the revenue has
approached this Court in appeal under section 260A of the Income Tax Act
raising the above substantial questions of law.
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6] Mr. Chhotaray, learned counsel, appearing for the revenue in these
appeals submitted that the language of section 23(1)(a) of the Income
Tax Act, 1961, for short the I.T. Act is clear. That has no relation to the
rateable value determined by the municipal corporation. It has also no
relation to any deposits or security amount obtained by the assessee like
the respondents. Therefore, the attempt is to depress the rent. When such
attempts are noticed, then, it can never be intended by the law that the
Assessing Officer is obliged to adopt the municipal value. In the present
case the matter has been completely distorted by the assessee. The
reference to section 23(1)(b) is misplaced. The element of municipal
property tax rate has, therefore, no relevance. On facts also, the
relationship is admitted. The Assessing Officer has made a comparative
study and analysed the prevailing rate. Mr. Chhotaray, therefore, submits
that the findings at page 16 and 18 of the paper book would reflect that
there was nothing erroneous or illegal in the manner in which the
Assessing Officer proceeded to determine the rent. Mr. Chhotaray submits
that section 23(1)(a) refers to a reasonable expectation with regard to the
rent that can be obtained if the premises are let. The Assessing Officer has
clearly gone by this requirement of the section. Mr. Chhotaray submits
that the Assessing Officer had correctly determined the rent and his
finding has been upheld by the Commissioner. The Assessee did not
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appear before the Commissioner but his absence cannot be said to be fatal
more so, when the assessee had complete opportunity to argue its case
before the Tribunal.
7] Criticizing the Tribunal's order, Mr. Chhotaray submits that the
Tribunal has observed nothing with regard to the approach of the
Assessing Officer. The Tribunal does not hold that the course adopted by
the Assessing Officer is imperssible in law. In para14 of the order,
Tribunal has agreed with the Assessing Officer that there is a possibility of
the rent or compensation being shown at lower rate and it can be
determined by taking recourse to section 23(1)(a), then, there was no
need to freeze the rent or the quantum thereof with the figure of the
annual letting value as determined by the Mumbai Municipal Corporation.
Thus, there is a patent error of law committed by the Tribunal. Merely,
because the words “might be reasonably expected to be let” are inserted
by the legislature in section 23(1)(a) that does not mean that the
Assessing Officer is bound by the valuation made by the Municipal
Corporation. That is a complete misreading of the section. Mr. Chhotaray
submits that the municipal valuation cannot be the sole and only criterion.
The municipal valuation is not binding on the Assessing Officer. He can
independently determine the rent which can be fetched by the assessees.
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In doing so he can make local enquiry including from brokers and refer to
the agreements between parties. He can also refer to the valuation by the
State Government and for the purposes of recovery of State taxes. Mr.
Chhotaray submits that there is a tendency to accept deposit of a hefty
sum. Even a nominal rent which is higher than the municipal
determination is taken as the basis for such security deposit. Mr.
Chhotaray submits that if the intent of the legislature was to make an
assessment by municipal valuation alone, then, that would have been
clearly spelled out in law. Mr. Chhotaray, therefore, referred to Rule 4, 5,
6 and 7 of the Wealth Tax Rules in this behalf.
8] Mr. Chhotaray also submitted that the Tribunal has solely relied
upon its own order in the case of Park Paper Industries Ltd. which is
delivered in the case of a selfoccupied property. At the same time, the
Tribunal failed to note that there is a contrary view taken in the case of
the Income Tax Officer V/s. M/s. Baker Technical Services Private Ltd.
Income Tax Appeal No.5262, 5264/Mum/2006. In such circumstances, Mr.
Chhotaray submits that the impugned order be set aside and the appeal be
allowed.
9] Mr. Chhotaray also submits that the Assessing Officer was of the
view that the monthly rent shown was very low and did not represent the
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correct fair rental value of the property under section 23(1)(a) of the Act.
Under section 23(1)(a), the annual value of the property shall be deemed
to be the sum for which the property might reasonably be expected to let
from year to year (henceforth referred to as fair rental value of the
property). The section mandates the Assessing Officer to determine the
fair rental value of the property under section 23(1)(a). The Assessing
Officer made enquiries to find out the comparable rent prevailing in the
vicinity. He has prepared a chart of the comparable cases showing that the
monthly rent per sq. ft. in the vicinity ranged between Rs.79 to Rs.110 per
sq. ft. instead of Rs.3.70 per sq. ft. shown by the assessee. The
information collected by the Assessing Officer was confronted to the
assessee.
10] The assessee contended that the gross municipal rateable value of
the property was Rs.39,572/ per annum which came to Rs.3298/ per
month. As per the assessee the municipal rateable value represented the
fair rental value of the property in the market under section 23(1)(a) and
since the rent received was much more than the municipal rateable value,
the annual value shown by the assessee should be accepted in view of
section 23(1)(b) of the Act. Section 23(1)(b) provides that if the actual
rent received is more than the fair rental value under section 23(1)(a),
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then the actual rent received should be adopted as the annual value.
11] At the time of the hearing it was pointed out by the revenue that ,
according to the theory behind the provision relating to the income from
house property, annual value of the property is a hypothetical income from
the property representing the sum for which the property might
reasonably be expected to let from year to year. It is an artificial or
assumed income. The actual rent received is not material in
determination of the annual value. Annual value is the inherent attribute
of the property to be determined by adopting various methods.
12] It was pointed out that reading both the provisions 23(1)(a) and
23(1)(b) together would show that determination of annual value is a
twostep process. The first step is to determine the fair rental value in the
market under section 23(1)(a). This is the most important part.
Thereafter, the second step is to refer to section 23(1)(b) which provides
that if the actual rent received is more than the fair rental value
determined under section 23(1)(a), then the actual rent received would
be deemed to be the annual value. It was pointed out that in the
captioned case, there is no applicability of section 23(1)(b) since the
annual value, as determined by the Assessing Officer, is much more than
the actual rent received.
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13] Mr. Chhotaray further submits that annual value is a statutory
hypothetical figure. The provisions of section 23(1)(a) mandates the
Assessing Officer to determine this value. It simply states that the annual
value is the sum for which the property might reasonably be expected to
let from year to year. It does not speak anything else. The Assessing
Officer determines the annual value by taking various factors into account.
He may take recourse to different recognized methods. One important
method is to find the prevailing market rate of rent in the area. In order
to find it out, he may make inquiry with let out properties in the locality,
make enquiry with the brokers, use internet for knowing the prevailing
rate in the area, take the help of a valuer, adopt any other method. After
collecting the information, the assessee is confronted with the data
gathered and after considering his objections suitable adjustments are
made to determine the correct annual value. It is submitted that valuation
is an art and there are recognized methods. The Assessing Officer is
capable of making the valuation on his own by adopting the appropriate
method. Each property is unique so far its annual value is concerned. It is
not correct to impose a standard annual value for all properties in a
locality. Valuation of a property is distorted because of relation between
parties, collusion, heavy security deposit. Therefore, each case needs to
be addressed on its own facts and Assessing Officer is competent to handle
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this issue. It is respectfully submitted that this is the correct approach to
determine the annual value. It is important to note that the order of the
Assessing Officer is subject to judicial scrutiny. The Assessing Officer
should be left alone to perform this function as required by law.
14] Mr. Chhotaray submits that municipal rateable value is not a reliable
data for determining the annual value under the Income Tax Act. It is
invariably seen that the municipal value is much below the fair rental
value of the property. The valuation is outdated. In such a situation, the
municipal value is not a reliable data for determining the annual value for
section 23(1)(a) of the Income Tax Act. Hence, adopting the municipal
value for determining the annual value under the Income Tax Act would
lead to substantial loss of revenue. The objectives of the local authorities
and the Income Tax Departments are entirely different. Municipal
Authorities are concerned with the collection of property tax in order to
provide the civic amenities. They would rest content in prescribing the
rate for a particular area and would not be bothered about accurately
determining the income from a particular property which is the objective
of the Income Tax Department. The municipal rateable value is also
subject to litigation. It is impossible to develop any mechanism by which
the Income Tax Department would keep track of the appeal proceedings in
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municipal cases and adopt the modifications. The Income Tax Department
is not equipped to liaise regularly with municipal authorities in order to
perform its own function of making an assessment. Also most of the
returns are accepted without scrutiny and unless there is clear exposition
of law, the assessee would show low income from house property which
will lead to loss of revenue. It would be unfair to require the Income Tax
Department to adopt the municipal valuation even if it notices gross and
glaring undervaluation in municipal valuation. The Income Tax
Department has no control over the municipal valuation. Under the law,
there is no reference to the municipal valuation. There is no case for
introducing the element of municipal valuation in the income tax law.
The process of municipal valuation of different states is different. The
local authorities have their own priorities. For example, Mumbai has now
switched over to the capital value system where the municipal value is at a
certain percentage of the capital value of the property. Properties with
area up to 500 sq. ft. would not pay the higher rate. The concept of
determining the fair rent of the property is no longer there. Therefore,
there would no longer be any commonality in the wordings of the
provisions of the section 23(1)(a) of the Income Tax Act and the
provisions of the Municipal Act which is the main plank of the argument
for adopting the municipal value for income tax. Income Tax Department
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is accountable for collection under the Income Tax law and should not be
dependent on municipal system which is not accountable to it. Therefore,
the annual value of the property under the income tax law should be
delinked from the municipal valuation. Municipal valuation can at best be
a factor to be considered by the Assessing Officer and nothing more than
that. The Assessing Officer can reject the municipal valuation for valid
reasons.
15] Mr. Chhotaray then submits that heavy security deposit is a factor to
be taken judicial notice of. In many cases heavy security deposits running
into crores of rupees are taken by the landlord as a consequence of which
the amount of rent is reduced. It is accepted by the assessees that there is
an inverse correlation between the amount of security deposit and the
amount of rent. If the security deposit is more, the amount of rent is less
and vice versa. Thus the rent fluctuates according to the amount of
security deposit. Annual value is an artificial statutory figure which is
germane to the property. It should be, by and large, same for a particular
property and should not vary according to the quantum of security
deposit. This goes against the very theory of annual value unanimously
propounded by all the judgments. It needs to be judicially recognized that
security deposit is a factor to be taken into account in determining the
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annual value. The Courts have not found favour with the idea of
calculating the notional value of interest on the security deposit and
increase the rent to that extent. But to completely ignore the effect of
security deposit on the amount of rent fixed between the parties would
lead to ignoring the ground reality of the transactions when it is openly
admitted that one of the main objectives behind heavy security deposit is
to reduce rent and this would result in eventually determining a wrong
annual value. It is submitted that a rebuttable presumption may be raised
against assessees accepting security deposit beyond a certain normal
amount that, they have benefited to the extent of the notional interest on
the security deposit and the annual value should be increased by this
notional interest. The assessee would be free to rebut this presumption
with valid reasons.
16] Mr. Chhotaray has relied upon the following decisions in support of
his above contentions.
1) (1981) 128 ITR 315 Bhagawan Dass Jain V/s. Union of India and
Others;
2) (1975) 100 ITR 97 – Sakarlal Balabhai V/s. Income Tax Officer,
Special Investigation Circle IV, Ahmedabad and Another;
3) AIR 1968 Supreme Court 441 (V 55 C 97) – Motichand Hirachand
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and others V/s. Bombay Municipal Corporation;
4) AIR 1962 Supreme Court 151 (V 49 C 28) – The Corporation of
Calcutta V/s. Sm. Padma Debi and others;
5) AIR 2011 Supreme Court 1940 – Mohammad Ahmad & Anr. V/s.
Atma Ram Chauhan & Ors.;
6) (1975) 101 ITR 810 – Kashi Prasad Kataruka V/s. Commissioner of
Income Tax, Bihar;
7) (2001) 248 ITR 723 – Commissioner of Income Tax V/s. J. K.
Investors (Bombay)Ltd.;
8) Order of Allahabad High Court in case of Sewa Ram Oil Mills V/s.
Commissioner of Income Tax;
th
9) Order of Madras High Court dated 4 April, 2003 in case of N.
Nataraj V/s. Deputy Commissioner of Income Tax and
10) (2011) 333 ITR 38 – Commissioner of Income Tax V/s. Moni Kumar
Subba.
17] Mr. Chhotaray's submissions were adopted by Mr. Tejveer Singh
appearing for the revenue in Income Tax Appeal Nos. 2447/2011,
819/2012, 820/2012, 821/2012, 827/2012, 1182/2012, 753/2012,
754/2012 and 794/2012 and Mr. Suresh Kumar.
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18] Mr. Abhay Ahuja appearing for the revenue in some of the appeals
submitted that in Income Tax Appeal No.5489 of 2010, the questions of
law arise out of the letting of two flats by the private limited companies to
its Directors. The flats are in a building known as Samudra Gaurav
Apartments, Worli, Mumbai. The facts of the case in the first matter viz.
Income Tax Appeal No. 5489 of 2010 for assessment year 200506 are that
the assessee by reason of its holding two class 'A' shares of M/s. Samudra
Gaurav Apartment Pvt. Ltd. from the year 1980 was entitled to use and
occupy two flats admeasuring 5142 sq. ft. each with four covered garages
bearing No.E1, E2, E6 and E13 of which the assessee has been given
possession. The assessee derives income from house property. The
aforesaid property has not been included in the block of assets against
which the aggregate rental income for each of the years is shown as
Rs.60,000/ consisting of Rs.30,000/ from each of the directors. The
Assessing Officer found that the property in question is Worli sea facing,
and looking to the size of the flats, location of the property, car parking
facility and use of the garden, the rent of Rs.2500/ per month for each
flat to each of the directors is very low and he therefore called upon the
assessee to explain why the ALV of the above flats should not be
determined within the meaning of section 23(1) of the Income Tax Act,
1961. The Assessing Officer relying upon the records of the SubRegistrar
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of Properties, circle Worli during the previous year under consideration
showed the prevailing rate of Rs.8919/ per sq. ft. whereas the assessee
recorded return from the property at the rate of 12% p.a. That would be
about Rs.90/ per sq. ft. per month and upon further confirmation of the
same on the basis of spot enquiry made by the inspector of the fair rental
value of the area during the subject period which was ranging between
Rs.80/ to Rs.100/ per sq. ft. per month, the Assessing Officer held that
the assessee company has been charging only Re.1/ per sq. ft. per month
from its Directors. He, therefore, adopted the lowest rent of Rs.80/ per
sq. ft. for the relevant assessment year and calculated the rental value of
two flats (5142 sq.ft.) at Rs.4,11,360/ p.m. and the annual rental at
Rs.49,36,320/.
19] Mr. Ahuja further submits that with respect to the assessee's claim
that it could not charge rent higher than the deemed standard rent i.e.
rent on 01.10.1987, the Assessing Officer held that the claim was not
tenable as the standard rent had not been fixed by a Court under section
8(1)(c) of the Maharashtra Rent Control Act, 1999 upon an application for
the same as could have been done by the assessee. Thus the assessee had
deliberately foregone its right to fix standard rent higher than the
artificially low rent being charged on 01.10.1987 and had not even
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availed off the benefit of annual 5% permissible increase under the
Maharashtra Rent Control act, 1999 obviously because the Director being
the tenant of the assessee company. The Assessing Officer held that the
rent at which the property can be reasonably let out is definitely much
more than the rent being charged from the director tenants. The
Assessing Officer relied on the two judgments of Dewan Daulat Rai
Kapoor V/s. New Delhi Municipal Committee and Anr. ]122 ITR 700 (SC)]
and T. V. Sundaram Iyengar and Sons Ltd. V/s. CIT [241 ITR 420 (Mad)].
The assessee filed appeal against the order of the Assessing Officer mainly
on the ground that the Assessing Officer erred in not considering the
provisions that the Annual Value of the property situated in a area where
Rent Control Law applies cannot exceed the standard rent as per
Maharashtra Rent Control Act, 1999. The assessee submitted that as per
Municipal Records the fair market value of the said property was
Rs.24,288/ per year and the rent of Rs.30,000/ for each of the properties
being higher should be taxed as rental income. The Commissioner of
Income Tax (Appeals) upheld the Assessing Officer's order including the
finding that the assessee had not taken any recourse to section 8(1) of the
Maharashtra Rent Control Act, 1999 for fixation of standard rent. The
Commissioner of Income Tax (Appeals) also gave a finding that the
assessee's attempt to take protection of the Maharashtra Rent Control act,
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1999 was inconsistent and highly contradictory. He found that on the
assessee's own showing the rate by the Municipal Corporation of Greater
Bombay was Rs.24,288/ and the rent received by the assessee was
Rs.60,000/. Accordingly he gave a finding that the assessee itself had
given a goby to the provisions of section 10 of the Maharashtra Rent
Control Act, 1999 and concluded that the assessee had taken the property
outside the purview of the Maharashtra Rent Control Act, 1999 and the
assessee could not take cover under it for income tax purposes. The
Commissioner of Income Tax (Appeals) also relied upon the cases of
Dewan Daulat Rai Kapoor V/s. New Delhi Municipal Committee and Anr.
(supra) and T. V. Sundaram Iyengar & Sons (supra), and held that the
Assessing Officer was right in fixing the rent of property at Rs.4,11,360/
per month. In appeal before the Tribunal, on the finding of the lower
authority that the Maharashtra Rent Control Act, 1999 was violated on the
basis that the assessee received rent over and above the standard rent, the
assessee submitted that the property was tenanted for a long time and the
provisions of the Maharashtra Rent Control Act, 1999 protect the tenant
and also postulates that if rent was fixed prior to the implementation of
the Maharashtra Rent Control Act, 1999, the rent fixed will become
standard rent under the Act and accordingly the assessee is covered under
the provisions of the Maharashtra Rent Control Act, 1999. The Income
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Tax Appellate Tribunal held that (i) the assessee has given property on
rent to Mr. T. B. Ruia long back and on his death Mrs. Asha Ruia became
the tenant and there was a revised agreement dated 14.08.2008. In all
the years the Assessing Officer has been accepting rent received by the
assessee company and the assessment order for one of the years viz.
Assessment year 200405 is under section 143(3) of the Income Tax Act,
1961 (ii) it was already established that while invoking provisions of
section 23 of the Income Tax Act, 1961, the Assessing Officer has to
consider municipal rateable value, or standard rent or actual rent
received, whichever is higher and set out the various paragraphs of the
decision of the Tribunal in the case of ITO v/s. Makrupa Chemicals (P)Ltd.
[108 ITD 95 (Bom)] stating that the methodology for arriving at the
annual value of property under the provisions of section 23(1) of the
Income Tax Act, 1961 was given therein; (iii) that the property is a
tenanted property and the tenant is a protected tenant as per the orders of
the Court and since the rent received by the assessee is more than the
standard rent/municipal rateable value, the Assessing Officer has no
option than to accept the rent received by the assessee. He accordingly
directed the Assessing Officer to accept the rent offered by the assessee
and determine the income from the house property accordingly. Similar
facts exist for assessment year 200506 in the case of Commissioner of
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Income TaxCentral III V/s. Ramrikhdas Balkison & Sons Pvt. Ltd. (ITXA
5356 of 2010) as well as for assessment year 200607 in the case of
Commissioner of Income TaxCentralIII V/s. Ramgopal Ganpatrai & Sons
Pvt. Ltd. (ITXA 732ofo 2011) and Commissioner of Income TaxCentralIII
V/s. Ramrikhdas Balkison & Sons Pvt. Ltd. (ITXA 673 of 2011).
20] Mr. Ahuja, therefore, submits that findings by the Tribunal that the
revised agreement is dated 14.08.2000 and after the enactment of the
Maharashtra Rent Control Act, 1999 are vitiated in law. No finding was
rendered by the Tribunal on the submission of the assessee that if rent was
fixed prior to the implementation of the Maharashtra Rent Control act,
1999, the rent fixed will become standard rent under the Act. Even
otherwise there is neither any evidence nor finding that the standard rent
was fixed under section 7(14)(a) or section 8(1) nor the case falls under
section 6 of the Maharashtra Rent Control Act, 1999. There is no finding
by the Tribunal that standard rent was fixed in accordance with section
8(1) of the Maharashtra Rent Control Act, 1999. In fact, there is a clear
statement by the assessee in the statement of facts in the appeal before
Commissioner of Income Tax (Appeals) that as per Municipal Records the
fair market value (and not standard rent) of the said property was
Rs.24,288/ per year. The Tribunal appears to have erroneously
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considered this figure as the standard rent. Therefore, finding by the
Tribunal that rent received is more than the standard rent and the
Assessing Officer has no option but to accept the rent received as the
basis, is also erroneous. Even assuming without admitting that the said
rent received from each director per year is Rs.30,000/ that would be in
violation of section 10 of the Maharashtra Rent Control Act, 1999 and
take the assessee's case outside the ambit of the Rent Control legislation,
which has been the case of the revenue. Also finding by the Tribunal that
since rent received by the assessee is more than the municipal rateable
value, the Assessing Officer has no option than to accept the rent received
as per the decision in ITO V/s. Makrupa Chemicals (P)Ltd. (supra) is
erroneous as it presupposes that the assessee is outside the purview of the
Rent Control Act whereas the Tribunal itself has given a finding that the
property is a tenanted property and the tenant is a protected tenant as per
the orders of the Court. On the issue of earlier years, it is submitted that
only for assessment year 200405 the assessee's stand appears to have
been accepted under section 143(3) but for no other year. Every year is a
separate unit of assessment. In any event the Tribunal has decided the
matter on merits and not on the basis of earlier years. It is submitted that
if this Court holds that the property is outside the purview/ambit of the
Maharashtra Rent Control Act, 1999, the appellant revenue craves leave of
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this Court to adopt the arguments and submissions made by Shri P.C.
Chhotaray in the case of Commissioner of Income Tax12 V/s. Tip Top
Typography (ITXA 1213 of 2011), and submit that Court be pleased to
allow the appeals upholding the orders passed by the Assessing Officer
and Commissioner of Income Tax (Appeals) determining ALV of the
property. Alternatively, if this Court holds that the case of the assessees
herein falls within the purview of the Maharashtra Rent Control Act, 1999,
then, it is submitted on behalf of the appellant revenue that as no
standard rent has been fixed by a Rent Controller or a Court either as per
section 7(14)(a) or in accordance with section 8(1) of the Maharashtra
Rent Control Act, 1999, nor is there any finding by the Tribunal that any
standard rent was fixed prior to the Maharashtra Rent Control Act, 1999,
this Court be pleased to apply the principles laid down by the Hon'ble
Supreme Court in the case of Dewan Daulat Rai Kapoor v/s. New Delhi
Municipal Committee and Anr. (supra). In the event, this Court finds that
the assessee's case/property falls within the ambit of the Maharashtra Rent
Control Act, 1999 it is submitted that this Court be pleased to consider
remanding the matters back to the Assessing Officer to arrive at the figure
of standard rent by applying the principles laid down in Maharashtra Rent
Control Act, 1999 for determination of standard rent and determine the
annual value of the property on the basis of such figure of standard rent.
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21] Mr. Ahuja has relied upon the following judgments in support of the
above contentions:
1) (1980) 122 ITR 700 – Dewan Daulat Rai Kapoor V/s. New Delhi
Municipal Committee and Another;
2) (2000) 241 ITR 420 – T. V. Sundaram Iyengar and Sons Ltd. V/s.
Commissioner of Income Tax;
3) (2008) 298 ITR 413 (Jharkhand) – Commissioner of Income Tax
V/s. Shrimati Bhagwani Devi.
22] On the other hand, Mr. Murlidhar and Mr. Jasani appearing for the
assessee in some of the appeals so also Mr. Prakash Shah would submit
that the expression “sum for which the property might reasonably be
expected to let from year to year” is considered and explained in Circular
th
No.204 dated 24 July, 1976. That Circular explains the provisions of the
Taxation Laws (Amendment) Act, 1975. Prior to the insertion of section
23(1)(b) by this Amendment Act, 1975 the annual value of house
property could only be determined on the basis of section 23(1)(a) and
not on the basis of actual rent received for the property. The Central
Board of Direct Taxes has explained the rationale for the amendment and
hence reliance is placed by Shri Murlidhar on the wording of the Circular
th
204 dated 24 July, 1976. Mr. Murlidhar submits that the Central Board
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of Direct Taxes recorded the annual value under section 23(1)(a) as being
equal to the municipal valuation of the property. He submits that this
Circular holds the field and has not been withdrawn. It will bind the
revenue under section 119 of Income Tax Act. Then, Mr. Murlidhar has
placed reliance upon a judgment of the Calcutta High Court in the case of
Commissioner of Income Tax V/s. Smt. Prabhavati reported in (1983) 141
ITR 149. Mr. Murlidhar relied upon the observations at page 424 of the
report and urged that the wording of section 143 of the Bombay
Municipal Corporation Act, 1888 contains identical expression/words
namely that the rateable value has to be determined on the basis of the
rent which such rent or building might reasonably be expected to be let
from year to year. Similar principle is laid down in the case of Motichand
Hirachand reported in AIR 1968 Supreme Court 441.
23] Mr. Murlidhar, then, relied upon the decision of this Court in the
case of M.V. Sonavala V/s. Commissioner of Income Tax reported in
(1989) 177 ITR 246. Mr. Murlidhar also relied upon the decision of this
Court in the case of Smt. Smitaben N. Ambani V/s. Commissioner of
Wealth Tax reported in (2010) 323 ITR 104. He has also relied upon the
decision of the Calcutta High Court in the case of Commissioner of Income
Tax V/s. Satya Co. Ltd. and the decision of the Full Bench of Delhi High
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Court in the case of Commissioner of Income Tax V/s. Mani Kumar Subba
(2011) Vol.333 ITR 838. Mr. Murlidhar, therefore, submits that in all
these decisions it has held that the rateable value fixed by the Municipal
Corporation cannot be ignored or brushed aside. If the correctness of the
municipal valuation was never disputed by the department, then, the
same should be adopted as the annual value of the premises. In all these
decisions, therefore, the principle laid down is that the department will
have to bring in material to show as to how the municipal rateable value
does not represent the correct rent.
24] In the facts of the case namely Tip Top Typography, Mr. Murlidhar
submits that the respondentassessee had received a refundable security
deposit of Rs.5.25 crores and had spent a sum of Rs.65 lakhs on
renovation of the premises. If the municipal rateable value of the
premises is to be taken into consideration, then, the Tribunal's order
cannot be said to be perverse or vitiated by an error of law apparent on
the face of the record. Mr. Murlidhar submits that Municipal Corporation
is a responsible body entrusted in imposing as much legitimate tax as
possible, and therefore, its valuation constitutes a safe guide for
determining the annual value of the property. He, therefore, submits that
the appeal of the revenue be dismissed.
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25] Ms.Vissanjee, learned counsel, appearing in the other appeals
submits that the language of section 154 of the Mumbai Municipal
Corporation Act, 1888 is in pari materia with section 23(1)(a). The test
for determining the rateable value under the Mumbai Municipal
Corporation Act and the annual letting value under section 23(1)(a) of the
Income Tax Act is identical. Both statutes contemplate fixation of
rateable/annual value at the reasonable amount of rent which can be
expected by the owner from a hypothetical tenant. The basis of charge of
income from house property is its 'annual value'. The annual value is a
deemed or notional figure based on which the owner is subjected to tax
irrespective of whether or not the property has been let. The only
exceptions are (i) a property which is occupied by the owner for the
purpose of his business (ii) a property occupied by the owner for the
purpose of his own residence or cannot actually be occupied by the owner
by reason of the fact that owing to his employment, business or
profession carried on at any other place, he has to reside at that place in a
building not belonging to him [section 23(2)(a) and (b)]. The exception
in (ii) above is not available if the house or any part is actually let during
the whole or part of the previous year or any other benefit is derived by
the owner. [section 23(3)]. And further exception in (ii) above is limited
to one house which the assessee at his option may specify [section 23(4)].
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It is because an assessee is assessable to income from house property on a
notional figure even if the property is not let out that section 23(1)(a)
uses the expression 'reasonably be expected to let'. It is for this reason
that the municipal rateable value has been correctly adopted for the
purpose of determining the annual value under section 23(1)(a). The
proposition by the Revenue that the Assessing Officer can adopt the 'fair
rent' based on information obtained from local enquiries, brokers and the
internet is totally unwarranted. In cases where the property is let out,
ordinarily the license fee agreed between a willing licensor and a willing
licensee uninfluenced by any extraneous circumstances would afford
reliable evidence of what the landlord might reasonably expect to get from
a hypothetical tenant. If such rent is higher than the municipal rateable
value, the provisions of subclause (b) of section 23(1) would apply. The
action of the Assessing Officer in determining the annual value by (i)
imputing notional interest on the security deposit to the actual rent
received while separately assessing the income earned on the security
deposit (equivalent to 12 months advance license fee) offered to tax under
the head 'other sources' [Reclamation Real Estate Co. India Pvt. Ltd.] (ii)
adopting the rent fetched by another premises in the same building as the
annual letting value in the case of the assessee [Reclamation Properties
India Pvt. Ltd. & Reclamation Realty India Pvt. Ltd.] in place of the rent
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receivable has been rightly reversed by the Tribunal. So also the action of
the Assessing Officer in reopening past assessments to reassess the annual
letting value based on the rent fetched by some other premises has been
rightly rejected by the Tribunal. Ms. Vissanjee, therefore, submits that the
appeal be dismissed.
26] Mr. Prakash Shah appearing in Income Tax Appeal No.1468 of 2011
submits that this appeal challenges the order passed by the Income Tax
th
Appellate Tribunal in Income Tax Appeal No.2587/MUM/2009 dated 16
July, 2010 in respect of the assessment year 200506. The respondent is
the owner of a commercial property at Kandivali(W), Mumbai. The
respondent has let out the first floor admeasuring 4625 sq.ft to 9 entities,
which are group entities in 1992. These entities have in turn sublet the
premises to Saraswat Cooperative Bank Ltd. The Assessing Officer
accepted the transaction between the tenants and Saraswat Cooperative
Bank Ltd. as genuine and the rent payable by the tenants to the
respondents as Annual Letting Value within the meaning of section 23 of
the Income Tax Act, 1961. It is urged by Shri Shah that though the
tenants filed their respective returns of income and offered the rent
received by them from Saraswat Bank for taxation what transpired
thereafter is that the annual rateable value determined by the
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Brihanmumbai Mahanagarpalika was set aside by the Small Causes Court
at Mumbai. The Small Causes Court, Mumbai had held that the municipal
valuation cannot be based on the amount received by the tenants (group
entities) from subtenant (M/s. Saraswat Bank). The rateable value has to
be determined on the rent paid by the group entities (tenants) to the
owner namely the respondentassessee. It is in these circumstances that in
the return of income, the respondentassessee stated accordingly.
However, the Assessing Officer determined the Annual Letting Value on
the amount or quantum which was received by the tenant from the sub
tenant. The Assessing Officer added the difference between the rent
received by the respondentassessee from the tenants and the amount
received by the tenants from the subtenant. For the first time in the
assessment year 200506, the Assessing Officer held that the transaction
between the respondents and the tenants is camouflage and colourable
device to evade the tax.
27] An appeal was preferred before the Commissioner of Income Tax
(Appeals) against the addition made by the Assessing Officer and the said
th
appeal was partly allowed on 4 February, 2009. By the impugned order,
the Tribunal set aside the Annual Letting Value determined by the
Assessing Officer and sustained by the Commissioner of Income Tax
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(Appeals). The Tribunal held that the transaction between the
respondents and the tenants is not a colourable device. It is submitted,
therefore, the tax effect, as stated by the revenue in the memo of appeal is
Rs.6.84 lakhs which is much below Rs.10 lakhs. Therefore, no appeal can
be filed to the Tribunal. Further and without prejudice, there is a pure
finding of fact and which cannot be said to be perverse. All the tenants
except one have offered the amount received from the subtenant to tax.
The transaction between the respondentassessee and the group entities is
held to be genuine. It is purely a commercial transaction and cannot be
said to be entered into for avoiding taxes. It may be that, there is an
interest free deposit which has been made by the tenants with the
respondents. However, no interest free security deposit was received by
the Saraswat Bank from the respondentassessee. Hence the transactions
entered between the respondent and the tenants were at arm's length and
the Annual Letting Value cannot be the rent received by the tenants from
the subtenant. Further, it is submitted that where a property is let out
and subsequently tenant's sublet the same property for higher rental
income, the higher rental income earned by the tenant from the same
property cannot be taken as Annual Letting Value in the hands of owner
for computing the income from house property. It is submitted that the
Annual Letting Value in the present case is the actual rent received from
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the tenants. It is submitted that this Court in case of Akshay Textiles
Trading and Agencies Pvt. Ltd. (supra) has held that Annual Letting Value
is the rent received or receivable by the assesseeowner from the tenants
irrespective whether the tenants have received higher rent by subletting.
The premises are within Greater Mumbai and are covered by the rent
control legislation. The Annual Letting Value for the purpose of municipal
tax is held to be the rent paid by the tenants to the respondent determined
by the competent court. The Assessing Officer was bound to take the
rateable value fixed by the competent Court for the purpose of municipal
tax as the Annual Letting Value. It is submitted that it is a well settled
position that the rent received by the respondent or standard rent of
property whichever is higher is the Annual Letting Value for the purpose of
section 23(1) of the Act. It is also submitted that this issue had come up
in earlier assessments of the respondent and the rent received by the
respondent was accepted as Annual Letting Value by the department since
assessment years 199394 (first year), 199495 and 199697. All these
assessments were completed under section 143(3) and after elaborate
discussion the rent received by the respondent was accepted as Annual
Letting Value. There are no changes in the facts and circumstance of the
case to deviate from the Annual Letting Value determined by the Assessing
Officer in the previous assessment years. In general, doctrine of 'Res
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Judicata' does not apply to Income Tax Proceedings. However, it appears
that conclusion reached based on identical facts in the previous years need
not be given a go by in the absence of any compelling circumstance. In
this respect, reliance is placed on following decisions:
1) Radhasoami Satsang 193 ITR 321 (SC);
2) Berger Paints India Ltd. V/s. CIT 266 ITR 99 (SC);
3) Baijnath Brijmohan & Sons Ltd. 161 ITR 234 (Bom);
4) H A Shah 30 ITR 618 (Bom); and
5) CIT V/s. Paul Brothers 216 ITR 548 (Bom).
28] Mr. Shah submits that in view of the above submissions, the
impugned order passed by the Tribunal needs to be upheld and appeal
filed by the revenue is liable to be dismissed.
29] For properly appreciating the rival contentions it would be
necessary to make a reference to section 22 and 23 of the Income Tax Act,
1961. Section 22 falls in Chapter IV of the Income Tax Act which is
entitled as computation of total income. Section 14 is the first section
appearing in this Chapter and it sets out the heads of income. By section
14(A) the expenditure incurred in relation to the income which has to be
excluded from the total income is set out. Then, there is a sub
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title/heading “A. Salaries”. Section 15 to 17 deal with salaries, deductions
from salaries and salary, perquisites in lieu of salary.
30] Then, comes the heading “C. Income from house property”. Section
22 falling thereunder states that the annual value of property consisting
of any building or lands appurtenant thereto, of which the assessee is the
owner, excluding such portions of such property as he may occupy for the
purpose of any business or profession carried on by him and profits shall
be chargeable to income tax under the head income from house property.
31] Section 23 states that for the purpose of section 22, the annual
value of property shall be deemed to be under clause (a), the sum for
which the property might reasonably be expected to be let from year to
year or under clause (b) when the property or any part of the properties
are let and the actual rent received or receivable by the owner in respect
thereof, is in excess of the sum which is referred to in clause (a). Then,
the amount so received or receivable would be deemed to be the annual
value for the purposes of section 22. There is a third category where the
property or any part of it has been let but was vacant during the whole or
any part of the previous year and because of such vacancy the actual rent
received or receivable by the owner in respect thereof, is less than the sum
referred to in clause (a) the amount so received or receivable will be the
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annual value. Thereafter there is a proviso and which refers to the
deduction towards tax levied by any local authority in respect of the
property and these have to be deducted in determining the annual value
of the property of that previous year in which such taxes are actually paid
by the assessees. Then, there is an explanation and which states that for
the purpose of clause (b) or (c) of subsection (1) the amount of actual
rent received or receivable by the owner shall not include, subject to the
rules, the amount of rent which the owner cannot realize. By subsections
(2) and (3) it has been clarified that the annual value in view of the
circumstances set out in this subsection will be taken to be nil but sub
section (2) of section 23 if will not apply in the circumstances set out by
subsection(3). If the owner has more than one house then, how the
annual value has to be determined, is set out in subsection (4) of section
23.
32] Thus, the scheme is that income from house property shall be taken
as a component of the income chargeable to tax. How that income from
house property has to be 'computed' is then provided by the legislature.
That is the annual value of the property. Thus, the legislature deems the
annual value firstly to be the sum for which the property might reasonably
be expected to be let from year to year. In the event, the property which
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consists of any buildings or lands appurtenant thereto, the actual rent
received or receivable by the owner in respect thereof if in excess of the
sum referred to in clause (a), it is that amount so received or receivable
which shall be deemed to be the annual value for the purposes of
computing the tax under the head income from house property.
33] In the present appeals, the arguments proceed on the footing that in
computing the annual value of house property under section 23 (1)(a) is
the Assessing Officer required to adopt the municipal rateable value of the
property. However, in all the appeals before us, the factual position is that
the property or part thereof is let or given on leave and license basis. The
Assessing Officer has disbelieved the assessees in computation or
calculation of income from house property. In the opinion of the Assessing
Officer and the revenue, the amount received towards rent or
compensation either coupled with an interest free security deposit or
otherwise as reflected and shown in the accounts of the assessees is not
the market rent or market value. Therefore, it would be open for the
Assessing Officer to doubt or question the same. Thereafter, the Assessing
Officer is free to determine the amount which the property may fetch. In
other words, the sum for which the property might reasonably be expected
to be let from year to year can be determined by him.
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34] The Assessing Officer, therefore, in the Appeal No.1213 of 2011
referred to the rental income shown under the head “income from house
property”. The assessee disclosed that after claiming deduction from
municipal taxes, repairs, the net income from house property is
Rs.2,49,882/ in the Profit and Loss Account for the year consideration
though the assessee credited rental income of Rs.3,60,000/.
35] The Assessing Officer called upon the assessee to furnish the details
of the property let out. Although the Assessing Officer refers to the
transaction as letting what the assessee produced was a copy of the leave
st
and license agreement. The leave and license agreement is dated 1 April,
2004. On perusal of the above, Assessing Officer noted the facts which we
have referred in some details in the opening paragraphs of this judgment.
We may proceed on the premise that the Assessing Officer was empowered
and equally justified in calling upon the assessee to substantiate the
quantum received but what we find is that the assessee furnished certain
details. Those details are referred to in para3 of the assessment order.
Thereafter, the Assessing Officer issued a notice under section 142(1) of
the Income Tax Act and the assessee was called upon to furnish an
explanation as to why the income from house property should not be
computed by estimating the annual value as per provisions of section
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23(1)(a) of the Income Tax Act. The assessees representative addressed
letters and urged that no estimation is required to be made as the
quantum reflects the prevailing rate or value in the market. From the
th
record it appears that the Assessing Officer in the letter dated 12
December, 2007 set out certain instances and which he termed as
comparable. He submits that these instances are of leave and license
agreement. Therefore, the rate per sq.ft. and based on which the license
fees are determined would demonstrate as to how the amount decided or
determined as license fees by the assessee with the related party M/s.
Reliance is lesser than the prevailing rate.
36] Thereafter, the Assessing Officer dealt with the stand of the assessee
and which was supported by the assessee by some decisions of Courts of
law. This is evident from paras3.8 onwards. The Assessing Officer held
that the assessee has let out the premises to M/s. Reliance Industries Ltd.
for a period of 33 months as per the leave and license agreement entered
st
into between the assessee and M/s. Reliance Industries Ltd. dated 1 April,
2004. The Assessing Officer held that the relationship between the
assessee firm and the tenants is established as both belong to the Reliance
Group. Then, he held that the annual value of the premises let out by the
assessee can be estimated as per the provisions of section 23(1)(a) and
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the estimate can be of an amount higher than the standard or 'fair rent'
determined as per the Rent Control Act/municipal rateable value.
37] At the same time, the Assessing Officer refers to certain instances, in
para 3.11.1 of his order, of properties in respect of which annual value had
been estimated by the Assessing Officer under section 23(1)(a) of the
Income Tax Act, 1961 on these properties which had not been let out.
Therefore, only notional rent was estimated.
38] In the case before us what the Assessing Officer and the other
authorities so also the revenue feels that despite the assessees producing
before them the relevant documents evidencing the letting out of
properties, the income derived therefrom is not in tune or par with the
prevailing market rate. Therefore, an estimation can be done in terms of
section 23(1)(a) of the Income Tax Act. During such estimation the
Assessing Officer is not bound by either standard rent or the ratable value
for the purposes of municipal taxation determined by the municipal
authorities.
39] It is this controversy which is being dealt with by us. In the case of
Commissioner of Income Tax V/s. J. K. Investors (Bombay) Ltd. (2001)
248 ITR 723 a Division Bench of this Court was considering a question of
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law, whether notional interest on interest free deposit received by the
assessee against letting of property could be taken into account in the
cases falling under section 23(1)(b) of Income Tax Act, 1961. In other
words, whether such interest would form part of annual rent received or
receivable under this provision.
40] The facts that are noted by the Division Bench are that the assessee
purchased premises in a building and which premises were let out to M/s.
st
Raymond Woollen Mills Ltd. from 1 October, 1991. The assessee
purchased the premises in the previous year relevant to the assessment
year 199293. The Lessee agreed to deposit the amount as a security
deposit for the due performance of the lease. The assessee was not to pay
any interest on the security deposit to the lessee. The premises were
covered by the provisions of the Bombay Rent Act, 1947. The Assessing
Officer held that for the purposes of section 23(1)(b) and though the
annual rent received or receivable was higher than the expected rent, still
the notional interest for the interest free deposit would be the sum total of
the rent actually received plus this notional interest. That notional
interest was calculated by the Assessing Officer at a rate at which the
assessee borrowed funds. This order of the Assessing Officer was
confirmed in appeal by the Commissioner of Income Tax (Appeals). Being
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aggrieved by this order, the assessee carried the matter in the Tribunal.
The Tribunal on facts found that the actual rent received by the assessee,
even without taking into account the notional interest, was more than the
annual value determinable under section 23(1)(a) of the Act and it is for
this reason that the Department invoked only section 23(1)(b) of the Act.
The Tribunal concluded that section 23(1)(b) only applied to cases of
actual rent being received by the assessee and that the said section does
not apply to cases falling under section 23(1)(a) which permits adoption
of notional value as annual letting value of the property. Hence, the
Tribunal allowed the appeal.
41] This Court, on facts further noted that the department has invoked
section 23(1)(b) of the Act and not section 23(1)(a). Further the Tribunal
held that an annual rent received by the assessee even without taking
account the notional interest was more than Annual Letting Value of the
property determinable under section 23(1)(a) of the Income Tax Act. The
Division Bench of this Court referred to the judgment of the Calcutta High
Court in the case of Commissioner of Income Tax V/s. Satya Co.Ltd.
(1994) 75 Taxman 193 and a judgment of the Madras High Court in
the case of Commissioner of Income Tax V/s. Ratanchand Chordia
(1997) 228 ITR 626 . The Division Bench further held as under:
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“In this matter, we are required to consider the scheme of taxation
of income from house property. Section 22 says that the measure
of income from house property is its annual value. The annual
value is to be decided in accordance with section 23. In this
matter, we are required to consider the scheme of taxation of
income from house property. Section 22 says that the measure of
income from house property is its annual value. The annual value
is to be decided in accordance with section 23. Subsection (1) of
section 23, by virtue of the amendment with effect from the
assessment year 197677, has two limbs, namely, clauses (a) and
(b). Clause (a) states that the annual value is the sum for which
the property might reasonably be expected to be let from year to
year. Clause (b) covers a case where the property is let and the
actual rent is in excess of the sum for which the property might
reasonably be expected to be let from year to year. In other words,
insertion of clause (b) by the Taxation Laws (Amendment) Act,
1975 covers a case where the rent for a year actually received by
the owner is in excess of the lawful rent which is known as the fair
rent or standard rent under the rent control legislation. The
provision of section 23(1)(a) apply both to owner occupied
property as also to property which is let out and the measure of
valuation to decide the annual value is the standard rent or the
fair rent. Section 23(1 )(b) only applies to cases where the actual
rent received is more than the reasonable rent under section 23(1)
(a) and it is for this reason that section 23(1)(b) contemplates
that in such cases the annual value should be decided on the basis
of the actual rent received. As stated hereinabove, in this case, the
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department has invoked section 23(1)(b) which, as stated
hereinabove, proceeds on the basis that the actual rent received by
the assessee is more than the reasonable rent under section 23(1)
(a). The Tribunal has also found that the actual rent received by
the assessee, even without taking into account the notional
interest,was more than the annual value determinable under
section 23(1)(a). This finding of fact has not been challenged by
the department in this appeal. On the contrary, the department
has contended that in this case section 23(1)(b) was applicable.
They have not relied on the provisions of section 23(1)(a). The
question as to whether notional interest could have been taken
into account under section 23(1)(a) does not arise in this appeal
and we do not wish to go into that question in this appeal.
However, the moot point which needs to be considered in this case
is whether notional interest could form part of the actual rent
received by the assessee under section 23(1)(b). It is important to
note that the property is covered by the provisions of the Bombay
Rent Act. The scheme of section 23(1)(b), in contradistinction to
section 23(1)(a), shows that fair rent is the basis to determine the
annual value of a property. This was the sole basis prior to the
assessment year 197576. However, after the amendment of
section 23(1) by the Taxation Laves (Amendment) Act, 1975, the
legislature has clearly laid down under section 23(1)(b) that when
the actual annual rent received or receivable is in excess of the fair
rent determinable under section 23(1)(a), then such higher actual
annual rent would constitute the annual value of the property. It is
important to bear in mind that under section 22, the measure of
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income from house property is its annual value. The annual value
is to be decided in accordance with section 23(1). By, virtue of the
amendment, clause (a) states that annual value is the sum for
which the property might reasonably be expected to be let from
year to year whereas clause (b) covers a case where the property is
let and the actual rent is in excess of the sum for which the
property might reasonable be expected to be let from year to year.
In our view, this later insertion of clause (b) by the Taxation Laws
(Amendment) Act. 1975 is meant to cover a case where the rent
per annum actually received by the owner is in excess of the fair
rent or the standard rent under the rent control legislation. Now,
in this case, the department has invoked section 23(1)(b). Now, in
this case, it has been found that the actual rent received by the
assessee is more than the fair rent even without taking into
account notional interest. Generally, the fair rent is fixed even
under the B.M.C. Act and the Rent Act by taking into account
various principles of valuation, viz., contractor's method, the rent
method etc. However, that exercise is undertaken to decide the fair
rent of the property. In that connection, the actual rent received by
the lessor also provides a piece of evidence to decide the fair rent of
the property. However, under the Income Tax Act, the scheme is
slightly different. Section 23(1)(b) provides that where the actual
rent is more than the fair rent, the actual rent would be the
annual value of the property. In the circumstances, the value of the
notional advantage, like notional interest in this case, will not
form part of actual rent received as contemplated by section 23(1)
(b). At the cost of repetition it may be mentioned that under
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section 23(1)(a), the assessing officer has to decide the fair rent of
the property. While deciding the fair rent, various factors could be
taken into account. In such cases various methods like contractors
method could be taken into account. If on comparison of the fair
rent with the actual rent received, the assessing officer finds that
the actual rent received is more than the fair rent determinable as
above, then actual rent shall constitute the annual value under
section 23(1)(b). Now, applying the above test to the facts of this
case, we find a categorical finding of fact recorded by the Tribunal
that the actual rent received by the assessee was more than the fair
rent. Under the above circumstances, in view of the said finding of
fact, we do not see any reason to interfere.”
42] The Division Bench expressly kept open the question as to whether
notional interest can form part of the “fair rent” under section 23(1)(a) of
the Income Tax Act, 1961.
43] It also appears that both, the judgment in the case of Satya & Co.
(supra) rendered by a Division Bench of the Calcutta High Court and the
judgment of this Court in the case of J.K. Investors (Bombay) (supra) were
considered by the Full Bench of the Delhi High Court on which decision
heavy reliance is placed by the counsel for the assessee. The Full Bench
was called upon to decide as to how to determine “fair rent” of the
property and, then, to find out as to whether the actual rent received is
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less or more than the “fair rent” so that higher of the two is taken as
Annual Letting Value under section 23(1)(b) of the Income Tax Act.
44] The factual and admitted position before the Delhi Full Bench was
in addition to the contractual rent, substantial amount by way of interest
free deposit is given, the security deposit is many time more than the
annual rent received by the assessee. Nonetheless, the Annual Letting
Value arrived at by the Municipal Corporation was less than the
contractual rent received by the assessees. The Assessing Officer while
arriving at the “fair rent” had added notional interest on the security
deposit to the actual rent received to arrive at the Annual Letting Value.
None of the cases before the Full Bench involved applicability of the Delhi
Rent Control Act. Therefore, question of fixing standard rent in terms of
this Act did not arise. However, it was admitted that if the property is
covered by Delhi Rent Control Act then the standard rent under the said
Act can be treated as “fair rent” in view of various judgments.
45] In the above backdrop, the Full Bench held as under:
With this, we revert back to the moot question, viz., how to
determine the “fair rent” of the property and then to find out as
to whether actual rent received is less or more than the “fair rent”
so that higher of two is taken as annual letting value under
Section 23 (1) (b) of the Act. For this purpose, we first discuss the
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validity of approach taken by the AO, viz., whether it is
permissible to add notional interest of interest free security
deposit and add the same to the actual rent received for arriving
at annual letting value. Even the Division Bench while making
reference did not countenance the aforesaid formula adopted by
the AO as is clear from Para 12 of the reference order wherein it
is observed as under:
“12. In this backdrop, the important question which arises for
determination is: what is the fair rent of the properties, which
were let out in the instant case? The mistake committed by the
AO was that he did not address this issue and straightway
proceeded to add notional interest on the interest free security
deposit.
The aforesaid conclusion is correct. We may record that
permissibility of adding notional interest into actual market rent
received was not approved by the Calcutta High Court in the case
of Commissioner of Income Tax Vs. Satya Co. Ltd.[(1997) 140
CTR (Cal) 569] and categorically rejected in the following words:
“There is no mandate of law whereby the AO could convert
the depression in the rate of rent into money value by assuming
the market rate of interest on the deposit as the further rent
received by way of benefit of interestfree deposit. But s. 23, as
already noted, does not permit such calculation of the value of the
benefit of interestfree deposit as part of the rent. This situation is,
however, foreseen by Schedule III to the WT Act and it authorises
computation of presumptive interest at the rate of 15 per cent. as
an integral part of rent to be added to the ostensible rent. No such
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provision, however, exists in the Act. That being so, the act of the
AO in presuming such notional interest as integral part of the
rent is ultra vires the provision of s. 23(1) and is, therefore,
unauthorised. Though what has been urged on behalf of the
Revenue is not to be brushed aside as irrational, yet the
contention is not acceptable as the law itself comes short of
tackling such factsituation."
This view of the Calcutta High Court has been accepted by
a Division Bench of this Court as well in the case of Commissioner
of Income Tax Vs. Asian Hotels Limited [(2008) 215 CTR (Del.)
84] holding that the notional interest on refundable security, if
deposited, was neither taxable as profit or gain from business or
profession under Section 28(iv) of the Act or income from house
property under Section 23(1)(a) of the Act. Rationale given in
this behalf was as under (page 493):
"A plain reading of the provisions indicates that the
question of any notional interest on an interest free deposit
being added to the income of an assessed on the basis that it
may have been earned by the Assessee if placed as a fixed deposit,
does not arise. Section 28 (iv) is concerned with business income
and is distinct and different from income from house property. It
talks of the value of any benefit on perquisite, "whether
convertible into money or not" arising from "the business or the
exercise of a profession." It has been explained by this Court in
Ravinder Singh that Section 28 (iv) can be invoked only where
the benefit or perquisite is other than cash and that the term
"benefit or amenity or perquisite" cannot relate to cash payments.
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In the instant case, the AO has determined the monetary value of
the benefit stated to have accrued to the assessed by adding a sum
that constituted 18% simple interest on the deposit. On the
strength of Ravinder Singh, it must be held that this rules out the
application of Section 28 (iv) of the Act.
Section 23(1)(a) is relevant for determining the income
from house property and concerns determination of the annual
letting value of such property. That provision talks of "the sum for
which the property might reasonably be expected to let from year
to year." This contemplates the possible rent that the property
might fetch and not certainly the interest in fixed deposit that
may be placed by the tenant with the landlord in connection with
the letting out of such property. It must be remembered that in a
taxing statute it would be unsafe for the Court to go beyond the
letter of the law and try to read into the provision more than
what is already provided for. The attempt by learned counsel for
the Revenue to draw an analogy from the Wealth Tax Act, 1957 is
also to no avail. It is an admitted position that there is a specific
provision in the Wealth Tax Act which provides for considering of
a notional interest whereas Section 23(1)(a) contains no such
specific provision."
We approve the aforesaid view of the Division Bench of this
Court and Operative words in Section 23 (1)(a) of the Act are
"the sum for which the property might reasonably be expected to
let from year to year". These words provide a specific direction to
the Revenue for determining the “fair rent”. The Assessing Officer,
having regard to the aforesaid provision is expected to make an
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inquiry as to what would be the possible rent that the property
might fetch. Thus, if he finds that the actual rent received is less
than the “fair/market rent” because of the reason that the assessee
has received abnormally high interest free security deposit and
because of that reason, the actual rent received is less than the
rent which the property might fetch, he can undertake necessary
exercise in that behalf. However, by no stretch of imagination, the
notional interest on the interest free security can be taken as
determinative factor to arrive at a “fair rent”. The Provisions of
Section 23(1)(a) do not mandate this. The Division Bench in
Asian Hotels Limited [2010] 323 ITR 490 (Delhi), thus, rightly
observed that in a taxing statute it would be unsafe for the Court
to go beyond the letter of the law and try to read into the
provision more than what is already provided for. We may also
record that even the Bombay High Court in the case of
Commissioner of Income Tax Vs. J. K. Investors (Bombay) Ltd.,
[(2001) 248 ITR 723 (Bom.)] categorically rejected the formula
of addition of notional interest while determining the “fair rent”.
It is, thus, manifest that various Courts have held a
consistent view that notional interest cannot form part of actual
rent. Hence, there is no justification to take a different view that
what has been stated in Asian Hotels Limited [2010] 323 ITR 490
(Delhi).
The next question would be as to whether the annual letting
value fixed by the Municipal Authorities under the Delhi Municipal
Corporation Act can be the basis of adopting annual letting value
for the purposes of Section 23 of the Act. This question was
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answered in affirmative by the Calcutta High Court in Satya Co.
Ltd. [1997] 140 CTR (Cal) 569 on the ground that the provisions
contained in the Delhi Municipal Corporation Act for fixing
annual letting value is in pari materia with Section 23 of the Act.
The Court opined that the fair rent fixed under the Municipal
laws, which takes into consideration everything, would form the
basis of arriving at annual value to be determined under Section
23(1)(a) and to be compared with actual rent and notional
advantage in the form of notional interest on interest free security
deposit could not be taken into consideration. It is clear from the
following discussion therein:
"6. With regard to question Nos. (5) and (6) which are only
for the assessment years 198485 and 198586 the further issue
involved is whether any addition to the annual rental value can be
made with reference to any notional interest on the deposit made
by the tenant. When the annual value is determined under sub
clause (a) of subsection (1) of section 23 with reference to the
fair rent then to such value no further addition can be made. The
fair rent, takes into consideration everything. The notional interest
on the deposit is not any actual rent received or receivable. Under
subclause (b) of section 23(1) only the actual rent received or
receivable can be taken into consideration and not any notional
advantage. The rent is an actual sum of money which is payable
by the tenant for use of the premises to the landlord. Any
advantage and/or perquisite cannot be treated as rent. Wherever
any such perquisite or benefit is sought to be treated as income,
specific provisions in that behalf have been made in the Act by
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including such benefit, etc., in the definition of the income under
section 2(24) of the Act. Specific provisions have also been made
under different heads for adding such benefits or perquisites as
income while computing income under those heads, e.g., salary,
business. The computation of the income under the head 'House
property' is on a deemed basis. The tax has to be paid by reason of
the ownership of the property. Even if one does not incur any sum
on account of repairs, a statutory deduction therefore is allowed
and where on repairs expenses are incurred in excess of such
statutory limit, no deduction for such excess is allowed. The
deductions for municipal taxes and repairs are not allowed to the
extent they are borne by the tenant. However, even such actual
reimbursements for municipal taxes, insurance, repairs or
maintenance of common facilities are not considered as part of the
rent and added to the annual value. Accordingly, there can be no
scope or justification whatsoever for making any addition for any
notional interest for determining the annual value.
Whatever benefit or advantage which is derived from the
deposits whether by way of saving of interest or of earning
interest or making profits by investing such deposit the same
would be reflected in computing the income of the assessee under
other heads.
In our view there is no scope for making any addition on
account of socalled notional interest on the deposit made by the
tenant, since there is no provision to this effect in s. 22 or 23 of
the IT Act, 1961."
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In fact, this is the view taken even by the Supreme Court in
the case of Mrs. Shiela Kaushish Vs. CIT [1981] 131 ITR 435 on
account of similarity of the provisions under the municipal
enactments and Section 23 of the Act.
It is on this basis that in the present case, the Commissioner
of Income Tax (Appeals) gave primacy to the rateable value of the
property fixed by the Municipal Corporation of Delhi vide its
assessment order dated December 31, 1996 and on this basis,
opined that the actual rent was more than the said rateable value
and therefore, as per Section 23 (1)(b), the actual rent would be
the income from house property and there could not have been
any further additions.
Since the provisions of fixation of annual rent under the
Delhi Municipal Corporation Act are in pari materia of Section 23
of the Act, we are inclined to accept the aforesaid view of the
Calcutta High Court in Satya Co. Ltd. [1997] 140 CTR (Cal) 569
that in such circumstances, the annual value fixed by the
Municipal Authorities can be a rational yardstick. However, it
would be subject to the condition that the annual value fixed bears
a close proximity with the assessment year in question in respect
of which the assessment is to be made under the Income Tax laws.
If there is a change in circumstances because of passage of time,
viz., the annual value was fixed by the Municipal Authorities
much earlier in point of time on the basis of rent than received,
this may not provide a safe yardstick if in the Assessment Year in
question when assessment is to be made under Income Tax Act.
The property is letout at a much higher rent. Thus, the Assessing
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Officer in a given case can ignore the municipal valuation for
determining annual letting value if he finds that the same is not
based on relevant material for determining the “fair rent” in the
market and there is sufficient material on record for taking a
different valuation. We may profitably reproduce the following
observations of the Supreme Court in the case of Corporation of
Calcutta Vs. Smt. Padma Debi, AIR 1962 SC 151, 153.
"A bargain between a willing lessor and a willing lessee
uninfluenced by any extraneous circumstances may afford a
guiding test of reasonableness. An inflated or deflated rate
of rent based upon fraud, emergency, relationship and such
other considerations may take it out of the bounds of
reasonableness."
Thus the rateable value, if correctly determined, under the
municipal laws can be taken as ALV under Section 23(1)(a) of the
Act. To that extent we agree with the contention of the learned
Counsel of the assessee. However, we make it clear that rateable
value is not binding on the assessing officer. If the assessing officer
can show that rateable value under municipal laws does not
represent the correct fair rent, then he may determine the same on
the basis of material/ evidence placed on record. This view is
fortified by the decision of Patna High Court in the case of Kashi
Prasad Kataruka v. CIT [1975] 101 ITR 810.
The above discussion leads to the following conclusions:
(i) ALV would be the sum at which the property may be
reasonably let out by a willing lessor to a willing lessee
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uninfluenced by any extraneous circumstances.
(ii) An inflated or deflated rent based on extraneous
consideration may take it out of the bounds of reasonableness.
(iii) Actual rent received, in normal circumstances, would
be a reliable evidence unless the rent is inflated/deflated by
reason of extraneous consideration.
(iv) Such ALV, however, cannot exceed the standard rent as
per the Rent Control Legislation applicable to the property.
(v) if standard rent has not been fixed by the Rent
Controller, then it is the duty of the assessing officer to determine
the standard rent as per the provisions of rent control enactment.
(vi) The standard rent is the upper limit, if the fair rent is
less than the standard rent, then it is the fair rent which shall be
taken as ALV and not the standard rent.
We would like to remark that still the question remains as
to how to determine the reasonable/fair rent. It has been
indicated by the Supreme Court that extraneous circumstances
may inflate/deflate the “fair rent”. The question would, therefore,
be as to what would be circumstances which can be taken into
consideration by the Assessing Officer while determining the fair
rent. It is not necessary for us to give any opinion in this behalf, as
we are not called upon to do so in these appeals. However, we may
observe that no particular test can be laid down and it would
depend on facts of each case. We would do nothing more than to
extract the following passage from the Supreme Court judgment in
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the case of Motichand Hirachand Vs. Bombay Municipal
Corporation, AIR 1968 SC 441, 442 :
"It is wellrecognized principle in rating that both gross
value and net annual value are estimated by reference to the rent
at which the property might reasonably be expected to let from
year to year. Various methods of valuation are applied in order to
arrive at such hypothetical rent, for instance, by reference to the
actual rent paid for the property or for others comparable to it or
where there are no rents by reference to the assessments of
comparable properties or to the profits carried from the property
or to the cost of construction."
46] We have and after careful reading of the provision in question and
the conclusion of the Full Bench of the Delhi High Court councluded that a
different view cannot be taken. We respectfully concur with the view
taken in this Full Bench decision of the Delhi High Court.
47] We are of the view that where Rent Control Legislation is applicable
and as is now urged the trend in the real estate market so also in the
commercial field is that considering the difficulties faced in either
retrieving back immovable properties in metro cities and towns, so also
the time spent in litigation, it is expedient to execute a leave and license
agreements. These are usually for fixed periods and renewable. In such
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cases as well, the conceded position is that the Annual Letting Value will
have to be determined on the same basis as noted above. In the event and
as urged before us, the security deposit collected and refundable interest
free and the monthly compensation shows a total mismatch or does not
reflect the prevailing rate or the attempt is to deflate or inflate the rent by
such methods, then, as held by the Delhi High Court, the Assessing Officer
is not prevented from carrying out the necessary investigation and
enquiry. He must have cogent and satisfactory material in his possession
and which will indicate that the parties have concealed the real position.
He must not make a guess work or act on conjectures and surmises. There
must be definite and positive material to indicate that the parties have
suppressed the prevailing rate. Then, the enquiries that the Assessing
Officer can make, would be for ascertaining the going rate. He can make
a comparative study and make a analysis. In that regard, transactions of
identical or similar nature can be ascertained by obtaining the requisite
details. However, there also the Assessing Officer must safeguard against
adopting the rate stated therein straightway. He must find out as to
whether the property which has been let out or given on leave and license
basis is of a similar nature, namely, commercial or residential. He should
also satisfy himself as to whether the rate obtained by him from the deals
and transactions and documents in relation thereto can be applied or
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whether a departure therefrom can be made, for example, because of the
area, the measurement, the location, the use to which the property has
been put, the access thereto and the special advantages or benefits. It is
possible that in a high rise building because of special advantages and
benefits an office or a block on the upper floor may fetch higher returns or
vice versa. Therefore, there is no magic formula and everything depends
upon the facts and circumstances in each case. However, we emphasize
that before the Assessing Officer determines the rate by the above exercise
or similar permissible process he is bound to disclose the material in his
possession to the parties. He must not proceed to rely upon the material
in his possession and disbelieve the parties. The satisfaction of the
Assessing Officer that the bargain reveals an inflated or deflated rate
based on fraud, emergency, relationship and other considerations makes it
unreasonable must precede the undertaking of the above exercise. After
the above ascertainment is done by the Officer he must, then, comply with
the principles of fairness and justice and make the disclosure to the
Assessee so as to obtain his view.
48] We are not in agreement with Shri Chhotaray that the municipal
rateable value cannot be accepted as a bonafide rental value of the
property and it must be discarded straightway in all cases. There cannot
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be a blanket rejection of the same. If that is taken to be a safe guide, then,
to discard it there must be cogent and reliable material.
49] We are of the opinion that market rate in the locality is an approved
method for determining the fair rental value but it is only when the
Assessing Officer is convinced that the case before him is suspicious,
determination by the parties is doubtful that he can resort to enquire
about the prevailing rate in the locality. We are of the view that
municipal rateable value may not be binding on the Assessing Officer but
that is only in cases of aforereferred nature. It is definitely a safe guide.
50] We have broadly agreed with the view taken by the Full Bench of
the Delhi High Court. Hence, the issue of determination of the “fair rental
value” in respect of properties not covered by or covered by the Rent
Control Act is to be undertaken in terms of the law laid down in the Full
Bench decision of the Delhi High Court.
51] We quite see the force in the arguments of Ms. Vissanjee that
ordinarily the license fee agreed between the willing licensor or a willing
licensee uninfluenced by any extraneous circumstances would afford
reliable evidence of what the landlord might reasonably be expect to get
from a hypothetical tenant. She has in making this submission, answered
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the issue and summed up the conclusion as well. Then, it is but natural
and logical that in the event, the transaction is influenced by any
extraneous circumstances or vitiated by fraud, or the like that the
Assessing Officer can adopt a “fair rent” based on the opinion obtained
from reliable sources. There as well, we do not see as to how we can
uphold the submissions of Mr. Chhotaray that the notional rent on the
security deposit can be taken into account and consideration for the
determination. If the transaction itself does not reflect any of the afore
stated aspects, then, merely because a security deposit which is
refundable and interest free has been obtained, the Assessing Officer
should not presume that this sum or the interest derived therefrom at
Bank rate is the income of the assessee till the determination or conclusion
of the transaction. The Assessing Officer ought to be aware of several
aspects and matters involved in such transactions. It is not necessary that
if the license is for three years that it will operative and continuing till the
end. There are terms and conditions on which the leave and license
agreement is executed by parties. These terms and conditions are
willingly accepted. They enable the license to be determined even before
the stated period expires. Equally, the licensee can opt out of the deal. A
leave and license does not create any interest in the property. Therefore,
it is not as if the security deposit being made, it will be necessarily
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refundable after the third year and not otherwise. Everything depends
upon the facts and circumstances in each case and the nature of the deal
or transaction. These are not matters which abide by any fixed formula
and which can be universally applied. Today, it may be commercially
unviable to enter into a lease and, therefore, this mode of inducting a
'third party' in the premises is adopted. This may not be the trend
tomorrow, therefore, we do not wish to conclude the matter by evolving
any rigid test.
52] We have also noted the submissions of Shri Ahuja. We are of the
opinion that even in the cases and matters brought by him to our notice, it
is evident that the Assessing Officer cannot brush aside the rent control
legislation, in the event, it is applicable to the premises in question. Then,
the Assessing Officer has to undertake the exercise contemplated by the
rent control legislation for fixation of standard rent. The attempt by the
Assessing Officer to override the rent control legislation and when it
balances the rights between the parties has rightly been interfered with in
the given case by the Appellate authority. The Assessing Officer either
must undertake the exercise to fix the standard rent himself and in terms
of the Maharashtra Rent Control Act, 1999 if the same is applicable or
leave the parties to have it determined by the Court or Tribunal under that
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Act. Until, then, he may not be justified in applying any other formula or
method and determine the “fair rent” by abiding with the same. If he
desires to undertake the determination himself, he will have to go by the
Maharashtra Rent Control Act, 1999. Merely because the rent has not
been fixed under that Act does not mean that any other determination and
contrary thereto can be made by the Assessing Officer. Once again having
respectfully concurred with the judgment of the Full Bench of the Delhi
High Court, we need not say anything more on this issue.
53] Thus, apart from the three aspects namely of a municipal valuation,
of obtaining interest free security deposit and the properties being covered
by the Maharashtra Rent Control Act but no standard rent thereunder is
fixed, our attention has not been invited to any other case. Suffice it to
hold that in those cases and to which our attention is not invited the
principles laid down in the decisions of the Hon'ble Supreme Court and
referred to by the Full Bench of the Delhi High Court would govern the
enquiry.
54] As a result of the above discussion, we are of the opinion that
wherever the Assessing Officer has not adhered to the above principles,
and his finding and conclusion has been interfered with, by the higher
Appellate Authorities, the revenue cannot bring the matter to this Court as
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no substantial question of law can be arising for determination and
consideration of this Court. Then, the findings by the last fact finding
Authority, namely the Tribunal and against the revenue shall have to be
upheld as they are consistent with the facts and circumstances brought
before it. If they are not vitiated by any perversity or error of law
apparent on the face of the record, the appeals of the revenue cannot be
entertained. They would have to be accordingly dismissed.
(B.P.COLABAWALLA, J.) ( S.C. DHARMADHIKARI, J. )
wadhwa
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