Search Results Page
Search Results
1 - 8 of 8 (0.33 seconds)Section 2 in The Motor Vehicles Act, 1988 [Entire Act]
The Income Tax Act, 1961
The Motor Vehicles Act, 1988
Section 295 in The Income Tax Act, 1961 [Entire Act]
Raj Dadarkar Associates vs Acit -Cc-46 on 9 May, 2017
In the appeal before us also , the assessee has derived income from
letting out open space on the terrace of building and such space being
in-seperable from building, the income derived has to be brought to
tax as income under the head ‗Income from House Property'. There is
nothing on record to establish that the said mobile towers installed by
licensee were under the control of the assessee . The said mobile
towers and related equipments and were owned by the telecom
companies , and the ownership continued through out the currency of
agreement with the telecom companies. The operational and
management aspects of operating telecom towers were executed by the
telecom companies who were responsible for running, operating and
managing said mobile towers. There are service/maintenance
agreements simultaneously entered into by the assessee with the
licensee of the open terrace but the said maintenance /service
agreements related to the maintainence and upkeep of the building
and providing basic services such as access to common passage, lifts,
security and guard etc which will not take said income out of the head
‗Income from other sources'. So, far as contention of the Revenue, that
22
I.T.A. No.1339 & 1340/Mum/2017
the open terrace is not owned by the assessee and belonged to the
society of the owners of the apartments located in the building and
the Revenue allegation that the assessee is occupying the said open
terrace because society is not formed is a bald statement made by the
authorities below without any evidence on record, while the assessee
has filed agreements executed with vendor wherein the said
agreements , the assessee has described itself to be well within its
rights to possess this property being open space on terrace and legally
competent to execute the leave and license agreement with vendors.
The learned DR has also not brought on record any adverse material
before us to draw a different view . Thus, we have no hesitation in
holding that the said income shall be brought to tax under the head
‗Income from House Property'. The view is further fortified by decision
of Hon'ble Supreme Court in the case of Raj Dadarkar & Associates v.
ACIT reported in (2017) 394 ITR 592(SC). The assessee succeeds on
this ground.
Section 24 in The Income Tax Act, 1961 [Entire Act]
Walkeshwar Triveni Co-Operative ... vs Income Tax Officer on 4 July, 2003
Once the space is let out, it is for telecom companies who have taken
the said open space on terrace on hire to manage and operate the
20
I.T.A. No.1339 & 1340/Mum/2017
mobile towers. The mobile towers are also owned by the telecom
companies and are also operated and managed by telecom companies.
Even , income arising from maintenance/service agreements shall be
brought to tax as income from house property as these are services
which are commonly interwoven with the letting of the premises and it
is only for convenience , bifurcations are done . Our view is fortified by
the recent decision of the SMC bench of the ITAT, Mumbai in the case
of Kohinoor induistrial premises Co-operative Society Limited v. ITO in
ITA No. 670/Mum/2018 dated 05.10.2018 reported in (2018) 98
taxmann.com 365(Mum-trib.)
"7. I have considered rival submissions and perused materials
on record. Undisputedly, the assessee has derived rental income
from letting out space in the terrace of the building to mobile
companies for installing their mobile tower/antenna. It is also a
fact that the assessee has offered such rental income as income
from house property and has claimed deduction under section
24(a) of the Act. The Assessing Officer has rejected assessee's
claim and treated the rental income as income from other sources
basically for three reasons. Firstly, the assessee is not owner of
the building; secondly, the terrace cannot be considered as house
property and thirdly, annual letting value of the terrace is not
ascertainable. Whereas, the learned Commissioner (Appeals) has
upheld the decision of the Assessing Officer on the reasoning that
the income received by the assessee is in the nature of
compensation received for providing facilities and services to
cellular operators on the terrace of the building. Thus, form the
aforesaid facts, it is clear that the assessee has let-out some
space on the terrace of the building to the cellular operators for
installing and operating the mobile towers/antenna for the
purpose of providing mobile telecom services. The issue before me
is, what is the nature of income received by the assessee for
letting out such space to the cellular operator/mobile company for
installing and operating mobile towers/antenna? In my view, the
terrace of the building cannot be considered as distinct and
separate but certainly is a part of the house property. Therefore,
letting-out space on the terrace of the house property for
installation and operation of mobile tower/antenna certainly
amounts to letting-out a part of the house property itself. That
being the case, the observation of the Assessing Officer that the
terrace cannot be considered as house property is unacceptable.
As regards the observation of the learned Commissioner
(Appeals) that the rental income received by the assessee is in the
nature of compensation for providing services and facility to
21
I.T.A. No.1339 & 1340/Mum/2017
cellular operators, it is relevant to observe, the Departmental
Authorities have failed to bring on record any material to
demonstrate that in addition to letting-out space on the terrace for
installation and operation of antenna the assessee has provided
any other service or facilities to the cellular operators. Thus, from
the material on record, it is evident that the income received by
the assessee from the cellular operators/mobile companies is on
account of letting out space on the terrace for installation and
operation of antennas and nothing else. That being the case, the
rental income received by the assessee from such letting-out has
to be treated as income from house property. The decisions relied
upon by the learned Authorised Representative also support this
view. Further, the contention of the learned Authorised
Representative that in no other assessment year, assessee's
claim of such income as house property has been disturbed by
the Assessing Officer has not been controverted by the
Departmental. Therefore, there being no material difference in
fact, applying rule of consistency also, assessee's claim deserves
to be allowed. Accordingly, I direct the Assessing Officer to treat
the rental income received by the assessee from cellular operator
as income from house property and allow deduction under section
24(a) of the Act. Ground raised is allowed."
1