Sudhir Kumar Mittal (Huf), New Delhi vs Assessee

This is an appeal field by assessee against the order of Ld. CIT(A) dated 24.01.2013. The assessee has taken 5 grounds of appeal. However, the effective ground of appeal is the action of Ld. CIT(A) by which he had confirmed the action of A.O. in assessing notional rent of Rs.55,20,000/- instead of Rs.15,000/- as declared by assessee from the tenant, M/s. Supreme Textiles.

2. The brief facts of the case are that the assessee is being assessed in the capacity of HUF and it filed its return of income on 03.07.2009. The case of the assessee was selected for scrutiny. During assessment proceedings, the A.O. observed that the assessee had declared the income from house 2 ITA No.1481/Del/

property at E-29, NDSE-II, New Delhi consisting of 1800 sq. ft. It was observed by A.O. that out of 1800 sq. ft, 800 sq. ft was rented to M/s. N. B. Footwear Pvt. Ltd. for a rent of Rs.55,20,000/- per annum and the remaining 1,000 sq. ft was let out to M/s. Supreme Textiles @ Rs.15,000/- per annum. The A.O. further observed that the karta of HUF Shri S K Mittal along with other coparceners of HUF were partners in M/s. Supreme Textiles, from whom Rs.15,000/- per annum rent was received. The A.O. observed that the case of the assessee was covered u/s 23(1)(a) of the I. T. Act, 1961 since out of 1800 sq. ft., the assessee had let out 800 sq. ft for a yearly rent of Rs.55.20 lacs whereas 1000 sq. ft space in a similar property has been let out at a yearly rent of Rs.18,000/-. Therefore, the assessee was asked to explain as to why the same rate of rent per sq. ft for 1000 sq. ft space may not be applied and be treated as annual income from the property for which it might reasonably be expected to be let out. In response, it was submitted that the rent deed was executed in 1971 and initially the rent was fixed at Rs.6,000/- p.a. only which was increased to Rs.15,000/- p.a. from 2006. It was further submitted that the property let out to M/s. N B Footwear Pvt. Ltd. was earlier leased to M/s. Anisha Carpets from January 1972 at a monthly rent of Rs.750/- per month only but the tenants in the said premises continued to change from time to time with the result that with every fresh agreement executed with the new tenant, the rent was revised whereas, the premises rented out to M/s. Supreme Textiles continued to be occupied by same tenant since 1971. The assessee also submitted that the provisions of Section 23(1)(a) were applicable only where the rent was suppressed whereas the building under consideration was subject to rent control legislation. It was further submitted that the Hon'ble Supreme Court and 3 ITA No.1481/Del/

Hon'ble High Courts in a number cases have held that where the property was covered by the Rent Control Act there standard rent as defined or fixed under the rent control legislation will have to be taken for determining the annual rental value of the property. Without prejudice to the above, the assessee further submitted that the case of the assessee was covered by Section 22 of the I. T. Act, 1961 as it was entitled to benefit of exemption because the building can be deemed to have been used for business purposes as M/s. Supreme Textiles who was doing business consisted of partners who formed part of HUF. However, the A.O. did not agree with the contentions of the assessee and made the addition by taking the notional rental value. The findings of A.O. starting at page 5 of assessment order contained in paras 3-6 are reproduced below:

"3. I have considered the above submission of assessee and also case laws relied upon. At the outset, there cannot be any dispute that the property I 1000 sq. ft. of space has been let out to Supreme Textile at a considerably lower rent only for the reason that the assessee (HUF) has substantial interest in this firm I tenant. As far as the assessee's claim for application of rent control legislation, this could have .been accepted had the tenant is any other entity. The most important fact" here is that the tenant M/s Supreme Textile is controlled by two partners Shri Sudhir Kumar Mittar and Shri Utsav Mittal who are also members of the assessee (HUF). Shri Sudhir Kumar Mittal, the Karta of assessee (HUF) is having 75% share in the firm M/s Supreme Textile and is thus having controlling stake in firm. As such the claim of assessee that the rent cannot be increased on account of rent control legislation is not appreciable. This is not a case where the tenant has occupied the property at a meager rent because of the Rent Control Act. Intact this is a case where the property is let out at a lower rent as the landlord is an interested party.

4. As far as the valuation of annual value is concerned, it can be seen that even lesser space i.e. precisely 800 sq. ft. area has been let out at 4 ITA No.1481/Del/

a monthly rent of Rs4,00,000/- Rs4,60,000/- to M/s M&B Footwear (P) Ltd. Thus, 1000 sq. ft. area will definitely fetch a higher rent. Even conservatively, the fair annual value cannot be less than the amount of rent on which one portion of the same property having lesser area is let out. Meaning thereby with a conservative valuation, the monthly rent of 1000 sq. ft. area of this property should not be less than RsA,60,000/-.

5. In this regard, J place reliance in the case of CIT v. Parasmal Chordia (1998) 145 CTR (Mad) 468 wherein it is held that from a - cojoint reading of section 23(1)(a) and 23(J)(b), it is dear that the higher of the two amounts, was the actual rent received or receivables, or the reasonable rent, which refers to the standard or fair rent should be taken as the annual value for the purpose of charge under section 22 I am further fortified in my view by the decision of Hon'ble Madras High Court in the case of N. Nataraj v. DCIT 266 ITR 277 (2004) (Mad) wherein their lordship while dismissing the appeal held that when the document placed before the Assessing Officer clearly showed that the letting effected by the assessee was to a firm of which his wife and daughter were partners, that letting was rightly not regarded by the Assessing Officer as a reliable record for determining the reasonable rent. The facts of assessee's case are identical and accordingly, the above ratio is squarely applicable in the case of assessee. In view of this, the rental income from 1000 sq. ft. space let out to M/s Supreme Textile is taken @ RsA,60,OOOI- per month and an amount of Rs.55,20,000/- (Rs.4,60,000/- x 12) will be added in the income under the head house property in place of the gross rest of Rs.15,000/- declared by the assessee.

6. The assessee has further claimed that the adequacy of rent paid by Supreme Textile since.1972 has never been questioned by any Income-tax Assessing Authority so far inspite of the fact that assessee has been regular in filing return of income since inception' and as such any contrary opinion while framing assessment for one particular assessment year is neither correct nor lawful. Here, it would be relevant to mention that assessee, vide his letter dated 18.08.2011, has himself admitted that the assessee has not been assessed U/s 143(3) of the Income-tax Act, 1961 in the recent past. As 5 ITA No.1481/Del/

such, there is no point in seeking relief on account of consistency. The acceptance of return filed by assessee U/s 143(1) is not equated with an order U/s 143(3) of the Income-tax Act, 1961. Here, I place reliance in the case of Asstt. CIT v. Rajesh Jhaveri Stock Brokers (P) Ltd. [ 2007] 161 Taxman 316/291 ITR 500 (SC), in which Hon'ble Apex Court has with regard to proceeding U/s 147 of the Act has held that so long as ingredients of section 147 are fulfilled. Assessing Officer is free to initiate proceeding u/s 147 even where intimation u/s 143(1) has been Issued; as intimation Vis 143(1)(a) is not assessment there is no ·question 01 treating re- assessment in such a case as based on change of opinion. (Emphasis supplied by me).

Even otherwise, the rule of consistency is not applicable in the Income-tax proceeding in which every assessment year is distinct and separate. On account of this fact, the assessee's claim cannot be accepted as allowed in previous year."

3. Aggrieved, the assessee filed appeal before Ld. CIT(A). However, Ld. CIT(A) also upheld the addition made by A.O. The findings of Ld. CIT(A) are contained in para 7 to 7.1 of his order which are reproduced below:

"7. I have considered the facts of the case and the written submissions of the appellant. I have also perused the case laws relied both by the Assessing Officer and the appellant. For computing annual letting value for the purpose of section 22, the Assessing Officer had to first determine the sum for which the property might reasonably be expected to be let out from year to year as per the provisions of section 23(1 )(a). According to the provisions of section 23(1 )(a), for determining the fair rental value, the Assessing Officer has to consider various factors into account which include standard rent, municipal value of the property, as the case may be, and other affecting factors like benefits availed by the appellant other than the annual rent received or receivable. Therefore, for computation of annual letting value, the Assessing Officer has to first arrive at the fair rent of the property in question and thereafter the same has to be 6 ITA No.1481/Del/

compared with the annual rent received or receivable by the appellant.

7.1 In the instant case, it is evident from the record that the Assessing Officer had done the exercise for arriving at the fair rent pertaining to the space in question might reasonably fetch by comparing the rent of the other space in the same building, less in area, which was let out at Rs4,60,000/- per month. The Assessing Officer was reasonable enough to adopt the same rent for an area which is bigger than the area which was let out at R.4,60,000/- per month. The Assessing Officer also established the other affecting factors. The tenant firm M/s. Supreme Textile is controlled by Sh. Sudhir Kumar Mittal and Sh. Utsav Mittal who are members of the appellant HUF. Sh. Sudhir Kumra Mittal who is having 75% share in the firm MIs. Supreme Textile is the Karta of the appellant HUF. The rent of the space let out to M/s. M & B Footwear Pvt. Ltd. was increased during the year from Rs.4,00,000/- to Rs.4,60,000/- w.e.f . October 2008. Considering all the facts and circumstances of the case, I find that the Assessing Officer has made out a case for taking monthly rent of the property in question at Rs.4,60,000/-. Accordingly, his action in this regard is upheld and the addition of Rs.55,20,000/- as gross annual rent made to the income of the appellant under the head "income from house property" is confirmed."

4. Aggrieved, the assessee is in appeal before us.

5. At the outset, Ld. A.R. submitted that the property rented out to M/s. N B Footwear Pvt. Ltd. was initially let out to M/s. Anisha Carpets from January 1972 at a monthly rent of Rs.750/- only and when the property was vacated and let out to present tenant the current market rate w.e.f. 12.01.2005 was taken as rent whereas the rent of property let out to M/s. Supreme Textiles remained under their possession right from 1971 and it was initially rented out @ Rs.6,000/- per annum which was increased to Rs.15,000/- per annum w.e.f. April 2006. Ld. A.R. submitted that his arguments are twofold, first of which is that annual letting value cannot 7 ITA No.1481/Del/

exceed the standard rent determined under the Delhi Rent Control Act, 1958 due to language contained in section 23 read along with various judicial decisions. It was submitted that the property being let out @ 15,000/- p.a. is subject matter of Delhi Rent Control Act and this fact was communicated to A.O. and Ld. CIT(A) but the authorities below have ignored this fact. Ld. A.R. placed his reliance in the following case laws for the proposition that annual letting value in the case of property covered by rent control Act cannot exceed the rent determined under rent control Act:

i) Amolak Ram Khosla Vs CIT 131 ITR 589 (S.C.) ii) Shiela Kaushik Vs CIT 131 ITR 435 (S.C.) iii) Aman Daulat Rai Kapur Vs NDMC 122 ITR 700 (S.C.) iv) CIT Vs Ratanchand Chordia 228 ITR 626 vi) CIT Vs Champalal 215 ITR 289 (Mad.) vii) CIT Vs K M Jaganathan 180 ITR 191 (Mad.) viii) CIT Vs H S Singhal & Sons 253 ITR 653 (Del.)

6. Ld. A.R. on the second limb of arguments submitted that since the assessee represented HUF and the coparceners of HUF were partners in the firm M/s. Supreme Textiles, therefore the assessee can be deemed to be engaged in the business and therefore, was exempt u/s 22 of the Act. Reliance in this respect was placed on the following case laws:

i) S.R. Garg Vs ACIT 2 SOT 223 Del. ii) CITVs Rasiklal Balabhai 119 ITR 303

7. It was submitted that municipal valuation of the property was Rs.19,046/- and standard rent as per rent control Act was Rs.10,060/- and our attention was invited to pages 12 & 13 of the paper book.

8. The Ld. A.R. further submitted that submissions were made before A.O. and Ld. CIT(A) regarding exemption available to assessee under 8 ITA No.1481/Del/ Section 22 but both authorities had noted the argumens but had not adjudicated.

9. From the orders of A.O. and Ld. CIT(A), we find that though both the authorities had noted the arguments of Ld. A.R. regarding his claim u/s 22 but they have ignored to consider this aspect. The arguments of Ld. A.R. are found noted in para 3 of assessment order and in Ld. CIT(A)'s order, it is found noted in para 3 at page 4. After hearing the above arguments, Ld. A.R. was asked as to whether his assessee wants to go back to A.O. for his findings on the applicability of Section 22, to which Ld. A.R. agreed and Ld. D.R. also accepted the proposal.

10. In view of above, the case is remitted back to A.O. for readjudication who should pass a fresh assessment order which should include findings on the submissions of assessee regarding applicability of Section 22 also. Needless to say that assessee will be provided sufficient opportunity of being heard.

11. In view of above, appeal filed by assessee is allowed for statistical purposes.

12. Order pronounced on this 08th day of April, 2015.

Sd./- Sd./- ( DIVA SINGH) (T.S. KAPOOR) JUDICIAAL MEMBER ACCOUNTANT MEMBER Date: 08.04. 2015 Sp Copy forwarded to:- 1. The appellant 2. The respondent 3. The CIT 4. The CIT (A)-, New Delhi.

5. The DR, ITAT, Loknayak Bhawan, Khan Market, New Delhi.

True copy. By Order (ITAT, New Delhi) 9 ITA No.1481/Del/

S.No. Details Date Initials Designation 1 Draft dictated on 26/3 Sr. PS/PS 2 Draft placed before author 26,31,1,1/4, Sr. PS/PS Draft proposed & placed before the 3 JM/AM Second Member Draft discussed/approved by Second 4 AM/AM Member Approved Draft comes to the Sr. 8/4 5 Sr. PS/PS PS/PS 6 Kept for pronouncement 8/4 Sr. PS/PS 7 File sent to Bench Clerk 8/4 Sr. PS/PS Date on which the file goes to Head 8 Clerk 9 Date on which file goes to A.R. 10 Date of Dispatch of order