Raj Dadarkar & Associates vs. ACIT (Supreme Court)

DATE: May 9, 2017 (Date of pronouncement)
DATE: May 13, 2017 (Date of publication)
AY: 2000-01
FILE: Click here to download the file in pdf format
Law on tests to be applied to determine whether income from property is chargeable as “Income from house property” or as “Profits and gains of business” explained. The objects clause is not determinative. Income earned from a shopping center is required to be taxed under the head “Income from House Property” (Chennai Properties 373 ITR 673 (SC) and Rayala Corporation distinguished)

The Supreme Court had to consider the following questions:

(1) Whether in the facts and circumstances of the case, and in law, the Tribunal erred in holding that the appellant was owner of the shopping centre within the meaning of Section 22 read with Section 27 of the Income Tax Act, 1961?

(2) Whether in the facts and circumstances of the case, and in law, the Tribunal was right in holding that the income earned by the appellant from the shopping centre was required to be taxed under the head “income from House Property” instead of the head “Profits and Gains from the Business or Profession” as claimed by the Appellant?

(3) Whether on the facts and circumstances of the case, and in law, the order of the Tribunal, confirming the action of the Respondent, is perverse inasmuch as the same is based on surmises, conjectures and suspicions by taking into account incorrect, irrelevant and extraneous consideration while ignoring relevant materials and considerations?”

HELD by the Supreme Court:

(i) Before dealing with the respective contentions, we may state, in a summary form, scheme of the Act about the computation of the total income. Section 4 of the Act is the charging Section as per which the total income of an assessee, subject to statutory exemptions, is chargeable to tax. Section 14 of the Act enumerates five heads of income for the purpose of charge of income tax and computation of total income. These are: Salaries, Income from house property, Profits and gains of business or profession, Capital gains and Income from other sources. A particular income, therefore, has to be classified in one of the aforesaid heads. It is on that basis rules for computing income and permissible deductions which are contained in different provisions of the Act for each of the aforesaid heads, are to be applied. For example, provisions for computing the income from house property are contained in Sections 22 to 27 of the Act and profits and gains of business or profession are to be computed as per the provisions contained in Sections 28 to 44DB of the Act. It is also to be borne in mind that income tax is only One Tax which is levied on the sum total of the income classified and chargeable under the various heads. It is not a collection of distinct taxes levied separately on each head of the income.

(ii) There may be instances where a particular income may appear to fall in more than one head. These kind of cases of overlapping have frequently arisen under the two heads with which we are concerned in the instant case as well, namely, income from the house property on the one hand and profits and gains from business on the other hand. On the facts of a particular case, income has to be either treated as income from the house property or as the business income. Tests which are to be applied for determining the real nature of income are laid down in judicial decisions, on the interpretation of the provisions of these two heads. Wherever there is an income from leasing out of premises and collecting rent, normally such an income is to be treated as income from house property, in case provisions of Section 22 of the Act are satisfied with primary ingredient that the assessee is the owner of the said building or lands appurtenant thereto. Section 22 of the Act makes ‘annual value’ of such a property as income chargeable to tax under this head. How annual value is to be determined is provided in Section 23 of the Act. ‘Owner of the house property’ is defined in Section 27 of the Act which includes certain situations where a person not actually the owner shall be treated as deemed owner of a building or part thereof. In the present case, the appellant is held to be “deemed owner” of the property in question by virtue of Section 27(iiib) of the Act. On the other hand, under certain circumstances, where the income may have been derived from letting out of the premises, it can still be treated as business income if letting out of the premises itself is the business of the assessee.

(iii) What is the test which has to be applied to determine whether the income would be chargeable under the head “income from the house property” or it would be chargeable under the head “Profits and gains from business or profession”, is the question. It may be mentioned, in the first instance, that merely because there is an entry in the object clause of the business showing a particular object, would not be the determinative factor to arrive at a conclusion that the income is to be treated as income from business. Such a question would depend upon the circumstances of each case. It is so held by the Constitution Bench of this Court in Sultan Bros. (P) Ltd. v. CIT, (1964) 5 SCR 807

(iv) In view thereof, the object clause, as contained in the partnership deed, would not be the conclusive factor. Matter has to be examined on the facts of each case as held in Sultan Bros. (P) Ltd. case. Even otherwise, the object clause which is contained in the partnership firm is to take the premises on rent and to sub-let. In the present case, reading of the object clause would bring out two discernible facts, which are as follows:

(a) The appellant which is a partnership firm is to take the premises on rent and to sub-let those premises. Thus, the business activity is of taking the premises on rent and sub-letting them. In the instant case, by legal fiction contained in Section 27(iiib) of the Act, the appellant is treated as “deemed owner”.

(b) The aforesaid clause also mentions that partnership firm may take any other business as may be mutually agreed upon by the partners.

(iii) In the instant case, therefore, it is to be seen as to whether the activity in question was in the nature of business by which it could be said that income received by the appellant was to be treated as income from the business. Before us, apart from relying upon the aforesaid clause in the partnership deed to show its objective, the learned counsel for the appellant has not produced or referred to any material. The ITAT being the last forum insofar as factual determination is concerned, these findings have attained finality. In any case, as mentioned above, the learned counsel for the appellant did not argue on this aspect and did not make any efforts to show as to how the aforesaid findings were perverse. It was for the appellant to produce sufficient material on record to show that its entire income or substantial income was from letting out of the property which was the principal business activity of the appellant. No such effort was made.

(iv) Reliance placed by the appellant on the judgments of this Court in Chennai Properties & Investments Ltd 373 ITR 673 (SC) and Rayala Corporation (P) Ltd. would be of no avail. In Chennai Properties & Investments Ltd. where one of us (Sikri, J.) was a part of the Bench found that the entire income of the appellant was through letting out of the two properties it owned and there was no other income of the assessee except the income from letting out of the said properties, which was the business of the assessee. On those facts, this Court came to the conclusion that judgment of this Court in Karanpura Development Co. Ltd. v. CIT, (1962) 44 ITR 362 was applicable and the judgment of this Court in East India Housing and Land Development Trust Ltd. v. CIT, (1961) 42 ITR 49 was held to be distinguishable. In the present case, we find that situation is just the reverse. In Rayala Corporation (P) Ltd., fact situation was identical to the case of Chennai Properties & Investments Ltd. and for this reason, Rayala Corporation (P) Ltd. followed Chennai Properties & Investments Ltd., which is held to be inapplicable in the instant case.

Cases referred:

(i) Chennai Properties and Investments Limited, Chennai v. Commissioner of Income Tax Central III, Tamil Nadu
& Anr., (2015) 14 SCC 793.

(ii) Rayala Corporation Private Limited v. Assistant Commissioner of Income Tax, (2016) 15 SCC 201.

(iii) Sultan Bros. (P) Ltd. v. CIT, (1964) 5 SCR 807

(iv) Karanpura Development Co. Ltd. v. CIT, (1962) 44 ITR 362
(v) East India Housing and Land Development Trust Ltd. v. CIT, (1961) 42 ITR 49

2 comments on “Raj Dadarkar & Associates vs. ACIT (Supreme Court)
  1. B D Bhide says:

    With due respect to judiciary I say, logic of Chennai Properties decision (of Supreme Court) is difficult to reconcile with provisions of Sec.14. If said decision is held to be correct then, a proposition that the ‘Object Clause’ will be decisive factor while determining the head under which income may be taxed in the case of corporate assessee may emerge. This may result interpreting provision of Sec. 14 infructuous. Then, for a corporate assessee income from house property may be assessed under section 28 (because of the “object clause”) and for other assessees say for example an individual/ HUF, such income may be taxed under section 22 (r.w.Sec.23). Very funny situation. How for same type of income legal provisions can be applied differently?
    Shambhu Investments (P) Ltd. (263 ITR 143) Supreme Court has settled the legal position. Unfortunately (or for reasons best known to the Counsels appearing then) in the case of Chennai Properties, the earlier decision in the case of Shambhu Investment (P) Ltd. 263 ITR 143 was totally ignored. Very surprising & shocking too.
    The present decision settles the legal position which was unsettled by Chennai Properties/ Rayala Corporation.
    Supreme Court boldly/ categorically stated in the case of Gujrat Flouro Chemicals’ decision (348 ITR 319) – whether rightly or wrongly is a different issue – that “There is a serious doubt about the correctness of the judgement in Sandvik Asia…….. With respect, the Court viewed that Sandvik Asia was not correctly decided. Hence, the Registry directed to place the matter before Hon’ble the Chief Justice on the administrative side for appropriate orders.”.
    If Supreme Court would have stated similar observations while delivering judgment in the present case (i.e. of Raj Dadarkar & Associates) on its decisions in the case of Chennai Properties’s & Rayala Corporation then, such observation would have certainly met with the ends of justice (in view of the new trend set by Supreme Court while delivering the judgement in the case of Gujarat Flouro Chemical’s). What is wrong in admitting a mistake?
    Without prejudice to above, I feel such conflicting decisions are useful for tax practitioners when ‘Revenue Authorities’ initiate penalty proceedings (assuming) on application of mind, when there is a deviation while assessing income reported by assessee and assessed by revenue under different head of income.

  2. Though I am not as learned as that of Mr. B. D. Bhide, at least prima facie it appears that the assessee had a case… SC has dismissed the appeal WITH COST. If there was a difference of opinion among benches of SC, at least, it should not have levied cost.

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