Messages

Well, S. 194C, Explanation (iv)(c) defines "work" to mean ""work" to include "carriage of goods or passengers by any mode of transport other than by railways".

Water is "goods". So, S. 194C applies.

[Commissioner Of Income-Tax vs Hindustan Electro Graphites Ltd]

I think you have received excellent advice from satyenveshi. I am reminded of the following words from the judgement of the SC in Commissioner Of Income-Tax vs Hindustan Electro Graphites Ltd 243 ITR 48

"If additional tax could be levied in such circumstances, it will be punishing the assessee for no fault of his. That cannot ever be the legislative intent. It shocks the very conscience if in the circumstances Section 143(1A) could be invoked to levy the additional tax. The following observations by the Constitution Bench of this Court in Pannalal Binjraj v. Union of India [1957] 31 ITR 565 are apt (page 597) :

A humane and considerate administration of the relevant provisions of the Income-tax Act would go a long way in allaying the apprehensions of the assessees and if that is done in the true spirit, no assessee will be in a position to charge the Revenue with administering the provisions of the Act with 'an evil eye and unequal hand'."

I think these observations are applicable to your facts.

Well, if you are a practicing professional then it is best to invest in the CTR CD. Doesn't cost much and is worth its weight in gold because your entire library of case laws, circulars, notifications etc is on one little CD.

If you want online access, then Taxman, Taxindiaonline, Lexsite & Manupatra are good options.

If you are a casual user and want free access, then it is a bit of a hit & miss. A lot of groping around the dark. If it is a popular judgement, you are likely to find it on the web; if it is an obsure one, you have to rely on the generosity of strangers.

Dear CA Mr Manoj,
I would be thankful if you could cite any circular, ruling about this.
My view was that my interet income is credits minus debits and its NOT that i want to claim deduction of car loan interest. When you have to see my income from iinterest, its the credit balance of intrest a/c. Sec 57 doesnot explain either.

Well, the law that "my interet income is credits minus debits" can be argued only if there is a nexus between the credits and the debits; and even that is applicable only in restricted circumstances such as if it is pre-construction stage (Bokaro Steel) or in the context of s. 80HHC (following Lalsons).

As there is no nexus in your case, one will have to go by s. 57(iii) which allows a deduction of only that expenditure which is incurred "to earn the income". Obviously, the interest on the car loan is not incurred to earn the SB interest and so no set-off can be claimed.

If you want to read up more on the subject, I would recommend Chaturvedi & Pithisaria's commentary on s. 56 & 57.

Here you go (pdf copy is annexed as attachment)


DEPUTY DIRECTOR OF INCOME TAX vs. G. RAGHURAM
ITAT, HYDERABAD 'A' BENCH
G.C. Gupta, Vice President & Chandra Poojari, A.M.
ITA Nos. 6, 7 & 67 to 70/Hyd/2010; Asst. yrs. 2005-06 & 2006-07
30th April, 2010
(2010) 134 TTJ (Hyd) 87 : (2010) 39 SOT 406 : (2010) 46 DTR 136
Legislation referred to
Section 22, 2(47), 28(i), 48, 56(2)(iii),
Case pertains to
Asst. Year 2005-06, 2006-07,
Decision in favour of
Revenue
Income from house property—Vis-a-vis income from other sources—Letting out of
building with amenities—While leasing out the building the assessee entered into two
agreements with tenant, one towards the rent of the building, and the other towards
providing the amenities—AO is justified in going beyond the documents to find out real
intention of the parties by ignoring the apparent and AO has to remove the facade to
expose the real intention of the parties—Keeping in view the nature of activities of the
tenant, the amenities are provided by the assessee to exploit the property in most
profitable manner—Without these amenities, the bare building is of no use, which is a
common feature in any property—Therefore, just because there is something beyond the
bare structure that is being provided, it cannot be said that these amenities are not part
of the property itself—However, since these amenities are not separate assets such as
plant and machinery, the provisions of s. 56(2) do not apply—On the facts of the case, it
is clear that the assessee as the owner of the building was only exploiting the property
as owner by letting out the same and realizing income by way of rent—Such rental
income was liable to be assessed under the head 'Income from house property
Held :
Most of the items are common in nature which are to be provided to software companies to carry
out their day-to-day work by the landlord, without these they cannot function. Keeping in view the
nature of activities of the tenant, the amenities are provided by the assessee to exploit the
property in most profitable manner. In the present case, the assessee made separate lease
agreements in order to help the assessee in tax planning only, the lease from the lessee's point of
view is only for the property as a whole. This is evident from the following : (a) the TDS certificates
clearly show that the entire payments made by tenant S is towards rent—a simple composite
payment done every month; (b) the assessee in spite of repeated requests, could not furnish the
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details of the assets on which lease receipts was being shown and depreciation was being claimed.
The only thing that assessee could produce was that the interiors of the property was done by SDE
Engineers and going by general trends, the amount charged was put as 60 per cent to equipment
and what furniture was leased out, on which the income from other sources was being shown; (c)
the agreement of providing the interiors was done with SDE Engineers which is the same entity
with whom the assessee had entered into development of the property, i.e., the property developer
was providing for the interiors, this proves the point that the amenities which are being stated as
leased out separately are in fact nothing separate but are part of the property, integral to make the
property viable for being used as a commercial building; (d) the building itself is the amenity being
provided here and that is why the agreement for lease of amenities prescribes the lease amount in
terms of square feet—Rs. 15 per sq. ft. per month, which is the same rate at which the property
lease was also agreed upon. Without these amenities, the bare building is of no use, which is a
common feature in any property. For a property to be used as residential, certain kinds of some
amenities and fixtures would be required or else people cannot inhabit it—such as kitchen,
ventilations, electrical fittings etc. and the same goes for a commercial property—without some
amenities such as provision for air-conditioning and cabins, it cannot be useful for any purpose.
Therefore, just because there is something beyond the bare structure that is being provided, it
cannot be said that these amenities are not part of the property itself. However, since these
amenities are not separate assets such as plant and machinery, the provisions of s. 56(2) do not
apply here. Though the assessee entered into separate agreements, these agreements cannot be
acted upon as foolproof documents. When the apparent is not real, one has to see the actual
background of the situation.
(Para 8)
The assessee made two agreements one for let out of the property and another for providing
amenities and there is a doubt in the mind of the AO regarding the correctness of the income
declared by the assessee as 'income from house property' and 'income from business'. He has
treated the entire income as 'income from house property'. Admittedly, the authorities have the
freedom to go beyond the documents to find out the real intention of the parties. In this case,
though there are two agreements the real intention of the parties to a document is different what
appears from it ex facie. Since there is a doubt, then the AO is justified in going beyond the
documents to find out the real intention of the parties by ignoring the apparent has to be and has
always been conceded. In this circumstance, the AO has to remove the facade to expose the real
intention of the parties cleverly cloaked and the actual agreement cannot be given effect. The only
bona fide document to be acted upon not otherwise. There is a serious doubt and also it is shocking
the conscious of the Bench, whether the assessee is getting hire charges equal to the rental
amount for providing amenities. It cannot be real one and AO is required to see the actual rental
value of the property in that place and bring that amount to tax under the head 'Income from
house property'. As such, in the present case, the AO came to the correct conclusion that real
rental value was bifurcated into two separate incomes viz., one is rental income of house property
and another is hire charges of the equipment. Further, in the case of letting of the machinery, plant
or furniture, s. 56(2)(iii) is applicable, but only letting of building with certain amenities, this
provision is not applicable and in that event, the income from letting out was chargeable under the
head 'Income from house property'. Further, no precise test can be laid out to ascertain whether
income referred to by whatever nomenclature, lease amount, rent or licence fee received by an
assessee from leasing or letting out of assets would fall under the head 'Profits and gains of
business or profession' and it has to be determined from the point of view of a businessman in that
business depending upon the facts and circumstances of each case and there is no readymade
jacket formula. One has to see the intention of the assessee whether the letting was the doing of a
business or to exploitation of his property by an owner. The assessee when exploited the property
to derive rental income it has to be held that the income realized by him by way of rental income
from a building if the property with other asset attached to the building to be assessed as 'income
from house property' only. The only exceptions are cases where the letting of the building is
inseparable from letting of the machinery, plant and furniture. In such cases, it has to be held that
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the rental would not have been realized but for the letting out of the machinery, plant or furniture
along with such building and therefore, rental received for the building is to be assessed under the
head 'Income from other sources'. In the present case, on the facts of the case, it is clear that the
assessee as the owner of the building was only exploiting the property as owner by letting out the
same and realizing income by way of rent. Such rental income was liable to be assessed under the
head 'Income from house property.' The various assets let out to the tenants are incidental to
letting out the building being integral part of the letting.—Sultan Bros. (P) Ltd. vs. CIT (1964) 51
ITR 353 (SC) distinguished.
(Para 9)
Conclusion :
Assessee had let out the building with some basic amenities and without these amenities, the bare
building is of no use, which is a common feature in any property and therefore entire rental income
was assessable as income from house property.
In favour of :
Revenue
Capital gains—Computation—Sale of land in consideration of constructed area received
from builder—Assessee and children owners of land were allocated an area of 99,702 sq.
ft. in the superstructure constructed on the said land by building developer—Real
consideration received by the assessee in lieu of the land forgone by him is only the cost
of construction of proposed building to the extent of which falls to the assessee in the
ultimately constructed area and not the market value of such share of constructed area
which may be after the completion of the construction
Held :
The consideration for the transfer of capital asset is what the transferor receives in lieu of the
assets he parts with and therefore, the very asset transferred or parted with and full value of
consideration cannot be construed as having a reference to the market value of asset transferred
and the said expression only means that full value of the asset received by the transferor in
exchange for the capital asset transferred by him. Since the development agreement specifies that
certain part of constructed area shall be surrendered to the owner by the builder on the completion
of the contract and the value of the constructed area to be transferred to the assessee to be
considered as consideration received and as such full value of consideration is only the cost of
construction of proposed building to the extent of which falls to the assessee in the ultimately
constructed area and not the market value of such share of constructed area which may be after
the completion of the construction. One does not find any infirmity in the order of the AO.—Smt.
Vasavi Pratap Chand vs. Dy. CIT (2004) 90 TTJ (Del) 217 : (2004) 89 ITD 73 (Del) followed.
(Para 10)
Conclusion :
Assessee had sold land to the builder-developer and only the cost of construction of proposed
building allotted to the assessee in the ultimately constructed area and not the market value of
such share of constructed area, has to be reckoned as consideration for the purpose of
computation of capital gains.
In favour of :
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Revenue
Cases referred to
Attukal Shopping Complex (P) Ltd. vs. CIT (2002) 178 CTR (Ker) 469 : (2003) 259 ITR 567 (Ker)
Lallu Bros. Trust vs. Asstt. CIT (ITA No. 528/Hyd/2005, dt. 7th March, 2008)
Smt. Shanta Vidyasagar Annam (ITA No. 885/Hyd/2003, dt. 9th June, 2006)
T.V. Sundaram Iyengar & Sons Ltd. vs. CIT (1959) 37 ITR 26 (Mad)
Counsel appeared :
B. Senthil Kumar, for the Appellant : K. Vasant Kumar, for the Respondent
ORDER
by the bench :
These six appeals preferred by the Revenue are directed against different orders passed by the CIT
(A)-VI, Hyderabad and pertains to asst. yrs. 2005-06 and 2006-07. Since common issues are
involved in all these appeals they are clubbed together, heard together and disposed of vide these
common orders for the sake of convenience.
2. The first common ground in all these appeals are that the CIT(A) erred in holding the income
received as lease rentals towards the amenities and furniture and fixtures is to be assessed under
the head 'Other sources' and accordingly, the depreciation is to be allowed from the income so
arrived. Since the assessee is unable to furnish the details of furniture and fixtures, the question of
allowing depreciation does not arise.
3. The next common ground in ITA Nos. 6, 7 and 69/Hyd/2010 are that the CIT(A) erred in
considering the fact that the real consideration received by the assessee in lieu of the land forgone
by him is the superstructure and therefore, the same should be considered as sale consideration
instead of the market value of the land.
4. In this case, the brief facts of the case are that the assessee filed return of income along with
her son and daughter owned land situated at survey No. 12 of Kondapur Village, Hyderabad. The
said land was given to M/s SDE Engineers Ltd., on development basis. Accordingly, the assessee
along with her son and daughter were all allocated an area of 99,702 sq. ft. in the superstructure
constructed on the said land by the developer. All these three persons put together their share
purchased from the developer an area of 7,328 sq. ft. in order to become the owners of first,
second, sixth and eighth floors of the superstructure which was subsequently named as 'SDE
Prameela Techno Park'. The said building was leased out to M/s Satyam Services Ltd. by the
assessee along with her son and daughter. Since Satyam Computer Services Ltd., requires further
modifications on the bare structure, it appears that a loan has been obtained by the three persons
along with the developer M/s SDE Engineers Ltd., and with the loan proceeds the bare structure as
per their requirement. While leasing out the building the assessee entered into two agreements
with the tenant, one towards the rent of the building, and the other towards the amounts for
providing the amenities for the same building. Accordingly, the rental income received as per the
first agreement is being offered as income from the house property and the other amounts
received by the assessee towards amenities were offered under the head 'Income from business'.
From the income offered under the head 'business' the assessee deducted interest paid on the loan
taken and depreciation on the amenities, treating the said amenities as 'furniture, plant and
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machinery'. The assessee received as its share in lieu of the land forgone by them. Since the land
owner has relinquished his rights on the land forgone, the AO treated it as a transfer under s. 2
(47) of the IT Act. Accordingly, capital gain was computed. Regarding the applicability of s. 2(47),
there is no dispute. However, considering the value of sales consideration, according to the
assessee, the market value of the land as to the date of the transfer is to be considered instead of

In Matru Ashish Co-Operative Housing Society Ltd. v. ITO (2011) 42 (II) ITCL 372 (Mum 'B'-Trib) it was held that Income from letting out of terrace to telecom company for establishing telecom towers was assessable as income from house property.
Similar decision was rendered in Sharda Chamber Premises v. ITO ITA No. 1234/M/08, dt. 1-9-2009 and ITO v. Cuffe Parade Sainara Premises Co-operative Society Ltd. 7225/Mum/05, dt. 28th April, 2008.
CIT v. Bajaj Bhavan Owners Premises Co. Op. Society Ltd., Income Tax Appeal No.3183 of 2010 (Bom.)(High Court)

CA MANOJ GUPTA
JODHPUR
09828510543

But Sir, are these cases where the assessee does not own the property?  The Querist says that he has no property to let but is still collecting monies towards "parking" and "tower".

Respected experts
On the basis of the information available with I T Dept. case of an assessee has been reopened and At the time of assessment proceedings some undisclosed income of an assessee has been found by AO  however against that Income, there were TDS. After an addition of undisclosed income, though returned income has been increase but after giving the credit of TDS untimately tax payable is NIL.
Now My query is :
Can penalty u/s. 271(1)(C)  be imposed? since tax sought to be evaded is NIL.

Thanks

Good question. But if there was "TDS" would it still qualify as "concealed income" or is it just a case of omission to declare the income? Anyway, your point is that there is "concealment" of income but no "tax sought to be evaded".

Explanation 4 to section 271(1)(c) defines the expression "the amount of tax sought to be evaded" as follows:

   

"(a) in any case where the amount of income in respect of which particulars have been concealed or inaccurate particulars have been furnished has the effect of reducing the loss declared in the return or converting that loss into income, means the tax that would have been chargeable on the income in respect of which particulars have been concealed or inaccurate particulars have been furnished had such income been the total income;

          (b)  in any case to which Explanation 3 applies, means the tax on the total income assessed as reduced by the amount of advance tax, tax deducted at source, tax collected at source and self-assessment tax paid before the issue of notice under section 148];

          (c)  in any other case, means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of which particulars have been concealed or inaccurate particulars have been furnished."

"Tax on the total income assessed" would have to be taken into account after giving credit for the TDS. The result will be that there will be further tax payable and so no penalty payable.

Is this a query on s. 54/54F? Why is there a problem here? The introduction of the capital asset into the firm will be deemed to be a "transfer" u/s 45(3). If a residential house is purchased, exemption will be available.

What is the significance of June 2011?  ???

In spite of several case laws, many orders are passed holding otherwise

We have to be grateful for that Sir. Its what keeps us in business!! ;)

For income to be chargeable under the head "house property", there must first of all be "property" of which the assessee is an "owner". In your case, there is no property. The income is really incidental to the business of construction and so it will be chargeable as normal business profits. 

WHETHER LIABLE TO TDS U/S 192 OR 194J IRRESPECTIVE OF THEIR OTHER INCOME ?

S. 194-J provides that  any person, not being an individual or a Hindu undivided family, who is responsible for paying to a resident any sum by way of "fees for professional services" shall deduct TDS. The term "professional services" is defined to mean services rendered by a person in the course of carrying on legal, medical, engineering or architectural profession or the profession of accountancy or technical consultancy or interior decoration or advertising or such other profession as is notified61 by the Board"

So, it is clear that s. 194-J will apply. I don't see how s. 192 can apply unless the doctors are employees of the hospital.   

WHETHER LIABLE TO TDS U/S 194-I AFTER THIS SECTION IS AMENDED ?

S. 194-I applies to the payment of "rent". The term "rent" is defined in the Explanation to s. 194-I as follows:

"rent" means any payment, by whatever name called, under any lease, sub-lease, tenancy or any other agreement or arrangement for the use of (either separately or together) any,—

        (a) land; or

        (b) building (including factory building); or

        (c) land appurtenant to a building (including factory building); or

        (d) machinery; or

        (e) plant; or

         (f) equipment; or

        (g) furniture; or

        (h) fittings,

whether or not any or all of the above are owned by the payee.

So the question is whether the premium paid to MMRDA is "payment for use of land & building". In my opinion, it is so. Why else are you making the payment?

[Liberty India v CIT]

I am sorry but you will not pass muster in view of the apex court ruling in Liberty India v CIT reported in (2009) 317 ITR 218 (SC). The Court has taken a very strict view of the term "derived from" and held that the industrial undertaking must be the direct source of the receipt. Even DEPB & Duty drawback receipt were held not eligible. So how can an insurance claim and scrap receipts be eligible?

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No. 15719 of 2011

VINAYAK CONSTRUCTION - Petitioner(s)

Versus


INCOME

TAX OFFICER WARD 9(1) OR HIS SUCCESSOR TO OFFICE & 1 - Respondent(s)


========================================================= Appearance: MR RK PATEL for Petitioner(s) : 1, MR MR BHATT, SR. ADV WITH MRS MAUNA M BHATT for Respondent(s) : 1 -

2.

=========================================================


CORAM HONOURABLE MR.JUSTICE AKIL KURESHI


and


HONOURABLE MS JUSTICE SONIA GOKANI




Date

: 29/11/2011


ORAL

JUDGMENT


(Per

: HONOURABLE MR.JUSTICE AKIL KURESHI)



Rule.

Learned advocate Mrs.Bhatt waives service of rule on behalf of the respondents.




2. Petitioner-assessee has challenged notice of reopening of assessment dated 28.3.2011. The petitioner has also challenged order dated 5.10.211, by which the petitioner's objections to such reopening came to be disposed of by the Assessing Officer.




3. For

the assessment year 2004-05, the petitioner-firm filed its return of income along with necessary documents. The Assessing Officer framed scrutiny assessment under section 143(3) of the Income Tax Act, 1961 (Act for short) on 20th February 2006 and granted deductions under section 80IB(10) of the Act as claimed by the petitioner.




4.

By Finance Act 2 of 2009, certain changes were made in section 80IB(10) of the Act with retrospective effect from 1.4.2011. On 28.3.2011, the Assessing Officer issued the impugned notice seeking to reopen the assessment of the petitioner for the assessment year 2004-05. In the notice, he stated that he had reason to believe that income chargeable to tax for the assessment year has escaped assessment. He, therefore, required the assessee to file return of income within 30 days from the date of receipt of the notice.



5. At

the request of the petitioner, the Assessing Officer supplied the reasons he had recorded for reopening the assessment. Perusal of the reasons would suggest that the Assessing Officer noticed that the local authority which has approved the construction project and granted permission to commence construction had done so in the name of land owners. The assessee had only entered into a development agreement with land-owners. Assessing Officer, therefore, believed that the assessee worked only as a Works Contractor and had not undertaken the development of building and housing project. It was, therefore, not entitled to deduction under section 80IB(10) of the Act by virtue of explanation added in th said section by Finance Act, 2009 with effect from 1.4.2001. He, therefore, recorded that there is reason to believe that income chargeable to tax has escaped assessment due to the fact that the assessee had made incorrect claim of deduction of Rs.35.31 lacs under section 80IB(10) of the Act.




6. The

petitioner raised objections against the reopening notice vide its communication dated 16.5.2011. Such objections were, however, turned down by the Assessing Officer by order dated 5.10.2011. The petitioner has, at that stage, approached this Court challenging the notice for reopening as well as the order rejecting the objections of the petitioner.



7. Counsel

for the petitioner submitted that the assessment which was previously framed after scrutiny is sought to be reopened beyond the period four years from the end of relevant assessment year. In the notice itself, it is suggested that income chargeable to tax has escaped assessment on account of explanation inserted in the statute with retrospective effect. The reasons recorded do not suggest that the petitioner had not disclosed truly and fully material facts for assessment. Counsel for the petitioner, therefore, submitted that reopening beyond four years from the end of relevant assessment year was wholly without jurisdiction.



8. Counsel

pointed out that in the case of this very assessee in the previous year, when the assessment was reopened, the petitioner had carried the issue in Departmental appeal and the Commissioner, Appeals had reversed the Assessing Officer's order and declared the reopening proceedings invalid. The Commissioner had relied on a decision of Division Bench of this Court in the case of Aayojan Developers v. ITO (2011) 335 ITR 234 (Guj).




9. We

have also heard learned Shri Bhatt for the Revenue who opposed the petition.




10. Having

thus heard the learned advocates for the parties and having perused the documents on record, we find that the entire issue is squarely covered by Division Bench decision of this Court in the case of Aayojan Developers (supra). Admittedly, the petitioners return was assessed after scrutiny. The petitioner's claim for deductions under section 80IB(10) was granted on the basis of statutory provisions obtaining at the relevant time. The assessment so framed is sought to be reopened beyond four years on the basis of the statutory amendment brought into statute book with retrospective effect. There is no allegation in the reasons recorded that income chargeable to tax had escaped assessment for the reason of the assessee failing to disclose truly and fully all material facts. Under similar circumstances, Division Bench of this Court in the case of Aayojan Developers (supra) has observed as under:



"Examining

the facts of the present case in the light of the above principles enunciated by the Supreme Court, a bare perusal of the reasons recorded indicates that there is not even a whisper as regards any failure on the part of the petitioner to disclose fully and truly all material facts, nor is it possible to infer any such failure from the reasons recorded. Merely because of the fact that the assessee had asserted that it is a developer in the returns filed by him, it cannot be said that there is any failure on the part of the petitioner to disclose fully and truly all material facts. At best, the petitioner has made a claim along with supporting documents, namely, development agreements for construction of housing projects, etc. and based upon the said documents, the Assessing Officer had formed an opinion and granted deduction under section 80-IB(10) of the Act. As to whether in a given set of facts, the assessee is a developer or a works contractor is a matter of inference. Hence, the assertion that the petitioner is a developer, without anything more cannot be said to be an incorrect disclosure of facts, as is sought to be contended on behalf of the revenue. In the circumstances, in the absence of any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the assessment year under consideration, the assumption of jurisdiction under section 147 of the Act after the expiry of four years from the end of the relevant assessment year is illegal and invalid. The proceedings under section 147 of the Act which have been initiated by issuance of the impugned notice under section 148 of the Act, therefore, cannot be sustained."





We

may notice that a similar view was taken by Division Bench of this Court in the case of Sadbhav Engineering Co. Ltd. v. Deputy CIT, 333 ITR 483.




In

the result, we have no hesitation in holding that the notice for reopening is invalid. The same is therefore, quashed. Rule is made absolute accordingly.




(Akil

Kureshi J.)




(Ms.Sonia

Gokani, J.)


(vjn)

I wonder if the argument that there is no capital gain because there is no consideration still holds good in light of the SB decision in Bennett Coleman. I'm not sure - just raising a red flag for investigation - I'll also study it in detail.