IN THE ITAT MUMBAI BENCH ‘H’
Smt. Anita
M. Shah
v.
Deputy
Commissioner of Income-tax, Circle 4, Thane
Sunil Kumar Yadav,
Judicial Member
and R.K. Panda, Accountant Member
IT Appeal
Nos. 2967, 2968, 5763 to 5766 (Mum.) of 2005
[Assessment years
1996-97 to 1998-99]
December 19, 2007
Section 23 of the Income-tax Act, 1961 -
Income from house property - Annual value - Assessment years 1996-97 to 1998-99
- Whether income from house property cannot be computed on basis of enhanced
rent which tenants agreed to pay after close of previous year - Held, yes -
Whether claim made by land-lord for enhancement of rent cannot be said to be
amount receivable within meaning of section 23(1) - Held, yes
Section 25B of the
Income-tax Act, 1961 - Income from house property - Arrears of rent received -
Assessment years 1996-97 to 1998-99 - Assessee jointly owned certain property
along with other two co-owners - Said property was let out to a bank - For
relevant assessment years 1996-97 to 1998-99, assessee filed her return of
income - However, prior to that, assessee had jointly along with other
co-owners had made a claim for revision of rent payable to them - Accordingly, rent
was increased and arrears of rent were released by bank for period 1-7-1994 to
31-3-1999 in accounting year relevant to assessment year 2000-01 - Whether
since section 25B came into effect from assessment year 2001-02, same could not
be applied to assessment year 2000-01, and, therefore, arrears of rent could
not be taxed in assessment year 2000-01 - Held, yes - Whether, moreover,
arrears of rent received by assessee could not be assessed even in those years
to which they related, as there was no specific provision in lease agreement
for increase in rent - Held, yes
Facts
The assessee jointly owned
certain property along with other two co-owners. Said property was let out to a
bank. For the relevant assessment years 1996-97 to 1998-99, the assessee filed
his return of income. However, prior to that, the assessee had jointly along
with other co-owners had made a claim for revision of rent payable to them.
Accordingly, the rent was increased by the bank and arrears of rent were
released by the bank for the period 1-7-1994 to 31-3-1999 in the accounting year relevant to the assessment year 2000-01. In
the return of income filed for the assessment year 2000-01, the assessee made
clear that arrears of rent received with effect from 1-7-1994 were not offered
to tax inasmuch the annual value with respect to the rental income could not
exceed for more than 12 months. The Assessing Officer did not agree with the
assessee and taxed the entire arrears of the rent in the assessment year
2000-01, by invoking section 25B. On appeal, the Commissioner (Appeals) set
aside the order of the Assessing Officer. Thereafter, the Assessing Officer
reopened the assessments of the assessee for the relevant assessment years
1996-97 to 1998-99 for the reason that the assessee had not shown such arrears
of rent receivable in the return of income filed pertaining to the said
assessment years, and he, accordingly, assessed the arrears of rent relatable
to the relevant assessment years and made the addition of the same. On appeal,
the Commissioner (Appeals) confirmed the action of the Assessing Officer. On
appeal, the assessee submitted that the arrears of rent could be taxed in the
year of receipt, i.e., assessment year 2000-01 and since section 25B
which came into effect from assessment year 2001-02 was prospective in nature
and same could not be applied to the assessment year 2000-01, arrears of rent
could not be taxed either in year of receipt or in those years to which they
related.
Held
On a careful perusal of
the lease agreement executed between the assessee and the bank it was found
that the premises was let out at a fixed rent, but, it would be revised after a
period of 5 years. The first agreement was executed in 1974, which was renewed
in 1985. Thereafter, it was renewed in 1999. Through this renewal lease deed,
the rent was increased to Rs. 17 per sq. feet from
1-7-1994 to 30-6-1999 and further increased by 25 per cent from 1-7-1999. From
a careful perusal of the lease agreement, it was found there was no recital of
a specific increment in monthly rent. It was done finally in the year 1999 and
arrears of rent were also paid to the assessee in the previous year 1999-2000.
The arrears of rent could not be assessed in the assessment year 2000-01, as
section 25B was inserted with effect from the assessment year 2001-02.
Accordingly, the Assessing Officer had also reopened the assessments for the
impugned assessment years and assessed the corresponding arrears of rent in
impugned assessment years. Now the question arose whether the arrears of rent
could be assessed even in those assessment years to which they related in the
absence of any specific provision in the lease agreement for the increase in
the rent. The Calcutta High Court in Hope India Ltd. v. CIT [1999] 238 ITR 740/105 Taxman 723 has
categorically held that income from house property cannot be computed on basis
of enhanced rent, which tenants agreed to pay after close of previous year.
Till fair rent is determined, actual rent has to be paid by the tenants. The
claim made by the landlord for enhancement of the rent cannot be said to be the
amount receivable within the meaning of section 23(1). Following this judgment,
the Tribunal had held in the case of Vinod Somani/HUF v. ITO [IT Appeal Nos. 239 & 241
(Mum.) of 2004 dated 18-5-2004], that the increased rent received after the
close of the relevant previous year is not liable to be assessed under the
head, ‘Income from house property’. A similar view was also expressed by the
Tribunal in another case, namely, Shree Shyam Kamal Industries (P.) Ltd. v.
ITO [2005] 4 SOT 146 (
Case
Review
Hope India Ltd. v. CIT [1999] 238 ITR 740/105 Taxman
723 (
Cases
referred to
Vinod Somani HUF v. ITO [ITA Nos. 239 & 241 (Mum.)
of 2004 dated 18-5-2004] (para 3), Shree Shyam Kamal Industries (P.) Ltd. v. ITO [2005] 4 SOT 146 (
K. Shivram and Ajay Singh for the Appellant.
P.S. Mutha for the
Respondent.
nn