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2018 (7) TMI 735 - ITAT KOLKATAReceipt of agency commission - amount related to renting out of property - nature of income - house property or busniss income - Held that:- PRIL (user) is only granted permissive use of the services and facilities provided in the premises by the assessee - the user would not be vested with or enjoy any right, title or interest of any kind of the retail outlet / showroom premises. As per the terms of the agreement, the users had no right of occupancy. They have only limited access to use the space for the purpose of their business and that too, in respect of certain activities, during the specific hours of the day only. Thus the users do not enjoy any tenancy right as per the agreement. We also find that the assessee is responsible for payment of maintenance charges, municipal and other taxes, rates and as well as other such related outgoings We find that the assessee had provided various arrangements on a daily basis to the user, to ensure smooth and efficient running of the retail outlet/ showroom which reflect a clear manifestation of an organized activity carried out by the assessee for a set purpose of earning profits out of commercial exploitation of the property owned by it. In consideration of rendering the services as per the agreement, the assessee is compensated in the form of commission calculated at 10% of gross sales in the said retail outlet /showroom. Hence it could be safely concluded that the said receipt of agency commission would squarely fall under the ken of business income and to be assessed accordingly. Moreover, we also find that the said treatment of assessing the agency commission as business income and allowing depreciation thereon, has been allowed by the department up to Asst Year 2009-10 and out of which, the assessments for the Asst Years 2006-07 , 2008-09 and 2009-10 were completed u/s 143(3) of the Act
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