TMI Blog2009 (4) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... red in confirming the action of the Assessing Officer in treating the rental income of Rs. 24,26,400 as income from other sources as against assessing the same as income from house property without appreciating that the appellant was deemed owner of the leased property within the meaning of section 27( iiib ) of the Act and hence, the rental income earned ought to be accepted and assessed as income from house property and not as income from other sources. 2. Without prejudice to the above, the appellant in terms of the leasedeed was possessed of all the rights and title in the property and even to alienate the same and hence the appellant ought to have been treated as deemed owner of the property and the income thereof ought to be assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be owner of that property as the conditions referred to was satisfied. The learned counsel also placed orders of the Assessing Officer in the previous years as well as in the later year accepting the income under house property in assessee s own case and further placed lease agreements extending the lease for further period as additional evidence to submit that the lease was more than 12 years period considering that two agreements and also the findings of the learned CIT(A) that provisions of section 269UA clause ( f ) referred to in section 27( iiib ) does not apply is not correct. Since the assessee has control and domain over the property as an owner and also can make structural changes the case law relied upon by the assessee befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t (P.) Ltd. [1997] 226 ITR 625 (SC) for the proposition that the term owner should be construed as to take a person who is entitled to exercise and enjoy all the rights and fruits of ownership which was further followed by the Hon ble Gujarat High Court in the case of CIT v. Sarabhai Chemicals (P.) Ltd. [2002] 254 ITR 625; Premier Estate Investment (P.) Ltd. v. Asstt. CIT [2006] 8 SOT 441 (Mum.) for the proposition that assessee acquiring a property for an unlimited period and has right to sublet it to other tenants, to make additions or alterations to the property without affecting the stability of the building the assessee was considered to be the deemed owner of the property as per the provisions of section 27( iiib ). 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " Referring to these, the learned counsel was asked to explain the nature of the property under lease, whether it is land with structures which cannot be considered as house property under the provisions of section 22, as provisions of section 22 are applicable only to property consisting of any building or land appurtenant thereto and further section 27( iiib ) also refers to rights in respect of any building or part thereon. Since the leased property does not include any building and only land with structures thereon, the learned counsel was asked to clarify whether there was any building which was part of lease or not. The learned counsel expressed his inability to clarify the facts and had no objection to send the matter back to the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights by way of a lease from month to month or for a period not exceeding one year) in or with respect to any building or part thereof by virtue of any such transaction as is referred to in clause ( f ) of section 269UA, shall be deemed to be the owner of that building or part thereof." 8. As can be seen from the above also if a person acquires right in or with respect to any building or part thereof then if the conditions as specified in clause ( f ) of section 269UA are satisfied then such person shall deemed to be the owner of the building or part thereof. Here also the provision specifies that the property in question should be a building or part thereof. The agreement clauses indicate that the property is basically land. As seen fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the said building or part thereon, to be considered as deemed owner. Since these facts are not examined by the Assessing Officer nor brought on record by the learned counsel at the time of hearing, without going into the merits of the arguments of the learned counsel, we restore the matter back to Assessing Officer to examine the property in question and determine the issue accordingly. If the property in question is only a land, the incomes are to be assessed under the head "other sources" and not under the head "income from house property". It is also noticed that the Assessing Officer in later year has not noticed that this issue was pending in appeal and inspite of assessing the same under other sources in this year and having confi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
