TMI Blog2011 (11) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequent agreement, applicable from 31.3.1997 the income shown as income form, house property having regard to the terms and conditions of the said agreement dt. 1.4.1997 would not by itself enable the revenue to hold that the earlier income had been shown wrongly as income from other sources and it ought to have been shown as income from house property as conditions of the said agreement relating to the consideration to be paid, wherein fixed rent of Rs. 2,20,000/- per month has to be paid by the lessee to the lessor and the deed is termed as lease deed. Thus income assessable as other Source and not house property - Decided in favor of assessee. - IT APPEAL NOS. 1071, 1072 & 1073 OF 2006 - - - Dated:- 8-11-2011 - V.G. SABHAHIT AND S.N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2002. The appeal was allowed by order dt. 30th June 2003 by holding that having regard to the terms of the agreement and the facts and circumstances of the case the assessee had rightly shown the income derived under the licensing agreement as income from other sources and Assessing Officer was not justified in treating the said income as income from house property and accordingly allowed the appeal. Being aggrieved by the same revenue preferred ITA Nos. 1311 to 1313 (Bang.)/2003 on the file of the Tribunal and the Tribunal by the impugned order dt. 16.2.2006 confirmed the order passed by the Appellate Authority and dismissed the appeal filed by the Revenue. Being aggrieved by the order of the Tribunal these three appeals are filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l would clearly substantiate his contention. In support of his contention he has also relied upon the decision of the Hon'ble Supreme Court in the case of Shambhu Investment (P.) Ltd. v. CIT [2003] 263 ITR 143/129 Taxman 70 wherein the Hon'ble Supreme Court was considering the question of law as to whether the income received by way of rent from the property as income from house property and having regard to the contents of the agreement in the said case the Hon'ble Supreme Court has answered the question of law in favour of the Revenue by holding that it is income from house property. Learned counsel has also relied upon the decision of the Hon'ble Supreme Court in the case of Sultan Bros. (P.) Ltd. v. CIT [1964] 51 ITR 353 wherein, the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the consideration to be paid by the licensee as mentioned in clause 3 of the agreement, as follows : "3. That the LICENSEE, in consideration of the License of the schedule property and other Assets, agreed to part with 25% of room income (exclusive of discount collected from the room guests to the LICENSOR and such Licensing Charges may be modified by mutual consent of the parties hereto from time to time)." Further, clauses 2, 6 and 12 of the agreement read as follows : "2. That the License of the Schedule Property shall subsist for a period of 11 months on and from to day i.e., from First day of April 1994 that on completion of the said 11 months or on completion of any extended period, the LICENSEE is vested with the option to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the premises and the furniture and fixtures is inseparable. Further, the above said clauses of the agreement would clearly show that there was no intention to lease the premises and it was only the license agreement entered into between the parties to the agreement dt. 1.4.1994 and can never be described as a lease deed. In view of the provisions of Sec. 56(2)(iii) of the Income Tax Act it is clear that the income so received has to be treated as income from other sources and not as income from house property Mere fact that the assessee has shown the subsequent agreement, applicable from 31.3.1997 the income shown as income form, house property having regard to the terms and conditions of the said agreement dt. 1.4.1997 would not by itself ..... X X X X Extracts X X X X X X X X Extracts X X X X
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