TMI Blog2012 (10) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer for the reason that a separate agreement has been entered on account of amenities provided by assessee. Entire amount received by assessee on account of two separate agreements is to be treated as income from house property.- in favour of assessee. - I.T.A. No. 4117/Del/2012 - - - Dated:- 10-10-2012 - R. K. Gupta And S. V. Mehrotra, JJ. Appellant by: M. P. Rastogi, Adv. Respondent by: Satpal Singh, Sr. DR ORDER PER R.K. GUPTA, JM This is an appeal filed by the assessee against the order of Ld. CIT(A)- XXVIII, New Delhi dated 31.05.2012 relating Assessment Year 2009-10. 2. The assessee is objecting the assessed amount of ₹ 86,93,333/-, being the amount received from tenant which is assessed as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this is a service agreement and not related to letting out of the property, this income should be income from other sources and 30% statutory deduction claimed u/s 24(a) should not be allowed from income from provision of amenities and services. Therefore, vide order sheet entry dated 01.12.2011, counsel was asked to explain:- Explain why the income from Service agreement for Mumbai property should not be treated as income from other sources and therefore 30% statutory deduction should be disallowed. 4. It was replied that though two separate agreements had entered by assessee i.e one for rent and other for amenities services. However, both are inter-related and inextricably, therefore, entire rental income is to be treated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property income, therefore, entire income shown by assessee is to be treated as income from house property. The decision relied upon by Ld. Assessing Officer, were explained that they are distinguishable as in those cases, there were separate amenities provided like furniture, air-conditioner etc. etc. and on that account whatever the amount was received that was treated as income from other sources by the Hon'ble Calcutta High Court as well as Hon'ble Kerala High Court . However, in the present case, since no amenities have been provided, therefore, character of income cannot be changed. Reliance was placed on the decision in case of Shambhu Investment 266 ITR 147(SC), 162 ITR 452 (Bombay) and 214 ITR 424. On the other hand, Ld. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct that these two agreements may be entered for the purpose of saving house tax. In our considered view, character of income cannot be changed either by entering two agreements or by making other evidence. The amount of license fee earned by assessee on account of two agreements infact is on account of property given on license and the entire income of the property, in our considered view, has to be treated as income from house property and not income from other sources which is treated by Assessing Officer for the reason that a separate agreement has been entered on account of amenities provided by assessee. 7. The case laws relied upon by Assessing Officer, are distinguishable as in both of the case separate services were provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. Whatever the common services and amenities were provided that were treated as linked with the rental income and accordingly entire income was treated as income from house property. 10. In the case, in hand also the assessee though has entered two agreements but they related to the same property and whatever the amount is received, in our considered view is to be treated as income from house property and not income from other sources. 11. In case of Bakhtawar Construction Pvt. Ltd. 162 ITR 452, the Hon'ble Bombay High Court has decided similar issue in which it was held as under:- that the true purport of the agreements, gleaned from a reading of all parts thereof, was that the tenants were given thereby only the facili ..... X X X X Extracts X X X X X X X X Extracts X X X X
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