TMI Blog2015 (2) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... reof, owned by the assessee, in our considered view, the rent so received must be taken into account in computation of annual value to be taxed under the head “income from house property”. Accordingly, as learned counsel for the assessee rightly contends, the deduction under section 24(a) is admissible on the facts of the present case. We, therefore, reverse the stand of the authorities below and uphold the stand of the assessee. The Assessing Officer is, accordingly, directed to delete the impugned disallowance. - Decided in favour of assessee. - I.T.A. No. 3976/Del/13 - - - Dated:- 6-1-2015 - Pramod Kumar AM And A. T. Varkey JM,JJ. For the Petitioner : Satish Aggarwal For the Respondent : Gaurav Dudeja ORDER Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xable under the head income from house property . The deduction of ₹ 87,516 was thus added back to income of the assessee. Aggrieved by the stand so taken by the Assessing Officer, assessee carried the matter in appeal before the CIT(A) but without any success. Learned CIT(A) upheld the stand of the Assessing Officer, and, while doing so, observed as follows: 5. I have considered the facts of the case and the submissions made on behalf of the appellant. I have also perused the case law relied upon by the AR of the appellant. A question was posed before the Hon ble High Court of Calcutta in the case of Mukherjee State Pvt. Ltd. vs. CIT (2000) 244 ITR 1 (Cal) that when the hoardings are fixed to the building, the rent derived from s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income from house property . There is no dispute on the facts of this case that the assesse is owner of the property but the authorities below have rejected the taxability under the head income from house property only on the ground that the rent in question is not in respect of any part of the building but for an unrelated attachment, i.e. mobile antenna, to the roof. It is thus contended that the rental income in question can only be taxed as income from other sources , i.e. residuary head. In other words, according to the stand taken by the revenue, the rent in question cannot form part of the annual value as it is sine qua non for its such inclusion that the rent must be for the property or any part of the property , whereas the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Therefore, considering the finding of the Tribunal that the assessee has let out the hoarding, these are neither part of the building nor land appurtenant thereto. Therefore, permitting some companies to display their boards on hoardings cannot be taken as income from the house property as hoardings cannot be taken as part of the building 8. Learned CIT(A) was thus clearly in error in observing, in the impugned order, that Hon ble High Court has held that if the rent is only for fixing the hoarding, it cannot be treated as part of the building, nor could it be treated as land appurtenant thereto, therefore such income will have to be separately considered as income from other sources (Emphasis by underlining supplied by us) . A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the top at the building would not be taxable under the head income from property as the rent was only for providing space for installation of the mobile antennae on the top of building, and the same cannot be treated as part of the building nor can it be treated as land appurtenant thereto is a classic case of fallacious logic. Once learned CIT(A) agrees that rent was only for providing space for installation of the mobile antenna , there is no occasion to consider whether antenna will be a part of a building or land appurtenant thereto as the true test is whether such a space, as has been rented out, is part of the building or land appurtenant thereto. The rent is not for the antenna but for the space for installation of antenna. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area for installation of prefabricated temporary assembled air conditioned shelter, tower/antenna poles and such other equipment as may be necessary . All these installations are to be done by the related companies and the obligation of the assessee does not extend beyond permitting use of space for such installations. It is thus clear that the rent is for space to host the antennas and not for the antennas. As long as the rent is for the space, terrace and roof space in this case and which space is certainly a part of the building, the rent can only be taxed as income from house property . 9. In view of the above discussions, and as the rent received by the assessee for use of space, by Bharti Airtel Limited and Idea Cellular Limited, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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