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TMI Blog2015 (1) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... total income of Rs. 2,21,720/- . During the course of assessment proceedings, it was noticed by the Assessing Officer that the assessee has received a sum of Rs. 92,129/- from Dishnet Wireless Limited for allowing to use the roof of her house for installation of tower and the said amount is declared in the return under the head "income from house property" after claiming standard deduction under sect ion 24. Relying on the decision of the Hon'ble Calcutta High Court in the case of Mukherjee Estate Pvt. Limited -vs. - CIT reported in 244 ITR 1, the Assessing Officer held that the said amount was chargeable to tax in the hands of the assessee as income from other sources and accordingly the standard deduction claimed by the asseessee under section 24 was disallowed by him in the assessment completed under sect ion 143(3) vide an order dated 06.07.2010. 3. Against the order passed by the Assessing Officer under section 143(3), an appeal was preferred by the assessee before the ld. CIT(Appeals) challenging the action of the Assessing Officer in bringing to tax the amount in question received from Dishnet Co. Limited under the head "income from house property" and thereby disallowing h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the rental income received by the assessee for terrace as income from other sources. 6. I have considered the rival submissions and also perused the relevant material available on record. It is observed that a similar issue had come up for consideration before the Coordinate Bench of this Tribunal in Delhi in the case of Manpreet Singh (supra) cited by the ld. Counsel for the assessee, wherein the rent received by the assessee for use of terrace by Bharati Airtel Limited and Idea Cellular Limited for installation of Mobile Tower was held to be income chargeable to tax under the head "income from house property" after taking into consideration the decision of the Hon'ble Calcutta High Court in the case of Mukherjee Estate Pvt. Limited (supra), which is relied upon by the Assessing Officer as well the ld. CIT(Appeals) in their respective orders as well as the provision of section 22 of the Act, which have been relied upon by the ld. D.R. at the time of hearing before me in support of the Revenue's case. The relevant observations and the findings recorded by the Tribunal in this context in paragraphs no. 6 to 8 of its order are extracted below: - "6. We find that Section 22 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows: ".......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)". As is clearly discernible from the extracts from the observations of Their Lordships of Hon'ble Calcutta High Court, the rent was taken as rent for hoardings per se rather than rights on the roof where hoardings could be installed or, as the learned CIT(A) puts it, 'fixed'. There was a categorical finding to that effect in the order of the Tribunal as well and this finding remained uncontroverted before Hon'ble Calcutta High Court as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally mentioned that the rent is for use of "roof and terrace" area (not more than 900 sq ft in the case of Bharti Airtel Ltd and approx 800 sq ft in the case of Idea Cellular Limited). The agreement with Bharti Airtel Ltd mentions that the assessee "permits the licences to install, establish, maintain and work on the licenced premises, inter alia, including the following - (a) transmission tower/pole, with multiple antennas; (b) prefabricated equipment shelter; (c) D G Set upto 25 KVA: and (d) two earthing connection and laying of other cables to ground an one lightning arrestor, necessary cabling and connecting to each antenna/ equipment, and space for installation of electricity meter and power connectivity etc". Similarly, agreement with Idea Cellular Ltd, inter alia, states that the assessee gives permission and licence "to use and occupy a portion admeasuring approx. 800 sq ft terrace and roof 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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