TMI Blog2021 (1) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A), therefore, is unsustainable in law. As relying on MANPREET SINGH case [ 2015 (2) TMI 159 - ITAT DELHI] we uphold the plea of the assessee and accordingly direct the assessing officer to treat the amount received by the assessee on account of renting out of terrace to M/s. Reliance Infratel Limited for the purpose of installation of antenna tower as income from house property in terms of the claimed made by the assessee. The assessee gets the relief accordingly. - ITA No. 1661/Mum/2019 - - - Dated:- 4-1-2021 - Pramod Kumar (Vice President) And C.N Prasad (Judicial Member)] Mahendra Gohel for the appellant Bharat Andhle for the respondent ORDER Per Pramod Kumar, VP: 1. By way of this appeal, the assessee appellant has challenged correctness of the order dated 18th January 2019, passed by the Ld. CIT(A)-28, Mumbai in the matter of assessment u/s.143(3) of the Income Tax Act, 1961, for the assessment year 2014-15. 2. The grievances raised by the assessee are as follows. I. COMPUTATION OF INCOME FROM RENTING OF TERRACE UNDER THE HEAD 'INCOME FROM OTHER SOURCES: 1.1 On the facts and in the circumstances of the case and in law, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.4. I find that I cannot bring myself to be in agreement with the arguments advanced by the appellant. This is because it is clear from the facts of the circumstances of the case that the agreements entered into by the appellant is not a Rent Agreement, rather it is a Service Agreement, Equipment Agreement and Maintenance Agreement etc. Therefore, it is clear that the terminology used by the parties to the Agreement [i.e. the appellant and M/s. Reliance Infratel Ltd.], themselves do not recognize that the agreements are entered into with a view to pay and receive the rent. Rather, they are for providing various services such as installation of antennas, their upkeep and maintenance. Therefore, the intent is very much clear which is that the antennas have not been hired but rather services of installation, upkeep and maintenance are being provided for and taken. 6.5. It is also seen that the income from antennas is not in the nature of income arising or accruing to the appellant from house property but rather partakes of the character of income from other sources due to the service aspects of the agreement entered into by the appellant with M/s. Reliance Infratel Ltd. Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us at pages 17 to 35 of the paper book. The Reliance Infratel Limited, as a licensee is under an obligation to install and erect and run the antenna tower and maintain the same. The obligations of the assessee appellant do not extent to any services being rendered in this regard. The learned Departmental Representative, could not also enlighten us about any specific requirements for admission of the kind of services which have been referred by the learned CIT(A) in the Leave Licence Agreement. Under clause 3C of the Leave Licence Agreement, it is provided licensee shall (b)e responsible to obtain all prior approvals from all concerned authorities, as necessary under the relevant laws in force from all authorities concerned, to carry out installation and erection of and to run and maintain the antenna tower and BTS equipment in the semi permanent structure, or the installation thereof, including work of any other nature . Similarly, under clause 3K of the Leave Licence Agreement the assessee shall (a)t its own costs, charges and expenses keep and maintain the Licensed Area in good condition and wind and water tight. the very foundation of the impugned order of the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch as when a query was put to him (i.e. the assessee) whether there was an agreement to this effect to conclude whether the hoarding was let out or the roof is let out , the assessee failed to produce that agreement nor there is (was) any reference to such an agreement before the authorities below . It was in this backdrop that Hon'ble Calcutta High Court concluded as 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant thereto. What is relevant is the space which has been rented out and, therefore, as long as the space, which has been rented out, is part of the building, the rent is required to be treated as income from house property . Learned counsel for the assessee has filed copies of leaves and licence agreements with the Bharti Airtel Limited and the Idea Cellular Limited. In both of these agreements, it is specifically 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) pre-fabricated 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, s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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