TMI Blog2023 (6) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year. Since, undisputedly facts and circumstances of AY 2012-13 2013-14 are identical and similar therefore rule of consistency again supports the claim of assessee that the rental income from amenities has to be treated as income from house property and assessee is eligible for claim of deduction u/s. 24(a) of the Act accordingly ground 2 of assessee is allowed. Disallowance u/s 14A - HELD THAT:- DR did not controvert rather candidly agreed to the submission of ld. AR based on the judgment of ACB India Ltd. [ 2015 (4) TMI 224 - DELHI HIGH COURT] and order of the Special bench of the Tribunal in the case of ACIT vs. Vireet Investment (P.) Ltd. [ 2017 (6) TMI 1124 - ITAT DELHI] that the investment which did not yield any exempt income are not to be considered and only those investment which yield or brought exempt income to the assessee are to be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments and orders of Hon ble Supreme Court High Court and co-ordinate benches of the Tribunal including judgment in the case of Sultan Bros. Pvt. Ltd. vs. CIT 51 ITR 353, judgment of Hon ble Karnataka High Court in the case of CIT vs. Velankani Information Systems P. Ltd. 265 CTR 250 (Kar.) and orders co-ordinate bench of the Tribunal at Allahabad in the case of ITO vs. P.N. Shukla [1985] 14 ITD 105 (All.) and at Hyderabad in the case of DDIT vs. Shri G. Raghuram ITA No. 6/Hyd/2010, submitted that where the assessee made to agreements one for let out of the property and another for providing amenities and there is a doubt in the mind of the assessing officer regarding the correctness of the income declared by the assessee as income from house property and income from business. He has treated the entire income i.e. as income from house property . 5. The ld. Senior DR supported the orders of the authorities below and contended that the principle of res judicata does not apply to the tax proceedings therefore merely because the assessee was allowed claim in AY 2012-13 2013-14 does not automatically make entitle the assessee for the same claim in subsequent AY 2014-15. Dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or use of amenities in the premises, fixing the rent of Rs. 1,60,000/- per month. The amenities forming integral part of the property were mentioned at Annexure-A of the use of amenities agreement. Refer Page 11 of the supplementary Paper-Book, which is reproduced hereunder for ready reference: Annexure 'A' - Agreement for Provision of Amenities dated 9th May, 2011 List of Amenities A- Appliances / Furniture / Fixtures 1. A Modular Kitchen with Hob Electric Chimney; 2. Dual Sink with single drain board and Cabinets; 3. All Bedrooms to have built in Wardrobes and Ceiling Fans; 4. Exhaust Fans in all Toilets and Kitchen; 5. Clothes Dryer; 6. Washing Machine; 7. Storage Water Geysers in all Toilets; 8. Refrigerator cum Freezer; 9. Four Air Conditioners in Living and Dining-Room; B- Amenities 1. Italian Marble flooring throughout the Penthouse; 2. Aluminum Windows; 3. False Ceiling, 4. Arranging for permission for display the company's name in the building directory at the security desk and reception of the said building Ansal Heights . The company's name shall be displayed as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the premises and amenities were inseparable, as one cannot be used without the other, on the ground that the rent agreement in the case of assessee was separate. 7. On being asked by the bench the learned Senior DR in all fairness, submitted that to the best of his knowledge there is no any further action by the department in AY 2012-13 2013-14 on account of claim of assessee allowed by the Assessing Officer and ld. CIT(A) respectively for these years. Further, from the reading of order of the authorities below under challenge, we also note that the Assessing Officer has not controverted that the premises consisting of land building and above noted amenities was rented to Mr. Vikram Kaushik under two separate lease agreements viz one for premises and other for amenities both dated 09.05.2011 and said premises and amenities were in separable and could be used together only by the owner or lessee as the case may be. At this juncture, we find it necessary and appropriate to take respectful cognizance of the judgment of Hon ble High Court of Kerala in the case of Dr. P.A Varhese vs. CIT 80 ITR 180 (Ker.) wherein it was held that under an agreement with export promotion counsel, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven effect. The only bona fide document to be acted upon not otherwise. There is a serious doubt and also it is shocking the conscious of the Bench, whether the assessee is getting hire charges equal to the rental amount for providing amenities. It cannot be real one and assessing officer required to see the actual rental value of the property in that place and bring that amount into tax under the head income from house property. As such, in the present case, the assessing officer came to the correct conclusion that real rental value was bifurcated into two separate income viz., one is rental income of house property and another is hire charges of the equipment. Further, in the case of letting of the machinery, plant or furniture, sec.56(2) (iii) of the Act is applicable, but only letting of building with certain amenities, this provision is not applicable and in that event, the income from letting out was chargeable under the head income from house property . The hire charges said to have been collected for the purpose of providing amenities and the rent for the building not come under the purview of sec.56(2)(iii) of the Act. The word plant cannot be liberally construed so as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom other sources . In the present case, on the facts of the case, it is clear that the assessee as the owner of the building was only exploiting the property as owner by letting out the same and realizing income by way of rent. Such rental income was liable to be assessed under the head income from house property. The various assets let out to the tenants are incidental to letting out the building being integral part of the letting. Accordingly, we reverse the order of the CIT(A) and restore that of the assessing officer. This ground of the revenue is allowed. [Emphasis applied by underlining] 9. It is also pertinent to observed that, we are in complete agreement with the contention of the ld. Senior DR that the principle of res judicata does not apply to the tax proceedings. At the same time we cannot ignore other related principle i.e. rule of consistency which has to be respected by the tax authorities until unless there is any new or different facts and circumstances for different assessment years are discernable. This principle has emerged from the judgment of Hon ble Supreme Court in the case of Radaswami Satsang 193 ITR 321 (SC) wherein their Lordship speaking fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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